Judging Freedom - Trump grand jury canceled for rest of the WEEK

Episode Date: March 23, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is, what is today? Thursday, March 23rd, 2023. It's about 12 noon here on the East Coast of the United States. These are your hot topics for today, from Donald Trump to a dog bone that resembles a liquor bottle, which was argued before the Supreme Court of the United States of America. We have some hilarious tapes for you of the oral arguments with the justices participating and succeeding and making everybody else laugh. But first for the latest on former President Trump, it's 12 noon here in the East Coast of the United States, and it appears that the grand jury that had been sitting in New York State Supreme Court just across the river from me in New York City is not going to meet today. I wouldn't read too much into this. The

pro-Trump folks are saying they can't decide, they can't decide. The anti-Trump folks are saying it's raining, they're not making them come in. I mean, there are a lot of reasons why the grand jury doesn't meet. They could already have voted an indictment and the prosecutors are agreeing on the exact wording of it. They could be waiting to vote on the indictment and the prosecutors are agreeing on the exact wording of it. They could be waiting to vote on the indictment. The prosecutors could be looking for more evidence. They could expand their investigation. committed any crimes, tax fraud, bank fraud, insurance fraud, in the manner in which he ran his company. And then it devolved into an examination of this hush money. You've already

heard me explain the government's theory. It's an odd theory. It basically says that Trump committed a state crime by committing an unprosecuted federal crime. The federal crime, which a federal judge has already found took place, about which more in a second. The federal crime is the use of campaign funds, excuse me, is the use of corporate funds for a campaign. I don't think that should be a crime, but it is a crime. People are prosecuted for it. People are in jail for it. You can't use corporation funds for a campaign and claim that they were legal bills. That's what Trump is accused of having done. Trump says, it wasn't for my campaign. It was for my marriage. I paid this porn star off to save my marriage, not to save my campaign. That's what the grand jury is deciding if they vote to indict.

A judge may very well say, you know, you can't prosecute a state crime, a federal crime in state court. Michael Cohen, Donald Trump's chief accuser and former lawyer and fixer, as they call that job in New York City, pleaded guilty to orchestrating this federal crime using corporate funds for campaign purpose. And a federal judge found that this was a crime. And the federal judge found that Donald Trump was the unindicted co-conspirator who orchestrated the crime. But in America, judges can't order people prosecuted. Those are decisions just for prosecutors. The feds did not prosecute Donald Trump for this. The state now wants to prosecute him under a unique theory that if you alter your books on the bookkeeping of your corporation in order to mask

a federal crime, you've committed a state felony. That's what they will ask a New York State Supreme Court justice and a criminal jury to accept. They accept it, they're going to find him guilty. If they don't accept it, there'll be no trial. But right now, the grand jurors are home. If they're going to vote to indict, they've already done so and we don't know the outcome. Or they're going to do so when next they meet on Monday. While this is happening, late last night, the United States Court of Appeals for the District of Columbia Circuit, so that's the appellate court in Washington, D.C., upheld the decision of a trial judge in Washington, D.C., upheld the decision of a trial judge in Washington, D.C. to require Evan Corcoran, not a former lawyer for the president like Michael Cohen, but one of his current lawyers,

in fact, his chief lawyer in the Mar-a-Lago case, to present his notes, his documents, his legal file, and his testimony to a grand jury in Washington, D.C. Now, you might say, well, how the devil can this happen? What about attorney-client privilege? Good question. So you're a lawyer. Client comes into your office, and he says, I am about to be charged with robbing a bank. What are my defenses? That conversation is privileged, and the lawyer can never be compelled to reveal it. On the other hand, if the client comes in and says, if I rob a bank or I'm planning to rob a bank, what would my defenses be? That conversation is not privileged. That's what's called the crime

fraud exception to the attorney-client privilege. That's where the client took the advice of the lawyer and used it to perpetrate a crime or a fraud. So when the feds subpoenaed Evan Corcoran, Trump's lead counsel in Florida, he said, I'll come, but I'm not going to answer anything because attorney-client privilege. They then, the feds, filed a motion before the judge supervising the grand jury. Judge is not in the grand jury room. The judge hears motions either from witnesses or from the government. So the government filed a motion seeking to compel Mr. Corcoran to testify. In order to resolve the motion, the judge held a trial, a secret trial. Why secret? Because it involves a grand jury. So at this secret trial, at which

Mr. Corcoran was represented by his own lawyers, the government's witnesses testified. We don't know who, I can guess who, and Mr. Corcoran testified. And the judge found that Donald Trump lied to and misled his own lawyers in an effort to hide documents from the FBI. That's called obstruction of justice. Once the judge made that determination, then the communication between Trump and this lawyer are no longer privileged. So the trial judge issued a ruling to that effect. Trump's lawyers appealed it. The appellate court moved in rapid time. They ordered one brief filed by 6 p.m. and the next brief filed by midnight.

And then 24 hours later, they ruled and they upheld the trial judge. So tomorrow, Evan Corcoran will testify in secret before a federal grand jury in Washington, D.C., investigating what went on at Mar-a-Lago. I've been saying for months, Mar-a-Lago is the time bomb for Donald Trump. It is the most serious case against him because it involves obstruction of justice, hiding government documents from the FBI after they were properly demanded. Mr. Corcoran told the FBI and the Justice Department that Donald Trump had surrendered all of his documents. Mr. Corcoran got that information from Donald Trump. Then the FBI raided his house and found hundreds of more documents.

So from that, the court concluded, I'm only guessing because we haven't seen a transcript of the secret trial, that the trial judge concluded that former President Trump did not tell the truth to his own lawyer and that that resulted in fraud on the FBI or a crime committed by Trump. Either one, crime, fraud exception, no attorney-client privilege. So those are the two newsworthy items on Donald Trump this morning. Meantime, whatever you think of him, he's been my friend for 35 years. I know that affable personality of his. He's laughing like hell. He can't wait to be arrested in handcuffs because he wants that image of the crowds cheering him on and jeering the police as they take him into the courthouse in handcuffs. To me, nothing to be proud of, even if the government is cockeyed and on the wrong track, as it already is.

Okay, while I speak, the president of TikTok is testifying before the House Banking Committee. Now, we all know what TikTok is. I'm a subscriber to TikTok. Some of you watch me on TikTok. Some of you do duets with me on TikTok. I love when you do the duets. One of my favorites, I don't know the fellow's name, but when I went on TikTok to thank him, he was ecstatic. So I love when you do a duet with me, when you mock me, when you agree with me, when you make fun of my lips or

my forehead or whatever it is. It's all in good fun. It's all satire. It's all part of this job. And in this job, every knock's a boost. But TikTok is probably owned by the Chinese Communist Party. And the FBI has warned that when you use TikTok on your mobile device, that TikTok might be able to gain access to all the information that's in here. Now, what's in here? Personal, private, intimate, financial, legal, medical, professional, just about everything is in here. Would we really want all of this passed on to the Chinese Communist Party?

They're probably not interested in yours or mine, but if any of you are government officials or communicate with government officials, they might be interested in that. There is a bitter irony here in the FBI warning about TikTok gaining access to your private information. Question, what is the biggest computer hacker in the United States of America today? I'll give you a hint. It's not TikTok. It's the federal government. It's the FBI. It's the DEA. It's the NSA. They capture every keystroke on every mobile device and every desktop device in the United States today. For Chris Wray, the director of the FBI,

biggest mistake Trump ever made was appointing Chris Wray to replace Jim Comey. He's Jim Comey with a smiling face. For Chris Wray, the director of the FBI, to say under oath that TikTok is a danger when he presides over an organization that is the most dangerous to human freedom in the modern era, is utterly self-serving and reprehensible. And Chris Wray should be grilled today as much as they are grilling the head of TikTok. My view on TikTok, want to use it? Use it. It should be your choice. It's not for the government to decide. The government has banned

TikTok from government phones. It can't ban government employees from using TikTok on their own phones, thanks to the First Amendment. But the government wants to make us feel like it's keeping us safe. We're protecting you from the Chinese Communist Party? Who's protecting us from you? Who's protecting us from the government? Quis custodiet custodientes, Cicero once asked. Who will protect us from the protectors? That's the problem that we face today. Guarantee you, in these interrogations of the gentleman, young man, brilliant young man, who's the chair of TikTok, guarantee you this issue of the federal government being the biggest computer hacker in the country will not even come up because those members of Congress can stop it. They can defund every federal agency

that engages in computer hacking against you and against me and against every innocent American in the country. But don't hold your breath because the American computer hackers have dirt on the people that control their budgets called members of Congress. And members of Congress know that, which is why members of Congress don't defund the American computer hackers and don't pull in and tighten the strings on the FBI and the DEA and the BATF and the NSA. What kind of a democracy is that? That's what we have. Okay, time for a little fun. Yesterday, there was an argument before the Supreme Court. It was a patent infringement case. It was brought by Jack Daniels. Gary, if you want to put up on the screen the bottles. So Jack Daniels, which is obviously the bottle with bourbon whiskey in it, is complaining that that thing next to it, which is a doggy toy, is confusingly similar.

That's the taste. That's the test. Not taste. One tastes like plastic. The other tastes like good bourbon. test under federal law? Is the infringer, the alleged infringer, Bad Spaniel's Tennessee carpet, is that infringing on the copyright of the Jack Daniels bottle and label? Are they confusingly similar? Would anybody in their right mind confuse high-end Jack Daniels bourbon with a dog toy? Here's Justice Elena Kagan putting that question yesterday to the lawyer for Jack Daniels. To it, what is the parody here? The parody? Yeah, Maybe I just have no sense of humor, but... What's the parody? The parody is multifold, but the testimony indicates, and it's not been disputed, that the parody is to make fun of marks that take themselves seriously.

Well, I mean, you say that, but, you know, you make fun of a lot of marks. Doggy Walker, Dos Perros, Smella Arpa, Canine Cola, Mountain Drool. of a lot of marks doggy walker dos peros smella arpa canine cola mountain drool are all of these companies taking themselves too seriously yeah yes actually that was the lawyer uh gary if you want to put the picture up again that was the lawyer for the doggy chew saying this is a parody if it's a parody then it's protected by the First Amendment. It trumps the copyright law. If it's not a parody, if it's an effort to sell doggy chews, there's one with the dog in the mouth. Let's see the dog again, Gary. There you go. If it's an effort to sell doggy chews by attracting bourbon buyers to the doggy chews, then it's an effort to use Jack Daniels copyrighted service

mark, it's distinct bottle, distinct color, and distinct label to sell doggy chews. And that's copyright infringement. And then the doggy chew company owes the bourbon company a lot of money. Well, you wonder why they take cases like this. You know what? It's good to have laughs every once in a while, even at the Supreme Court level. But it's also a very serious copyright case, because if it is copyright infringement, the dogging company will probably go out of business. If it's a parody, it's First Amendment protected speech. As you know, since Chris was right here, often interrupts judging freedom. I am a dog lover. I am not a bourbon drinker.

I don't have a dog in this fight. More as we get it, particularly what may happen with former President Trump. And if there's any breakthroughs on the interrogation of the head of TikTok. Catch me on TikTok, catch me here. If you like what you see here, like and subscribe. Judge Napolitano for judging freedom.