The Comedy Cellar: Live from the Table - The Case for Prosecuting Donald Trump

Episode Date: September 9, 2022

A conversation about a piece Jed Shugerman co-authored in Persuasion magazine.  Jed Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale.   

This is Live from the Table, recorded at the world-famous Comedy Cellar in historic Greenwich Village. Coming at you on Sirius XM 99, Raw Dog. And on the Laugh Button Podcast Network, Dan Natterman here along with Nolan Dorman, the proprietor of the world-famous Comedy Cellar, established 1983, I believe. Also, guess who is back? 81, 81. 81. Guess who's back? Peri Al brand from israel and greece

she was away for about three weeks it was a europe i mean that's like a norwegian how do you know the europeans do a vacation i was away for a month that's a long vacation um she is back so welcome back thank you and And Perry. Yeah, Perry is our producer, quote unquote. And again, it must be stressed that there is some controversy regarding that designation. Noam Dorman does not believe it's title inflation. Isn't there such a thing called title inflation? There probably is.

That seems like a good word for what you are describing. And he does not. He is somewhat uncertain as to whether your job is fits the definition of a producer but in any case how many raises i've avoided by giving a title a better title do you know how much more i do than i mean all all any title you could possibly give me well we can discuss that should we discuss the missing episode we can Well, we can discuss that. Should we discuss the missing episode? We can. We can.

We can discuss the missing episode. What's the missing episode? Okay. I mean, I don't know how into this you want to get. I will start by saying that we've had this conversation and I do take responsibility for... You lost an episode. Well,

well, well, wait a second, wait a second, wait a second, wait a second. Cause yes, I did.

However, there's, there's a, there's some backstory that I think is relevant. No backstory. Well, there is because I sent it to you in me. First of all,

let's start here. It was the episode with Dr. Eric Topol that was that went off the rail. It went completely off the rails. And what was that remind me? It was the doctor who was telling, you know, who I was arguing with about the trials for the vaccine. I asked him how come when they had such good data for the vaccine after one shot,

they didn't they didn't they didn't immediately distribute the first shot. Okay. I remember. And then he said, and he said, well, no, they don't do that.

But then I found out that they, they actually do have preliminary data and we got an argument. Then we made up. And, um, so I didn't, because we made up, I didn't run the episode because I didn't want to,

I don't want to give the guy. Okay. And so, and Noam said, please send me the episode. And I sent it to him. Are we on the same page so far? He sent me a link, yeah.

Okay. And so I sent him a link via WeTransfer and assumed that then he had the episode, which I think to this day was a reasonable assumption. But as we know, Noam, and this was my oversight as well, Noam often does not read or reply. No, I got the link, and then when I went to download it, because of the way you have it set up or whatever, the link expired.

No, no, no, no, no. I'm talking back in December 2021. The WeTransfer link expired. So when I went to download it, I don't know, a month after I got the link, whatever it was, it was expired. So I never bothered getting it from you again. So then I

asked you for it again. A couple weeks ago. Yeah, and then it's deleted. So I Zoom. It was via Zoom. And Zoom usually saves the episode because we have a professional Zoom. Nicole, you're a tech savvy woman. I don't want to be Sherlock Holmes here.

But when you send a file via WeTransfer, is that what it's called? WeTransfer. You have to first download it onto your local computer and and then you upload it to WeTransfer, and they send a link. Correct. So you had to have deleted it. Well, then you said you didn't want to air it anyway. Well, I was... So I was a little

bit less in triplicate cautious than I usually am because A, I thought he had it. B, I thought it... You should never delete files. I didn't delete it on purpose. If I deleted it, it was an accident. I never said it on purpose. OK, well, how upset are we?

Because you said you didn't really want to air it anyway. Oh, I'm upset because because there's issues that came up with him again. And I thought I could maybe impeach him with what he had said on our show. I'm upset. I'm all about impeachment. So and now it's done. But no, no, no. Having said that publicly, I'm not even sure I'm right because I wanted to review it.

Maybe maybe I wouldn't be able to impeach him. I just had a recollection. I thought he said something. I'm upset. It doesn't matter. Also, and I have I like the guy. He's a smart doctor. I read him all the time.

Actually, one more area that I need to check. I trouble shot with Nicole, which is part of why I gave her that nice bottle of wine because she was so sweet and helpful. I felt terribly. Such a virtue signaler. Nobody cares that you gave her a bottle of wine.

First of all, I'm not. You can't virtue signal with a bottle of wine. Mr. Virtue signal with the kind of car you drive. I don't think, you know, virtue signaling is. But I'm saying that

your virtue signal is like you could have just kept that private between you and the call. Why? You had to tell America. Yeah, because America really gives a shit.

Yeah. I was just expressing my gratitude. How much did it cost you? Go ahead. I was just expressing my gratitude publicly. My point is this, is that Zoom usually saves the file automatically because we have a professional account.

So I assume we have that. We have that account that does it on a random basis. No, stop it. Seriously. And I was really upset because I pay extra for that. Keeps us keeps us on our toes. And then also, you know, the fact that Noam has this, you know, that I fucked up is also upsetting.

Well, you know, and I feel bad because I know I did that deep down. I wonder if Noam's not a little bit happy because he gets to he gets to, you know, say the Perio fucked up. That's got to give you some pleasure. It's it's some medic. It's a mitigating thing. Yes, it does. If the Perrielle losing the file was 100, that brings it down to a 50.

Right. If somebody else had lost the file, there'd be no benefits. Oh, no. It could be worse because there's certain people who might work for me who I'd be so scared of upsetting, even though they've done something terrible,

that I might have to just keep it inside while I'm smoldering about it. And that would take the file loss to 150 because I have to keep quiet about it and I have to suck up the file. So you would be more upset if you were scared to upset

the person who fucked up? I always say your best quality is that you can take a punch. I don't mean that literally. That's't mean that literally. That's what my husband says. Yeah. I mean, you know, you're not thin skinned. So that that's that's your. Well, I am.

That's your best quality. That's not my best quality. Best quality I've experienced. I don't know. I didn't say it was your special talent. I said it's your best quality. I'm sensitive. And you and I, you know, it makes me upset and gives me great anxiety.

Well, maybe producer school. They didn't teach you about file preservation. And you know what? Why don't we ever go over ever the amount of things that I do? Right. Like that's never come up once. And the amount of we have two minutes. Go ahead.

Is our is our guest here? It's 545. Professor Sugarman. No relation to that. Finding Sugarman. Bert Sugarman is who is Bert Sugarman. That documentary about that singer. Finding Sugarman. That was a good, interesting documentary. Here's the only thing that I would like to say is that I felt a tiny,

tiny, tiny bit vindicated, although I'm still very apologetic and I feel badly that about the Lost Topal episode was that I managed to book Professor Sugarman because Noam had literally sent me like four emails about booking him in all caps ASAP before it's no longer relevant, which is another complaint he has about me that he'll send me something and then I'll book the guests too late. I just got confirmation from Liz that I'm going to Vegas, too, by the way. Yeah, I'll be gone. But I'm getting in Sunday instead of Monday. So Liz just told me I will have a hotel room for that night.

So we just take it out of your pay. Oh, well, I guess nobody was. But I would I would I would remind you that I'm doing it more for the club's benefit than for mine. But last time last time I left last time I left on Monday and the flight was canceled. And then I hadn't I mean, and then I I actually out of my own pocket, I paid money to get out there. How much? How much? Like four hundred extra dollars. That's about pocket, I paid money to get out there. And I didn't know how much like 400 extra dollars. That's about how much I spent on the bottle of wine. But

you paid 400 bucks for that bottle. No, but not kidding. She probably gifted it. Don't be disgusting. Is would you have any qualms if she were to tell me exactly what bottle of wine she gave you? You gave her. No.

Because, you know, I gave you guys some wine recently. No, go ahead. No, I'm kidding. Good. All right. Is he coming? I don't know. He said he was coming.

I spoke to him yesterday and I spoke to him today. Does he have the link? Does he have your phone number? He does have the link. Well, if he's not here. And he confirmed just less than two hours ago that he's coming. It must be having a technical problem. Well, so anyway, so before we continue, we're waiting. So and the other thing that upset me was that Perriello is insisting that there's such a thing as an afterlife.

And her reasoning is just just her reasoning is no worse than anybody else's reasoning regarding an app. But it's me. I mean, it is worse when you whenever you talk to somebody about the afterlife, the reasoning is roughly the same. Do you want it? I guess we should talk to we should bring in. Is it Mr. Sugarman, Professor Sugarman, Jed? Well, I know you ask him your sugar sugar bear. Let him in. Let him in. You have a via, right?

Jed Handelsman Sugarman joins us via Zoom. Give him a second to get on. So I tell the listeners that we were about to prove that there's such thing as an afterlife, but we'll we'll get to that next week. Hi. Younger than I expected. Jed Sugarman. Hello.

Are you coming to us from your house or from Fordham Law? From my house. This is my this is the office that Leslie Jones called when I was on cable once the the homeschool that I got sent down by my wife to the homeschool room. How does Leslie Jones know your. You know, Leslie Jones did that thing where she would watch live. She would like live parody msnbc or cnn bits uh and i was on i was on one of those shows yet handlesman sugarman

is a fordham law professor that's my alma mater by the way i went to fordham law oh great is um is uh who's still there um the First Amendment guy that we... Well, no, no, no. Thayne Rosenbaum left. What about... I'm afraid to say, I mean, some of these people are probably regrettably deceased, but what's her name?

Well, Tracy Higgins. She was young, so she's... Tracy is there and going strong. And there was a professor. She was a criminal law professor, sort of blonde, but she was old then. I hesitate to even bring her up. Anyway, okay.

I could bring up the faculty guide and we could go. Are you a criminal law professor? What's your expertise there? Anyway, okay. I could bring up the faculty guide and we could go, you know, a colleague. Are you a criminal law professor? What's your expertise there? My expertise, I teach administrative law, which is most germane to maybe our topic today. I teach tort law. Oh. But my main research area is legal history. Now, I had tort law.

Well, I had tort law with a professor who I know has passed, but I forgot, isn't it Magnati or not Magnati? Something like Magnati, but he was like a Jesuit friar. So it turns out that as a Jesuit school, Fordham once upon a time had a lot of clergy faculty and that era is, that's over. I think he was like, I don't know if he was still in the business. Anyway, Jed Sugarman, Fordham Law Professor. I had tort law with Gary Francione. You know who Gary Francione is?

At University of Pennsylvania. I remember this. You cannot be the vicarious beneficiary of a breach of a duty owed to another. Paul's graph. This guy's... You could have me on for an hour to talk about Paul's graph. I actually have... I bring out some trains. It's a train case.

That's a train case. Judge Andrews. It's the one thing I remember from law school. Well, anyway, he is the... Jed Sugarman. Should we call you Jed? Shuggy or Professor Sugarman? Sugar Bear. You can call me Shug. That's a nickname I have on the softball field.

He is. He wrote the People's Courts. And he's also has a blog, sugar blog dot com to be taken in moderation. And he is co-author of an amicus brief in Crew v. Trump. Welcome, Shug, to our podcast. Thank you for having me. Yes. And I wanted to get you right on right away

because you wrote a piece in Persuasion about 10 days ago or something like that, two weeks ago, that the case for prosecuting Trump, I guess for incitement to riot. And of course, already this has been superseded by a much easier case and much more significant case with these documents and the obstruction and the, you know, it's replaced the sugarplum vision. What is it?

What are they saying in the poem? Visions of sugarplum dancing in their head of getting Trump in jail. But so I'd like you to also tell us about the latest revelations. But just to go back to that column, maybe you just give us an overview of why you think that Trump should be prosecuted for incitement to riot. Sure. Well, what's interesting is that you just described the FBI search of Mar-a-Lago as more significant. I mean, think about the status of this investigation, that it turns out that we found something more significant than inciting insurrection. I would actually say that inciting the January 6th is more significant than

what we know as of now. Right. I mean, I think the documents, you know, this is a person who was elected president. I mean, he did have access to all kinds of documents related to national security. So I actually might even tap the brakes on how significant we know as of right now, the classified material, how serious the classified material is. I would agree with you. I said it only because I just saw some headlines about nuclear secrets. The word nuclear, I think, is itself a kind of a nuclear. It's like radioactive. I'd be a little cautious about just the fact that the word nuclear is being used.

This is a guy who had the nuclear codes a year and a half ago. So that's but insurrections by insurrections are not common events in American history. So I would say that is what's interesting here is thinking about the FBI search as comparable or analogous to getting Al Capone for tax evasion. Sometimes, you know, someone is a career organized crime boss and it takes paperwork issues like classified materials to be a slammed on case on a less significant crime when you know that that a person has committed many other crimes that are harder to prove. ask you about. So I want you to explain it to the listeners first. I think you said in the column that you had not been convinced that Trump could be prosecuted for his speech until the testimony of Cassidy Hutchinson is her name, right? That's right. So maybe you can tell us about that and then I'll tell you what my problem was. Yeah, please. I mean, so let me maybe I can do sort of a before and after story. Right. I mean, before Cassidy Hutchinson, lots of people thought, you know, working backward and having seen January 6th explode with violence. You look back at the Trump speech at the ellipsis and, you know, when he says things like fight like hell and go march on the Capitol, and lo and behold, people go literally fight like hell after marching to the Capitol, you know, you see step A and step B, and it looks causal.

And of course, you know, there probably was causal, right? But that is a little bit like hindsight bias, or in hindsight, it looks like what Trump said was literally inciting that riot. The problem is that in politics, we have all kinds of political leaders from all kinds of political backgrounds, left, right, center, who say things like fight like hell all the time or go march somewhere. I mean, what happens the next time a prosecutor, and you can guess what kind of prosecutors we'd be talking about, who hear, let's say, a progressive speaker, say, like any context of after a police incident with the use of force, and someone says, hey, we need to change America, we need to change these issues, go fight like hell and then go march somewhere. And then there is violence somewhere. And we've

seen not only recently, but throughout American history, that it's often on the left that anti-war protesters get prosecuted for incitement. Like, you know, there are lots of lots of cases in American history. So I really challenge you. I challenge those out there who thought that Trump was indictable to distinguish between the actual words Trump used from the kinds of, there's a slippery slope, an obvious slippery slope problem. But that, so let me, that's the before. The after is Cassidy Hutchinson's testimony. So let me explain that often what we're looking at with cases about crimes and speech is something like speech plus. You need not just words, but words plus an action. So in law, when you have a conspiracy conviction, when you have a conspiracy prosecution, the

prosecutors need to show not just planning, not just talking about a crime, but it's a crime plus what's called an overt step, also known as a material or concrete step, but it's an overt step towards committing the crime. What Cassidy Hutchinson revealed, and we take her testimony as credible, which at this stage I think we have to, when Trump does a couple of does a couple of things. But primarily, let me focus on the one thing that he that she testified that he said, which was get rid of the mag, get rid of the mags, get rid of the metal detectors, the magnetometers. And his advisers said, you know, a lot of people are not able to get to your speech because they're not going through the metal detectors. And so he says, you know, they're not, he says, quote, they're not here to hurt me. Get rid of the mags and then they'll come and then they'll march to the Capitol. And that's what's called, that's what I and my co-author Alan Rosenstein call and would call an overt act or a material step that actually materially would make that crowd

more dangerous in two ways, that it would make sure that the crowd around his speech was more armed because he knew they were armed. And second, it would it would get more of the people who were likely to bring arms and because they were likely to be violent to get them to join the crowd. And that would and those are the people who would hear words like fight like hell and go march on the Capitol and then do that violent. And, and just to, and to just also bring the listeners up to speed to be guilty of incitement.

You also have to have intent, right? To you have to have intended to incite the riot. That's yes. Or you'd have to, the intent behind those words would would you'd have to prove that's called mens rea it's called the mental element and yes you'd have to have intended that all right you know i before i met you and and i took an instant liking to you i was going to

pose this as a gotcha question but i'm not going to pose it as a gotcha question not that i would not that i was assuming you wouldn't get it but i thought it'd be fun and i don't usually do that but just because of the anyway but I'm not going to do that. But I wonder, I will ask you this. I think that Cassidy Hutchinson's testimony actually proves the opposite of what you just said and actually blows the whole case out of the water. You want you want to guess as to why I'm going to say that? What can I make one guess? Sure.

One guess is that, you know, another explanation for why he wanted to take the metal detectors away is he just wanted to increase crowd size. Yeah. So, well, that's close. Yeah. So I'm going to read the testimony when I read it. And I remember when I first saw it, I was like, well, this is I must I must be missing something. But. I don't know if I should start with Liz Cheney's. I don't want to read too much, but she says, Miss Hutchinson, we're going to show now an exchange of text between you and Deputy Chief of Staff, blah, blah, blah. And she says in one text, you're right. But the crowd looks good from this vantage point.

As long as we get the shot, he was effing furious. And then she says, Cassidy Hutchins says, when we were in the offstage announcement area tent behind the stage, he was very concerned about the shot, meaning the photograph that we would get because the rally space wasn't full. One of the reasons which I previously stated was because he wanted it to be full. For people not to feel excluded, they had come to watch. They had come far to watch him at the rally. So, and there's some other reference. So when I heard that, I was like, well, she's telling us that his expressed reason for wanting to fill it was for the photograph. So how could you ever prove beyond a reasonable doubt that he had the intention to cause a riot when the woman testifying against him?

And by the way, I think there's also hearsay issues. And she says, I was in the vicinity. There's no hearsay issue. Not what goes hold that. I want to hear about that, too. But she says, I overheard. Let's assume it's presented just like this. I overheard the president say something to the effect of, you know, so it doesn't sound like she even has a precise recollection.

But what she does clearly remember is that what he was worried about was the photograph. And to me as a juror, once I know that her main takeaway was that he was worried about the photograph. How are you going to prove to me that he wanted a riot? All he was talking about was the photograph. And that's why he wanted the mags. And then just one other thing that you said, you put it that way. They're not there to hurt me. But, you know, you're inflecting it that way.

But he also could have put it. He also could have said, they're not here to hurt me. So that's what I would say in front of a juror. He's not saying, because the way you make it sound is ominous, like, well, they're here to hurt Mike or whatever it is. But he could have just meant, especially with this kind of open carry mentality that these people have, no, they just have their guns. They're not here to hurt anybody, right? So anyway, so what's wrong with my thing about the photograph? So as someone who studied law,

I think you're aware that one can have more than one intent behind an act. Yeah, but this is the, I get that, but this is her, like she's the only one that heard the conversation and her took away from the conversation and the conversation what you think makes the difference here and she has presented it as trump was mad because he couldn't get the photograph and that's why he wanted the mags

taken away you want to take out part of that and say he wanted the mags taken away this is his overt act towards the uh incitement of the. But she says the opposite. She says he wants the photograph. So if I recall, I think our article acknowledges that. I mean, I think we had two different Alan Rosenstein and I had two different pieces that emphasize this background. And we acknowledge that, you know, Trump, Trump as this as the narcissist in chief, whether it was his inauguration of exaggerating crowd size. We know he's obsessed with crowd size. So let me say two different things. Yeah, but I mean, I will let you speak. I don't want to. But I think you did acknowledge you could have mixed motivations.

But I don't I don't think you acknowledge that she explicitly says what his motivation was. It was for the photographs. And again, reasonable beyond a reasonable doubt to a juror, you're going to introduce that. And you got to convince me that this is an overt act towards a riot when the woman who's reporting it says it wasn't that it was for the photograph. No, no, wait a second. So we are talking about two separate moments where there are different kinds of intent, right? It's the intent behind the insurrection intent is pieced together from a whole series of events, one of which is getting rid of the mags. Getting rid of the magnetometers can have a primary goal of increasing the crowd size and getting a better picture. But when you piece that together, and that's not the insurrectionist moment, right?

There's no inciting a riot from an order to get rid of metal detectors. So in criminal law, when you present a case and you build a case, you need two different pieces, two different elements. I'm going to use some Latin, so I apologize but this is the technical doctrine you build from an what's called an actus reis which is latin for the bad act and then around the bad act you show from context because no one can get into someone's head you show the context of mens rea which means the mental element or the intent. So our argument has always been that the getting rid, that the bad act was the speech itself, right? Fight like hell and go march on the Capitol. So the intent that we're describing is what did Trump mean? What was his intent when he's giving this fired up speech. And he says different things at different times,

but the speech is incitement. No one thinks that getting rid of a private order to his staff to get rid of the metal detectors is the bad act. That's not the argument, right? But the getting rid of the metal detectors is reflective of what he knew about the crowd and also a concrete step in making that crowd more dangerous so if you're asking what did he intend when he said fight like

hell and go march on the capitol and what his intent was if he if we can establish that and this is also what cassie hutchinson's establishes, he knew that this crowd was very heavily armed, body armor, AR-15s. Not only does he know it, which is significant, he says, I want more of those people in my crowd. If there were a recklessness

standard, you would not hear me arguing with you. But there isn't a recklessness standard. He has to actually intend it. And I think to me, when the woman who's reporting the key piece of evidence says he was fuming about the photograph, I think if you're getting ready to create a violent insurrection, to use your term, to take over the government,

I don't think the photograph is the thing you're going to be screaming about that everybody remembers. And let me just, just for the sake of honesty, because listen, there is something, this is not regard to whether Trump is right or wrong. There's something about the whole,

I mean, you're a lawyer, you believe in the adversarial system. There's something about the things that get mean, you're a lawyer, you believe in the adversarial system. There's something about the things that get dropped from these facts like this thing. How often do you hear somebody on CNN talk about the fact that she said it was for the photograph? I mean, it's fine if an analyst wants to explain that away. But the fact they don't report it at all is leading us by the nose. And this happens all the time. So just for the sake of not leading people by the nose, after Trump says fight like hell, he says the following, because this is going to complicate the courtroom. Right. Anyone you I for some reason, I started

here, anyone you want. But I think right here, we're going to walk down to the Capitol and we're going to cheer on our brave senators and congressmen and women. And we're probably not going to be cheering so much for some of them because you'll never take your back. You'll never take back your country with weakness. You have to show strength and you have to be strong. We have to come and demand that Congress do the right thing and only count the electors who have been lawfully slated and legally slated. And you have to demand that they count them. Right. I know that everyone here will soon be marching over to the Capitol building to peacefully

and patriotically make your voices heard. Now, you could say that he's, you know, just putting in some boilerplate language there to give himself an eventual defense to the eventual. If I mean, if Trump's that sort of an evil genius or you can prove the jury might think, well, he talked about peacefully. He talked about demanding. He talked about having them count. Giuliani was there the day before talking about wanting just a few more days so they could prove it in court. And she says he wanted a photograph. I might think I might think he maybe he meant it. But beyond a reasonable

doubt, am I going to say this is proven and I want to put this man in jail? I say there's no possible chance of that. That's my that's my ladies and gentlemen, the jury. That's my case. So what am I missing? First of all, what you're one piece you're missing here is that the standard for an indictment is not necessarily that you've already established the case beyond reasonable doubt. Okay. I thought this. I'm compressing this all to the court. The standard for indictment, I thought, is you have to be a ham sandwich. I mean, which is a.

So let me say one of the problems. I assume you want him indicted because you think you could prove it in court. You know. Yeah. But you also know that if you, you know, your indictment will be that you've got, you have to know, you have to think that if you get your day in court, you're also going to be able to build a case with other witnesses. And so the proof to get one step towards that indictment is thinking, okay, we, we have a good shot. I mean, you don't want, you don't want indictments when you know when you don't think that

you'll think you can just get the ham sandwich indictment for probable cause. You need more than that. But I think there is, with the context we have here, enough to bring this case for incitement. So I just want to go back to, and I just want to make sure this is clear because, and I think I'm maybe repeating myself, but the evidence about the magnetometers and getting rid of the mags can have multiple intents. There can be the primary intent expressed, but if in general, what Trump, what the testimony over the summer shows is that Trump was basically building up on multiple tracks, a conspiracy to interfere with and obstruct the counting of the ballots at Congress. So I've talked, we've focused a little bit more on,

we focused entirely on the incitement charge. The point that we raise in our article is there's also an obstruction of justice charge and you don't need both. I'm just saying that the, you know, you can get a conviction on obstruction for these facts, even if you've got doubts about whether you can prove the intent to start, you know, a violent act, the idea of having a violent, having a very heavily armed and increased a crowd that he's made more armed to go march on the Capitol during the counting of the electoral college votes and meant to stop that counting and obstruct that counting. That's obstruction of justice. So the calculus might be, to be honest with you, that a conviction is maybe not

signed, sealed, and delivered on every charge by themselves. But if you brought an insurrection, an obstruction, and other kinds of related charges like the conspiracy for insurrection, there's enough proof that one of those charges would stick, especially with more investigation. I don't know about the obstruction, but I think that given the Brandenburg standard and given the fact that there's a First Amendment that leans very heavily in the direction of protecting anything that's said

and given the things that I've presented here, I just don't see how- You don't see an incitement. I don't see how a jury could rule that way. And I also want to add, because David French, who I've tried to get on this podcast, who I'm an admirer of also in persuasion,

I think he referred to Giuliani's talking about wanting to have combat. Remember that like Giuliani's are you familiar with that? Yeah. And I thought that was, forgive me, I'm going to use a bad word, but I thought that was very dishonest as well. And I just want to because because this matters, because. If Giuliani is talking about combat and he means it and Giuliani is the man closest to Trump,

then we could reasonably infer that this is what they were cooking up. So and again, these these things get repeated. So I just want to read Giuliani's quote, because I think it's part of the context of all this. And I think whatever Giuliani is thinking can be probably attributed to Trump. So it's perfectly reasonable and fair to get 10 days. And you should know this. The Democrats and their allies have not allowed us to see one machine or one paper ballot. Now, if they ran such a clean election, why wouldn't they make all the machines available immediately? If they ran such a clean election, they'd have you come in and look at the paper ballots. Who hides evidence? Criminals hide evidence, not honest people. Over the next 10 days, we get to see the machines that are crooked, the ballots that are fraudulent.

And if we're wrong, we'll be made to look we'll be made fools of. But if we're right, a lot of them will go to jail. So let's have trial by combat. I'm willing to stake my reputation. The president is willing to stake his reputation on the fact that we're going to find criminality there. Now, this is so obviously him talking about a procedural thing that to my and I believe I am objective. Believe me, I'm no Trump supporter. It makes me sick to my stomach when people so horny to get Trump, people who certainly must know better. David French went to Harvard Law School. Shame on him. I mean, I'm not sure that that's necessarily a Harvard law school,

that that's obviously a point that this is more credible. Well, but I was saying, like, how could anybody take the word combat out combat out of that? What I just read? And so you see, he was talking about violence. I mean, it's insanity. OK, so I was with you. I agree with you on that claim about Giuliani. But they go together because if Giuliani is talking about we only want 10 days, he's the guy talking to Trump. He's advising Trump. We need 10 days. And Trump is there trying to get more time. And he tells his people lean on the Congress so that they wait. Tell them not to count the vote yet. We're going to go peacefully. It's all such a clear picture of a plausible, but nothing contradictory to it, really, except Trump's utter recklessness in the fact that he's

so narcissistic. He didn't care that people had weapons. But to actually think that you're going to convict him of something, I just think this is people getting carried away. I'm not defending Trump, anything he did. I just think it's people getting carried away. Okay. I said, you said what you want. I said my piece on all that. So we're not that far apart in some of our basic principles. I mean, I was with you and we talk, Brandenburg is this Supreme court case that limits the incitement convictions when something has to be an imminent act of violence. And there needs to be clarity about it. So I'm sympathetic to all of that. And I'm sympathetic to your points about, I'm not calling for an incitement prosecution for Giuliani. The other aspects of Cass, I mean, I think if you

piece together other aspects of the testimony from the summer, such as Cassidy Hutchinson, and this is more complicated about the question of whether Trump tried to physically get himself to the Capitol. That's also relevant to intent and relevant to- Not relevant to intent of excitement, to really he wanted to be at the Capitol. He promised them in the speech he would be there. And you don't think all that together

would be obstructive, at least in a colloquial sense. You think this is all going to be you think that the vote votes is it would be would not be interrupted in a in a fundamental way by this armed crowd with Trump there leading them on the Capitol? I'm not going to respond to all of that because I haven't thought all that through. No, no, no, wait a second. Hold on a second. Let me just answer. Hold on.

Go ahead, go ahead. Hold on. Yeah. You talked a lot about incitement. I just wanted to answer your question about the limo. I just wanted to answer your question about the limo. Okay, go ahead. I think that the president of the United States

orders the limo driver to go somewhere. It's beyond me that the limo driver had the temerity to say no. Who the hell does this limo? The president is the president of the United States. The limo driver has, it may be dangerous, the limo driver has to take him wherever he says. The limo driver can veto.

Why? Because the Secret Service also has a duty to make sure that the president doesn't, A, get injured or killed, but B should not commit crimes. What if the, what if the limo driver is, what if the secret service is aware that this is likely to be a combination of incitement and obstruction? Should the secret service aid and abet crimes? If the C, if you could prove to me that the reason this limo driver didn't want to take Trump there was because it was not the reason he said, I think he said it's dangerous or something, but because he thought he was aiding and abetting a crime, you might have me there.

Yes, but I don't believe that. Well, how about this? We have that testimony. I mean, his own staff says, if he, I mean, correct me if I'm wrong, doesn't Mark Meadows say it or doesn't Cipollone? It's one of his advisors. He's who says if he goes to the Capitol, you're committing all kinds of crimes. I don't know.

He had advisors telling him you can't do this. Or he had other advisors saying to other witnesses, we can't do this because these would be crimes. I mean, but I doubt I doubt the limo. I doubt the limo driver was thinking that way. You don't think the Secret Service is aware of what constitutes possible criminality? I believe that if that were the case, Liz Cheney would have introduced that to us, but maybe not. I agree. It's a hypothetical. I agree with you. If that's the case, then I'd agree. But, you know, just on the face of it. But my main point, honestly, my main point is it's the Secret Service's job to make sure that presidents don't get injured or put or get in harm's way.

But they don't have authority over him. It's their job to make sure that he knows the danger and to try to persuade him. But they cannot decide for him. They can't. I don't believe I don't I don't know the law, but I don't believe there's a fourth branch of or it's not a fourth branch of government. I don't I don't believe there is a right for the Secret Service to tell the president you can't do something. I think they have to do what he says. I think we've gotten distracted from the question, which is. OK, I interrupted you before. So go ahead. But let me finish this point. I mean, I on the point of I mean, this is more of a hearsay problem, right? Because Cassidy Hutchinson wasn't there. This is a hearsay problem. Cassidy Hutchinson says she hears that Trump tried to get to the Capitol, that's an additional piece of context. I mean, keep in mind that any prosecution, we're never going to be able to get exactly into

someone's head and know what they knew and what they intended in every moment. But that's why prosecutors are able to paint a picture with context and rely on a jury's common sense. But what I did want to turn to is, I think the stronger case is obstruction of justice under the statute about obstructing a federal proceeding. And the obstruction, the idea of sending thousands and thousands of armed protesters to march on the Capitol during the counting of electoral votes, and then wanting to be there with them and saying, I'll be there with you, is is is I would say indictable as a matter of obstruction of justice. No way. There is there is no way unless you can prove that he wants them to go into the Capitol,

that having a raucous protest outside a government building can be considered obstruction of anything. You could, the crowds can show up outside of the Supreme court house. And while they're arguing Roe versus Wade, and they can scream and yells, make as much noise as they want. That is not obstruction of a proceeding, but I don't believe. street crimes or the kinds of crimes, why we have a mass incarceration crisis in America. Are you are you raising these doubts or concerns about how prosecutors prosecute people every day, all the time? Actually, actually, actually, I am. I mean, I mean, this is a more interesting case, but I have people who listen to the show. I have a big civil liberties bent. Like I was cautiously in favor of all the bail reform because after all, they're innocent or proven guilty. You know, and I try to internalize that.

But I don't think it's worked out. And I think, you know, you can't make a perfect enemy of the good. I don't know what the proper cliche is. But yes, in general, I do. But the Trump thing is in a whole nother interest to me because of how often, in my opinion, like the David French example, and he's hardly alone. And this goes back to all the Russia stuff, how really, really smart people that I know just seem to be all in on a kind of confirmation bias thing. Like there was a guy, I think it was an NBC, a legal analyst who tweeted the other day, Russian oligarch Viktor Vekselberg just had his house searched by Homeland Security right after 15 boxes were found at Mar-a-Lago. Coincidence? You know, like he's still trying

to prove this Trump Russia thing. Right. And in my mind, I'm like, you know, and after, of course, it proved not to be the case. It turned out time wise, one search became before the other. So it couldn't have been that. And my analogy was these people will still go on believing it. It doesn't matter how many of these things fall through in the very same way that the election deniers will still always believe election denial, no matter how many of their coincidence tweets, you know, upon further examination, turn out to be untrue. But we expect that from the crazy Trump supporters. But we don't expect that from the nation's leading experts in legal analysis and political analysis, you know. And it really bugs me, This thing about Giuliani in combat. I've heard it so many times. Lawrence Tribe said that Trump should be prosecuted for

attempted murder. Yeah, I know you think that's ridiculous, but why isn't he fired? Why is he still the nation's preeminent legal analyst? Like where where don't they ever draw a line that so that that that bothers me this still bothers me i'm i i agree with you i mean i'm not i mean that's that's why i wrote this piece was that we believe that this was not valid to prosecute trump for insurrection for mere words and uh so you know i agree with you i'm not here to defend a lot of the more extreme sort of, you know, attention grabbing people seeking likes on Twitter. I mean, it's destructive. It is destructive. So I agree with you. But I think the question is, where's the balance? Right. So the I think this is also the legal argument, which is mere words like fight like hell.

I agree with you. That was that was not indictable. We've got to protect that kind of speech. But again, I know I'm repeating myself, but, you know, at the point where someone is making orders, where it shows knowledge and back to your point about the recklessness standard, this I'm not I agree with you. That's not a recklessness standard. You have to show intent.

But what my point to you about what we do in America with prosecution, this is the way cases in America, and frankly, I mean, it's been taken to an extreme with mass incarceration. But the prosecutors paint pictures all the time that are far more leaps of evidence and logic than what you've described here. Oh, absolutely. So the question at some point is, at what point is Trump getting, is Trump, are presidents above the law? They're two different justice systems. To what extent must we factor in what it would do to America to have a former president on trial? And does that have to factor into the decision? So I think that that was something you have to weigh. And but at this point, you also have to weigh on both sides. What does it do to the rule of law in America to have a president on trial?

But also, what does it do for the long term of the rule of law in America? If you if you ignore a series of crimes. Can I answer it? I think we know exactly what it does to America. Nothing. Because Nixon did all this and more and was pardoned by Gerald Ford and it with no

bad effect, I think on the country and most people. I grew up in an extremely anti-nixon home and my father cursed ford and it probably caused for the election for pardoning nixon but in retrospect even my father came around to the argument that it was good to put nixon in the rearview mirror it was better for the country i'm on record as agreeing with that yeah i i agree that nixon it was right to pardon nixon you're a, you're leaving out a key fact in the narrative.

Go ahead. Well, what did Nixon do that was different from what Trump did? No, I'm saying, presuming both of them are guilty of something, it didn't hurt Nixon. Nixon resigned. Oh, and Ford's going to run again. And Trump's going to run again. Well, forget Trump running again. Trump tried, there was a lawful election.

Nixon didn't resign because he felt bad. He resigned because he's about to be impeached. Of course. He still resigned. He resigned because the Republicans came to him and told him, listen, we're going to have to vote to remove you as well. So he resigned to avoid humiliation. I mean, you know, and yet he still resigned. Yeah. Trump had many advisors like William Barr, his attorney general, who said you lost. Lots of people said you lost and he didn't care. He wanted an insurrection or obstruction of Congress to prevent him from losing and not being handed a second term. I mean, your example, sorry, but your example actually cuts precisely against you.

Well, I hadn't thought of it overwhelming recognition in the country that he had done something and he and he was a national shame. And that's different than Trump, who half the country, at least until before these documents thing, we'll see where that pans out, felt was wronged. Nobody was going around saying Nixon was wronged. So that well, that's that's not really that's not historically true. No, not many people. I mean, a very substantial number of Americans thought that it was a trumped up investigation. Sorry, no pun intended. But is it that Watergate was, you know, this is actually part of the I mean, I've done some research on, you know, the origins of some of the people who believe

in presidential power and what's called the unitary executive theory. And in the 1970s, many conservative lawyers thought the problem was Congress meddling in the White House. That was the fundamental problem. And, and, and they've sought since the seventies to fix a lot of the changes that made Congress too powerful and, and powerful and made the presidency not powerful enough. but had to do with trying to not leave office might require a more serious reaction than whatever Nixon was doing, which was more ordinary. So I mean, if I was to make your point, I would concede that.

I think that the other point I was going to make, but Dan, you got something? But this is the thing. The other point was good and it'll come to me, but what uh, Dan, you got something, but this is the thing. The other point was good. And it'll come to me, but, uh, what is the risk? What's another way to put it? How sure would you want to be that you could convict the guy rather than risk making things even worse by having him get off, pounding his chest and declaring victory?

I mean, I think this is that's the billion dollar question. And it's hard to know. I have a couple of answers. I have a couple of responses. And this is also an answer to your earlier question about the cost to the country of prosecuting. So there is some merit in bringing a prosecution, even if you think there's a substantial chance you lose. Or I don't mean by an acquittal. I think at this point, my guess is either you get a conviction or you get a hung jury. I just don't, I think the case is strong enough. And I think, frankly, I'm going to concede that I think enough jurors are biased enough that you'll get enough jurors in a jury room that you'll get four people who walk in day one and want to convict them. That's not a good thing. I just still declare victory. But go ahead.

Right. Well, that's right. But, you know, a hung jury, if it's if it's 10 to two, right, that we always find out the vote at the end. But let me put it this way. I mean, a lot of people describe what happened in January 6th as a trial run for 2024, right? You sort of tested, Trump was testing the bounds of the rule of law and has been seeking the weak points and vulnerable points in our democracy. And he found a bunch of them. I mean, he got pretty close. I mean, there's a lot that he did, even with losing an election by a pretty wide margin electoral college. He stirred things up with enough people who are willing to participate in the fake electors plot and et cetera. that this was not an indictable crime, not even worth the prosecution, which sends its own dangerous message about what can happen in four years, the kind of impunity with which people can

incite or obstruct. And I think that's a dangerous precedent as well. And at least, I'm not saying that it's obviously that it overwhelms on the ledger, but it has to be at least taken into account. So you reminded me of the point that I couldn't remember. Yeah, please. One of the other things that made me kind of roll my eyes at all of this is that seems to me that after Trump pressure tested. The vulnerabilities in our laws that we had thought were mere formalities, The first thing Congress should have done is revised those laws to close these loopholes that Trump was testing. But no, they still haven't done it. There's a midterm coming up and they may lose the window of opportunity, maybe closing,

and they still have not revised the Electoral Count Act while they control all of the houses of government. And it just makes it seem to me that they're more about getting Trump than they are actually worried about this happening again. And I'll say also, I heard John McWhorter use this phrase, failure of imagination. It might be my own failure of imagination, but I don't think anybody's doing this again. I mean, I just I just don't think I don't think it seems like a singular event, but I wouldn't want to risk the country's future on it. I'm all for closing these loopholes in the law. But I think closing the loopholes in the law are a hell of a lot more important than trying to make Trump pay for a crime we're not even sure

was in his mind. We don't know. We don't know. So if they would close the laws, they'd have me more convinced. But anyway, that was the point I forgot. We're at an hour for the show. I know that Jed has talked about student loans. I know that's a big issue that you...

That's not a big issue, but go ahead. I know it's an issue that you feel strongly about. I don't feel particularly strongly about. That's not a big issue, but go ahead. I know it's an issue that you feel strongly about. I don't feel particularly strongly about. That's not something I've railed against. But I mean, I have some opinions on it, but it's not like a thing that I really care about. But you have opinions about it? Well, I mean, well, the other day you

were discussing, you were saying that don't take bullshit majors and you won't be in debt. Oh, I do believe that, yeah. Well, define bullshit majors. Like my major? I would say don't borrow for be disparaging a bit, something people like gender studies, whatever it is, whatever, whatever you choose your own major that you think you can't, doesn't have a profession attached to it. I'm all for studying anything, classics, study, whatever it is, but don't borrow a critical amount to your wellbeing

when you know that there's not people hiring for that degree. But why can't you have an education? Like I got my master's degree in creative writing. But you can go. Why can only rich people be afforded that luxury? Well, so I have written an article. I had an article that came out on Friday over the weekend about this. Oh, great. But that's why I brought it up. Oh, I didn't know. Thank you. Just coincidentally, I wrote something in The Atlantic about it. I actually, you know, I'm not going to dig into the merits on a policy level. I'm sympathetic. I support the policy that what I wrote about was how the Biden administration has blown it

as a legal argument. I mean, I'm and I'm concerned because I support the policy of means tested student debt, you know, making sure that when people are making less money that I that I support. My concern is that the Biden administration is doing is being hypocritical. You might appreciate this point, actually, for the hypocrisy as an emergency measure. Right. For four years, we heard the left complain about the abuse of executive power and misusing and invoking emergencies to build a stupid wall or a Muslim ban or family separation policy at the border and all kinds of and it's and it's BS. There was pretext arguments that Trump made for the real for, you know, what we all knew were some of the real reasons that especially with, you know, the policy I was just talking about. for this student debt relief plan is relying on a post 9-11 act called the Heroes Act written

about, you know, it's called the Heroes Act post 9-11 because it was to alleviate the debt concerns of people who are going to war or otherwise affected by 9-11. And it's a leap to apply that statute to justify the president, not Congress, but the president using that statute for a sweeping student debt relief program that isn't tailored to an emergency, that isn't tailored to COVID. They just say, we're sweeping away the debt, even if the debtors, even if the student borrowers can't show that they were affected or in a worse place by COVID. Many are, but many, many people are not in a worse place financially because of COVID. So, I mean, I agree with you a thousand percent. It's, it's,

it's galling the way I'm sure some Republicans have done it too, but I just recall Obama saying, you know, I'm not a dictator. I can't, what was it? I can't, you know, legalize the dreamers and then does it and Biden saying, I'm not a dictator. I can't. What was it? I can't, you know, legalize the dreamers and then does it. And Biden saying, I'm not a dictator. I can't just forgive student loans and forgive them. And we also know that. And actually, you know, building a wall, at least there was millions of people and turmoil at the border. At least he could point to something. But and I but I don't I don't like that emergency measure either. Um, so, uh, you know, I, my suspicion is that behind closed doors, they say, look, Mr. President, you know, this is probably not going to hold up, but I guess if it, if somebody

has standing goes to the Supreme court and he says, look, just do it. We'll deal with it after that. We have a midterm coming up. That's the way politicians are. Right. And it's, um, it's corrosive to our system. It's not good as far as the policy was. Politically, I think it's tone deaf because there's a lot of plumbers and working class people and all sorts of people who have also borrowed

for what they thought would be their career. And Democrats just seem to be doubling down on this perception that that they don't care about the the deplor seem to be doubling down on this perception that they don't care about the deplorables, to use a loaded statement. So I don't think that's smart, but maybe it's smart in the midterms. I don't know. And then, well, that's it. It just seems unwise all around. It's half the amount of money that went to the TARP program. It's a tremendous amount of money for what we didn't realize was the problem that America had that we thought most needed half a trillion dollars or whatever it is, or a third of a trillion dollars. So it's fine to say you support the policy. There's a million policies we could all support,

but it's a big price tag. It's a big, it's a big triage statement too. If we have $350 billion to spend, is this the number one issue in America to spend it on? While people are just homeless all over. I mean, it's a tough sell.

It's a tough sell, but I'm, I don't begrudge anybody. I have a question for a GI bill's a tough sell. It's a tough sell. But I don't begrudge anybody going to school. I have a question for... The GI Bill was a good policy. The professor regarding student debt and regarding the necessity of higher education in general.

Law school. Somewhere, somehow, somebody said, it's got to be three years. I don't know who made that. I don't know who came up with three years and why law school is three years. I don't know who made that. I don't know who came up with three years and why law school is three years. But somebody came up with that. It's not written.

It wasn't handed down from Mount Sinai. So do you think that law school needs to be three years? Can we get the job done in two years? One year? In the old days, it used to just be you did an apprenticeship. Absolutely. No, law school doesn't have to be three years. And let me, we do know why law school is three years and why there's a bar exam. 100, 120 years ago, in places like New York City, the establishment lawyers saw all these immigrants coming in and willing to

do the apprenticeship. I mean, that's the way most lawyers became lawyers in the 18th and 19th century was learning. It was called reading law. They didn't have to go to law school. They studied law under a judge and they and a judge said, all right, you've learned enough. You can practice law in my courtroom. And once once you could practice law in one judge's courtroom, you got accepted into other courtrooms. And then a lot of Italians and Eastern Europeans and Jews and started started trying to get into the legal profession and said, hey, we'll read law. We'll we'll stay up longer. We'll stay up later. Lin-Manuel Miranda, Hamilton, immigrants, we get the job done. And in order to make it hard, it's called barriers of entry. And the Anglo-Saxon establishment lawyers of New York, primarily New York, but throughout lots of big cities in America said, well, wait a second.

We need to make sure that you're up to speed and up to our standard. And that was where the that's where the three year law school requirement came in 100 years ago. And that's where the bar exam got started. Well, I was talking to you. What do you think if we were to start from scratch would be the best way to train our future lawyers? The best I mean, it's not like law schools are doing such a great job teaching professional ethics right now, right? I mean, it's hard to look around and say this current system is working as well as it could. My own view, if you were to start from scratch, is I do think it's important, but I think two years is plenty. I think the first year is the most value added, and then you can start to specialize in a second year. And then

I think that, you know, a one-year apprentice, if you want to call it a clerkship in Canada, in England, it's called articling. You could require that, but it would be sort of a one-year or two-year requirement of on the job. This is called path dependency. And we can't undo that, but we can, I think law schools can do a better job of bringing in apprenticeship or internship-like or externship-like practical experience and encouraging students to do that as part of their three years with lower and lower tuition. I'll tell you my experience. And then we got to go. So I went to Penn Law School. My first year at law school was the most interesting academic year I ever had. I went to classes happily. I read the cases happily. My second year began to wane. Third year, I didn't even go to class at all.

I would get the Gilbert's outline and just lock myself in a room and basically just learn the class on my own and take the exam. I I borrow the notes from whatever pretty girl I was flirting with at the time. But all of which is, and now look, and I never practiced law. I took the bar, I passed the bar, I never practiced law. But looking back on it, all the understanding that I find useful about the law that's benefited me in my career, all was contained in first year. And all the kind of ways of understanding the analysis and how to think about it and whatever it is that can allow me to then figure out things I've never even heard about before, but not all first year. So I agree, two years is plenty.

Two years is plenty. And then you apprentice or you work in the area of law that you're going to specialize in. And that's when you really learn the brass tacks. And if you want to learn more, you can stay law school longer. They say about law school that they work, they scare you to death in the first year. They work you to death in the second year and they bore you to death in the third year. Oh, yeah. Well, there you go. I could have been much more succinct. All right.

By the way, I know Yasha Monk. He's a friend of this show and he's also a comedy seller. He's one of my favorite people. And I was tempted to ask him to, for his help to get you on the show, but I didn't want to. But Perry L managed to do it all by himself.

No, but in case it turned out bad, like sometimes we have arguments on the show. I didn't want, I didn't want his fingerprints on it in any way. I hope this turned out OK. Oh, this is terrific. I hope you think it was OK.

I was great. I'm always happy to talk about the stuff that I write. Also, Alan, Alan wanted to join us, but he had a hard conflict. Alan Dershowitz? No, Alan Rosenstein. But he said he he said, quote, unquote, Trump is the gift that keeps on giving. So maybe you guys can come on. Yeah, well, email us next time you have a good piece out or you or he or both of you. We're writing an article. This is helpful because we're expanding this short piece into an essay that will take you seriously.

I did. And to be honest, I went back and looked at our draft. The part where we acknowledge the intent about making the crowd bigger for photo size, somehow we dropped that in the edits. And I look back and you're right. We did not. Mea culpa. We did not do a good enough job acknowledging that main point from the testimony.

So I thought we still had that line in there. Some things get edited out. So you're right. Intellectual honesty brings tears to my eyes at this point in my life. So I appreciate you saying that. All right. All right. That's it, everybody.

Thank you very much. Thank you. Thank you.