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There we go.
Hello, everyone.
Judge Andrew Napolitano with Judging Freedom.
Today is Tuesday, April 4, 2023.
It's about 4 o'clock in the afternoon here on the east coast of the United States.
My guest is Susan Estrich. Susan is one
of the smartest lawyers I have ever known and been privileged to work with. She is a former
professor of law at Harvard Law School at the University of Southern California Law School,
a bitter rival with my own, Notre Dame Law School, but they have brilliant gifted faculty.
Susan's now in private practice in
California. Susan, it's a pleasure. Welcome here. It's a pleasure to be with you anywhere.
Thank you. You and I have spent the past half hour scrambling, first trying to get our hands on
and then trying to understand the indictment against former President Donald Trump. Now,
the public should understand, the viewers should understand their indictments and their indictments.
In the federal system in New Jersey, and perhaps where you practice as well, Susan,
indictments have to be detailed and they have to lay out enough relevant evidence to make a case.
The New York State system, the indictments are what we call bare
bones. They are mere allegations. So this 34 count indictment, each count is a paragraph
and each paragraph with the exception of a date and a register in the general ledger
of the Trump organization, each paragraph is identical. But the best we can understand this,
please correct me or modify this as you see fit. The best we can understand
is that these are allegations of an agreement between Donald Trump and Michael Cohen, to engage in a fraud against the federal government by using corporate funds to
pay a campaign debt. The debt was to silence two women, not one, but two women, one Susan McDougal
and the more better known one, stage name Stormy Daniels. Each of the counts in this indictment is apparently a wire or a written
check or some payment triggered by Donald Trump. It's interesting, Susan, it says these events
occurred in the county of New York, which is New York City, but the dates are all 2017. In 2017,
he was the president of the United States states and as far as i can recall was
living in washington dc so i guess the language really means he caused these events to occur
in new york city by making a phone call or putting, hitting send on a, on an email because he wasn't physically
located in New York City at the time. One of our colleagues in the business is reporting
that the grand jurors accused Trump of attempting to defraud the election of 2016
by hiding information from people that they should have been able to find out about him. I
don't see that in the indictment. So that just might be a little spin that one of the commentators
is putting on it. Now, do you read this as I do? Bare bones and non-informative. Chopped liver.
Chopped liver. Chopped liver. There's nothing here, Andrew. I mean, I was waiting.
We have been waiting. Everybody has been waiting for this indictment. And there's nothing here.
No one is above the law, but I'm looking for it. I'm looking for the grand conspiracy
that is bringing down a former president of the United States, and I can't find it.
I mean, of all the indictments,
in all the gin mills,
in all the restaurants,
in all the places,
there's nothing here.
Well, I wish the DA were here so we could question him.
I know this is the New York format
where they tell you next
to nothing. The next false entry in the business records of an enterprise. So people understand
I'm holding it up in the air. This is the same paragraph repeated over and over and over again,
34 times, the same paragraph saying they entered false business records. Now,
the really troubling part of this is nobody but Donald Trump would have ever been charged with
this. Would they, Andrew? I think you're right. I mean, if it had been anybody but Donald Trump.
Would you charge him with this misdemeanor? It would have been a misdemeanor and taken care
of by a fine. But these are felony charges. This is no joke. This is the serious news.
This is 34 felony counts. And it's something, you know, you want to say, look, I'm a liberal
Democrat. But when John Edwards, the former senator from North Carolina, was charged with paying off his mistress during a campaign, she was his mistress.
She was the videographer of that campaign.
He got her pregnant.
His wife was dying of cancer.
He got her pregnant.
Some campaign contributors paid her off. They paid for a house for her to live in
in Santa Barbara so she'd have the baby and keep out of the way. And I was one of the people who
stood up and said, do not make of this a federal case, all right? Let's not turn a private affair
of somebody who obviously made a mistake and shouldn't be trumped up, if you'll pardon my French, into a federal case. They made it into a federal case. The jury acquitted on one charge, hung on the rest of the charges, and it went away. to defend Donald Trump. But I'm looking at this indictment and I have to say this is a very sad
day for everybody because of all the indictments that you could charge Donald Trump with, and there
were some serious investigations of him going on right now, this falsifying business records in
the first degree, a violation of penal law section 175., strikes me as almost a gift to the former president. He's
going to call it a witch hunt tonight. And you and I are going to stand there and we're going
to scratch our heads and try to explain to people exactly why this misdemeanor is being charged as
a felony and creating a constitutional crisis.
And I'm going to turn the question back on you, Andrew.
Is this really a felony?
Well, it is a felony if it is used to mask a corporate expenditure of what was really a campaign expenditure.
So Trump gets on the witness stand and said,
I did everything they accused me of doing,
I did it to save my marriage,
and the jury believes that, that's no felony.
But if the jury believes that he did this
to save the campaign,
that's the use of corporate funds
to make a campaign, to pay a campaign debt.
What you're upset about and what I'm upset about is
the absence of detail in this. There's no detail whatsoever. Every paragraph is identical except
it has a different date on it and a different corporate record number in the Trump organization
record-keeping general ledger. But in terms of specifics, I guess the defendants and
the public and the media are going to have to wait until the government gives discovery to the
defendants. The court said their next meeting in court was December 4th. That's eight months from
now, literally. And he said he expected the president to be in the courtroom. He also said he was very concerned about the president's
veiled threats on the prosecutors and on him, the judge. That's it. Other than that, we don't know
anything new. We are assuming this involves two women only because there's 34 counts and there
were apparently 13 payments to Michael Cohen for each woman. So that brings
us up to 26. I don't know how they get from 26 to 34, because this damn indictment, I'm going to
call it damned, it doesn't tell us a damn thing. Right. And, you know, we're plunged into what
looks like a constitutional crisis. We're in a presidential campaign. We're trying to balance
the concerns for respect for the rule of law, for the principle that no one is above the law.
And yet we've got this indictment that is very hard to parse. And if it all turns on whether
it was done to protect your marriage versus whether it was done to protect your campaign, you've got an underlying question of prosecutorial discretion.
In other words, should the prosecutor have exercised his discretion to bring a case which turns on such a question of motive?
What do you think?
No, I don't think the prosecutor should
have brought a charge that turns on, was this to save my marriage or was this to save my campaign?
And if his name were Donald Estrich or Donald Napolitano, the charge would not have been
brought. It's only because he's Donald Trump. Now, I didn't think that until I saw the indictment.
I've been along with you, Susan.
I think we're the only ones that have been doing this, encouraging our Democrat and Republican friends, Democrats not to rejoice and the Republicans not to condemn until they saw the indictment.
Right.
There's no there there.
There's no meat on this. Under the New York procedure, the government has to has to supply the defendant with a lot more information that is not in the indictment.
All we can do is shake our heads and say this shouldn't have happened this way, even if it is the New York state style, given the extraordinary national interest in this, given who he is, given the potential for a constitutional crisis, if the state of New
York is proceeding against somebody that the public wants to be president, there should be
more information conveyed. What does the government say he did? It's not clear at all from this
indictment. And you've got the added fact, Andrew, that I keep coming back to
that this whole indictment is based on the testimony of a convicted liar. So you've got
a situation where the prosecutor is basing an indictment on a misdemeanor charge that normally wouldn't be brought against anybody, which should be a point
that causes some caution. Your lead witness is a known liar and your defendant is a former
president of the United States. You would think that would cause some caution and would pose a
high burden on the prosecutor to spell out the charges clearly.
I thought I was going to get a talking indictment. That's what I really thought.
I thought that as well. I thought it would name dates and places and conspiracies.
Tell us a story so that I would pick it up and read it. And I'd been waiting all morning. I
literally had been sitting in front of my computer all morning waiting for this thing.
I put my glasses on, you know, so I would be ready to go and racing to read this thing and hear the whole story about how they put it here and they did it there and they plotted to cover it up.
And I thought they would tell us a whole story.
Instead, we got the same paragraph 34 times.
And we got that in the context of a campaign
that is now going to spiral out of control
with Donald Trump at the center of everything
and an attack on the judicial system
that you and I both care deeply about.
And I don't know how to defend right now. All right. Well, let me make the best defense I can
for the government. And that is that under the rules of court in New York, apparently,
the indictments are just bare bones and they don't have specifics in them because this thing has no specifics in it whatsoever
other than some dates in which Donald Trump triggered some payments. There's no mention
about a conspiracy. There's no mention about the 2016 campaign. It doesn't even mention
Stormy Daniels' name. It doesn't mention the name of the other woman. It doesn't mention Michael Cohen, whatever her name is, the one who had the deal with David Pecker and the play.
It doesn't mention any of the catch and kill allegations.
It's all just it's almost as if you went to a book on how to write indictments.
And this was the sample with blanks left and fill in the blank
susan's laughing because in law school we have seen these books i don't know if they exist anymore
there were books in law school right that's probably digital today uh but there's not enough
could do it right what's the ai program you could do this and ai there's just not enough
there's not enough there there before i condemn prosecutor, I'm going to consult with some New York practitioners on this. You know, you practice in California, although you have tried cases and represented people all over New York. I practice in New Jersey. I'm admitted in the federal courts in New York, but not in the state courts, but be that as it may, what came out today is so bereft of detail, it is almost a joke. If this is standard in the New
York system, they should have told all of us that because people all over the world, lawyers,
ex-judges, law professors all over the world are trying to analyze this and we cannot because it's just
boilerplate without any specifics so we'll hear from joe tacopina soon we'll hear from
out of that's trump's chief uh defense lawyer somebody susan and i both know uh we'll hear
from alvin bragg whom i don't know i don't think you do susan but no i don't know he's a graduate
of harvard law school as you are and who has an excellent reputation for intellectual honesty.
He's a liberal Democrat, so the Republicans hate him. Too bad. But we're going to have to hear from
him about what the meat is that he will put on the bones when he has the opportunity and the
obligation to do so. Susan, I'll give you the last word. The last word is that no one's above the law.
We've got to wait and see what happens here, but this is the weakest indictment you could have
for Donald Trump, and he's going to have a field day with it. He's just going to have a field day.
Yes, he will, and so will his lawyers. Susan Estrich, always a pleasure.
Great to be with you, Judge. Next time, I hope there's a there there, whatever we're talking
about. We'll have some more meat on the bones. Next time will be soon. My dear friends,
more as we get it. Judge Napolitano for Judging Freedom. you