Judging Freedom - Trump Indictment - Will he be Gagged_ w_ Rikki Klieman

Episode Date: April 3, 2023

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Save $80 with code SPACE80 at Talkspace.com. Hi everyone, Judge Andrew Napolitano here with Judging Freedom. Today is Monday, April 3rd, 2023. It's about three o'clock in the afternoon here on the East Coast of the United States. My guest is a longtime colleague and collaborator of mine, Ricky Kleeman. Ricky is a former trial lawyer, both a prosecutor and defense lawyer. She is so extraordinarily skilled in the courtroom. I say this as a professional, not as her friend. She was once named by Time Magazine as one of the five best, most skilled, most important female trial lawyers in the country. She has had a long career at Court TV and is now the legal analyst for CBS News, to whom I am grateful for

allowing Rikki to share some of her time with us. Rikki, it's a pleasure, my dear friend. Welcome to Judging Freedom. It's great to be with you in this new incarnation of yours. And as you know, you may be an admirer of mine, but I am just as much an admirer of yours because you speak the truth about the law. And that is always my goal. It is not to be partisan. It is simply to explain what the law is to many people who may not know. It is our goal. The audience should know that one of my first jobs was working with and for Ricky when she was an anchor at Court TV long before Fox existed. That was 29 or 30 years ago, my dear friend. Wow. So let's talk about the legal issue of the day. I'm a little reluctant, I'd like to hear your thought on this, to analyze

an indictment I haven't seen. And I am chuckling a bit at our colleagues who are saying this is nonsense, this is garbage, these are all misdemeanors, nobody would be prosecuting him if his name were Donald Jones instead of Donald Trump. And I'm saying to Republicans and Democrats, hold your horses. Let's read the indictment. At this stage of the case, the government knows more than we know about the case. Well, as the song goes, only 24 little hours, what a difference a day makes. And approximately in 24 hours, we will know what is in that indictment, which we do not know today. However, we do have some idea, a part of that indictment. And the reason I say that is because we have had Michael Cohen, who has gone on television after his grand jury appearance, and he has basically spoken about

what he spoke about in the grand jury. And that had to do, according to his words, with the payoff he made of $130,000 in hush money to keep Stormy Daniels quiet on the eve of the 2016 election. And the result of that was that he has said many times in many interviews, was the way that he got his money back was for a false retainer agreement and for false records to be generated that would say he was being paid in monthly installments against that retainer. That is about all we know. Beyond that, are there other charges? Do they involve other crimes? Or are we simply talking about another person like Stormy Daniels who was paid off like Karen McDougal? But is it broader than that?

Are there tax counts? Are there fraud counts? We have no idea. And I agree with you 100%. We can make a good guess. We can speculate about one part of an indictment. We have heard that it has been said by so-called reliable sources that there are over 30 counts in this indictment. There may be, there may not be, but we will find out tomorrow. Have you ever heard of a case, a criminal prosecution in a state court

where the core of the prosecution is an allegation that the defendant committed a federal crime for which he was not prosecuted? The federal crime is conspiracy to subvert the federal election laws by paying a campaign debt using corporate funds. That is effectively what Michael Cohen pleaded guilty to. And the same U.S. attorney who prosecuted Cohen decided not to prosecute Donald Trump after he left the White House on this. So Alvin Bragg is now left with what appeared to be, and again, we haven't seen this yet. There could be RICO counts in there for all we know, Racketeer Influence Corrupt Organization Act. Alvin Bragg appears to be left with a series of misdemeanors, fraudulent bookkeeping, engaged in to mask an uncharged, unprosecuted federal felony. Does that pass the smell test to you with all your experience in state and federal courtrooms? I hate to give you a lawyer's answer, but the answer is

it may. I want a lawyer's answer. That's why you're here, young lady. The, what I certainly heard yesterday from Preet Bharara, who was the United States attorney for the Southern District of New York during President Obama's time, who knows the prosecutor Alvin Bragg very, very well. Alvin Bragg worked for Preet Bharara. Preet Bharara actually endorsed Alvin Bragg in his run. And he claims that Alvin Bragg is very methodical and that Alvin Bragg would have had all of the research done and that he would not be taking a case of this magnitude, meaning the magnitude of being the first case in the United States against a former president of the United States, unless Alvin Bragg really believed that this was a prosecution that would withstand a legal look from a judge

on a motion to dismiss. Now, I have heard that other people who have been in that office or who have looked at that office, meaning the DA's office, who have said that there have been times where a falsification of business records, which as you say is a misdemeanor, which indeed it is, and it can only be raised to the level of a felony, albeit a class E felony, but that it can be raised to the level of a felony if you can say that the falsification of these business records was done either to commit or to conceal another crime and that that crime might be federal. Now, I do not know of any case, and I have looked, that approaches this particular allegation where you're looking at a federal election violation or a federal campaign violation, where those violations most often are not prosecuted

criminally. Yes, indeed, Michael Cohen was prosecuted criminally. And went to jail. And went to jail. But let's keep this in mind as well. Michael Cohen pleaded guilty to a very long indictment that had many counts, some of which at the end of the indictment, I'm sorry, it's an information, excuse me, that's information with a capital I, which is analogous to an indictment, except it hasn't gone through a grand jury process. It's a charging document. Now, when Michael Cohen pleaded guilty, the campaign violations are the last violations in the indictment. The indictment is really looking at other acts of fraud that Michael

Cohen pleaded guilty to, which had to do with his taxi medallion business and other things that he had done where he had lied. So it's not just simply that he pleaded guilty to this campaign violation. Now, Donald Trump was not indicted at the time that Michael Cohen had the information filed against him. Donald Trump is mentioned in the information as individual number one, who is the person who is running for president of the United States. During that time, of course,

the Justice Department was being run by William Barr, and that was during the presidency of Donald Trump, and the federal policy, the federal rule was you will not indict a sitting president. However, as of the beginning of 2021, we had a new president in office, and therefore we have a new attorney general. So Merrick Garland obviously made a choice for the last two years and two months not to prosecute this crime. Whether he made a choice by considering it or not, or whether he thought he had bigger fish to fry, because he really was looking into what happened on January 6th, and now with the special counsel continues to look at January 6th,

which could really lead to serious charges, all the way up to seditious conspiracy or not. And he has the special counsel, Jack Smith, also looking into obstruction of justice and the retention of documents that were classified at Mar-a-Lago. I think by anyone's estimation, those cases are far more serious than this one in terms of the fact alone that they are crimes against the United States of America. While saying that, it does not mean that this case is not serious. And it certainly does not mean that this case will not go forward with all of the backing of the people in the district attorney's office in New York County, which is Manhattan. So my friends who are criminal defense lawyers who practice in that courthouse,

where Alvin Bragg's prosecutors prosecute people, tell me that Alvin Bragg himself has an excellent reputation for being intellectually honest and thorough and demands the same, no surprise, of the assistant district attorneys that work for him. And that if Joe Takapina, whom you and I have known for years, thinks that a motion to dismiss is going to come as a surprise to Alvin Bragg, they have probably already written their briefs in opposition to whatever defenses Joe can come up with, including the statute of limitations offense, that they simply would not have gone this far against a former president of the United States. And I would make the same argument for Jack Smith. They would not have gone as far against Trump as to send 50 FBI agents to his house unless they have serious evidence there

and plan to pursue this to its logical conclusion, which is an appropriate criminal trial. I agree with you 100%. One of the things that people, I think, don't know generally is that a good prosecutor who is bringing a case against any formidable defendant, who is not just simply taking a case where let's look at something really simple. The police are driving down the street. They see a robbery in progress. They jump out of their car. They go give chase to the robber. They get the robber. They have the victim who can testify and they go and they take it to court. Well, obviously, you have the police officers who are eyewitnesses to a crime, and so this is a simple case. This does not take a lot of intellectual backtracking

on the part of the assistant DAs and the DA himself, because it's an eyewitness to a real crime, which is a felony called a robbery. In a case like this, any good prosecutor, and I agree, Alvin Bragg's reputation for being thorough is very, very high. So they have, perhaps as you say, already dealt with writing their response to a motion to dismiss, which has not yet been filed. But to say the very least, they have researched the statute of limitations issue. They have researched whether or not you could tag falsification of business records misdemeanor to a federal election offense. And they feel strong enough that not only will it withstand a motion to dismiss, I am sure they feel strong enough that if there is a conviction, it will

withstand an appeal. How unwise is it, in your opinion, now I want you to wear your former hat as a prosecutor, for the defendant to engage in scurrilous, below the belt, even arguably racist attacks on the prosecutor? In the world of the law, in a court of law, this serves him not only not well, it deserves him. Because what it does is it creates this look of someone who is really trying to reach out and hurt the prosecutor himself as a person. So it brings into the whole mix the idea of security. Alvin Bragg is going to have to be under security. His assistants will have to be under security. The judge, the court personnel, none of which anyone likes. And a judge is not immune from reacting to something like this. Now, in the court of public opinion, this may be very good for Donald Trump, it is said, and it is written, in terms of his raising money, in terms of people

feeling that the system is out to get him, to use his phrase, that it has been weaponized against him, and that they will rally to his cause. So you have two distinct audiences here. It's just the same thing, Judge, if you look at, as I always say, that Donald Trump, as every other defendant, is entitled to the presumption of innocence in a court of law. He may not be entitled to that same presumption in the court of public opinion. They're different. And that's the whole purpose of jury selection, is that when you're going to select a jury, you want to get the most fair and the most impartial in the world of a lot of partiality. Gary, can you put up that picture,

those two pictures that we discussed? Sometimes Donald Trump can be his own, put it up again, please, can be his own worst enemy. There he is with a baseball bat. Now, they're not in the same room, but he juxtaposed those two pictures. Suppose you were the prosecutor and a well-known high-end public official, public person, defendant juxtaposed a picture of him or herself with a bat aiming at your head. What, if anything, would you do? Is that another count in the indictment? Do you ignore it totally or you just go out and get more security? I think the latter two. Number one is I think the only thing you can do is take the high road as the publicly elected prosecutor and not even dignify it with a response. There will be other people who will do that responding for you. But I do think that you get additional security.

This is not a good thing to be out there. Alvin Bragg knows enough that when you go after the king, if you're going to go after him, you better kill him, as the saying goes. Meaning that if you are going to prosecute someone who was the former president of the United States, who can ignite a volatile response in people who follow him, that you better make sure that you have a case where you are going to win ethically and properly. You also understand that there's a target on your back, not necessarily from Donald Trump at all, but perhaps from other people who look at a picture like that, or the two pictures being juxtaposed and they get it in their own mind

that perhaps they are doing a higher duty by going after someone like Alvin Bragg as the prosecutor in defense of the man that they follow, Donald Trump. I am sure that from the moment that Alvin Bragg decided that he was going to impanel this grand jury and it became public, that it was going to look at, I assume, a variety of possible offenses that might have been committed by Donald Trump, that he would have upped his security. As the district attorney in New York, he is entitled to a security detail, just as the DAs are in the other four boroughs. But a security detail for a DA, for the most part, is not large. So I would assume that it has been beefed up and will continue to be beefed up. This is not comfortable. It wouldn't be comfortable for me. It wouldn't be comfortable for you or anyone else who believes that he is simply doing his job. I mean, I can have my differences out there in the open about many of Alvin Bragg's policies.

I have been open about that. I think that for all of the necessities of bail reform, which I firmly believe in, and less incarceration, which I firmly believe in. At the same time, that if you have all these offenses that are not eligible for bail, which has happened under the bail reform laws of New York, what you have are people who are just released and released and released. And so crime goes up in New York City. And New York City, which was the safest big city in America as recently as 2018, that crime has gone up. I understand there are some categories like murders and shootings that have gone down. Believe me, in my household, we see those statistics. But the reality is that I have my differences with Alvin Bragg about his policies of whom he prosecutes and whom he does not. At the same time, what I see in the

buildup to the unveiling, if you will, the unsealing of the indictment, is what appears to be someone who has really been very thoughtful about what he is doing. We'll know more tomorrow, but I think we will continue to debate whatever these charges are. We're going to continue to debate the merits of these charges all the way through and perhaps after a trial. How wise or unwise is it for Trump to address the nation tomorrow night and probably to be as pugnacious and on the offense as he normally is? I mean, stated differently, if you or I were representing him, we would mightily try to restrain him. Correct. I used to have a sign in my office when I was defending cases that said even a fish wouldn't get caught if it kept its mouth shut. And that was right behind me when a client came in. No lawyer worth his or her salt

would want Donald Trump making statements that have anything to do with this case. While saying that, there is no way to stop him. And I'm back where I was a few minutes ago, which is the court of law, which is a place where he should not be talking now, is different than the court of public opinion, where he is a declared candidate to be president of the United States in 2024. And he wants to talk to his people. He wants to talk to his constituents and probably say that this, among all these other prosecutions that are out there as investigations right now, that he feels that this is a weaponization of the Justice Department and district attorneys.

He can say that. He has to somehow be taught that anything he says, as what we call an extrajudicial statement, anything he says, anytime, anyplace, anywhere, anything he tweets can be used against him in court. So, you know, you know as well as I do. It's not necessarily the crime that you get convicted of. It's the cover-up. Cover-up. Right. Of course.

We all know that. Ricky, it's great chatting with you. In 24 hours, you and I are going to be reading this indictment. And I hope when the dust settles and you've satisfied your commitments to the great audience at CBS News, you'll come back here and we can talk about any parts of it that are unique or strange or challenging or surprising. And we'll do that together. I would love to do that with you. It's always a pleasure to be with you. And I will say that your intellect remains as curious,

which is, I think, the greatest value anyone can have, is curiosity to make your mind grow. So I'm very honored that I got to be with you. Thank you. Thank you, Ricky. Your explanations of the law are as lucid as ever. All the best. We'll talk to you soon. Great. Thank you. More as we get it, my friends. Judge Napolitano for judging freedom.