Judging Freedom - Trump indictment latest_ DeSantis & Disney_ Justice Dept sues over OH train derailment

Episode Date: March 31, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Friday, March 31st, 2023. As one of my regular viewers said, what a week, What a week is right, really. What a 24-hour period since the former president was indicted. It's about 10 minutes of two on Friday afternoon. I have to keep looking at my watch because happily I've been very much in demand and I've been doing a lot of television and radio and podcasts in addition to this one. But this is your hot topics for the day. And of course, we start out with the indictment of former President Trump. I've been cautioning my Republican friends to dial back their criticisms of Alvin Bragg until they see what's in the indictment. And the reason I say that is because of a CNN report. I assume it's valid. I could be wrong. Maybe I'm wrong even to assume it, which says there were 30 counts,

which means 30 different criminal acts charged in this indictment. That tells me that the indictment probably covers other behavior, behavior besides the hush money to Stormy Daniels. I also believe that there is other behavior in there because David Pecker, the former owner of the National Enquirer magazine, testified before the grand jury twice as recently as late last week. Mr. Pecker was involved in the process of called catch and kill. That's where a woman would come to the National Enquirer saying, I have proof that Donald Trump slept with me. I want to give my story to

you and I want you to pay me. And the National Enquirer would negotiate a deal with their lawyers. Let's say it's $100,000. She'd be paid. The National Enquirer would interview her, write the story. She would look at the story, approve it. She'd sign a statement saying, I will not discuss this publicly with anybody, only with the National Enquirer. And then the National Enquirer kills the story. And then David Pecker sends a bill for the $100,000 that he paid this lady to Donald Trump, who reimburses him. That, of course, would be a conspiracy and an actual defrauding of this woman. So the catch and kill is an act of fraud.

Maybe that's what they're going to charge. I don't know. Trump was notorious for this. People in the legal community and in the journalism community knew that he used to do it. And a lot of us sort of joked about this phrase. Sounds a little kinky, catch and kill. But that's what it meant. Otherwise, it's hard for me to figure out what the 30 different crimes are, unless every time he wrote a check, every time he touched a piece of paper, they're going to say that that was a crime. I don't know. We do know that when he reimbursed Michael Cohen for the money Cohen sent to Stormy Daniels' lawyer,

he did it in 13 different checks. He took the total bill and divided it up by 13 and sat down in the Oval Office, by the way, and signed these 13 checks to Michael Cohen on his own personal checking account. And then he was reimbursed by the Trump organization. So the allegation here is that the ultimate source for the funds was corporate. And the purpose of paying the funds was to secure a campaign debt that the campaign,

he's running against Mrs. Clinton. This is late October of 2016. The Access Hollywood tapes have just come out. He's running against Mrs. Clinton. And the last thing he can afford is something like Stormy Daniels, a porn star going on national television. That's at least my theory as to why

there are 30 counts in there. Each count is each time he touched a piece of paper and probably some other alleged crimes. Republicans in the House Judiciary Committee and two other committees of the House of Representatives have been writing letters to Alvin Bragg saying, we want to see your file. We want to determine if this is a political prosecution. I understand the argument that it's a political prosecution. From a PR perspective, from a political perspective, not from a legal one, but from a PR and a political perspective, this has all the earmarks of a political prosecution. The prosecutor is a Democrat. The prosecutor is popularly elected. The prosecutor's electoral base is a very liberal Democratic community. The two and a half million people that live on Manhattan Island, that's not

all New York City. That's just Manhattan. That's the island in the middle. That's not the Bronx. That's not Queens. That's not Brooklyn. That's not Staten Island. There are seven and a half million New Yorkers. This is two and a half million of them. This is Alvin Bragg's base. And Alvin Bragg, who I am told is a very sophisticated, apolitical, liberal Democrat, Harvard-educated legal scholar, ran for office saying he was going to look at Donald Trump. Listen, I'm against the popular election of prosecutors and judges because you get situations like this, where they were elected to office and then they feel they have to do what they promised they said they would do during the campaign. There shouldn't be a campaign.

I was fortunate enough to be raised in and part of the New Jersey system, appointed by the governor to the bench, confirmed by the state senate for seven years. If reappointed and reconfirmed before the end of seven, it's a lifetime appointment. So my first appointment was the great governor Tom Kane, and my lifetime appointment, my tenure appointment was the great Governor Christine Todd Whitman. Even in New Jersey, the prosecutors, excuse me, are not publicly elected. They're appointed by the governor for five years and they can't be fired unless they commit a crime. They can only be impeached. So they have a lot more independence. Should Alvin Bragg, the liberal Democrat who's in the crosshairs of these conservative Republican House committee chairs, respond to them, show up, answer their questions,

and divulge his file? Absolutely not. If he did that, he could be impeached and he could be disbarred. The prosecutor may not show his file to anyone in the midst of a criminal investigation. He may only share statements about witnesses, exculpatory statements, statements that help the defendant or that hurt the government. But in terms of sharing his work product, sharing his work thoughts, sharing his legal research, sharing who he interviewed, sharing what his strategy is, if he does that, the New York State Legislature would impeach him, and rightly so, and he knows that. Under our system of governments, it's strange because it's usually conservative Republicans who defend state rights, states' rights. Here we have a liberal Democrat defending states' rights.

The other day he said New York is a sovereign. He's right. When it comes to prosecuting New York state crimes, just like Montana or Alabama or South Dakota or California, yuck, the states are sovereign. And the feds can't interfere, even if the feds have given money to the states uh to help them with their prosecutions there's nothing the feds can do it quite frankly is none of their business uh think of the reverse think of a um a conservative democrat uh local or or state prosecutor prosecuting someone and liberal democratic chairs of the House Committee wanting to interfere with that. The Republicans would be crying foul and I wouldn't blame them.

So for the feds, it's hands off of the states when it comes to their sovereign functions, among which is enforcing their laws. My opinion, the vast majority of their laws is unconstitutional. The vast majority criminalize harmless behavior like this one that they're using against Trump. But it's on the books. They prosecute it. People are in jail who've been convicted of it. Unless a judge is going to throw it out, throw out the statute. But this judge can't throw out the statute because it's a federal statute that says you can't use corporate funds for a political campaign. And it's being tried in state court. The judge could find that the prosecution is unconstitutional and maybe he will.

But he can't find that the statute is unconstitutional. I wish I could have done this when I was a state court judge. State judges cannot invalidate federal statutes. They can invalidate the state use of them, the state application of them, but they can't invalidate state statutes, federal statutes. Federal judges, of course, can invalidate federal statutes and state statutes. It's a radical difference in the authority of the judiciary. But the Congress has no authority and no right poking its nose into a criminal prosecution. It's basically just the opinion of the members of Congress. Who cares what Congress thinks? You ain't seen nothing yet.

That, not Alvin Bragg, not Jim Jordan, Ron DeStantis, not about Donald Trump, but about Disney. I'm worried about this dispute between the governor of Florida and Disney. I don't agree with Disney's political views, but Disney as a corporation and the individuals who work for it as individuals in their capacity as Disney employees have every right to express their opinion on anything they want without fear of retribution by the governor. Well, the legislature of California, at the insistence of Governor DeSantis, enacted legislation commonly known as don't say gay. What it really means is, unlike New Jersey, where the school teachers must teach gender selection to seven-year-olds, you can become a boy without a penis. I can't believe

that, but that's the phrase that's being used in second grade classrooms in New Jersey. That's prohibited in Florida, in government schools, and rightly so, in my opinion. Disney attacked that prohibition. They have every right to use their First Amendment liberties to tell the governor what they think of this legislation. I happen to agree with the legislation. I would have signed it myself. You all know me. In my world, there wouldn't be government schools. Your taxes would be lower. There'd be private schools popping up all over the place. They'd be competing with each other. The cost would go down. The quality of the education would go up. It would be far better education than the government schools give. And there'd be no

indoctrination. You can change your gender. You can become a boy without a penis. This is reprehensible. It's immoral. It encourages the most awful ideation, thoughts you can't get rid of, and horrific behavior. But there's this dispute, and the legislature decided to punish Disney by taking away its special privileges. Another problem. Disney shouldn't have had special privileges. Well, when Walt Disney took a train in 1956 to central Florida and found 25,000 acres, he very shrewdly cut a deal with the legislature of the state of Florida in 1956. I'm going to buy these 25,000 acres. It's swampland.

Let me drain the swamp. I'm going to buy these 25,000 acres. It's swampland. Let me drain the swamp. I'm going to build another magic kingdom there. It'll employ tens of thousands of people. It will draw millions of people a year. It'll be jobs. It'll be economic improvement. It'll be tax dollars for the legislature. Let me do this. In return, stay off my back. Let me govern this myself. Give me some small governing board. Let me appoint the governing board. Keep the local politics away from me and keep the state politics away from me. And the legislature said yes. This is called corporatism.

This is the marriage of a corporation and the government for the mutual benefit of both. The corporation becomes the monopolist. The government gets more taxes from the corporation than it otherwise would have. The corporation has freedom to operate because it's immune from a lot of government laws. I don't approve a lot of these government laws, but I condemn, condemn the government picking favorites among corporations. Try and compete with Disney, the statute will prohibit it. Now Ron DeSantis decides we're going to change the structure that governs Disney, and we're going to put in a new boy that's loyal to me and we'll teach disney how dare they criticize don't say gay well like i said disney and the people that work for it have

the same first amendment rights as you and i do and as the governor does unbeknownst to the governor before the new board came in the old old board enacted new regulations, regulations that will last until the last of King Charles III's living relatives dies. Who would that be? Ready for this? That's Harry and Meghan's youngest child, who's one year old. So this new contract between Disney and the old board is valid until Princess Charlotte dies. If she lives to be 80, the contract is valid for 80 years. And there's very little that the new board, which is not yet in place, can do about it. Why is there very little? Because of the contracts clause in the Constitution that prohibits the states from interfering with otherwise lawful, validly entered into,

not against public policy contracts. So right now it appears that Disney pulled a fast one on Governor DeSantis. They both have what we call dirty hands. Disney because of the corporatism with the state. The state because it wants to punish Disney because of the political opinions of the people that work there. In the real world, Disney should have to compete against Busch Gardens or whatever else is going to establish a magic kingdom-like place without any favoritism from the government. In the real world, public schools wouldn't be teaching seven-year-olds how to change their gender. And in the real world, the state legislature wouldn't be punishing people for exercising

the freedom of speech. You remember what happened in East Palestine, Ohio, Norfolk Southern Railroad catastrophe with toxic chemicals into the earth, into the air, harming human beings, harming the atmosphere. So there's two sets of injuries here. One is to the environment, mainly to the earth and to the water, which the feds are in the process of cleaning up. The other is to private property and to the health of individuals. There already are lawsuits for private property and the health of the individuals.

What about the feds? Should your tax dollars and mine go to clean up the mess that Norfolk and Southern Railroad caused? Answer no. For once, I agree with the Department of Justice. For once, I agree with the Department of Justice. For once, I agree with the Justice Department as a whole. For once, I agree with a lawsuit they filed. Most of the lawsuits they filed are frivolous and politically motivated. This one is not.

This one asks a federal judge to extract from Norfolk and Southern, dollar for dollar, all the costs that the federal government spent on, you got it, cleaning up the environment. And that's the right thing to do. Now, I happen to think that an insurance company on the hook would more efficiently, more thoroughly, and far more quickly clean up the environment than the federal government would. But under our system, the feds come in and clean up the government, clean up the environment when one of these catastrophes happen, and then they give a bill to whoever caused it. They haven't finished cleaning it up, so they don't have a bill yet, but before they even give Norfolk and Southern the bill this morning, they filed a lawsuit asking a

federal judge to say, make them pay, And the federal judge should make them pay. Now, if it's somebody else's fault, if it's not Norfolk and Southern's fault, if an axle broke because Norfolk and Southern bought a train car from the manufacturer, it doesn't manufacture its own trains. And that manufacturer used faulty equipment in the axle, well, then the liability will pass to the manufacturer or to the designer of the train car or the designer of the axle. Whoever is truly at fault should be on the hook there. And that person or entity's insurance carrier should be on the hook. And whoever truly is negligent here should reimburse the federal government dollar for dollar. so your taxpayers and mine don't pay

for this for every dollar the Fed spent cleaning it up. But again, in the real world, the federal government wouldn't be doing this for two reasons. One, it's not in the Constitution. It's not the federal government's job to clean up the environment. And two, whenever the government touches anything, it becomes more expensive. Private enterprise would clean it up far more efficiently. The insurance company that ends up being on the hook, they should sue Norfolk and Southern. The government should have nothing to do with it. But if the government is going to spend dollars, it shouldn't be yours and mine. It should be the dollars, it shouldn't be yours and mine.

It should be the dollars, whoever the hell caused this. The Trump stuff's going to unfold. You know, I'll be on top of it. Some of you criticized me for being too understanding, some for being too critical. I'm trying to wear my judicial hat for all of this analysis and I will continue to do so. If you like all of this, Colonel McGovern, Scott Ritter, Tony Schaefer, Larry Johnson, Ray McGovern, even Dr. Wallach, and Judge Napolitano, like and subscribe. We'll see you Monday. More as we get it, if it happens over the weekend. Judge Napolitano for judging freedom.