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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Monday, April 3rd,
2023. It's about 1035 in the morning here on the east coast of the United States.
I mean, to say this is a critical week for Donald Trump is to be guilty of an
understatement. But here are your hot topics for today. First, an analysis of Trump, and then
another story, which is rather unpleasant, about the use of kidnapping as an instrument of diplomacy.
But for Donald Trump, most people know by now that he's been indicted by a Manhattan grand jury.
We don't know exactly what the charges are.
We do know that some of this stuff is pretty much admitted, which is the falsifying of business records, which was Trump's habit and pattern of keeping his own business records.
His view is it's a private corporation.
It's not publicly held.
He'll keep his business records however he wants. Unfortunately, New York state law prohibits recording an expenditure in a deceptive way. CNN reports that it has 30 different counts. That's 30 different charges in there.
I think I can guess what those 30 charges are, but I'm also going to guess that there are some charges in there that have nothing to do with the Stormy Daniels allegation.
So the guts of the allegation, just to repeat for you, are that Trump used corporate funds to pay a campaign debt. Now, that is a felony
under federal law. The feds decided not to prosecute Trump for that after he left office
because they found the principal witness against him, Michael Cohen, to be lacking in credibility.
The state prosecutors who interviewed Cohen 21 times, including three or four mock cross-examinations, found him to be
credible. So on the basis of Michael Cohen's testimony that he orchestrated a scheme whereby
Trump Organization funds were used to pay Stormy Daniels for silence during the last, excuse me, two weeks of the presidential campaign of 2016, when Donald Trump was running against Hillary Clinton, Cohen's comments and testimony is also backed up substantially by Trump organization records, by Cohen's personal records, and by the records of Cohen's law firm.
So the allegation is that when Trump reimbursed Cohen,
he reimbursed Cohen on a check that said Donald J. Trump with the address of Trump Tower, his home at the time.
But then he had himself reimbursed by checks from the Trump Organization.
So the money to pay Stormy Daniels went from the Trump Organization. So the money to pay Stormy Daniels went from the Trump Organization,
the Donald Trump, to Michael Cohen, to a dummy corporation in Delaware, to Stormy Daniels'
lawyer in California, to Stormy Daniels. The problem is that these were corporate funds.
If every time a check was cut, they're considering it a separate criminal act, I can understand where the 30 acts come from, because there were 13 checks to Cohen.
Maybe there were 13 checks or wire transfers from the Trump organization to Donald Trump personally.
That would be 26 right there. The other four counts of the indictment probably pertain to another woman who claims to have had sex with Donald Trump.
And Trump denies both of these sexual liaisons with Stormy Daniels and with the other woman.
The other woman was involved in what's called catch and kill.
If that's in the indictment, because it's a kind of sexy, snarky phrase, catch and kill.
You'll be hearing a lot about that.
What is that?
That's what happens when a woman has gone to the National Enquirer or the National Enquirer went to the woman because they heard that she was making noises about going public about a sexual liaison with Donald Trump.
The National Enquirer will say, we'll pay you for
your story. And they agree on amount of money. She signs a statement agreeing never to discuss
this publicly with anybody except a reporter from the National Enquirer. The reporter interviews her,
they write up the story, and then the National Enquirer kills the story. It's all part of the
scheme. They never intended to run the story at all. She gets the $100,000 paid by the National Enquirer. Donald
Trump reimburses the National Enquirer, and then the Trump Organization reimburses Donald Trump.
What's wrong with that? Well, it's fraud. The fraud was that this lady thought she was going
to get a story printed, whereas in reality, the story was caught and killed, hence catch and kill.
That's probably what these 30 counts are. 26 or so having to do with Stormy Daniels and four or so
having to do with this other woman. If there are other criminal acts in there, other acts of
corporate or individual, it would have to be individual wrongdoing if he's indicted.
I don't know what they are. But I've cautioned a lot of our conservative Republican friends,
particularly those who believe that this is a political prosecution, Wait, wait until you see the indictment. We will see the
indictment tomorrow, probably shortly before noon. The arraignment, the booking and the arraignment
of the former president is scheduled for 2.15 in the afternoon. He should probably arrive at the
courthouse around one o'clock. He'll be treated with respect and dignity, not the way criminal
defendants are ordinarily treated in that courthouse. He's not going to be handcuffed.
He's not going to be sitting in a jail cell. He's certainly not going to be in a room
with other defendants. And wherever he goes, he's going to be surrounded by a phalanx
of armed Secret Service agents. But he will be fingerprinted. They don't use ink anymore. It's all
digital. It's a simple rolling of your finger on a glass plate under which is a digital camera.
He will be mugshot. Now, some states release the mugshots immediately to the press. New York
State does not. There's going to be a lot of pressure on the state of New York to release that,
and somebody on the inside probably will leak it, but it is not officially released.
Fingerprinted, mugshot, measured, you're not going to like this, and weighed,
so that the public information will say Trump Donald J. with his booking number,
where he lives, how tall he is, and what he weighs.
That information will be public. He'll then wait around for a while while he goes through the
indictment with his lawyers. He'll then walk into a packed courtroom. Judge will say, you are Donald
Trump. Yes, do you understand the charges against you? Now, here's where it can get dicey if he wants.
I've probably done a few thousand arraignments in my career.
When you say to the defendant, do you understand the charges against you?
Either the defendant or his lawyer says, yes, we waive, give up a right to have the charges read. If Donald Trump says, I don't understand the
charges against you, that's going to tick everybody off because he's then asserting
a right that he has, but nobody ever asserts it these days, to have the charges read aloud,
whereupon the judge will instruct one of the clerks while Trump is standing politely at
attention facing the judge, standing with his lawyer, Joe Takapina, and probably one or two
other lawyers as well, everybody else in the courtroom seated, while the clerk stands there
and reads the charges aloud. And then the judge will say, okay, you've heard them. How do you
plead? He won't ask twice.
Do you understand that?
Because Trump will probably claim he doesn't understand them.
If Trump's lawyers do this the proper way, then Joe Takapina will say before Trump can answer, we understand the charges.
We waive the reading because Takapina is thinking, let's get the heck out of here and let the man get back to
his home in Mar-a-Lago. He's champing at the bit to hold a press conference, another issue about
which I'll speak in a moment. One of the things that Trump will be told, he doesn't need to be
told this, but he will, will be told this during the booking process is his Miranda warnings.
Mr. President, you see all these people
around here in blue uniforms. You don't have to talk to any of them. Anything you say to any of
them can and will be used against you. We see Mr. Takapina here, but if you don't want him as a
lawyer and you want a public defender, it sounds ridiculous, but they have to say this, you're entitled to one and the court will assign one. One of the boxes that the booking police have to check is, did you give the
defendant his Miranda warnings? As preposterous as it sounds in this case, they will give him the
Miranda warnings and then either check a box saying he got them or require him to sign under that box saying that he got the Miranda warnings and he understands them.
Once a not guilty plea is entered, whether it's because Donald Trump himself says in that distinct, loud, proud voice not guilty or whether Joe Takapina says it for him, then the court will
assign a date for a pretrial conference at which the lawyers without the defendant there and the
judge will get together and decide how complicated is the case. Here's your schedule for filing
motions. Motions are applications by the defendant to whittle away at the charges to which they're absolutely entitled.
It would be malpractice for Trump's lawyers not to file motions. It's more orderly when you have a schedule for the motions so the government knows what's coming and the defendant knows when
the government needs to reply. That will be the next event on the calendar. Usually happens a month or two down the road. Then Trump will be
whisked out of the courthouse. He may want to go through a public entrance so that he can be greeted
by the mobs that will be in the streets, or he may want to go out an underground garage so his car
can either whisk him up to Trump Tower or out to LaGuardia Airport, where his private jet will be waiting for him to take him back to Mar-a-Lago.
Now, once he gets back to Mar-a-Lago, his estate in Florida, he plans to make a nationally televised statement to the American public.
This is risky. The statement can't be extemporaneous and it needs to be approved by his lawyers.
Because the government really will be scrutinizing everything that he says.
And the last thing in the world he wants to say is to admit to anything.
Now my understanding is that he will admit to the way the Trump organization books were kept, or he will say
he didn't know how they were kept. My advice, say nothing. Say nothing about the criminal case,
because everything you say, not only can and will be used against you, it'll be tortured and twisted
so that it can be used against you. The government is the best at doing that.
So my other advice is stop attacking the judge. Your lawyer, Joe Takapina, knows this is a fine
judge with an excellent reputation. You didn't like some of his rulings in a case against the
Trump organization. I looked at those rulings. Most judges, including this one, would have made the same rulings ourselves.
But attacking the judge does you no good. Don't deny until after you're accused. Don't deny at
all because no good comes from this PR campaign that is intermingled with the legal process.
PR campaign, his status as a candidate,
his popularity amongst the American people,
his ability to resonate with what the American people want to hear, his finger on the pulse of those ostracized by society.
Those are all valid things for him to talk about,
but they don't mean a damn inside
the courtroom. So if the purpose of his speech is to whip up public opinion in support of him,
go for it. If the purpose of his speech is to whip up political donations to his run for the
Republican nomination for president, go for it. But if the purpose of this speech is to mount a legal defense,
it's the wrong forum in which to do, and it probably will do him more harm than good.
While all of this is going on, the feds now, not the Manhattan DA, the feds are the best
leakers of information in the world. That type of leaking is highly
inappropriate, unethical if done by a lawyer, but not criminal. So I don't know who, but the feds
have leaked to the Washington Post that in the Mar-a-Lago investigation, they are zeroing in on
the most damaging charge against the former president, which is obstruction
of justice. This one carries serious jail time. And the basis for the obstruction of justice charge
is testimony from several members of the Mar-a-Lago staff, one of whom kept incredibly
detailed notes of every conversation she had with the former president.
Those notes are now in the hands of the FBI.
Those notes reflect that Trump personally reviewed the documents,
which he personally and which he personally directed others to hide inside Mar-a-Lago after the subpoena was received from the grand jury demanding the return
of the national defense information, not using the word classified because the subpoena doesn't
ask for classified, it asks for NDI, national defense information, which is always and
everywhere unlawful for everybody, even the sitting president, to have outside of a secure federal facility, which Mar-a-Lago is not.
OK, so back to this latest information that The and others where to hide it from the FBI.
The FBI found it.
How did the FBI find it?
Well, the FBI had another witness on the staff who told them where this stuff was.
Where was it?
It was in Mrs. Trump's personal clothing closet.
All right, listen, I'd be upset too. Trump was furious when he found out the FBI went to
Melania's clothing closet, but they went there because an employee of Mar-a-Lago said, that's
where he told me to put this box. And another employee said he looked in the box and the
national defense secrets were there. And I, the other employee, looked in the box and the national defense secrets were there.
And I, the other employee, looked in the box and saw them there and he wanted to hide them.
So the Mar-a-Lago situation is a mess and expect these other indictments to come. Mar-a-Lago,
January 6th, and of course, Georgia. I'm not going to repeat January 6th and Georgia now, but I want to underscore that when the government wants to pile on, it will, which is another reason he should be careful about what he says.
This is an old North Carolina country phrase, don't taunt the alligator until after you cross the stream.
I don't know if there's alligators in North Carolina or not, but the late great Senator Jesse Helms used to say that.
Don't taunt the prosecutors. He's probably going to taunt the federal prosecutors as well. They're
human beings. There's no reason to taunt them. You may disagree with what they're doing,
but maybe a lot of this is your own fault, Mr. President. Why did you take those
documents with you? Why did you hide them when you knew the feds were coming? That's a crime
called obstruction of justice. Why did you lie to your own lawyers, which there is lawyers have
testified before a grand jury that he did about where the documents were. All of that is happening
as I speak, as Donald Trump will surrender himself to New York
state authorities tomorrow. Get ready for three more indictments. Georgia on attempting to undo
a lawful election. Mar-a-Lago on these matters I've just discussed. espionage, which is the retention of national defense secrets
and obstruction of justice, and January 6th, which is inciting an insurrection. A lot of us
believe that January 6th was a political demonstration. There were people who got
carried away. They did destroy property. A cop died of a stroke or a heart attack the next day.
A cop murdered a woman by shooting her in the neck. No charges.
But the rest was property damage and disruption of Congress.
The people who committed those crimes have been punished harshly, far too harshly, in my opinion.
But they've been punished. The government is probably going to indict the
former president for instigating all of that. Well, all of this is happening. Evan Gershkovich,
you probably never heard of him. The Wall Street Journal bureau chief in Moscow has been arrested in Eastern Russia and charged with espionage, charged with being caught,
quote, red-handed. That's an American phrase, of course, but the Russians were careful to use that
precise phrase. They accused him of having Russian national defense and military secrets in his hands,
and they accused him of being a spy for the United States. Now, in America,
if a reporter or a person working for a bona fide news outlet has matters that are classified,
national defense information that was stolen by somebody else, the reporter can reveal them.
That's the Pentagon Papers case.
The great American hero, Daniel Ellsberg, stole these documents from the Pentagon,
copied them. There were 70,000, seven zero thousand pages of them, gave them to the Wall
Street Journal, gave them to the New York Times. The Supreme Court voted six to three.
He can publish them. The Times can publish them. He can still be prosecuted. He was prosecuted.
The FBI broke it. You remember all this. The FBI broke into his psychiatrist's office to get his
psychiatrist's records. When the trial judge at his criminal trial found out about this,
the trial judge threw the case out. The government decided not to appeal. So Ellsberg
was never convicted. His prosecution was aborted by what the FBI did. There is no such protection in Russia.
In Russia, if you're a foreign person caught with national defense information, it doesn't matter
if you're in the media. So Evan Gershkovitz, I don't know if he had this stuff. The Americans
say he didn't. He hasn't even had a chance to appear in court yet. We don't know what he'll
say. He'll probably say he didn't. He'll say he was a journalist. He's not a spy. He works for
the Wall Street Journal. Russians say he was a spy. All of this happened two weeks after a guy
named Sergei Cherkazov was arrested. You probably never heard of Sergei Cherkassov. I never heard of him either.
This is a Russian masquerading as a Brazilian soccer player in the United States whom the FBI
arrested for being a Soviet spy. Okay. The Russians arrest a Wall Street Journal reporter, they say he's an American spy. We arrest a Brazilian
soccer player and say he's a Russian spy. Is this what diplomacy has come to? Is this the way
we engage with Russia? They arrest one of ours, we arrest one of theirs. Can we make a swap for these two?
Is this Brazilian soccer player really a Russian spy?
Is this Wall Street Journal Moscow bureau chief really a Russian spy?
I have a lot of friends that work at the Wall Street Journal.
As you may know, they're in the same building as Fox is in.
And of course, i worked in that building
for a long time uh and my friends are saying this is not a russian spy this is an investigative
reporter working for the wall street journal i believe them and i believe him a little soft spot
in my heart for him because he's from princeton new jersey which, as many of you know, where I went to college.
Nevertheless, he's facing 20 years in a Russian penal colony, not an American jail.
This is a harsh, horrible place, similar to where Brittany Greiner was sent.
She was only there for a couple of weeks before the Biden administration negotiated her release by trading another so-called Russian spy.
Victor Boot, spelled B-O-U-T, but pronounced as if it were B-O-O-T. who requested that Mr. Boot be transferred out of the country was the judge who sentenced him
to 20 years for espionage, who really didn't believe the case against him, but sentenced
him to it nevertheless. You can't make these things up. So that's where we are today. A lot
of things happening in Trump world. This is Holy Week in the Christian calendar. We're coming upon
Passover in the Jewish calendar. We're in the middle of Ramadan in the Muslim calendar. We're coming upon Passover in the Jewish calendar. We're in the
middle of Ramadan in the Muslim calendar. I think that there'll be a spike in all the Trump news
today, tomorrow, tomorrow night and Wednesday. And then we'll all start thinking about things
that are more eternal and why are we really here and where do we go when we die? More about that later.
My column this week is called Hope for the Dead.
But right now we need hope for the living.
More as we get this.
This afternoon at 3 o'clock Eastern,
Ricky Kleeman, longtime friend and professional collaborator of mine.
She is the CBS News chief legal correspondent,
also a friend of Donald Trump,
with a lot of insight for you
on the case against the former president.
Three o'clock Eastern here on Judging Freedom.
If you like what you hear,
like and subscribe.
More as we get it.
Judge Napolitano for Judging Freedom.