Judging Freedom - Trump case and Subway chokehold case w_ Arthur Aidala Esq

Episode Date: June 16, 2023

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Resolve to earn your degree in the new year in the Bay with WGU. WGU is an online accredited university that specializes in personalized learning. With courses available 24-7 and monthly start dates, you can earn your degree on your schedule. You may even be able to graduate sooner than you think by demonstrating mastery of the material you know. Make 2025 the year you focus on your future. Learn more at wgu.edu. Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Friday, June 16th, 2023. It's about 345 in the afternoon here on the East Coast of the United States. Coming up, Arthur Idalla, one of my favorite and truly one of the best New York City criminal defense lawyers.

How solid is the indictment of Donald Trump? And how do you defend this young Marine accused of homicide by choking to death a crazy person on the subway. But first this. When it comes to carrying valuables or even firearms in your vehicle, most people feel they have to choose between safety and convenience. A vehicle break-in occurs every 36 seconds in America. Give dad the perfect Father's Day gift this year. The Headrest Safe. The Headrest Safe gives you the power to store cash, jewelry, medication, and yes, even your concealed carry firearm. You'll never have to worry about taking your valuables with you again. Keep them safe with the Headrest Safe.

Use promo code JUDGENAP and enjoy $50 off for a limited time at theheadrestsafe.com. Arthur, always a pleasure. Welcome back to the show. Our friend and colleague, Professor Alan Dershowitz, had a fascinating piece in the Wall Street Journal the day after, or two days after the indictment of former President Trump came out, Professor Dershowitz, of course, was one of his lawyers in the first impeachment and made the most significant constitutional arguments, in my view, on the floor of the Senate. He was surprised at the gravity of the indictment and the soundness of the evidence against the former president in there. I agree with him. How do you feel? It's hard not to agree with him. I mean, that indictment, unlike the Manhattan indictment,

the state court indictment, which, you know, my law partners here are retired judges. One of them, Judge Barry Cummins, is a known legal. And he practiced primarily in state court. When the Manhattan indictment came down, he was there on his desk with law books trying to figure it out. This is a guy who's read thousands of indictments. They were using federal law to try to make a state case. It was ridiculous. This federal case is very, very different. It's not a complicated case.

I mean, it's a, you know, did you have the documents? Didn't you have the documents? Were you asked to give the documents back? Did you give them back? All of them? Some of them? None of them? Did you lie about it? Did you ask others to lie about it? I mean, it's not a very complicated case to prove. I will say this, Judge, I have never seen an indictment, state or federal, with photographs in it. This prosecutor wanted to let the world know that Donald Trump swore to us that he did his due diligence, that there was no more documents, and then when we went in with the search warrant, they were right there. Of course, you know, I think what they're trying to do is show that if Trump is going to say, well, I told someone else to look for it,

someone else did it, and they were really hidden in some closet somewhere, that that's not going to stand up because these were like basically in plain view. So this is a real case. I have been criticized because I haven't been loud and clear enough, apparently, in other media appearances that saying it's a political case. Certain things I think are obvious. Of course, this is a political case. I mean, if it's political, that's not a defense. And the judge, even though he appointed her, is not going to allow an argument like that. How do you feel for the lawyers?

So Trump lies to lawyer A. I don't have the documents. They're not here. We surrendered everything. He instructs lawyer B to certify to the feds under oath that they don't have any more documents. And that breaks the attorney client privilege because they found that the client used legal advice from the lawyer to perpetrate a fraud on the FBI and to commit a crime of perjury. How the heck do you feel for those lawyers that got themselves in that mess? Well, I feel horrible for them, number one. piercing that veil of the attorney-client privilege is always something that I really get nervous about because a client has to feel that they can tell their attorney anything. And any time a case of this magnitude that it's so public that there are exceptions to that rule,

and there are many exceptions to that rule. You know, in the Harvey Weinstein case, we had to do a whole hearing about what was privilege from his prior lawyers and what wasn't privilege from his prior lawyers. So from the point of view of lawyering, I hate the fact that the attorney client privilege basically has gone out the window here, even if it is accurate or it's appropriate. But from the lawyer's point of view, look, Judge, I'm always honest with you. I was called by people from the Trump team in October to try the first case, the corporate case. And I couldn't say no fast enough. And it had nothing to do by the feeling, oh, you're afraid of getting a bad reputation for I represented some really bad dudes. I mean, people who are not exactly very popular. That's not it.

Everyone's entitled to a defense. It's that, number one, I need a client who is going to listen to me on civil matters. I have both Rudy Giuliani as my client and Alan Dershowitz as my client. As much as they are legal, you know, eagles, so to speak, and that may be an understatement, when we sit down and we debate things, they give up. If I'm right, they'll relate. Look, we both know Donald Trump. I've known him for 37 years.

And we both know that he does not take legal advice. And we both know that he does not take legal advice, and we both know that he uses lawyers as instruments. And in my piece this week, the case against Donald Trump, which is now everywhere, I start out by saying it gives me no joy to write about the prosecution of someone I've known for 37 years, but he is his own worst enemy in large measure. No doubt. He believes he knows more about the law

than the lawyers do. Judge, here's what I don't understand. Why? You know they don't have to prove why, but when he's running for the presidency, he's got a great shot at winning. There are these boxes there. They want

him back. Why not just give them all back? You know, I don't know why. Daniel Ellsberg, who died just a few hours ago, Bradley Manning, Edward Snowden, the guy that's in London now escaping me, all revealed this stuff, Julian Assange, for ideological reasons. They believe the American public has the right to know about what the government was lying about. I get it. That's an argument.

Why Trump kept this stuff? Anderson Cooper asked Chris Christie why. Christie, of course, is on a jihad against Trump. And Chris said, I think he honestly believes, Trump, that he won the election against Joe Biden. He can't accept the fact that Biden is still president. He wants to surround himself with as many of the trappings of office as he can. Is he going to sell it to the Saudis? Absolutely not. That's nonsense. And the feds know that. But will he show it to people and boast to them? The feds have him on tape showing to people an American military plan to invade Iran.

What? You know, there is, in terms of the political aspect of this, the prosecutor here, who actually comes out of the Brooklyn office that I practice in on a regular basis, did something very unique. At the arraignment, they asked for nothing. They asked for no restrictions, no bail, no bond, no travel. They asked for nothing, not even that he couldn't speak to his co-defendant. The judge volunteered this on his own. The judge started inserting their own, kind of his own restrictions. I think that speaks volumes to how secure they are in their position with the evidence against them, against Donald Trump, that they don't need to play games. They

don't need to go down any rabbit holes. They don't need to start fights that they don't need to start. It's also interesting that they didn't charge Trump with this one crime that's on the books, but it's being debated about the constitutionality of it. That if you're caught with certain government documents and you're found guilty, it prevents you from holding any elected office. They did not charge him with that. So they're trying to make it seem like we're not going to get in the way of him running for president of the United States. This is the easy, as you said at the outset of this interview, so right on the mark, my dear friend, this is the easy and clear case against him. They are about to indict him for January 6th, in which they'll say he

fomented an insurrection, and if he's convicted under the 14th Amendment, he's disqualified from office. So I think that's coming down the road, and I think it's coming soon. I want to switch to another case, another indictment that came down this week, and that's the indictment of Daniel Penny. Daniel is the ex-Marine, now a college student. He looks like he should be on the front page of Gentleman's Quarterly, who is charged with homicide, with criminally negligent homicide, in connection with his encounter with an apparently deranged homeless person on New York City subway. We're going to show the clip. It's a little difficult to watch. It's only 12 seconds long. And then we're going to show you Penny defending himself. Then we're going to take a break. And then I'm going to ask you, Arthur, would you put your client in front of

a video camera and send it out to all the news media and for the prosecutors to see? But first, the tape of the encounter on the floor of a New York City subway car. Watch this. Penny, of course, is on the bottom. The guy who eventually dies is the one around whose neck is Penny's arm. And you can see that there are other subway riders who are assisting in the restraint. before you comment, is Daniel Penny himself saying why he did this. This is a tape made by his lawyers in the lawyer's office, which they distributed to everybody in the media before the indictment. A man came on, stumbled on. He appeared to be on drugs.

The doors closed, and he ripped his jacket off and threw it at the people sitting down to my left. I was listening to music at the time, and he was yelling, so I took my headphones out to hear what he was yelling. And the three main threats that he repeated over and over was, I'm going to kill you, I'm prepared to go to jail for life, and I'm willing to die. I was scared for myself, but I looked around. I saw women and children. He was yelling in their faces, saying these threats. I couldn't just sit still. When we come back, Arthur Idalla on, would you let your client make a statement like that? We'll be back right after this. You want to feel safe in your vehicle. And for you, that means easy, rapid access to your firearm. But safety also means your items don't fall into the wrong hands. You don't have to choose between safety and convenience.

The Headrest Safe keeps your firearm where you can access it, and no one else can. Just order your Headrest Safe, install it yourself when it arrives, and enjoy peace of mind. It starts at theheadrestsafe.com. We all know that the default position, if you will, is not to have your client speak at all to the grand jury, to the public. What did you think about making a videotape like that? Now, this videotape was made before the grand jury indicted. I'm going to guess the grand jury saw it. Well, that's, I mean, look, it was the way, it was the way for him to testify without testifying, right? I mean, and it was everywhere. The video was like, I believe it was a picture of him on the cover of the post. And then, you know, you get online, you can hit the link and you can see the whole thing. Anytime, Judge, we comment on these cases, being a lawyer who practices on a

regular basis, who like we know things that other people don't know. And that's why I really try not to criticize lawyers in the middle of trial. I mean, the best example was Jose Baez. I was on Fox all the time and everyone was calling him a moron, an idiot, a jerk when he was doing Casey Anthony. And I didn't say that because there are decisions you make that you know that others don't know. And Jose Baez didn't come across as a real jerk when the verdict came in. So here, I mean, I know the lawyers, Tom Kniff and Stephen Razor, they work very hard. They're excellent lawyers, both of them. They basically didn't want their client to get cross-examined, knowing that there's a high likelihood you're going to go.

He's going to get indicted and he's going to have to testify at the trial. So why should they expose him to cross-examination twice? Let the grand jurors hear what he had to say. And look, maybe it would have worked or maybe it backfired. Maybe the grand jurors were ticked off that he didn't come in and face the music and tell them maybe if he did come in and they saw him and they smelled his breath and they felt his aura, maybe it would have been a different outcome. But you don't know exactly why Tom and Steve decided we're not going to put him in. We're going to make him make a statement. And look, you know that that is not typical. Right. They thought a little bit outside the box.

It's very, very, very, very, very atypical. And my entire career only had a client and it worked testified before the grand jury once. And they decided not to indict. But that is so, so risky. Have you ever done that? Most lawyers have never done that. No, I have. I've gotten I think I think I've done it five times, but three times the grand jury.

We call it blew it out. Blew it. They did not indict. But you have to be, you know, your client has to be a special client. Now, this guy seemed like he could handle it. You know, you said the cover of GQ, I think more like Surfer's Magazine. You're just envious of his hair. No, I'm not.

I take too much time in the morning. As Justice Scalia told me once, Judge, as we were in a bathroom and he takes out his comb and he's combing his hair. And I said to him, I go, Judge, how do you got all this hair? I got nothing. He goes, listen, Arthur, we're each allotted a certain amount of hormones. If I choose to waste mine on hair, that sounds like it's my problem. That's a very Scalia-esque problem. And Gary, you can play the video of the encounter on the floor of the subway once or twice while Arthur and I are having the next phase of this conversation. I mean, New York State has the duty to retreat, not in your home, but obviously in a public place.

How do they overcome the duty to retreat? This kid didn't have a gun. He didn't have a knife. It's just words. You can leave the subway car by two doors while it's going. You can get out of the way. You can take women and children with you. Instead, he chooses to do this, and the state will say he did it for too long and applied too much pressure and the guy died. Now, I know the defense lawyers are going to say died by some other means, but what about the duty to retreat? Well, listen, that's the prosecutor's argument, is that if the Marine wanted to be a Marine, he could have just scooped everyone up and pushed them out of the way and got into the, as you said, one of the doors,

hopefully was open and go into the next car. It's going to depend. We don't know what other witnesses they have. It's going to depend on what, you know, he says in his, in his statement there, Penny, you know, there was a woman there with a kid, you know, if that woman says, well, this guy was three feet away from my face and I thought he was going to punch me, cut me. You know, it's really going to be very fact specific.

And that goes back to why probably Penny didn't they didn't have him testify because they want to keep that powder dry for the actual trial and not not subject him to any inconsistencies between his grand jury testimony and his trial testimony. The self-defense is two prongs. It's the objective test and the subjective test. Did Penny feel fearful of his life? Now, this guy was big. Penny's statement, he said he was bigger than him. The deceased was bigger than the defendant. He said at least two inches taller. And that plays into it. In other words, is it reasonable for a trained Marine to be nervous about this person causing him great harm? And so that's the subjective test.

The objective test is would someone in Penny's position feel the same amount of fear? And look, Judge, just by the GoFundMe account that went up, we know how the public feels. I mean, he's at, I think, $3 million. That's an enormous amount of money. So the public feels like, hey, if a guy comes on the train throwing clothes around, throwing garbage around, saying, I'm ready to spend the rest of my life in jail. I want to kill somebody. When do you decide you're going to act or react? Here's a curveball.

What would New York State Supreme say about jury nullification? Oh, I did that once. I represented a young woman who was sexually abused by her father from the age of three to the age of 18. And then she saw and then she left him. And then she happened to be visiting her sister and she saw her father there grooming her five-year-old niece. She met up with him. She pepper sprayed him, handcuffed him and cut off his weapon of mass destruction. And it caused but she gagged him because he was screaming and he choked to death.

And she testified. She admitted to every element of the crime. She absolutely was guilty of manslaughter in the first degree at the very least. And the jury found her guilty of the least, the crimrimnag, based purely on jury nullification, because this guy, the prosecutor agreed that the guy was sexually molesting her. The whole argument is, ladies and gentlemen, even though he's a justice of the Supreme Court, you determine what justice is here. Can you in New York State Supreme, the state trial court in New York, make the jury nullification argument, which essentially is the state shouldn't have, for public policy reasons, should not be prosecuting my client.

Never mind that he did it. He shouldn't be prosecuted. Can you make, will they let you make that argument to the jury or do you have to sort of sneak it in? This judge, I didn't use those exact words that they shouldn't have brought the charges, but I used the exact, I used the words that you're the ones who determine what justice is in this case and whether she should be convicted of anything whatsoever. Arthur, I tell always a pleasure, my dear friend. I know you're busy. Give your most famous. I've been listening to you for the last couple of weeks since this Trump thing went down and you've been absolutely at whatever I'm doing, Judge Knapp, I stop what I'm doing and I go, shh, let me listen.

You're very kind. I miss our work together on Fox News. At least we get to do this from time to time and occasionally see each other socially. Give my best to your two most famous clients that are friends of mine, Mayor Giuliani and Professor Dershowitz. Will do. Thanks, Judge. Appreciate it. Thank you.

Judge Napolitano for judging freedom more as we get it. If you like what you saw, tell a friend, like, subscribe, have a nice weekend. The headrest safe is quick and easy to use. Some may even call it a game changer. The headrest safe acts as a safety net, protecting your belongings while keeping them out of sight and out of bounds of others. Serving us security while also keeping your valuables in bounds. That's what the Headrest Safe provides for me.

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