The Comedy Cellar: Live from the Table - The Trump/Stormy Case is Tyranny!... or Not. A Debate with Law Professor Ilya Somin

Episode Date: June 6, 2024

Can the Alvin Bragg Trump decision be defended? We debate with George Mason Univesity professor, and Reason Magazine contributor, Ilya Somin. Also, check out Ilyas's recent book on immigration: Free to Move: Foot Voting, Migration, and Political Freedom

This is Live from the Table, the official podcast of the world-famous comedy show. They're coming at you on Sirius XM 99. Raw comedy, also available as a podcast and on YouTube for a multimedia experience. This is Dan Natterman. I'm here in the studio. Periel will be here. She's a little bit late coming to us from his home via the miracle of teleconferencing is Noam Dorman. I'm not sure why he didn't make it in today, but that's...

Today, it's because it's my son's birthday, and I have to take him out to dinner after this. Oh, wonderful. Well, happy birthday to... Manny. Manny's birthday. Manny, not the other one. We have with us a very special guest, Ilya Soman,

a law professor at George Mason University and a blogger for the Volokh Conspiracy, author of Freedom Move, a book on immigration. He joins us also through teleconferencing. And let's get to it. Noam, I assume you want to talk about Trump. Trump, Trump. So let me just preface this by saying, because we had some technical difficulties, Ilya and I spoke a little bit. And so let me just preface this by saying, because we had some technical difficulties, Ilya and I spoke a little bit. And so let me just say, I don't know what he's going to say exactly. He is no fan of Donald Trump. So whatever you hear him say that might sound skeptical of the

decision, do not for a minute think that this is a pro-Trump bias on his part. I would say it's absolutely to the contrary. He does it despite his better judgment, I would say, if he defends Trump in any way. Okay, so the Trump decision. I am furious about this decision, and I haven't quite yet seen the response to it that I thought really pinned the tail on the donkey of why I think it's so wrong and so unfair. But let me just first get your opinion on it, and then we can take it from there. So on most issues, I'm not particularly moderate, and on some I'm fairly extreme. This is one of those issues where I kind of am moderate. And I think there are criticisms that can be made of this decision,

which are reasonable, but I think there are ways to defend it as well. So I'm sort of on defense, both on the issue of whether a conviction is deserved here, whether there are legal problems with it, and also on the issue of whether the underlying activity that he was convicted for should be a crime. By contrast, I'm not at all on defense on most of the other charges that Trump faces in the three other cases where they're much more serious. In most cases, also, it's much clearer that what he did really was illegal and is the kind of thing that's very awful and definitely should be a crime. So I think ultimately Trump very much deserves to be convicted in those other cases and deserves to get severely punished for what he did if he is convicted. In this instance, you know, I think I'm sort of on defense on a number of different issues.

We could run through them if you like. But I think, you know, there are plausible arguments on the legal side, you know, on the different issues. On the factual side, I think it is pretty clear that Trump did the things that the prosecution said he did and that the jury was right to conclude as much. But the difficult questions in this case are about the whether the things that he did qualify as the type of felony that was charged. And also, you can argue here about, you know, selective prosecution. If somebody other than Trump had done the same thing, would he have been charged? That issue also, I think there are plausible arguments in both sides. Okay. So let's start there. And then I have this analogy that I think of a lot

of the Star Wars movie. You're familiar with the movie Star Wars. And there's the kind of exhaust port, a missile into this or whatever, some sort of torpedo into the tiny exhaust port, and it blows up the entire Death Star. And I think there are a couple arguments here, very simple arguments, which blow up the entire Death Star. But let me, let's go, let's start with the ones that I don't think blow up the Death Star. One is that the judge gave donations to an anti-Trump, to Biden and then to some anti-Trump organization or something. You know, if it was a Supreme Court justice actually making a decision, I would think that's quite serious.

But a judge presiding over a trial without some evidence that he did something but for causation that Trump would have had a different verdict. I can live with that. On the issue of whether jury instructions need to require that all the members of the jury have unanimous feeling about which secondary crime he committed, I think that's serious. You want to explain to people what that is? Yeah. So I will try to explain It's not my Death Star I will try to explain what that is

And also why I think This should not be a death knell Legally speaking for the case against Trump Let's start at the beginning The initial Basic crime Which Trump pretty clearly committed Is the crime of falsifying business records in that in these 34 instances, he wrote down the payments to Stormy Daniels, with whom it is very likely he had an affair as legal expenses, whereas in reality, what they really were, were, you know, payments to her to to keep quiet about the affair.

Can I stop you there? I just wonder, because from time to time, my lawyer does pay things for me and I reimburse him. And if I put legal expenses, I don't know that I would, but I wouldn't think, oh, I better not do that. I'm committing a crime unless there's some other reason. So as I understand it, when you have your lawyer or some other agent provide payments for you, the reimbursement to the lawyer or to whoever else it was still is supposed to be recorded as a payment for the thing that the money was ultimately dispersed for. In this case, a payoff to Stormy Daniels rather than as a payment for legal expenses or something else.

Like this was not a payment to Michael Cohen, his lawyer for legal services. This was a reimbursement to Michael Cohen for the fact that Cohen gave the money to Stormy Daniels. Let's just drop into the conversation here. A moral kind of point, which is that as far as I can interpret this, Trump was being extorted here by Stormy Daniels and also by this, the doorman who claimed the information that Trump had a child out of wedlock was turned, I think, not to be true. And we normally have, I don't know what the law, if the law has any feeling on it, but normally when somebody does something to keep something a secret because he's the victim of an extortion of some kind, we don't get that worked up about it. So, so maybe, so it is technical, but, but the fact that, I mean, it would be self-defeating to have to report what it is that he's trying to keep secret.

I don't know that the law, that's the kind of thing that a prostitute would have to do. I don't think the crime of extortion applies here. Not a crime. Not, I didn't mean it in a legal sense. The point is that he had a consensual affair and the woman's now hitting him up for money, right? So that may be, uh, nonetheless, Nonetheless, when we pay people to keep quiet about things that might be embarrassing to us, that's a different kind of expense than a legal expense. And therefore, if the payment has to be recorded

in business records for some reason, you have to give the real reason when you report it rather than what is basically a fake reason. I don't want us to run out of time. So let's get to the part where the jurors do it. So merely falsifying the business records under New York law, that's just a misdemeanor. Moreover, since this was done in 2016 and 17, the statute of limitations on it has expired. So to make it a felony, you have to bring in

an additional New York law, which says that if you falsify business records for purposes of covering up another crime, then that becomes a felony, which has a longer sentence attached to it. And also the statute of limitations has not expired. Then New York, the prosecutors, they have three different other crimes that they argue Trump could be covering up here. One is a federal campaign finance law violation, and the other two are violations of New York laws of falsifying other business records and also falsifying certain tax records. And with respect to the jury instructions, I think the judge rightly said that the jury had to be unanimous in order to convict, in order to, on the issue, they had to be unanimous on the question of whether Trump falsified the business records. And they also had to be unanimous on the issue of that he did it to cover up another crime. But they did not have to be unanimous on the issue of which other crime he was covering up. So for example, and I'm

not saying this is what actually happened. We don't know what actually happened behind closed doors in a jury, but say six jurors thought he was trying to cover up the federal campaign finance law violation and six others thought he was trying to cover up a violation of a New York law, then that's enough to convict. And I think that's actually correct because the New York law that makes this a felony, it doesn't say that there has to be a specific other law that he's falsifying the business record to cover up just any uh criminal law uh and so some jurors think that he was covering up for the purpose of five that he was covering up one violation and others think he was covering up another i think that's actually sound uh now all right you know you could argue the other way

and obviously i think uh trump's lawyers will raise that on appeal and we'll see what new york courts say let's let dan let's let Dan in this question. Go ahead, Dan. But I think, in my opinion, the judge's instructions here were correct. There are other possible legal objections to this verdict that I'm sure we'll get to them. To my mind, this one is not particularly compelling. Okay, Dan, real quick, what's your question? He answered one of them, that it's a misdemeanor. The other one is that, is falsifying business records a crime in every state?

That's a good question, and I'm not sure about the answer. I think at least some types of falsification of business records is a crime probably everywhere, almost everywhere. But I'd be lying to you if I said that I knew the details of different states was on this. And therefore, you know, I am far from certain that if, say, this had happened in California or Florida or some other state, you could charge it in the same way. I just don't know the answer to that. And I'm not going to lie to you and pretend to knowledge that I don't have. All right. So let me ask you, I'm chopping it a bit to get to the good stuff but we do have to work our way through this stuff so um and also it's important to add that there was also a an argument that that because they didn't tell him which uh which additional crime they wanted to use

and this kind of emerged during the trial they will argue that he uh the sixth amendment obviously tells people they have the right to know the nature of the charges and evidence against them this is one of the most fundamental rules and i assume trump will argue they didn't give me the that they didn't honor that right and they didn't give me a chance to probably prepare my defense. But let me ask you this question. This is the analytical question I don't know the answer to. Let's say there was just one single check.

Could they have charged him on two counts? One, falsification of business records, a felony because there was a tax law that they wanted to violate, and a second count, falsification of business records because there was an FEC violation that he wanted to create. Could he have been two charges out of the same check? I don't think so. And I should note that when we talk about the fact that there's 34 counts, the number of counts doesn't depend on the number of checks it depends on the number of times the purpose of the check was inaccurately recorded in official business records but you follow me i think i you follow me that um half the jury could think he was innocent of of of one aspect of it and half the jury could think he was innocent of another aspect of it,

no 12 jurors thought he committed the crime. I think that depends on how you define the crime. Well, that's what I'm trying to do. So there's really two crimes, though the only one is actually being charged. There's the initial misdemeanor crime of falsifying the business records. We think it's very clear Trump did commit, but the statute of limitations on it has run out.

Then there is the felony crime of falsifying the business records for the purpose of covering up another law. And even if jurors disagree among themselves about what other legal violation he was trying to cover up. If they agreed that if they all do agree that he was trying to cover up some crime, then they do agree, all agree that he violated the law that he's specifically charged with, even though, you know, they might have, you know, somewhat different theories in their minds about how he did it. You can make an analogy. It's not perfect. We make an analogy to say somebody's charged with murder. Right. And one juror thinks that, you know, he committed the murder by using a gun and the other juror thinks he did it by using a knife, then they both agree. I would contend that the defendant in that case committed the crime of murder, even though they disagree about exactly how he did it. Similarly here,

if juror one thinks he falsified the business records in order to cover up a violation of law A and juror two thinks that he falsified the business records in order to cover up a violation of law B, then they disagree about exactly how he committed the crime of falsifying business records in order to cover up another crime. But they both agree that he, in fact, did commit it. Right. But that's exactly where my point was going. You can't be, there's no two crimes. You can't split it into two murders, murder by knife and murder by poison. Yeah. But if you were being, if a state was operating in good faith, they would say you're being charged with two actual crimes here because they're not mutually exclusive.

One is that we think you did this in order to cover up a tax violation, and we're going to charge you another one because we think you did this because you're trying to cover up an FEC violation. And if we were to split it into two, it's likely both would have been a hung jury or a hung jury. And it's only by combining them

into a blurry whole, which is not analogous to a murder, then because the method of murder doesn't change. It doesn't require how you kill somebody is not required to be guilty of murder. You just have to kill them. But here you have to be you have to have an intent to commit another crime. And if they split it into individual pieces, we might find that no 12 jurors think he did anything. So first, I don't think you can split it into individual pieces any more than you can split the murder charge into committing murder with a gun versus committing murder with a knife, because the underlying crime that's being charged here is the crime of falsifying the business records for the purpose of covering up another crime. And even if you're covering up two different other crimes, still,

it's only one instance of falsifying the business record in order to do that. So even if the prosecutors had wanted to split up the charges in that way, I don't think they could. But second, as I said before, even if the jurors disagree about exactly what other crime he was trying to cover up, as long as they all thought he was trying to cover up some other crime, that's sufficient as this New York statute is written. You can argue it should be written more precisely or that it should allow the kind of splitting up that you just described. You know, but that's not the way the law is written. I think, as I said before, there may be other problems with this conviction. I think this particular one probably is not,

you know, a problem. No, the other thing is that, and I know you're going to agree with me on this. I think in that Silk Road case, this is the analogy. What they do is that when they're sentencing, they take into account other things you have been accused of that never had to be proven. And this is, I think, a tremendous civil liberties violation. I think that's how the the poor kid who's in jail for the silk road the dark web thing is but so the government never has to as opposed to a murder where they do have to prove beyond a reasonable doubt that you did 100 of the crime here they don't ever have to prove beyond any doubt that the other crime was actually a crime or that you did it.

And there is no way to prove you intended to commit a crime if it turns out it might not be a crime at all. You can't be. Or would they actually argue it doesn't matter if it was a crime as long as we think you thought it was a crime. That's the intent. This is very flimsy stuff. But anyway, but I actually say that's not the death start to me. That doesn't blow up the death start to me because I do appreciate your arguments. Being a civil libertarian, I don't like it. you brought up earlier is, is there any chance in hell that in an election season like this, Bragg, who ran for office, you know, bragging about how he's investigated Trump and he knows

how to hold people accountable, power accountable, is there any chance he would have brought this kind of very Rube Goldberg-ish, other people call it a Frankenstein-type charge against Joe Biden. Is there any chance at all? So I guess my answer is that if Joe Biden or some other prominent politician had done something similar, whether the charges would have been brought, I think it could be argued either way. I think there is a actually a similar case within Bragg's jurisdiction or even in the entire state of New York. There are a few cases arguably similar, perhaps in other jurisdictions, the case of John Edwards, Democratic candidate for president, which was charged and ended up in a hung jury. You know. Even that isn't really completely similar because it

was under a federal law rather than under this New York law. So I think you could very plausibly argue that if some obscure person had done something similar, that the brag wouldn't have charged him. You could also plausibly argue that if a Democrat had done something similar, they wouldn't have charged him. But we don't really know because we don't really have, and we certainly, I think, don't have an analogous case within Bragg's jurisdiction. The few analogous cases elsewhere that have happened, you know, either A, not that analogous, and B, in some of them, at least, you know, there were charges brought, like in the John Edwards case, the most famous one, of course, ended up in a hung jury. Sir, now I know you are one of the nation's preeminent legal experts, and I sell dick jokes for a living,

but I'm still going to tell you there is no way in hell that Joe Biden would have been charged for this crime by Alvin Bragg. Particularly when the people who are entrusted with enforcing these FEC laws looked at it closely and passed on it. Not only that, he looked at it earlier and passed on it. That's where you lose me. It's just certain things. I can't prove that. And I don't imagine a reversal of it.

Based on it. Because you can't prove it. But the notion that Alvin Bragg. Would have done something like that. So obscure. That might bring down. Joe Biden's campaign. At a time when he's on record. With Trump the full threat to democracy that he believes he is,

is, seems to me, respectfully, is ridiculous. It's just ridiculous. He would never do that. We know that. I would stake my children's lives on it. On this fact pattern, Bragg would never have brought that against Trump. That's what I think. So you might be right about that. Again, you might be wrong. In particular, many Democrats,

realistically, if Biden had had something like this on his record, bringing charges would have been probably an effective way to force Biden to withdraw in favor of another candidate who might be more effective. And a lot of Democrats would want that. Is Bragg one of those people I honestly don't know? Well, that would be illegal also. So I don't know that it would be legal. It's actually very hard to set aside a prosecution based on selective targeting.

And Wesley, you have a lot of evidence of it. Maybe it should be easier. If there was an email that said, I'm going to do this because I want to knock Biden out of the race. That would be overturned in a second. Yeah. If you had a smoking gun, maybe. But of course, you almost certainly wouldn't. And therefore, my point simply is that it's actually not easy to determine whether Bragg or anybody else would have charged a case like this with someone else, because particularly within Bragg's jurisdiction, we don't have an analogous case. You might well

be right that he wouldn't have, and I'm not here to defend everything that Bragg did or his motivations. The man is a partisan Democrat. I think that's pretty obviously true. But I do think we don't have good evidence on what he would have done in these other situations. I would note also that, you know, there is a difference between charging this offense and charging the FEC violation. You know, this offense, for various reasons, is easier to prove, though you could argue that, and I'm sure we'll get to this argument, I think the real weak point of this verdict is, you know, this argument that maybe what he did did not really violate those, you know, either the FEC law or those two New York laws,

or didn't come sufficiently close to doing so. And therefore, you know, you cannot argue that, you know, that he committed the felony version of falsifying the business records. But we know that even Bragg wasn't comfortable with this. And he got shamed into it by another guy in the office who wrote a letter and resigned and claimed there was evidence. And there was political outrage at the fact that Bragg didn't do it. I mean, to me, it's it's it couldn't be more clear. But anyway, let's get to the heart of the matter. I went back and looked at Cohen's testimony before Congress.

And this is how he describes what happened. After several, this is Michael Cohen speaking. After several rounds of conversations with him about purchasing her life rights for $130,000. What I did each and every time is go straight into Mr. Trump's office and discuss the issues with him. When it was ultimately determined, and this was days before the election, that Mr. Trump was going to pay the $130,000. In the office with me was Allen Weisselberg, the chief financial officer of Trump Organization. He acknowledged to Allen that he was going to pay the $130,000 and, this is it, and that Allen and I should go back to his office and figure out how to do it. Meaning that he didn't know how to do it.

As a matter of fact, it was perfectly legal for him to write a check for $130,000 to the woman. And it wouldn't have come out, by the way, until after the election, even if he had written it from the campaign, which to me, of course, is ridiculous that people think it should come from the campaign. But there is no way to say that he had intent to commit a crime when the main witness against him says he told us to go back and figure out how to do it michael cohen never says that he uh that trump wanted to commit a crime he never says listen i told donald you can pay it yourself which is perfectly legal on the other hand if you want to do this other way that would be illegal and don Trump says yeah I want to do it the other way intent there is and I mean I would be

on the hanging in the balance of this kind of thing all the time when my accountants or my lawyers tell me you need to do this or I say I want to accomplish this and I say let me know how to do it and I assume when they tell me how to do it that it's legal

the notion that I had an intent to commit a crime when I asked my lawyer how to do something is to me absurd. Where am I wrong? So I think that argument raises two or three different issues on one of which I may have some sympathy for your position, other ones which I don't. There is a purely factual issue of whether Trump actually intended the business record to be falsified. And there, I think we have a lot more evidence than just Cohen's testimony. Not the business record. I'm talking about the intent to commit the felony, the FEC violation.

He says, tell me how to do it. So my answer there is that is going to be similar to the other one, which is that we have a lot of evidence besides that one conversation, both Cohen and other witnesses testified about other things, other things. So other conversations, text messages and other and other sorts of things. There was extensive testimony. Anything that said anything where they told him he was committing a crime? It doesn't have to be specific. We say that. Or implied to him that they were committing a crime? So as I understand it, the purpose of the scheme was to, as I understand it, the purpose of the scheme was to do the payoff and to cover it

up so that it wouldn't be known. And not just during the election, but also afterwards, because, of course, Trump covered up so it wouldn't be known. Isn't it? So let me continue. So there's an article in The New York Times. Why was Trump indicted? Why was Trump indicted by the Manhattan D.A. over hush money? And the last paragraph says I give the headlines so people can look it up in private.

Federal prosecutors cited concerns that Mr mr trump's lack of basic knowledge of campaign finance laws would make it hard to prove intent according to three people with familiar with the situation these are the people who work at the southern district prosecutors three people they looked into it and said it's exactly what i said they there's no way to know that he had intent here. So my answer here is the sort of standard observation that ignorance of the law is no excuse. No, it requires intent. So the intent that has to be there is the intent to do the thing that violates the law.

And you can have that intent even if you don't know that it's illegal. Now, I personally think that this is a problematic rule because our legal system is so immensely complicated that in many instances, it's not actually reasonable to expect people to know the laws that are at issue. But I frankly have, and so I think the notion of ignorance of the

law not being an excuse is one that in many instances should be rethought. And ironically, a government official's underqualified immunity sometimes do get excused from various offenses or illegal activity when they complicitly claim they were ignorant. That said, I'm sorry, the law defense is one that I have less sympathy for when it's somebody who's a major party presidential candidate and has access to top quality legal representation. And therefore he can easily find out whether what he's doing by way of story. Okay. Now brace yourself because I think I'm going to deliver the coup de grace now. Now the rule of lenity, you know, vagueness is an important doctrine where people have the

right to have laws that if they, in good faith, read them and want to stay on the right side of them, that they're clear enough that you can know what's illegal and what's not illegal. I'd read from the law dictionary, the rule of lenity is a principle used in criminal law stating that when a law is unclear or ambiguous, the court should apply it in a way that is most favorable to the defendant and construe the statute against the state. So now imagine Cohen, he's told, let's go figure it out. So he looks at the FEC law.

So we've got to see how we can do this. Can we pay it off? And in the law, the test, not for whether or not it's a campaign expense, which is usually the lesser thing you worry about, the test for whether or not you would be wrongly paying something from the campaign. In other words, using the campaign money to pay your personal expenses. This is the test. It's called the irrespective test. I'm reading from the test. It's called the irrespective test. I'm reading from the statute. Commission regulations provide a test called the irrespective test to differentiate legitimate campaign and officeholder expenses from personal expenses. in a campaign account of a candidate or former candidate to fulfill a commitment, obligation,

or expense of any person that would exist irrespective of the candidate's campaign. So the question becomes, would this expense exist irrespective of the campaign? So his lawyers have to say, well, would he still be paying Stormy Daniels off if not for this campaign? And then all we have to do is look at the piles of evidence. There's an article in The Atlantic, Donald Trump's long history of paying for silence. He had a thing with Stormy Daniels that he paid off in 2011, I think it was. People will say, oh, he was toying with the idea of running for president. But if you read the article in The Atlantic by David Graham, there's a whole list of things.

Trump was in the habit of paying off things that would be embarrassing to him. So if I were Cohen, I would say I'm not taking the chance of using campaign money for this because they're going to come at me. They're going to come at us and hit us with a criminal charge because this is a personal expense. And if you want to have it either way, if what you're saying is that, well, yeah, the state can take on the law either way, they can say, yes, you can make a perfectly good case that this was a personal expense, or you can make a perfectly good case that this was a campaign expense. Therefore, either course of action, we would have the right to prosecute this guy and put him in jail. That blows up the Death Star. That is not okay. And I don't think I'm overselling it. So the rule of lenity is an issue that I actually

raised early on in my own commentary on this. It has not been much discussed by others. I would note that the federal Supreme Court in various decisions that I don't agree with, but they were issued, has severely narrowed the federal rule of lenity such that it New York rule of lenity and the New York Court of Appeals, which is their state Supreme Court, has ruled that the rule of lenity only applies in cases where there is, quote, this is their standard, not mine. No, no, no. They say it only applies when there is a grievous ambiguity. And here, is there a grievous ambiguity, I'm far from certain about that. I'm also part of the story about how we distinguish a grievous ambiguity from just a regular ambiguity. The line between those two things is itself somewhat ambiguous. Finally, on the issue of, you know, why Trump, you know, chose to do the payoff, I would note a couple of things. One is that is largely a factual issue and factual

issues are generally left to juries. And it's very difficult to overturn a verdict based on a jury getting a factual issue wrong. Secondly, you're right. Trump did have a history of doing payoff to people to cover up embarrassing information. On the other hand, there is also a history of cases where, you know, he didn't make payoffs and embarrassing information did come out. So what are you referring to? So there are many, many examples of information about Trump coming out over the years that it was embarrassing. And then he had the opportunity to pay off and didn't. So he may well have had the opportunity.

So in any event, again, this is... You have to know whether he had the opportunity. If he didn't have the opportunity, it's not evidence. So I don't know all the details of those cases. But again, this is, you know, determining this kind of factual issue is what we have juries for. And the jury spent...

No, but this issue never went to the jury. So the issue of trump's motivation for the payoff uh to some extent at least was an issue before the jury they considered fairly extensive evidence on it you can argue that the defense should have presented additional evidence such as perhaps evidence on uh you know on these other cases where he made... They wanted to. They wanted to introduce Bradley Smith, the former FEC chairman. That's not happening to what Trump did. Bradley Smith, who is a friend of mine,

was going to testify about a legal issue, not a factual one. No, no, I'm sorry. I'm misunderstanding what you meant. I'm saying that... Okay, let's slow down for a second. I don't think we're actually disagreeing. So we're disagreeing partly, but not totally.

Basically, my view is that if the rule of lenity were as strong as it should be, and also possibly if we gave people more of a break when they might be ignorant of a law, maybe this case would go away. Just wait one second. But the state of the law is not like that. Let me say what would only be i think that we i don't think you're disagreeing that that when i spelled out the fact that this easily could have gone either way it easily could have gone either way they absolutely if he had paid if he had written stormy daniels a check if he had

taken old ladies money campaign contributions there's a meme going around now with some showing some like you some trailer park types saying he takes their money for his legal expenses. This is a compelling narrative that he takes the money of his unwitting dupes and he takes it for his personal expenses. So if it's sympathetic that he takes it for his campaign expenses. Imagine he takes their money for his to pay off his mistress. So I think it's pretty clear they could have charged him either way. As for the New York state law, this is uncharted territory because as far as I understand it, there's not a body of law which says how New York state is supposed to, what doctrines it uses to decide whether a federal crime was committed when the people in charge of the federal crime don't interpret it the way New York wants to

interpret it. I mean, that would be a crazy doctrine for the court, for New York to say, it doesn't matter how the federal district, who is the sole, is the only person who can actually prosecute somebody for this crime. It doesn't matter how they interpret the law. We're going to interpret all federal statutes in our own way, without regard to any precedent of the federal law. And then if we decide that, that's obviously nuts. And one more thing. So the Bradley Smith, who you say is your friend, I'm a big admirer of his writing.

He's made the point that all sorts of things that people pay would not be considered campaign expenses. For instance, he said if if Trump said, listen, I'm thinking of running for president. I want to clear up all my outstanding lawsuits. I want to pay off the complaints about Trump University, even though they're bullshit. I also might want to paint my house, get my teeth fixed. You know, I want to do a lot of stuff because I want to run for president. Everybody would say, of course, these are personal expenses. He says, how about if a candidate pays a lawyer to seal all divorce records?

Because he's afraid that if revealed, they would be damaging to his candidacy is that a campaign expense no clearly not he says even though done for the purpose he also makes the point that nixon was charged with impeachment for using campaign expenses to pay hush money so i don't see any out on this there There is just no way that this can, that anybody, that any legal person like you or me who believes in civil liberties could think that this could be fair.

I don't know the rules, the precedence for the rule of lenity, but if you have a statute, which reasonable people understand, no matter how the man behaved, he could be charged with the same crime or the cousin of the same crime. That's tyranny. It means the second he wanted to pay her off, he could go to jail. No, but.

Yeah, let Dan go. Yeah. So, Noam, you're saying that he he could also have been charged with using campaign funds to pay personal expenses. The theory of the case, if you get down to it, is that because this was he did this running for office, that the right way to do it would have been for him, I guess, to donate one hundred and thirty thousand dollars to his own campaign. Or you don't even have to. He could just pay. He could just write a check from his campaign funds. He could take donations from the public and write a check to Stormy Daniels. And by the way, this is very important because the issue of in order to influence the election, none of this would have come out until after the election. So it's not even plausible that it would have influenced the election.

So that's saying that the right way to do it, the legal way to do it, is to take old lady's money and donations and pay off Stormy Daniels. Why couldn't he have paid Stormy off with money that had nothing to do with the campaign? Because the law is that would have been an in-kind contribution to his own campaign because that money was actually a campaign payment. As I'm saying it out loud, it's absurd.

How do we distinguish campaign monies from non-campaign monies? Because if he was... Listen, this is the way I see it as an analogy. I've always seen it this way. It's somehow, to me, the campaign version... And, Eli, you correct me for this. I have no basis for this other than my gut instinct on this. It's the campaign law version of what I deal with as a business owner, what I can write off and what I can't.

If I wanted, if I said, you know what, I'm getting hit up by my mistress. And I think it might damage the reputation of the comedy seller. So I'm going to pay it out of the comedy seller and deduct it from my taxes. I don't think the IRS is going to go for that. Things in the ordinary course of business, things I really do just for business, these are business expenses. Things that a campaign does, rent cars, travel, copies, dinners, which business wouldn't allow dinners but a campaign is a different universe things which things without which the campaign could not run those are

campaign expenses things like paying off mistresses which he's done many times in the past that how by what interpretation could anybody say, no, this is, this passes the irrespective test. It doesn't make any sense. Yeah. Dan.

Obviously you guys can continue to argue among yourselves if that is what you want to do. I don't want to interfere with your discussion. I would say just a couple of things on this. One is there is a legal way you could have done it. And that is that money that you donate to your own campaign, as I understand it, it is not actually limited in its amount, unlike... That's what I said. He could donate it, but he didn't even have to. He could just pay it from

donation. However, if he spent it on a campaign expense, he would have had to report it. That's the issue. Secondly, so this is not a case of like it would be illegal either way or whatnot. It's a case of if the prosecution theory is correct, he had to report it. Oh, it would have been illegal either way because they would say you had no business paying your mistress from your campaign funds. So that's a personal expense. Yeah. So I guess my answer is that if it's a, I would say two things. One is I think it still could be legal if it's campaign funds you donated you're not running for public office, but you can't do when you are. So I don't think that's some kind of tyranny. Finally, it is important to recall that the FEC violation is just one of three potential other crimes.

You might have been covering up the other two are in New York state offenses. So even if you conclude that, you know, things are iffy on the, you know, the FEC wonder still those other two. So I, but we don't know, we don't know which jurors think. Yeah. So I, so that's why it's so, by the way, can I say, you said something very interesting. You may, you caught me flat footed here. I don't know. I didn't say anything about flat footed. No, you caught me flat footed, which is that is that is there a segregation of funds? The candidates money that he contributes to his campaign contributes to his campaign as opposed to the general fund. So that's an interesting question that you would probably need to ask a campaign finance. That's what you were alluding to that somehow this money. So I've never heard that.

And Bradley Smith, Bradley Smith never said that. And he would know that's a question for Bradley Smith or for another campaign finance expert rather than Ilya. Let me put it to you this way. Let me ask you this. And what country would it be fair to say that. If the chairman of the Federal Election Commission says something is not a crime, the nation's leading expert in this says something is not a crime. You could still get charged with intent for doing what the guy in charge of it says is not a crime. How could you be? How could you be wishy washy on whether or not that's an outrage? How could you have intent to commit a crime when the guy in charge of it says, this is not a crime? So what I would say is two things. Can you imagine going to jail for something like that in America?

So what I would say is a couple of things in this. One is, I don't think this part matters, but I think he was a member of the FEC and not chair of it. There are other campaign finance experts who disagree with Brad on this. And I honestly don't know whether he's right or whether they're right. But recall that under this New York law, you don't actually have to prove that the defendant committed the second crime that he was trying to cover up. You just have to show that there was an intent to. So Bradley Smith was former commissioner of the federal election commission. So he was commissioned number one. Number two, it doesn't really matter if people disagree with him. There is no right or wrong.

The point is that the law is so unclear. Again, the idea that somebody could go to jail for many years doing something which he had no possible way of knowing was illegal. And as a matter of fact, if he were to call up the commissioner of the FEC and say, listen, I'm thinking about doing this. What do you think? And Bradley would say to him, no, no, that's not a crime. Come on. You got to concede to me. You know, I'm right. So I think there we're going back to two issues that we talked about earlier, which is the issue of should ignorance of the law be a defense and the issue of how broad the

rule of lenity is. Unfortunately, to my mind, both the federal Supreme Court and also New York courts have taken a very narrow view of what is protected by the rule of lenity and what isn't. I think they should take a broader view, but both New York courts and federal courts haven't done that on the issue of ignorance being- You're not a civil libertarian. If I call up a chairman of the IRS and say, listen, I'm thinking of writing off my car, and they say, yeah, you can do that. They say, now you're going to put me in jail for it. I called up the head of the IRS. So I would say a couple of things. Again, even if you consulted experts, and it was the experts who gave you what turned out to be wrong information about, you know, whether something was against the law, that doesn't by itself give

you a more expansive rule of lenity than you would get otherwise. It does if the expert's opinion was not ridiculous. I read you the standard. I read you the standard. As a matter of fact, I think if Trump were here being charged with, if he had paid it from his campaign and he was being charged with writing off personal expenses, we'd have a much easier time saying he deserved it. We'd be much easier to say, come on, how could you say this is irrespective when you know you've been paying off people for years? This would be almost open and shut to us. So again, all I can do is give you the same answer I gave you before, is that if we had a broad, robust rule of lenity, like I think we should, then maybe that argument would be very strong. As it stands, both in the federal Supreme Court and in the state Supreme Court, we have a narrow rule of lenity.

And if we have a narrow, weak rule of lenity, we shouldn't make an exception to that just because it's Trump. OK, give me an example. I'm open to the idea that if this gets to the state Supreme Court, or for that matter, much less likely the federal one, if they adopt a general rule overturning the existing rule of lenity precedent to make them stronger. Well, you say it's narrow. You say it's narrow. And I'm trying to imagine how narrow could it be? So does it does it not exist? Because this is like an absurd, an ad absurdum case. This is obviously. So it's extremely narrow. Let me give you an actual example from a federal Supreme Court. There is a federal statute which says that you get an extra penalty if you're, quote, carrying a gun while you commit a crime.

Right. So in this case, he was committing a drug deal and the gun was actually in his car. Right. Wasn't in his hands. It was in his car. A majority of the Supreme Court in a close five to four decision in fairness, but a majority of Supreme Court said the rule of lenity doesn't apply to that case because it's sufficiently clear that if a gun is sitting in your car, you can still be carrying it while you're standing outside on the grounds that like, you can talk about things like in the carriage trade or something like that. You can say you're carrying an item when it's. Yeah, that to me is that to me is a thousand times less obvious than what I'm talking about.

I get those. This is this is literally you could do either behavior and and the government would have the right to put you in jail. Does even if that's true, that doesn't make it ambiguous. At most, that just means that you can't do these kinds of payoffs legally while you're running a campaign. That's not a rule of lenity problem. That's a problem of the law. No, no, that is a rule of lenity because you can, I'll let you in a second. It is a rule of lenity problem because what you're saying is that because you can't tell the difference what's legal and what's not, therefore you can't, I'll let you in a second. It is a role in any problem because you, what you're saying is that because you can't tell the difference what's legal and what's not, therefore you shouldn't risk it. That's exactly what the role in it

is. Let Dan, let Dan, let Dan. I'm still not clear why he had to use campaign funds for this. He could just take a bag of cash of his own money and say, here, shut up. Because it's a campaign contribution in kind. Yeah. That's the prosecution theory at any rate that it would be a campaign contribution in kind. Yeah. So that's the prosecution theory at any rate, that it would be a campaign contribution if he used his own money to, you know, for a campaign expense.

I would add, though, that... But the argument that Noam was making is that it really isn't a campaign expense because it doesn't meet the... Yeah. So that is a defense argument in the case. And, you know, it's plausible. And, you know, but the argument the other way is also plausible. And we talked about this before. I would add, though, that the issue of something of a payoff being illegal, no matter how you do it, that's not a rule of vanity problem. That just means if that's true, that just means you're there is no legal way to make a payoff like this while you're running. I mean, they have two parts.

They have, they have a definition for a personal expense and definition for campaign expense. And at their pleasure, they can use, they can, they can classify it as either one in real time. If they want to get you.

That just can't be right. Listen, we have to go. You are a terrific guest and a good natured sparring here on legal issues. And I'm very proud to have access to somebody as smart and with such good faith as you as a guest on my show. And I'd be very happy as future things come on, maybe when there's an appeal, if we could reconvene a conversation. But we have to go. Any last? No, but I ask you if you think there's anything that Trump's done that they legitimately could get him on.

What do you mean? The other charges? The other things, you know. It depends on who the relevant they are. I don't think Alvin Bragg within his jurisdiction had a better case than this, which is probably why he brought this one. Obviously, in other jurisdictions, as I said before, under federal charges and Georgia charges and possibly also potential charges in other states where he tried to subvert the 2020 election. You know, there are other much more serious, more compelling charge against Trump on which many of them, at least, think he does deserve to go to prison and get a severe sentence if he gets convicted. These charges, as I said at the very beginning, I'm on defense about partly because I think that there is a plausible argument, some of which we've talked about, that maybe these other predicate crimes that he was trying to cover up, maybe they weren't really crimes at all, or not sufficiently clear. And partly because I have some doubts

about whether the kind of thing he did here really should be legal in the first place. Whereas something like using force and fraud to overturn an election when you lost that, that's more clear and more obvious here. So in answer to Dan's question, I think a lot of the other charges are very substantial. I want to make a kind of a Freudian point to Ilya,

which is that perhaps if you look into your soul, part of the reason you could be so cavalier about some of this stuff is because nobody thinks he's actually going to go to jail. But if you could imagine this man sitting in jail for, what's the maximum sentence, 10 years or something? As I understand it, it's one and a third to four years. Four years. You imagine this man sitting in jail for four years on what we've discussed. This is unacceptable. It's just unacceptable. So I can imagine him being in prison for this, but I also... Not him, anybody. So I think if you resolve my doubts on the other

issues, that is if it was clear that this should be a crime in the first place and also that we dealt with the issue of predicate crimes, I would not have a problem with imposing a short, modest prison sentence for this. Based on an FEC

violation that your friend Brad Smith told you, he thinks it's actually the opposite. Again, if we resolve that issue, and also if you resolve, in my mind at least, the issue of whether this is the kind of thing that should be a crime. If those issues were dealt with, then, you know, then I would not object to, you know, the one in a third, you know. Yeah, I agree with you. But, but as we know, and by the way, I just want to, I know we're getting my promise to end, but I just want to, you know, so people remember very often what comes at the end, Michael Cohen.

And he said this when he was on his trying to keep his own ass out of jail. And by the way, I looked through almost all the transcript. I didn't find any language. I'm not leaving something out that he said something to I'm not in bad faith, leaving something out that he said something that's contrary. I'm not I'm not selectively quoting. It was all I could find. But he said, Trump told Cohen and Weisselberg, go figure this out. And there's no testimony anywhere where Cohen says, we told Trump this might be legal. We told Trump he should pay it off by himself. This is the plan that his lawyers came back to it. And by the way, I don't think Cohen actually even ever testified that he thought it was illegal.

I don't think he, Cohen knows he was illegal. Nobody knows illegal, including the former chair of the FEC. Okay, sir, you, you have a unlimited time to say whatever you want to say,

and then we're going to say goodnight. Good. Yeah. So I think this just goes back to the issues we talked about earlier about whether ignorance of the law should be a defense. And I think sometimes it should be, even though currently under current precedent, both federal and state, it's not. I do have much less sympathy for someone like Trump raising that argument than for an ordinary person, because Trump did not have to rely on a weasel like Michael Cohen. He easily had access to more competent lawyers. And, you know, he could have consulted them. A lawyer could have told him it was illegal because the head of the FEC doesn't think it's legal.

As I told you before, there are other campaign finance experts who disagree with Bradley Smith, who I have great respect for on this issue. And people, candidates and others, businessmen and other people in prominent positions, they often face situations where, you know, experts might disagree on whether something is legal. And when they have access to top notch expert advice on such things, you know, we still don't give them a break based on ignorance. So you I guess this would be the exit question. You actually believe that even though he had a history of paying off women in the past and other men, not just women, but all sorts of humiliating things, you actually believe that passed the irrespective test? I think it might, because beyond a reasonable doubt. So you don't have to prove beyond a reasonable doubt that he actually

committed the other crime. You just have to prove beyond a reasonable doubt that he he falsified business records with the intent of committing one of three possible. We're limiting our time to the FTC, but how can you intend to commit a crime if it's not even a crime? So we started at the beginning. Yeah. So there, I think there is an argument about whether it would even be a crime. But again-

It doesn't matter because he intended. But again, the intent that's necessary is the intent to do the action that is a crime. And whether you knew that the action is a crime or not is not part of the relevant criminal law standard. There are a lot of people who commit crimes where they think in their own minds, what I'm doing is perfectly legal, but generally speaking,

that defense is not allowed, except in rare cases where it's so where the law is so vague that it, you know, that it flunks the rule of lenity. And as I noted before, both in federal and statewide, the rule of lenity is extremely weak. I think it should be stronger. I think fair enough. But three, according to the time, according to the Times, three prosecutors thought the intent issue was the issue. The irrespective test is embedded in the law through precedent? No, it's the actual text of the statute. That's a question for the jury, then, the irrespective test.

It's not a legal question. It's a question of fact, not law, I would imagine. Again, as I said before, the jury doesn't have to conclude beyond a reasonable doubt that he committed the other offense, just that he was trying to cover it up. And they don't even have to conclude it was necessarily that one. They can conclude it was any one of the three possible ones. But I think we're repeating ourselves here. My bottom line in this is that there are plausible legal objections to this verdict, but there are also plausible legal defenses of it as well, which is why part of why I'm on defense. I think there's also a reasonable argument to sort of viewing these kinds of payoffs secretly just should not be something that's a

crime in a, you know, in a free society and that you shouldn't have to report them as campaign expenses, even if they actually are. But I think there's also an argument, you know, that you should have to report them as well. So, you know, these are the kind of things that lead me to have doubts on this. And so you have mostly raised arguments that defend the charges because I think you mostly want to object to them. You could easily imagine me having an interview with somebody on the other side where I would, you know, take it your side of debate, but that's not. You're, you're, you're, you're the decision maker. Based on what you know now, and let me just re reassert. He's being, he's being extorted in a layman's term for this.

When Bill Clinton was impeached, we said people lie about sex. And this was, this was considered to be the most powerful argument to let him off for lying to get out from under a sexual assault case. Not not just a consensual case. If based on what you know now, if you had to make the decision, you overturn the conviction or uphold it? I don't know. I would also say that the Bill Quinton case, in that case, I think it's very clear that he did commit the crime of perjury. The only issue is whether it was a serious enough crime to justify impeachment. And, you know, there is an irony there. And that is, of course, that the vast majority of Republicans, including many of those defending Trump now, thought back then that, you know, that Bill Clinton should be impeached and

removed, i.e. not merely that he committed a crime, but it was a so-called high crime. It's only ironic if Trump actually committed a crime here. Sir, we have to go. Very, very nice to meet you. Bye bye. Bye bye. Thank you so muchcalled high crime. It's only ironic if Trump actually committed a crime here. Sir, we have to go. Very, very nice to meet you. Bye-bye. Bye-bye. Thank you so much for having me. you you you