Judging Freedom - Nashville school shooting _ Trump grand jury

Episode Date: March 27, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Monday, March 27, 2023. It's about 1.35 in the afternoon here on the east coast of the United States. Here are your hot topics today. A tragic, tragic story, breaking news out of Nashville, Tennessee, where a teenage female shot and killed six people at a private Christian school run by a Presbyterian church, the Covenant School in Nashville, Tennessee. Three students, three faculty or staff murdered by this girl. The girl then got in a shootout with two Nashville police officers who killed her. They don't even know the girl's name yet. She had three long guns and one handgun with her. They don't know if the guns were legal. They don't know her name. They don't know her motivation. They don't know where she

came from. They don't know how she got in the school. Here's the Nashville chief of police just a few minutes ago. The three students who were shot are deceased. Three staff members who were shot are deceased. That's a total of six victims. And then you have the shooter who was engaged by two of our police officers, part of a five-member team, and she is deceased for a total of seven individuals. There are no other gunshot victims, non-lethal, that I am aware of at present. We do not know who she is at this juncture. We're trying to identify her. She does appear to be in her teams, again, with two assault-type rifles and

at least one pistol. And I misspoke when I said that was the police chief. That was the director of public affairs for the police department speaking in behalf of the police chief. Another tragedy, there were no police at the school. We don't know if any of the staff were armed, if any of the faculty were armed. Surely the children were not. These were children, preteen and teenage. More, of course, as we get it on this. We probably will hear soon from the gun control crowd that this is a reason to take guns away from everybody, as if this crazed young woman who did these killings would have obeyed that law. This is a reason to have more guns so that people can be stopped before they kill, since the police, for all of their hard work and heroism, certainly in this case, don't arrive until after the killings have begun. I don't know what the procedure is in this school because it's a private school. They probably have a lot more leeway about carrying guns than public school teachers. We don't know if any of the staff was armed. We

don't know if any of the staff, if they were armed, engaged this young woman. We only know that the police arrived. She kept shooting. She killed the sixth of her victims and that's when she turned her fire on the police and they took her out as they properly ought to have done i'll set it before i'll say it again if the staff had had weapons and had been trained and had courage there would be far fewer than the six uh that were murdered. As I speak, the grand jury in Manhattan, considering an indictment of President Donald Trump, is meeting. Now, this is not a grand jury that meets just for one purpose. So this is a grand jury that generally sits four days a week, three days a week, five, six, seven, eight hours a day, and they hear everything, any kind of case that requires an indictment. An indictment is a piece of paper

on which the grand jury reduces to writing its allegations and which the foreperson of the grand jury and the DA sign it. That's what commences, formally commences the criminal prosecution. This grand jury is not a grand jury just focused on former President Trump. This is the DA's grand jury who hears everything. So from my experience with grand juries, they sit there. Prosecutors make an appointment with the prosecutor who's running the grand jury. When it's the appointed time, the prosecutor handling the case comes in with his two or three witnesses. They state the basics to the grand jury and the grand jury votes right then and there, indictment or not.

It is almost always a vote to indict. In Trump's case, of course, this has been going on for a while, and the grand jury has heard from a variety of witnesses. The grand jury even heard from a witness on behalf of President Trump. This is unheard of and risky for the defendant to do this because you're tipping your hand to the government and showing the government what your defense will be. We know what the defense will be. There are two parts of the defense here. One is that Michael Cohen is a liar and is incredibly unworthy of belief. That will be for Joe Takapina, Trump's lawyer, to develop on cross-examination.

The other argument for defense is that the payment to Stormy Daniels, the porn star, was to save Donald Trump's marriage and not his campaign. That's up to the jury as to whether or not they'll believe that. But those are the two items of defense. Trump himself over the weekend falsely claimed that the DA had dropped the charges against him. We know that that is not the truth. We don't know if the grand jury is indicted. For all we know, they took a vote weeks ago and they haven't announced it yet.

I would think if they took a vote and the vote was to indict, somehow the word would have leaked out and we'd know about it. So last weekend, Trump said, I'm going to be arrested on Tuesday. Tuesday came and went, no arrest. This weekend, he said, I've been cleared. The DA has decided to clear me. There's a letter clearing me. Well, the letter has a surface because it doesn't exist. Now the grand jury is back meeting They could be hearing break-ins and bank robberies and drug distribution cases

Or they could be hearing more witnesses on Trump We'll know when it's announced And as soon as it is announced and the indictment is reduced to writing And I can read it and analyze it You'll hear my analysis. Trump, in my opinion, became his own worst enemy over the weekend. We showed you the picture, but I have to comment on it because it has legs, meaning it was discussed all over the Sunday talk shows yesterday and was discussed again this morning, discussed and disgusting to the defense,

to the point where Joe Tacopina, Joe's defense lawyer, went on national television to address the photo. This is the dual photos of Trump holding a baseball bat next to a photograph of Alvin Bragg, the district attorney. This is, and can easily be interpreted as, a threat to do bodily harm to the district attorney. We know that that's what this is, because Trump's lawyer went on national television, said the president didn't post it, somebody posted it on his behalf, and as soon as we realized it was up there, we took it down. Well, it was up there for a while. It was on the front page of newspapers yesterday, Sunday, typically a big circulation day for newspapers here in the New York metropolitan area. Why is this troublesome for Trump?

This is troublesome for Trump because if he is indicted and when he, if indicted, does appear at an arraignment, that's where the judge says, you are Donald Trump and these are the charges against you. You have to read them and you understand them. How do you plead? It's pretty much a formality. But the next part of an arraignment will not be a formality. And that will be, the judge will say, is there an arrangement for bail? Can you imagine this? And the prosecutors will say, no, there's no arrangement for bail because we think he appointed Trump. We think he should go to jail because he's threatening us. He threatened to hit the DA with a bat. And he's also threatened to

cause death and destruction. His words, not mine. The prosecutors will recount all of this. And Trump's lawyers will have to do their best to neutralize it. Otherwise, the inconceivable would happen, which is that Trump would be arrested after pleading not guilty on the theory that if set free, he would be free to do harm to the prosecution and to the prosecutors. I don't think it's going to go to jail, but you're going to hear that argument made, which is why I say Trump can be his own worst enemy. Posting that picture was reprehensible. I'm sure it caused stomach acid to flow in Joe Takapina's stomach. I know Joe very well. I know how he thinks. I also know what it's like to be in a courtroom when something like this happens. There was no

reason for Trump to post those pictures. It does him no good legally. I don't even think it does him any good politically. He should respect the system that he's sworn to uphold. Meanwhile, Republicans in Congress are threatening to subpoena the records of the prosecutors. They want to see if there's something in those records that show a political prosecution. Well, guess what? They can't subpoena those records. These are records of law enforcement in an active, ongoing criminal investigation, and they're not subject to subpoena. And the Republicans should stay the heck out of this. This is the sovereign state of New York conducting a prosecution. If the Republican House can do this to a Democratic prosecutor, then the Democratic House can do this to a Republican prosecutor, and then all these prosecutions will have the earmarks of being political. Should the prosecutor take into account that Donald Trump is the former president of the United States before deciding to prosecute him? Should the prosecutor take into account the likely political repercussions to filing an indictment for him?

The answer, in my view, is no. Either we have the rule of law or we don't. Look, you guys know me. In my view, the overwhelming majority of criminal laws in this country are immoral and unconstitutional because they used corporate funds to pay for political campaigns, corporate funds, which are booked as a legitimate corporate expense. Nobody pays income tax on. So when Michael Cohen paid $130,000 of his own dollars to get a silence agreement from Stormy Daniels for then Mr. Donald Trump three weeks before election day in October of 2016. This is the campaign against Mrs. Clinton. That was a perfectly lawful and normal legal act. The problem came in reimbursing him. When it came time to reimburse him, he got 13 checks for $10,000 apiece, one each month. If Donald Trump had reimbursed him out of his own personal funds and booked those funds as

a donation to the campaign, since you can donate all of your own money that you want to a federal campaign, there would have been no crime. But when Trump used corporate funds to reimburse Cohen for this campaign expense, as Cohen says Trump did, that's the crime. Congress has made it a crime to use corporate funds for political campaigns. The other way to look at this is it wasn't for the campaign. It was to save Trump's marriage. It was to keep Melania Trump from knowing about this. Now it turns out she knew about it anyway. That is a defense in the criminal case, and that is something that the grand jury may or may not take up. Remember, the grand jury does not have to take up defenses. The grand jury only has to be shown enough evidence to indict. On the other hand, the prosecutors need to know what the defenses are because prosecutors don't want to get an indictment if probable cause, about 51% on a scale of 0 to 100.

And the standard for conviction is proof beyond a reasonable doubt and to a moral certainty, about 99%. The prosecutors need to know that they can reach that 99% before they get the indictment. They can't get an indictment on a case that they don't think they can prove. Can they prove a case against Donald Trump? Well, when Michael Cohen pleaded guilty to arranging this thing and a federal judge accepted it as a crime, this was done for campaign purposes, I accept your testimony. Michael Cohen, as happens in criminal cases where the defendant pleads guilty, the defendant is put under oath and effectively testifies against himself. He waives all of his rights because he's entering

into a deal with the government. So when Michael Cohen was credible enough to testify against himself that he orchestrated this payment out of his own funds to Stormy Daniels and then was reimbursed corporate funds. That's the crime. A federal judge accepted it and said, well, there's an unindicted co-conspirator here and he's in the White House. And he was. They couldn't charge Donald Trump with being involved in this conspiracy because you don't charge presidents while they're sitting presidents. And he was a sitting president. Michael Cohen was sentenced to three years in jail. When he got out of jail a little early because of COVID and Donald Trump left the White House, the feds called Cohen in and said, look, we just prosecuted you. Now we want to interview you to see if we want you to testify against the former president.

They spent hours interviewing him and then decided he was not credible. Go figure. The same prosecutors who said he's credible enough to testify against himself and credible enough to tell a federal judge about this scheme to use corporate funds for a political campaign, but he's not credible enough to go before a grand jury and testify against Donald Trump and then go before a trial jury and testify against him. Yes, that's what these federal prosecutors decided. While that was happening, Alvin Bragg got elected DA in New York. He picked up an investigation that had been started by his predecessor, Cy Vance, looked at it and said, I'm not going here. My job is to keep the

streets clean. This is a little too political for me. Then he was persuaded to interview Michael Cohen. He didn't interview him. He interrogated him. They interrogated him or interviewed him, whatever you want to call it, 21 times. Some of these were mock cross-examinations. And then they decided, this is the DA in Manhattan now, not the federal prosecutors, that he is credible, that he is worthy of belief, that he should be sent to testify before a grand jury, and he'll be the government's chief witness against Trump if the grand jury indicts. That's where we are today. Unless the indictment has come down since I went on air, and it hasn't.

Unless the indictment has come down since I went on air, it still hasn't been indicted. Normally, all this indictment stuff, all these grand jury meetings are really held in secret. And you never know when the indictment is going to come. But because it's Trump, because there are obviously some people in that courthouse that are leaking information either to the press or to Trump's people. And if the information is helpful to him, he makes sure we all know about it. We're getting more information about where's the grand jury and when are they meeting and when are they voting and what other cases are they hearing? We're getting more of that than we normally do. But as soon as we learn that there is a no bill, meaning no indictment, or that there is an indictment, and I think it's more likely than not, there will be an indictment. As soon as we learn about it, and as soon as I can

read the indictment, particularly if it includes a count of threatening the DA with a bat, whatever it is, I will read it and analyze it and come right to this camera and explain it for you. Okay, well, all this is going on in lower Manhattan. Political crisis is going on in Tel Aviv and in Jerusalem, where Israel today has effectively been shut down by a massive strike. And the strike is because the Israeli government of Prime Minister Benjamin Netanyahu is attempting to change the judiciary in Israel so that the legislature, the parliament called the Knesset, can overrule the courts. Well, in Western democracy, the courts have the final

say in what the constitution means and what the laws mean. Israel has no written constitution, just like Great Britain. It has a tradition that the courts follow, but no written constitution like we do in the United States. But that unwritten constitution, that democratic tradition in Israel, just like our written constitution and the tradition here, permits the courts to invalidate what the government has done if it violates a fundamental liberty or if it violates the rule of law. Along comes Benjamin Netanyahu, who's been indicted, talk about indictments, on three charges and is on trial on two of them. And he wants to change the law so that the parliament, which his coalition of political parties controls, can overrule the courts. Tell

me that's not a little fishy. Wait a minute, you're a criminal defendant in three cases, you're the head of the government, and you want your government to be able to overrule what the courts do? Suppose you're convicted. Can the government overrule it just because you're the prime minister? To Bibi Netanyahu, yes. Okay. The strikes were massive. They even reached the military. On Saturday night, the defense minister said, we can't go on like this. It's affecting national security. The special forces don't want to come to work. The fighter pilots don't want to come to work. The reservists don't want to come to work. We need these people at work. We're surrounded by countries that want to destroy us. Whatever you think of the politics there, countries that want to destroy us, that's the argument that he made. The Minister of Defense was in the same party as Bibi Netanyahu. I say was because yesterday, Sunday, Netanyahu fired him as minister of defense. Today, the country was shut down.

So just an hour ago, Prime Minister Netanyahu said, we'll hold off on this legislation for a month. It's obvious that it's very unpopular. This is after he said last night, stop demonstrating, behave like adults. This legislation is in the best interest of everybody, and we're going to pass it. Now he and his coalition partners have seen what they're doing to the country. It wouldn't be a democracy if the legislature can control the courts and if the legislature can decide what its own laws mean.

It is institutionally and fundamentally the job of the courts to say what the law means. And the whole purpose of an independent judicial system is not to further democracy. It's to further human rights. It's to keep the legislature from trampling the lives, the liberties, and the properties of people by violating the rule of law as legislatures, whether it's the Knesset or the American Congress or the British Parliament can do all the time. We will follow this one for you as well. And one of these days, I will tell you a funny story involving Benjamin Netanyahu, Michael Jackson, and me. Ha! More as we get it. Judge Napolitano for judging freedom.