Judging Freedom - Trump Arrest_ _ Oath Keepers convicted _ Russia intercepts U.S. Jets _ NY Lowers Learning Standards

Episode Date: March 21, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, March 21st, 2023. It's about 11.05 in the morning here on the east coast of the United States. The indictment of former President Donald Trump appears imminent. It doesn't appear as though it will happen today. A bit of a false start by his suggesting that he would be arrested today. At the time he made this suggestion, it was rational to conclude that he would be arrested today, but it now appears that that won't happen until the grand jury votes an indictment. And they're apparently not doing it today.

I guess they're doing other things or they're off today or they're hearing more testimony. They did hear some testimony yesterday. It's very, very unusual. The prosecutors running this grand jury. Remember what a grand jury is. 23 citizens meeting in secret. There's no judge there. There's no defense lawyer there. The defendant is not there. There is no defendant yet. No one's been charged. It's just the prosecutor and whoever's testifying at the time

and the prosecutor's illicit testimony or evidence. It could be documents as well as verbal testimony for the grand jury. And then the prosecutors ask the grand jury to indict. If they say yes, they draw up the indictment. Grand jury reads it and it votes yes or no. They almost always vote yes. A good prosecutor knows how to control a grand jury. A famous one-liner involving a very famous former judge from New York, is that a grand jury would indict a ham sandwich if the prosecutor asked it to, and that is almost literally true. The reason for the secrecy, this doesn't apply in the case of someone as well known as Donald Trump, but the reason for the secrecy is to protect the reputation of those investigated but not indicted. The system is 600

years old, so it's been used in the United States for 230 years. It was used in Great Britain for 400 years before that and is still used in Great Britain. One of the advantages to the defendant in the case of an indictment is there is a record of what the witnesses told the grand jury. So if a witness were to tell a trial jury, we're now months later at the actual trial after the defendant has been indicted, if the witness were to tell the trial jury something different from what the witness told the grand jury, that would be a means to impeach the witness. different from what the witness told the grand jury, that would be a means to impeach the witness. Wait a minute. You said the light was green. You remember testifying before the grand jury? Yeah. Do you remember going before 23 people?

I do. Do you remember telling them the light was red? No, I never said that. Let me show you your testimony. So you have a script of what to expect from the government, and that script is in the form of the Q&A that occurred at the grand jury. Now, you don't get that script until the last minute, until right before that witness testifies, usually in most states the day before, so you have some time to review it. If it's many, many hundreds of pages, it'll be a few days before. But when that witness is going to testify, the defense lawyers get the script. So for that reason, defense lawyers don't put their own witnesses on before a grand jury, also because they can't be in the grand jury room. But yesterday, that basic rule, no defense witnesses before a grand jury, the Q&A is a roadmap of what they're going to say at the jury trial. When defense witnesses testify before the grand

jury, the Q&A is a roadmap of what that defense witness will say at the jury trial. And while the government is required to tell defendants what the government's witnesses are going to say, the defendants are not required to tell the government what their witnesses are going to say. There's some exceptions to that involving technical expert witnesses, but none of them applies here. The reason I give you this background is because yesterday, a lawyer by the name of Bob Costello, a very well-respected, highly regarded New York City white-collar criminal defense lawyer that many of us in this business know and respect, testified in behalf of Donald Trump at the grand jury. And the essence of his testimony was, I know Michael Cohen, that's Trump's former lawyer, who's the government's principal witness against him, and he's unworthy of belief. Now, even though grand juries meet in

secret, and even though it's illegal for grand jurors to reveal publicly what they heard, for lawyers or clerks or law clerks or stenographers who might be in the room to reveal what they heard. It is not unlawful for witnesses to reveal what they said and what they heard. So after Mr. Costello told the grand jury yesterday, don't believe anything Michael Cohen says, he's a liar. He came out and he spoke to the press. Here's what he said. Michael Cohen told us that he was approached by Stormy Daniels' lawyer and Stormy Daniels had negative information that she wanted to put in a lawsuit against Trump. So Michael Cohen decided on his own,

that's what he told us, on his own to see if he could take care of this. So he sat with the lawyer for Stormy Daniels. They negotiated a nondisclosure agreement for $130,000. He went to jail, and now he's on the revenge tour. If they want to go after Donald Trump and they have solid evidence, so be it. But Michael Cohn is far from solid evidence. I got my point across, although it was clear to me that the Manhattan DA's office did not want to get to the truth. I don't represent Donald Trump, but I do stand for justice, and I think I have a legal obligation to inform both sides. Again, this is highly unusual

and, in my opinion, detrimental to the defense because if Mr. Costello does testify, and I got to tell you, I've testified, lawyers hate being witnesses. Hate being witnesses. They're accustomed to controlling the examination, not being the target of it, be that as it may. If Donald Trump is indicted, and I think he will be, whether it's just or not is another question. And if he has tried, and I think he will be. Whether it's just or not is another question. And if he has tried, and I think he will be, and if it is a fair trial, and if Mr. Costello does testify on his behalf, guess what? The government has a roadmap of what he's going to say, because Trump's lawyers, in my opinion, made the strategic error of putting him on the stand yesterday. I don't think anything he would say to them

will deter the grand jury from indicting Trump. The reason I feel that way is because the prosecutors had Michael Cohen in a room right outside the grand jury, ready to go back on the stand and refute what Bob Costello said about him, they decided, forget about it. Whatever he said was harmless to our case. The reason Mr. Costello said Michael Cohen did this on his own, it's an unusual case. Remember, Stormy Daniels was paid the proceeds of a home equity loan that Michael Cohen took out on his own apartment in New York, wired the funds to a shell corporation that he set up in Delaware, a corporation that just exists just for the purpose of transferring funds, transferred the funds from the Delaware Corporation to her lawyer, Stormy Daniels' lawyer in California. He took his fee and gave the rest

to Stormy Daniels. That was the agreement. Stormy Daniels signed lawyer in California. He took his fee and gave the rest to Stormy Daniels. That was the agreement. Stormy Daniels signed that agreement, can't make this up, on the trunk of an automobile outside a warehouse in Calabasas, California, where she was directing the production of pornography in a studio inside the warehouse. She signed it under an assumed name, Peggy Peterson. Donald Trump's documents were signed in his behalf by Michael Cohen, also under an assumed name, James Denison. Can't make this up. If Michael Cohen did this out of the goodness of his heart, as Bob Costello says Michael Cohen once told him he did, if he did this because he loved and wanted to help his billionaire boss, and so

he took a home equity loan out on his own home to save the billionaire boss's marriage or to save the billionaire boss's campaign for president, why did Donald Trump reimburse him? How did Donald Trump reimburse him? That's the issue. Cohen was reimbursed $10,000 a month for 13 months. There's $130,000 by the Trump organization, which, it is a misdemeanor, a low-level crime, one for which the maximum penalty in jail does not exceed a year, one ordinarily redressed by a guilty plea and the payment of a fine and the correction of the books. But in New York, it is a misdemeanor to record a corporate expenditure erroneously or deceptively. It becomes a felony. Now we're talking serious stuff. If that misdemeanor was committed to hide a felony, what would the felony be? The use of corporate funds from the Trump organization to pay a campaign debt, a campaign obligation, silencing Stormy Daniels. Why was it a campaign obligation? This all happened the last two weeks of October 2016 when Trump was running against

Hillary Clinton. This all happened two weeks after the Access Hollywood tapes came out. This all happened when Donald Trump thought, we all thought, turned out it wasn't true, but we all thought he was on the ropes and Mrs. Clinton was going to clobber him. The last thing in the world the campaign wanted was for Stormy Daniels to hold a press conference saying, I was a porn star. I had sex with Donald Trump. He didn't pay me money, but he promised to get me on a show. He never got me on a show. She never said that publicly because she accepted the $130,000.

So the issue comes down to, sounds a little tawdry, but this is what a jury is going to have to decide. That $130,000 paid by Michael Cohen through the circuitous route to Stormy Daniels of his own funds reimbursed by the Trump Organization. Was that to save Donald Trump's marriage to Mrs. Trump? Or was it to save Donald Trump's campaign against Mrs. Clinton? If the former, no felony, just a misdemeanor of improperly keeping the books. If the latter, a serious felony for which people have been sent to jail. Michael Cohen himself went to jail for constructing this scheme in which a federal judge found that it was a conspiracy to subvert federal election laws by using corporate funds and disguising them. And then the federal judge famously looked up from some papers and said, oh, by the way, this conspiracy was orchestrated by an unindicted co-conspirator who just happens to be,

at the time he said this, the president of the United States. Okay. While we're talking about jury trials, yesterday, four oath keepers were convicted in one of the January 6th conspiracy cases. I've been rail January 6th conspiracy cases. I've been railing against these conspiracy trials. Look, if somebody broke into the Capitol, somebody didn't leave an area that wasn't open to the public, somebody walked into Mrs. Pelosi's office and put their feet on her desk and took the podium,

somebody with colleagues prevented the House and the Senate from meeting, those are crimes, even if done for political purposes. But if somebody who never entered the Capitol building talked with other people about attempts to overthrow the government of the United States and didn't do anything about it, that's just a thought crime. The great lawyer Clarence Darrow, I. The great lawyer, Clarence Darrow. I'm reading a lot on Clarence Darrow these days because I'm about to do a one-man show off-Broadway called Clarence Darrow Tonight,

which is me as Clarence Darrow recounting some of his more famous cross-examinations. In one of those scenes, Clarence Darrow says, and the statement was made 120 years ago, you'll know that because of the value of money, if a boy steals a dime, he's not going to go to jail. If two boys agree to steal a dime but don't steal it, they're going to go to jail. That's what happens in these conspiracy cases. Incite a riot,

you probably would go to jail. Agree to incite a riot and then don't incite it, the government's going to prosecute you anyway. That's what happened with these Oath Keepers yesterday. That's what's going on with the Proud Boys as we speak. These are thought crimes where the defendants have not harmed a hair on the head of anyone. They are thought crimes. Ah, but because these defendants are conservative Republicans, of which I'm not one, I'm a libertarian, it doesn't matter. But because these defendants are conservative Republicans who wanted Trump in the White House, who hate Joe Biden and hate the administration. The present administration is prosecuting them with zeal. My friends, there are no crimes prosecuted more zealously than those in which the government portrays itself

as the victim. And governments love conspiracies. Justice Robert Jackson, a former Attorney General under Franklin Delano Roosevelt, called conspiracies the garden of the prosecutor's favorite, because they are the easiest to prove since you don't have to show that anybody was harmed. Yesterday, over the Baltic Sea, that's the same place where an American drone was spying on Russian troops in Crimea and was harassed by a Russian fighter. So yesterday, over the Baltic Sea, a landlocked sea surrounded by Russia and Ukraine and Moldova and a few other Eastern European countries, a Russian fighter jet was confronted by two American nuclear bombers. Now, these are large American aircraft capable of carrying nuclear weapons. They didn't have them. God forbid we ever use nuclear weapons. If we do, they'll come from missiles. They won't come from planes,

but these planes were capable of carrying, but were not carrying nuclear weapons. Why do I point this out? Well, there's tape of it. You might see the tape on Fox News or CNN tonight. It's really uneventful. All you see is through a peephole, you see a magnificent jet flying blue skies, sunny, because they're above the clouds. You don't actually see the confrontation. What the hell are we doing there? Well, we do the same harassment of Russian jets, the same threats to Russian territorial sovereignty that the Chinese do with us with drones and balloons, and that the Russians do as well. It's a game that all sides play. For the United States to feign moral superiority is simply treating us as if we were children. We all know that the government does this. The government does it all the time. The government does it because it wants to show that it's the king of the hill,

that it's the bully on the block, and don't come near us. The Russians have the right to say, no, you're not. You are within a few miles of Russian territory, just as we would do if their fighter jets were a few miles off Long Island or Long Beach, California or Honolulu, Hawaii, or where Russia is just a few miles from the United States, Juneau, Alaska. Okay, this one you're not going to believe. This is like moving the goalposts closer to the 50-yard line because the quarterback's arm can't throw the ball far enough. New York State Regents have decided to change the scores for math and English and lower what is now the new normal because New York City students have been doing so poorly. So I don't have the exact numbers, but if, for example, 80 was the new normal, now 75 is because the average student just can't seem to reach 80. Why is that?

It's all post-COVID. It's all because when the schools were shut down and the kids were supposedly learning at home, they weren't learning at home at all. And now all of that is coming home to roost. So you're a junior in a high school in New York City during COVID. You had a very deficient year. It comes time for you to take your regents exams. These are exams administered to every student in every high school in New York before you can graduate. Or you want to take entrance exams to go to Princeton or the State University of New York at New Paltz or any college or university, you have a year and a half of very, very weak teaching because of this horrible experiment of keeping students at home and trying to get them to learn through Zoom and other websites and other linkages on the computer. You're not going to get into Princeton. You may not even get into

State University of New York at New Paltz. Ah, but you'll graduate. You might not have made what the standards were for dozens and dozens of years, but the geniuses who run the New York State school system have decided to lower those standards, not teach you better, not make up for the deficient education that the taxpayers have paid for, but that your children didn't get, but lower the standards so the government can say, ah, you passed, move on to the next phase of your life. It's not going to be Princeton. It's not going to be the State University of New York at New Paltz. It's going to be the streets. You can graduate. We made it easier. We covered for what we did to you. Almost irreparable harm at that point in your life, 15, 16, 17, where your brain can soak up knowledge and is yearning for knowledge. And the government, which continued to tax you to pay for its schools, did not deliver the goods.

I've argued many times. You guys have all heard me say it, government schools are a scam. They shouldn't exist at all. They exist for the purpose of indoctrination. They take money away from taxpayers, and so the schools have guaranteed income, tax dollars, guaranteed clients guaranteed clients students next to no competition because the private schools and the and the catholic schools and the jewish schools and the muslim schools require payment on top of the uh of the tax dollars you pay for a private school even though you're still paying your taxes for a public school that your children are not using. Okay, you get the point. But without government schools, their cost would go way down. They would compete for your dollars. You want to go to Princeton? You go to this

public school. This private school wouldn't be government. And it would be cheaper because there's so much competition. You want to become an airplane mechanic? Go to that school. Want to be a baseball player? Go to that school. Want to be a dancer? Want to own a restaurant? Want to be a scholar? You'd go to the school tailored for your children's needs and they would compete with each other. And what happens when there's competition? The quality goes up and the cost goes down. Forget about it in America. Since the days of Woodrow Wilson, another one of his monstrosities, he gave us World War I. He gave us the Federal Reserve. He gave us the federal income tax.

He stripped away the powers of the states to send senators to the Senate. He also gave us government schools. Don't call them government schools, Judge. That's too libertarian. They're public schools. They're government schools and Don't call them government schools, Judge. That's too libertarian. They're public schools. They're government schools and they stink. And now we know. More as we get it. Probably some more later today on Trump and the indictment. Colonel Douglas McGregor, well, the great Ray Governe, the CIA renegade in just a couple of minutes at 1130 Eastern, and the great Colonel McGregor in just a few hours at three o'clock Eastern. You like this?

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