Judging Freedom - Trump - Has the Dust Settled_ - w_ Susan Estrich

Episode Date: April 10, 2023

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Save $80 with code SPACE80 at Talkspace.com. Three o'clock in the afternoon on the east coast of the United States, noon on the west coast from which Susan Estrich joins us now. Susan is, of course, a former faculty member of Harvard Law School and the University of Southern California Law School, as well as a renowned trial lawyer in her own right. We were colleagues together many years ago, many times at Fox, and it's a joy to be working with her again. Susan, welcome back to the program. It's great to be here with you, Judge. Thank you. So last week when the indictment of Donald Trump came out, true to form to the New York system, just a little alien to the way you and I were trained and the way we practice. It

was just bare bones. In fact, you called it, I used your line many times later on in the day, chopped liver. Basically just listed- An insult to my mother, I should say, who made much better chopped liver than this. This was very low fashion. The indictment did little more than list the statutes that the government claims Trump violated. But following the New York form, the indictment was

followed, or New York procedure, I should say, the indictment was followed by a statement of facts sworn to by the district attorney himself. This is alien in some systems, since he can't swear to the facts. I guess he was swearing to the existence of evidence, which in his view would substantiate these so-called facts.

And they painted a picture of, in my view, Trump, Michael Cohen, and Allen Weisselberg, the now convicted and incarcerated former CFO of the Trump Organization, as having concocted a very, very sophisticated scheme to avoid detection of the use of corporate funds to pay Stormy Daniels, a woman named Susan McDougal, and a doorman, all of whom claimed they had knowledge of Trump's untoward sexual behavior, which Trump denied. The scheme was intended, as I read the statement of facts, and as you and I suspected even from the indictment, to make it appear that Trump had used corporate funds to pay a corporate legal debt. Whereas in reality, they were reimbursing Michael Cohen, they were compensating Michael Cohen, and then they were compensating him on top of the compensation to give him money with which to pay his taxes. It was a very sophisticated scheme.

But here's where I think the DA was a step ahead of you and me and others when we thought that the so-called underlying crime would be a federal one. The DA found two state underlying crimes, the failure to pay New York state taxes on income, which was really to pay a personal debt, not a corporate debt, and the use of corporate funds to pay a campaign debt, which even though it's a federal campaign, is a violation of New York state law. Okay. How do you see this? I see this as paying off your mistress. Okay. Say it again, Susan. As paying off what? Your mistress. You screwed around. You got caught. You're running in a campaign. You don't want your wife to know. You don't want the country to know You turn around and you pay off two women One, I guess, got paid $130,000

The other one got paid off $160,000 I have to tell you, Judge In my book, I have to be honest He got off kind of cheap. I've paid off more. I hate to say it, but it's true. You know, Donald Trump, this is the word of a convicted felon. But if he did it with Michael Cohen, he should have gotten a better lawyer, should have had a better lawyer on the other side, should have drafted better papers, should have done it

legally. But these are two bookkeeping offenses. I mean, come on. Is this the best you can do for the former president of the United States? Well, now, Susan. I mean, I'm the last person who should be defending Donald Trump, but you will find somebody else. I know that. This is a legal analysis. You aren't seriously suggesting a different legal standard for him because he's the former president, are you? I don't know anybody else who's ever been prosecuted for this. Oh, there are many people in jail. In jail.

Keeping violations on putting your former mistress down when you pay her off as a legal expense. No, no, no. But for using corporate funds to pay a campaign debt or to use corporate to pay a personal debt, that's called income tax evasion. Well, if you do it and you get caught on your taxes, you pay your taxes off, but you don't generally get charged with a 34 pound felony for paying your taxes, for putting down your mistress as a tax expense when you should report it as... If it were a one-off,

I would agree with you. But this was a one-off. No, this was 30. My God, I'm defending Donald Trump to Judge Napolitano. This is the world class history here. This guy is my friend. This is world class history here. This guy is my friend who interviewed me for the Supreme Court twice.

And I'm telling you, there's a case here. You're the liberal Democrat and you're defending him. And I'm telling you, this is the weakest case you could bring against Donald Trump. He paid off his mistress. He had a lousy fix-it lawyer. Do I think Donald Trump sat down and was the one who came up with the scheme? Somebody said to him, Stormy Daniels is going to cost you $130,000. He said, pay it.

These people did a lousy job. He had terrible fix-it lawyers. But do I think you indict the President of the United States for that? There you go again with a different standard for him. Well, I think he... If his name were Donald Jones instead of Donald Trump, half of your argument goes away. Am I right?

If his name were Donald Jones, they wouldn't have spent 18 months investigating this, looking into every detail of every payment he'd ever made in his life to see if they could find something somewhere under some hole that they could find, that they could charge him with. I mean, seriously, Andrew, if this is the worst thing Donald J. Trump had ever done in his life, you and I would be in a different business. I don't agree with you, but I love you. So I want to move on. Do you think that the Georgia case, as we understand it, is a stronger one against him? Much stronger. Much stronger. I

think the Georgia one is. I think the Washington one is. I think Mar-a-Lago is, I think the January 6th one is, I think they're all stronger than this one is. But I think if Alvin Bragg has convinced Andrew Napolitano that this is a sophisticated conspiratorial scheme, then maybe it's cut more legs than I think it does because when I looked at this statement of facts I have to tell you I thought it was still pretty thin I thought it was still a matter of an essentially personal scheme of a guy who was messed up in his personal life and screwed it up and had a bad fix-it lawyer and got a district attorney who was looking for anything he could possibly find under the sun and found something and used his discretion to go

after it. But really the more serious offenses were the other ones that were lurking for Donald Trump. And this one he's using to political advantage. See, I see him as a notorious, well-known, boastful tax cheat. I'm going to hear about this from a lot of our mutual friends who basically invited the DA to look at his taxes. If he had paid this debt on a personal checking account and did not seek reimbursement for it from his corporation. No foul, no harm, no crime. It's because he used corporate funds. Now he can claim it was to save my marriage rather than save the campaign. That takes the campaign issue out of it. Even saving the marriage is a personal debt not a corporate one yep

there's always the tax issue and you're right there always is the tax issue when i'm letting him off the hook or just saying the tax issue pay your penalty but that's not a felony is it it is it is technically but would you charge it is you know it's funny you you know this line from clarence darrow now this is uh 125 years ago if a boy steals a dime he's not going to go to jail but if two boys conspire to steal a dime and then don't steal it the government is going to prosecute them for conspiracy now you're smiling, I smile. We all know the history of this. The fact that this was a conspiracy involving Donald Trump, Allen Weisselberg and Michael Cohen, and that it involved 34 separate events, wasn't a one-off. Trump told

his accountant, yeah, it was a corporate theft. Don't worry about what it was. It was a regular, consistent, systematic 13-month series of 34 events concocted to avoid taxes. That's what gets under their skin. Agreed or not? Oh, of course, that's true. But you've got two convicted felons as the other two co-conspirators, and you've got the former president of the United States. And if I'm a prosecutor and I've got a choice of which case is going to go first and where we're going to put the former president of the United States and ask him to answer for his crimes, I have to tell you,

and I'll tell your listeners, that I'd look at January 6th. I'd look at the election of 2020. I'd look at some of the other things that Donald Trump has been accused of at Mar-a-Lago and the presidential documents. And then I look at Stormy Daniels, and this is the last one, not the first one. So I agree. But look, this is different jurisdictions. I mean, the feds are going to charge when they're ready and Georgia's going to charge when it's ready. Yeah. I think the Georgia one is coming very soon. I mean, it only takes two or three days for her to summarize before her grand jury what the other grand jury spent eight months investigating. And it appears that the feds are nearing the end of their

investigations. However, about 15 minutes ago, Trump's lawyers filed an appeal before the full DC circuit on whether or not former Vice President Mike Pence has to testify. The circuit ruled 3-0 that he does have to testify, not about what he did on the floor of the House. They're giving him the speech and debate clause protection there, saying it was as if he were a member of Congress there, but about what Trump whispered in his ear on the days and hours and minutes leading up to his presiding over the joint session of Congress. He agreed not, he said he's not going to appeal it. He was scheduled to testify this week. He may still testify this week because Trump is purporting to intervene in the case and file an appeal, even though Pence said he doesn't want to file the appeal.

He wants to testify. What would you do if you were the judge on that one, Judge? I would have said that Trump doesn't have standing. They already ruled on executive privilege. He's lost every single executive privilege. He's going to lose this one, too. Because executive privileges, you remember from U.S. v. Nixon, when it is confronting a criminal investigation, only applies to military secrets, diplomatic secrets, and sensitive national security secrets. That's U.S. v. Nixon, written by Chief Justice Berger. It doesn't apply to everything that came out of the president's mouth and went into his ear. That's right.

I mean, I feel sorry for presidents because they think they should be able to get free advice or freely given. That's right. particularly when it's the same branch of the government. It's the executive branch. You know, executive privilege protects you from the legislature. I don't know that it protects you from prosecutors who used to work for you. Nope. I don't think it does. Quite a week we have ahead. Yeah, we do. Stay tuned. So, you know, I've never practiced in California.

I practiced in the federal system. I was a judge in the New Jersey system. I would imagine California is similar to New Jersey in the feds where they give you all the evidence. New York goes back to the Cardozo years, Susan. New York, you have to pull teeth to get all the evidence from the DA. You have to file all these motions and force the judge to make all these rulings. And it's an old fashioned way for the defendant to get the evidence. But that's what Joe Tacopina and company, Trump's current trial lawyers are going to have to go through.

That's what they're going to get through. And that's what they're going to get. It'll be interesting to see. Right, right, right right what are you up to later what are you what are you talking about in your podcast my dear what am i talking about my podcast oh the war in ukraine what's going on in the world well we do the same um in 15 minutes uh i have phil girald. He's the former CIA official who told George W. Bush that Saddam Hussein has no weapons of mass destruction. And Bush threw him out of the Oval Office and announced to the country within hours that we were going to invade Iraq because Saddam Hussein did have weapons of mass destruction. So Phil is an iconoclast, and he will be opining on the latest document dump,

which was leaked from the Pentagon on Good Friday. Admiral Kirby, the spokesperson for the National Security Council, says that they cannot rest assured that this is the last of the dump. I wonder if they have reason to believe that whoever the thief is, he or she is about to reveal more. Well, the question is, is it a leak or is it a dump? Is it a leak? Are these documents being destroyed?

Are they being, you know, sensitized? This is an amazing story you've got on your hands. It is. It is an amazing story. And it's reminiscent, you and I remember these days, of the Pentagon Papers. You know, when those Pentagon Papers came out, what did, you know, Nixon did his best to suppress them. The Supreme Court said no. It doesn't matter how the media got them. The public has the right to know. There's still the thief there. The thief can be prosecuted.

Ellsberg was prosecuted. The prosecution was dismissed because of FBI misconduct, which I doubt would be repeated here, but the public will still see all of this. The former CIA agent, Ray McGovern, who analyzed this stuff for us this morning, said it was pieces of paper, like somebody folded it in their pocket, took it home, opened it up, and took photographs. Right, right. That's what I was reading about in the press this morning. Well, we'll see where all of it goes. Susan, it's always a pleasure.

It's always a pleasure to be with you. Thank you for your insight. When the Georgia indictment drops, as it will, and when the two federal indictments drop, as they will, we will call you first. Okay. I'll be glad to join you. Thank you. Always a pleasure. Thank you.

More as we get it, my friends. Phil Giraldi at 3.30 Eastern on who and how did all of this information about the United States Pentagon lying to the public come out on Good Friday? More as we get it. Judge Napolitano for judging freedom.