Judging Freedom - Trump Indictment - How Strong_Weak is the Case_

Episode Date: April 5, 2023

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gentle guidance and encouragement to create these incredible changes for yourself and see what good can come from them. Trust me, listening on Audible can help you reach the goals you set for yourself. Start listening today when you sign up for a free 30-day trial at audible.com slash wonderyca. That's audible.com slash wonderyca. That's audible.com slash wonderyca. Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Wednesday, August 5, 2023, Wednesday of Holy Week in the Christian calendar. It's about 9 o'clock in the morning here on the east coast of the United States.

Wednesday today is also, if I'm wrong, my Jewish friends will correct me, the first full day of Passover. And, of course, we're in the middle of Ramadan. But solos today, hot topics today are Trump, Trump, and Trump. I'm going to do my best to summarize for you everything that happened yesterday and with a little bit of an apology, which you'll hear forthcoming. So yesterday, of course, the former president appeared in court as a criminal defendant. This is New York State Supreme Court. It's the trial court in New York. It has an odd name. In most states, the Supreme Court is the highest court of the state in New York, and the system has been around for more than 100 years. The Supreme Court is the trial court. The highest court in the state is called the Court of Appeals. So Trump appeared

in New York State Supreme Court, a trial court, a state trial court, where all kinds of crimes are tried, not low-level things like jaywalking or shoplifting, but serious crimes for which a grand jury indicts. New York follows the same system as the feds do and as do most states, but not all states, that felonies have to be commenced by a grand jury. Grand jury almost always does what the prosecutor wants it to do. The grand jury meets in secret. There is no judge physically in the room. There's a judge available when there's a dispute between a witness and the grand jury or a witness and the prosecutor who's presenting the case before the grand jury. A typical grand jury meets for 18 months, two or three days a week,

six or seven hours a day. And prosecutors come in, present their case, leave. The grand jury votes if it's an indictment. The prosecutor gets his indictment. Then he goes out and arrests the defendant. And that process begins and culminates in a guilty plea or a dismissal or a jury trial and an acquittal or a conviction. There could be a variety of endings. This grand jury that indicted Donald Trump also heard other matters, and that would explain its erratic schedule. They're on again. They're off again. There are people before the grand jury.

We can't figure out why they're there. What do they have to do with the Trump case? Well, they had nothing to do with the Trump case. They were there testifying on other cases. We don't know the vote in the grand jury. There are 23 grand jurors. It only takes a majority, that's 12, to indict. I can tell you from my own experience, most grand juries vote unanimously either to indict or not to indict. We don't know what the vote is. We'll probably never find it out. If a grand jury always does what the prosecutor wants it to do, of what value is it? That's a great philosophical question. Defense lawyers will tell you there is some value to them because the defense lawyers get the testimony of the witnesses who testified before

the grand jury before those witnesses testify at the trial. So you have a roadmap of what the witness said to the grand jury. And if the witness says something different to the trial jury than what the witness said to the grand jury, you have a way to impeach, to call into question, to suggest this person's not believable because of what's called a prior inconsistent statement. So if the witness tells the grand jury the light is red, the light was red, but tells the trial jury the light was green, you can then, in what we say, impeach the witness by showing a prior inconsistent statement and then arguing to the trial jury, don't believe this person. They listened to whoever they spoke to last. They told the grand jurors something different than they told you. You get the point.

Now, that can go on many times with many witnesses if witnesses testify inconsistently. Yesterday was what we call the arraignment. Very typical, except there was no mugshot. Donald Trump wanted a mugshot. He wanted a mugshot not because he wants to be humiliated. Nobody wants to be humiliated, but he wanted it for PR reasons. I don't blame him. It would be tremendous public relations for him to gin up his base. How do we know he wanted it? Well, he did whisper it to others that he wanted it. And of course, that leaked out, even though he whispered it to his own immediate gaggle of advisors, political and legal. We also know he wanted it because the Trump campaign this morning has printed t-shirts showing the mugshot. Of

course, the mugshot was never taken. What is a mugshot taken for? To identify the defendant. Do you really need to identify Trump? Of course not. He's arguably the most recognizable person on the planet. So there was no mugshot. There were no handcuffs. Handcuffs are in case of flight. There was no conceivable way that Donald Trump was going to flee from the courtroom. He had a phalanx of Secret Service protecting him. When I was on the bench and trying these cases, I would often order the handcuffs removed from the defendant because it's demeaning to stand in front of a judge wearing handcuffs and also because the defendant, as a matter of law, is innocent until proven guilty. And there's no reason for the handcuffs.

Sometimes the police would give you a hard time. If they were sheriff's officers in the courthouse where I work, they didn't give me a hard time. If they were cops from outside the courthouse or state police or even feds, they might give me a hard time. But I would say, my courtroom, here's my procedure. No handcuffs when I'm talking to this person. I will speak with him with dignity and respect. Trump was addressed with dignity and respect yesterday by a dignified and respectful judge. The procedure was essentially not contentious at all. Trump could have made it contentious.

Here's how. The judge said to him, are you Donald Trump? Yes. He knows who he is, but there's a stenographer taking down everything that's said. So you have to articulate. Instead of saying, I know you're Donald Trump, you got to ask the question. Okay, you are Donald Trump. You understand the charges against you? Yes. Trump could have said no, and that would have required the court either to explain the charges or to instruct Trump's defense lawyers to explain the charges, and that would have delayed things. Then the court said, do you wave reading the indictment? Do you give up, wave goodbye to reading the indictment. In the thousands of arraignments that I have done

in my years as a judge in New Jersey, no one ever said no to this. No one ever demanded that the indictment be read. Trump could have said, I do not give it up. I want the indictment read. Well, that would have frustrated things because that would have required the judge himself or a court clerk to read the indictment out loud, which would have taken about 45 minutes to do so and would have bored everybody to death. So Trump's demeanor in the courtroom was one of unhappiness. I don't blame him. Anybody would be unhappy in that situation. But it was also one of respect. Get in and get out. What did the indictment charge? OK, when I read the indictment,

my reaction is where I owe everybody an apology. My reaction was this is chopped liver. This doesn't charge anything. All it does is list the the statutes that he allegedly violated. There's no meat on the bones. Susan Estrich, the very brilliant and gifted former professor at Harvard Law School and then at Stanford Law School and a longtime friend and colleague of mine said the same thing. We're scratching our heads. We just can't believe this. This is nothing. Okay, so New York has a different system than other states, just like they have different nomenclature for their courts. In New York, the indictment just lists the statutes the defendant is accused of violating. Then, later on in the same day, the prosecutors file a statement of facts in which they swear that the evidence that they have will prove these facts. That statement of facts is the meat on the bones, which in other systems, the federal system, California, where Susan Estrich practices, New Jersey, where I was a judge, almost all states in the union, except New York,

the indictment lists all the allegations and everything that they say that the defendant did. In New York, they separate it. The indictment lists just the statutes that were violated. The statement of facts lists all the allegations. What did the statement of facts list. It is a serious condemnation of Trump's deceptive behavior. And I'm making a summary from the government's point of view. In a few minutes, I'll make the summary from Trump's point of view. From the government's point of view, it is a serious condemnation of a very sophisticated scheme to hide from the taxing authorities of the state of New York the use of corporate funds for a personal debt. When Michael Cohen paid $150,000 to Stormy Daniels, when he paid, excuse me, $130,000, when he paid $150,000 to another lady, Stephanie McDougal, I believe is her name, when he paid $30,000 to the doorman. Little footnote here,

I know the doorman. The doorman was once a doorman in a building where I lived, Dino. I didn't know anything until yesterday about some allegation that Trump fathered a child. This child, if this happened, I don't even know if it happened. Trump denies it. This child would be an adult by now. But when Michael Cohen paid Dino, as well as lawyers for Stormy Daniels and Stephanie or Susan, forgive me, I forget the name, McDougal. And then Trump reimbursed Cohen if Trump had done it out of his own personal funds, personal income, subject to New York State income tax. No harm, no foul, no crime. But because Trump used corporate funds, he arguably used tax-free dollars because ordinary corporate expenses are not subject to income tax, as many of you know. So he used tax-free dollars to pay a personal debt.

If it wasn't a personal debt, if this was not to save his marriage with Melania, but rather it was a campaign debt, then there's another crime there, using tax-free dollars to pay a campaign debt. If he had paid his own money, used his own money to reimburse Cohen and listed that money as a campaign contribution, his own money to his own campaign, he can do that. No harm, no foul, no crime. It's all because he used corporate funds. So the DA was one step ahead of us. We were all arguing, and I'll give you the defense version in a minute. We have a rather strong incendiary statement from my friend Joe Takapina, who's the chief defense lawyer for Trump. We were all

arguing that this indictment isn't going to wash because it argues a federal crime, violating the federal election laws by using corporate funds to pay a campaign debt, as the crime being hidden by the bookkeeping deception. So bookkeeping deception, putting something in your books, in your general ledger of your corporation as an ordinary, reasonable legal expense when it's not is a misdemeanor, a rather low level crime. Maximum time in jail is 360 days. Nobody goes to jail for it unless you do it in a repetitive manner. But if the bookkeeping deception is done in order to hide a felony, avoiding taxes, using corporate funds for personal debt, using corporate funds for campaign debt,

then each of those misdemeanors becomes a felony. That's the law in every state in the union. What were the 34 felonies charged against Trump? Each time Trump caused corporate funds to reimburse himself after he paid Michael Cohen, or to reimburse Cohen directly, it was done both ways. That was a felony. And those were the felonies that the DA charged yesterday. So the argument that it's a federal felony, yeah, there's a federal felony there violating the federal election laws by using corporate funds to pay a campaign debt. There's also a state felony there using corporate funds to pay a personal debt, which denies the state of New York its tax dollars. Now, a moment about taxes. I'm smiling because you all know me. I believe that taxation is theft.

I'll say it again. Taxation is theft. You're home at night watching TV. There's a knock on the door. You open up the door. There's a guy there with a gun. Guy says, give me your money. I want to give it away in your name. What the hell is this? I'm going to call the police. Don't bother. We are the police. We're here to collect your taxes. That's the mafia model. Give us your money or else. That's what the government uses. If the government wants tax dollars, they should deliver services and we should pay dollar for dollar what the services are worth. Don't send your kids to government schools. Your taxes should be lower. Get rid of your own garbage, your taxes should be lower. Don't use whatever benefits the government is making available to others, your taxes should

be lower. That's not the world we live in. We live in a world where tax rates go across the board, 10% you earn this much, 15% you earn that much, 39% you earn that much, and we all pay taxes. The DA is not in a position to say, okay, taxation is theft. I'm going to overlook this. Judge Napolitano was right. Most people laugh at the idea that taxation is theft, but when you think about it, it is. They're forcing you to pay dollars for services you're not going to receive. Don't pay the dollars and see what happens. They'll show up at your door with a knock and with guns. So the DA really has no choice. This is the chief law enforcement officer for the financial capital of the world, Manhattan, and his job is to prosecute these white-collar crimes. Okay, I have made the government's argument

as best I understand it. Here is Joe Tacopina last night, my buddy. He actually appeared before me when I was on the bench. He's a superb trial lawyer. Not everybody agrees with that, but I've seen him in action and I think he is. Here he is last night attacking the indictment, attacking the statement of facts that followed the indictment and attacking the entire prosecution.

The D.A. said we have had available to this office additional evidence that was not in the office's possession prior to my time here. So he's talking about some new evidence. Are you aware of what that might be? There's no new evidence. That's been, I'd love to hear him articulate what that is, but there is no new evidence. I've read the statement of facts. It's exactly what we talked about. It's exactly what the United States Department of Justice, the federal prosecutors in Manhattan

turned down years ago. It's exactly what the FEC, the Federal Election Committee, had said. There is no FEC violation here. It's exactly what the FEC, the Federal Election Committee, had said. There is no FEC violation here. It's exactly what Cy Vance, the former prosecutor in that office, turned down three years ago. There's no new evidence. This is just rehashing a zombie case.

Joe Takapina is essentially correct. When the federal government looked at this, they decided they would prosecute Michael Cohen, the lawyer who orchestrated all of it, rather than Donald Trump. The stated reason for not prosecuting Trump after he left the White House can't be prosecuted while he is the president. The stated reason the feds gave for not prosecuting Trump is because they found Cohen not to be a believable witness.

He was believable enough to testify against himself, which is what you do at a sentencing hearing and at a guilty plea, you testify against yourself. And the guilty plea, you're actually under oath in the federal system, but there's nobody cross-examining you. The feds did a mock cross-examination of Michael Cohen and decided that he wouldn't withstand the cross-examining you. The feds did a mock cross-examination of Michael Cohen and decided that he wouldn't withstand the cross-examination and they didn't want to put him on the witness stand as their chief witness against Trump. Alvin Bragg's predecessor, Cy Vance, made the same decision. The Federal Election Commission, without interviewing, as far as I know, Michael Cohen made the same decision.

Alvin Bragg's people interviewed Michael Cohen some 20 or 21 times, including several mock cross-examinations, and they decided he survived these cross-examinations, credibility intact. Now, how can two sets of professional prosecutors look at the same person, Michael Cohen, conduct essentially the same mock cross-examination about this scheme and come up with different conclusions. Just like you and I can come up, we could witness the same event and we could see it, hear it, remember it, process it, think about it, and recall it differently. I've seen that hundreds, maybe thousands of times in the courtroom. Same thing with professional prosecutors. They will look at a witness. They will watch the cross-examination. They'll participate in

the cross-examination, and they'll come to entirely different conclusions. Is this case a zombie case, as Joe Takapina called it? That's not a technical legal phrase, but it basically means it looks like a case, but it's not a real one. Yes, it is a real one. Is it enough to survive a motion to dismiss? Yes, it is. The scheme was sophisticated. The scheme was repeated 34 different times. It wasn't a one-off. It wasn't a bookkeeping error. It was a sophisticated scheme that took into account the tax consequences to Trump, avoiding taxes by masking this as a corporate obligation, and the tax consequences to Cohen. They actually paid him more than they owed him so that he could claim that what they were owing him was income and would have enough money to pay taxes on the income. It was a sophisticated scheme. It will survive a motion to dismiss. What should Takapina be doing now? He should be burying the prosecutor, the district attorney, with motions with two goals. One is to extract as much information out of the DA

as he can, as much evidence as he can. What's in your file? Who else did you interview? Did you interview people that you didn't bring before the grand jury? We want to know who they are so we can interview them. How did you decide who went to the grand jury? What other evidence do you have? You get all this information out of the government by filing the correct strategic motions and getting the judge to order this. The other reason you want to file a lot of motions now is to force the judge to make rulings. You want the judge to make many, many rulings because you're hoping he'll make a mistake. Obviously, you want him to rule in your favor. But when the judge makes a mistake, not talking about a jury now, we're

nowhere near the jury trial. We're in the earliest stages of this litigation. So it'll just be judge justice, as they call them in New York, Mershan in the courtroom, the prosecutors, Trump and Trump's lawyers. And by the way, the judge ruled yesterday that whenever the case comes into the courtroom, the prosecutors, Trump and Trump's lawyers. And by the way, the judge ruled yesterday that whenever the case comes into the courtroom, Trump has to be there. I guess we're going to go through this quarter of a million dollar police overtime expense every time they bring him into the city. But that's the city's determination. These motions will be argued without a jury there. You want to file as many motions as possible to get as much information out of the government as you can and to force the judge to make as many

rulings as you can because the more rulings he makes, the greater chance are there will be error and when there's error in judicial rulings and if you lose the case, there's your basis for appeal. While all of this was going on yesterday, the United States Court of Appeals for the District of Columbia Circuit, that's the court in Washington, D.C., right below the Supreme Court, D.C. Circuit Court, ruled three to nothing that Mark Meadows and Donald Trump's other senior White House staff must testify against the president before a grand jury about what he knew and what he said in the days and weeks and hours

leading up to whatever happened at the Capitol building on January 6th. This is a significant setback for the former president. It was pretty much buried in the news because of all of the news concentration on the arraignment in lower Manhattan. So what does this mean? This means that the grand jury, Jack Smith, the one that Trump has harshly criticized, the special counsel investigating him is still presenting evidence to the grand jury in January 6th. We believe he is finished presenting evidence to the grand jury on the Mar-a-Lago documents case. We also believe that the DA in Atlanta, Georgia is finished presenting evidence to her grand jury on the tampering with the election case. Those are the three indictments

that we're waiting for. The cases are stronger and potentially more lethal to Donald Trump's freedom. January 6th, Mar-a-Lago and Atlanta, Georgia. There you have it. Hot topics for today. More as we get it. If more comes out, you'll see me here doing my best to explain it to you. Colonel McGregor, back on Ukraine, 4 o'clock this afternoon, right here on Judging Freedom, 4 o'clock Eastern Time. Judge Napolitano for Judging Freedom.