The Megyn Kelly Show - The Weak Case Against President Trump, with Rep. Byron Donalds, Arthur Aidala, Dave Aronberg, and Brad Smith | Ep. 522

Episode Date: April 5, 2023

President Donald Trump has been arrested, arraigned, and we've seen the indictment. And what did we find? Megyn Kelly explains how weak the case is against former President Trump, before welcoming in legal experts Arthur Aidala, Dave Aronberg, and Brad Smith to talk about whether the whole case will get dismissed, the need to know what the underlying felony is, if a campaign finance violation is even applicable, whether the hush money payment could be proven to be trying to influence the election, the media circus inside and outside the courtroom, whether Michael Cohen could conceivably testify, Trump's comments about the judge and DA, and more. Then Rep. Byron Donalds of Florida joins to talk about James Comey and the media's glee about the arrest, Trump vs. Desantis, hypocrisy comparing treatment of Hillary Clinton and Trump, President Biden smirking rather than commenting on the indictment, the Trump DOJ not going after Hillary Clinton politically, how Trump will use this prosecution to his political advantage, and more.Aidala: https://omny.fm/shows/the-arthur-aidala-power-hour Aronberg: https://twitter.com/aronberg Smith: https://www.ifs.org Donalds: https://donalds.house.gov Follow The Megyn Kelly Show on all social platforms: YouTube: https://www.youtube.com/MegynKellyTwitter: http://Twitter.com/MegynKellyShowInstagram: http://Instagram.com/MegynKellyShowFacebook: http://Facebook.com/MegynKellyShow Find out more information at: https://www.devilmaycaremedia.com/megynkellyshow  

Welcome to The Megyn Kelly Show, your home for open, honest, and provocative conversations. Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show. What a day yesterday. What a sad day for America. James Comey, once again tweeting out, Another good day. What a small, petty man working at his own vindictiveness on the nation, on our conscience as we watch James Comey, all about him to the end. What a sad, sad ending for that man. I used to respect him. He's not the story. 34 felony counts. That's what we've seen. A lot of prosecutors I respect recoiling with what Alvin Bragg, the New York DA, did there, which is called stacking. He doesn't really have 34 crimes. He has one alleged action

that he's piecemealed out into 34 felony counts because on this date, an entry was made in the books. And on this date, an entry was made in the books. And he's trying to make Trump look like a multiple time felon when really he's got one course of conduct that he claims is illegal. And we've got a great legal panel to get into that in one minute, but I'm going to set you up with the facts. I've listened to show after show, and I probably love the same ones you do. Jumping right at what BS this whole thing is. Well, let's talk about what he actually revealed, okay? Because it's worthwhile to see what does Alvin Bragg say his case is about? It's, yes, the Stormy Daniels thing. There's more to it, but let's look at what he says so far his evidence is. And then we'll talk with the lawyers about whether the law

makes anything out of those facts, whether the law has any problem with those facts. He's alleging, as we expected, the falsification of business records by Trump in the first degree, and he dates it back to 2017. Now, this is a DA, Alvin Bragg, who will barely prosecute violent crime in New York City. He has reduced 52% of felonies in a city that is crime-ridden to misdemeanors. Failing to convict in half of those felonies, he does choose to prosecute. So this guy is not too cognizant of the safety of New Yorkers. But this case he cares deeply about, not because of politics, no, no, but because while armed robberies may not really trouble him, proper document maintenance is integral to a safe metropolis.

That is why we have a history in the Manhattan DA's office of vigorously enforcing white collar crimes. He said it's the bread and butter of our white collar work. We have a distinct and strong, I would say profound independent interest in New York state. This is the business capital of the world. Profound interest in going after those poor bookkeepers. God knows where things could go if you didn't stay on top of the cross T's and dotted I's. Trust me, it has absolutely nothing to do with any of these boasts that Alvin Bragg offered to get elected D.A. in the first place. When I was in the AG's office, I sued Trump over 100 times for his administration's misconduct and brought a case against the Trump Foundation and held him accountable. I'm the candidate in the race who has the experience with Donald Trump.

I was the chief deputy in the attorney general's office. We sued the Trump administration over 100 times. I know how to litigate with him. I also led the team that did the Trump Foundation case. So I'm ready to go wherever the facts take me. It'd be hard to argue with the fact that that'd be the most important, most high-profile case. And I've seen him up front and seen the lawlessness that he can do.

So I do have a lot of experience with the former president. I think it's important to elect someone who is well-prepared to pick up wherever the city and district attorney leaves off. If Brock would be one of the most consequential cases in the history of local enforcement, and we need someone who's ready on day one. OK, so it's not political. Got it. Check. So exactly how did Donald Trump allegedly mischaracterize his business records, according to Alvin Bragg? Well, Bragg alleges Trump indirectly through his then lawyer paid off three people who were about to trash him publicly before the 2016 election. Then he listed those expenses as reimbursement for legal expenses. That's what he's alleging. Bragg says that Trump, his then attorney and fixer, now convicted liar and felon

Michael Cohen, and a third party, the CEO of AMI, that's the publisher of the National Enquirer, David Pecker, got together and struck a deal to catch negative stories about Trump in the lead up to the 2016 election and to kill them, to not run them, and to bury them. Bragg alleges this effort began in 2015 and included three payoffs to people with unflattering stories about Trump. Porn star Stormy Daniels, a woman named Karen McDougal as well, both of whom claimed to have had affairs with Trump. He denies it. And a former Trump Tower doorman who allegedly had a story about a so-called Trump love child, which turned out to be a lie. Michael Cohen, who's already

pleaded guilty to other offenses, which landed him in jail, as well as this one, is cooperating with the feds, but has the credibility of a psychopath. He is not a reliable witness. We'll get to that. But Bragg says he has more than just Michael Cohen. Michael Cohen did testify before this grand jury. David Pecker, the National Enquirer guy, did too. Now, normally, falsification of business records in New York is a misdemeanor. That would have posed a problem for Alvin Bragg and his promises to get Trump because the statute of limitations on these misdemeanors, two years, had long since expired. Bragg gets around that problem by elevating these alleged petty crimes to felonies, which have a five-year statute of limitations. How does he do that? He says the

alleged record shenanigans were done with the intent to cover up an underlying crime. Remember that with the intent to cover up an underlying crime. He says Michael Cohen used some shell companies to make the relevant payments and even recorded Donald Trump discussing these deals, urging Cohen paying cash, which Bragg suggests shows Trump knew he was doing something wrong. Here's the tape. I need to open up a company for the transfer of all of that info regarding our friend David, you know, so that I'm going to do that right away. I've actually come up and I've spoken to Alan Weisselberg about how to set the whole thing up with funding. Yes. And it's all the stuff.

All the stuff. Because, you know, you never know where that company, you never know where he's going to be. Correct. So I'm all over that. And I spoke to Alan about it when it comes time for the financing, which will be. We'll have to pay you. So, OK. make clear that this was all about helping Trump's electoral chances and had nothing to do with sparing Trump any embarrassment with Melania or his family, etc. Now, Brad claims that after the election, Trump actually invited David Pecker to the White House to, quote, thank him for his help

during the campaign. Maggie Haberman at The New York Times in a jaw dropping moment today. I didn't know that. I didn't know David Pecker went to the White House and Trump thanked him. Did you watch the National Enquirer during 2016? Trust me, I was on it regularly because Trump was not too happy with me during that time. And they just excoriated me week after week. I'm not surprised at all Trump thanked David Pecker, and it may have had absolutely zero to do with his whole catch and kill scheme. I have no idea why he was thanking him, but I could show you several covers that I was on that Trump probably was happy about and may have had absolutely nothing to do with Stormy Daniels or Michael Cohen or any of this. The Inquirer was very much behind Trump throughout this election. So thanking him, Pecker, for his help, your humble correspondent would submit, is perhaps not the nail in the coffin Alvin Bragg thinks it is. All right, so that's the alleged scheme as portrayed by Alvin Bragg. That's it.

That they got together, they caught and killed, they got rid of these stories, and ultimately it was paid off by Michael Cohen. They claim he was reimbursed by Trump. They seem to admit it was Trump's personal funds. It wasn't from campaign finance funds. It was from campaign funds, Trump's personal funds. And then Trump, when he listed it on his business records, did not say payoffs to Stormy Daniels. He said payoff to my lawyer. He said legal reimbursements. That's the scheme, as alleged by Alvin Bragg. But was it actually illegal? As alleged, do we see an actual felony here, the intent to cover up an underlying crime? What was the specific crime that Trump committed here and was trying to cover up? Listen to Bragg on that.

The indictment doesn't specify that because the law does not so require. In my remarks, I mentioned a couple of laws, which I will highlight again now. The first is New York state election law, which makes it a crime to conspire to promote a candidacy by unlawful means. I further indicated a number of unlawful means, including more additional false statements, including statements that were planned to be made to tax authorities. I also noted the federal election law cap on contribution limits. Okay. It's so cute. I don't have to tell you. I know, but you don't. Seriously, that's the level we're at on a presidential indictment. First time in U.S. history, we have a former U.S. president sitting now, arrested, indicted, being arraigned, and Alvin Bragg is too cute by half. He won't tell us? Oh, sure, that's fun. We'll just figure it out as the case goes on. Thanks so much. Joining me now to discuss all of this, got some brilliant legal minds, two of whom gave their legal analysis to us on Monday before we saw the indictment, before we saw the actual charges.

And now they're back to break down all the angles. Arthur Aydala, one of New York City's top criminal defense attorneys, former prosecutor. He's now managing partner of Idalla Bertunis and Kamens. And also with me, Dave Ehrenberg. He's the state attorney for Palm Beach County, Florida, where Mar-a-Lago is located. And we're happy to also be joined today by Brad Smith. Brad is a former commissioner of the Federal Election Commission. He served on the commission for five years, appointed by former President Bill Clinton. He's also a graduate of Harvard law. And we really thought it'd be great to have Brad join us because we're, we need to know about election law and how one violates it. Guys, welcome back to the show. Great to be with you, Megan. Okay. So, um, before we get to you, Brad, cause we're going to go into this federal election law analysis, let me start with you guys, Dave and Arthur, on what you thought when you actually got to read the indictment, plus the extra indictment edition of the statement of facts.

This is stuff Alvin Bragg wanted us to hear, much of which I just read. That's where I got most of my information from that I did in my intro. But it was not in the actual indictment. It was just sort of his storytelling, his story time with Alvin Bragg. I'll start with you, Arthur, your thoughts. Well, let me just give you a little what happened yesterday, and I'll give you a little horse's mouth. So I was there. I was at the courthouse yesterday. And as you know, Megan, I have a long-term relationship with Joe Tacopino. We went to high school together. We've been buddies. We had dinner the night before this whole thing went down. And Susan Nicholas and I have a long-term relationship with Joe Tacopino. We went to high school together. We've been buddies. We had dinner the night before this whole thing went down.

And Susan Nicholas and I have cases together. We know each other a long time. So they came out of the courthouse, and literally I was the first person they spoke to. And I looked. I asked them two questions. I said, what took so long? Because that was a long period of time to be in the courtroom. And they said it was the media, the media's attorney arguing for more access. They wanted photographs to be taken during the whole proceeding. They

wanted video in the courtroom. So that was my first question. But my second question is, what's in the indictment? And Megan, they were both, both Joe and Susan had these big smiles on their face. They're like, it's nothing. It's nothing. It's what we thought. They didn't use the term you use, which is an accurate term, stacking. They go, it's one. It's nothing. It's what we thought. They didn't use the term you used, which is an accurate term, stacking. They go, it's one crime that he turned into 34 crimes. And then Takapina looks at me and goes, Aydala, it's not a crime. There's no crime here. And I think our friend is going to be able to tell us that there's no election law violation here. At best, at best, there may be some misdemeanors here. And if the judge said they didn't, in the grand jury minutes, did not satisfy that bootstrapping into the felony part

of it, it's a possibility that either the whole case gets thrown out, which is going to be the first motion they file, or maybe there's misdemeanors left. But weak, weak, weak. As you and I said on Monday, this was weak. It turned out to be weak. I've looked at thousands of indictments in the city of New York, and this is a weak indictment, period, amen. And Alvin Bragg did himself no favors yesterday, as you said, doing story time with Alvin Bragg, as opposed to doing what Mr. Bolgenthal would have done, the storied district attorney in Manhattan, which would have come out with guns blazing and basically would have done an opening statement to a jury at this press conference showing you what a powerful case he has. That did not happen yesterday. I think, Dave, you'll agree that if it's reduced to the misdemeanor of falsification of business

records, this case is done, that the statute of limitations has run on that. The only way we're still having a court proceeding is by tying it to the alleged intent to cover up an underlying crime. And Megan, even if he's found guilty and the statute of limitations has not run of the misdemeanors, it would get a slap in the wrist. It would be a loss for the prosecutors. The only way they can move forward with this is if it's a felony. And when Arthur and I were on your show on Monday, I thought maybe there'd be some surprises. Remember I said, perhaps there's some more serious financial crimes here. And you were very prescient because you said that my reliance on Jennifer Weisselberg, the ex-daughter-in-law of CFO Alan Weisselberg, was misplaced because although she may have testified before a grand jury, it was a different grand jury, and the prosecutors weren't going to rely on her. I thought that she was testifying

for a reason and they would add more financial crimes. They didn't. This case is all about the hush money payments. And so, as Arthur said, you got to find the second crime that it leads to, that it conceals, or else you got nothing. So what is that second crime? Unfortunately, the district attorney's indictment does not tell us. We don't know. And he made a press conference afterwards where he suggested it was federal campaign finance violations. And that's why I'm glad we have Brad on the show. Also, you have state election law violations and possibly some

tax fraud. Now, each one of those is problematic. When it comes to the federal campaign finance violations, you'd have to piggyback on federal law as a state prosecutor. That's uncharted territory. Number two, when it comes to state election law violations, that's a vague, broad statute that may or may not be preempted by federal law when it comes to federal races. And number three, when it comes to tax fraud, that could also be problematic because it looks like Michael Cohen paid the taxes. That's why he got such an excessive reimbursement for the money he laid out and there would be no loss. Now, to me, this means that the greatest threat for prosecutors is this case getting dismissed in advance. If they

could get this case to the jury, I think the facts and the statement of facts were more compelling than I thought they would be. I think they do show intent to influence an election, but I don't know if this case will get to the jury. That's the big question I have. All right. And that leads me to Brad. So, I mean, I do think it's Andy McCarthy was saying yesterday, you can't do this no matter what Bragg says about, oh, the law doesn't require me to tell you what your underlying felony was because he's trying to keep his options open. Andy McCarthy was saying, no, this is this violates a defendant's fifth amendment right to have notice of the charges against him so he can adequately defend it. And also to prevent double jeopardy. Because what if we go through this whole trial, Alvin Bragg never commits himself to a theory, Trump gets off, and then somebody else tries to

take a second bite at the apple, right? He wants to use the indictment to say, I've already been acquitted on this stuff. You can't try me again. This is my constitutional right. So we do need to know what the underlying alleged felony is, no matter what Bragg says, whether he thinks he's required to tell us or not. So probably, as Dave points out, we've got federal election law, we've got state election law, we've got state tax law. That's what Bragg said are the three possibilities. So federal election law, you were the guy, Brad, who was responsible with figuring out whether somebody should be charged for violating this. Why?

Well, you tell me whether it would potentially be a violation of federal election law for Trump to have sat down with David Pecker of the National Enquirer and Michael Cohen, Trump's fixer lawyer, and said, let's set up this scheme whereby, David Pecker, you either go find people who are going to trash Trump or you just remain open-minded when those people walk through your door. And we establish a fund and we pay those people to say, thank you so much. We'll take the exclusive rights to your story. And then you never publish them. Thanks. I appreciate it. You're a great man, David Pecker. Peace out, Trump. Is that a crime? No. Now, let me begin by going to the state election crime

because I think this is all tied in. As we just heard the DA brag say, the state law is a state law that says it's unlawful to try to influence an election by an unlawful means. So he still needs an unlawful means even to get that state charge in. So you've still got that piggybacking requirement. And that takes us to the federal election law, which is the only thing that appears to be claimed in the indictment. The federal statute says that a contribution or expenditure is anything that is for, quote, the purpose of that a contribution or an expenditure is anything that is for, quote, the purpose of influencing a campaign. And this is what they've hinged everything on and they've compiled. They say, well, look, that was his purpose was to influence

the campaign, case closed. The problem is that's not quite the proper reading of that statute. The Supreme Court has long held, and this is a bedrock principle of federal campaign finance law, that you can't have vague standards that are subject to the interpretation of the listener or the subjective mindset of the person who's speaking or acting. So for example, if I run an ad saying, you know, they shouldn't indict Trump, they should indict Hunter Biden, right? Even though my purpose might be to help Trump win re-election, that's not an expenditure under the Federal Campaign Act. You have to say something like vote for, vote against, defeat, support, that type of thing. Similarly, if I give money to,

say, a pro-mega think tank thinking that this is a good way to help Trump win re-election. So my purpose is to help Trump win re win reelection, is to make a contribution. That's not going to count. It has to go to the campaign or to some other operation that is specifically advocating that election or defeat. So the subjective purpose of the spender is not really what's at issue here. We can play that out into other examples. Let's suppose I decide to run for Congress and I say, you know, I need to be in a debate and I need a really good suit. So I go out and I spend, you know, $2,000 on a suit, which I would never otherwise do, right? It doesn't make it a campaign expense, even though my purpose was to do it to influence

the election. Or suppose I'm an individual and I have a messy divorce in my background and I decide I'm going to run for office and I say to my lawyer, can we seal those records? And I pay my lawyer to try to seal those divorce records. Even though I'm doing it for the purpose of influencing a campaign, it's not a campaign expenditure. And in fact, the federal law discusses this in detail with another part of the statute that says, not only are these things not campaign expenditures? It is illegal to use campaign funds for these types of activities. Anything that might exist, whether you were running for office or not, you just can't spend the campaign funds on it.

And I think that's a very practical observation. So that's where we begin. The mere fact that it was for the purpose of influencing the election in Trump's subjective mind or anybody else's isn't really the criteria that we use for determining if federal is for the purpose of an election. And of course, the whole alleged crime then is- Hold that next thought. Hold that next thought. Let me just jump in. So if Brad can prove the Pecker, Cohen, Trump meetings happened, the three of them got together and said, these women are a pain in the butt. So is that doorman. We need to pay them off, make them go away. I don't want this coming

out before the people go to the polls. You say as the former head of the FEC, that is not illegal. That's not an illegal camp contribution to a campaign. That's right. No more than if the four of us sitting here now said, let's hope that we could do everything we can to make this session help Trump get reelected, right? It still doesn't make us involved in a federal campaign expenditure. Our subjective intent is not really what's going to matter here. It's sort of like you can envision if a person thinks it's a crime to walk back in front of a store and they do that, they still haven't committed a crime. You know, there's nothing illegal about what they're doing. And that's the kind of thing we're talking about. It has to be an objective expenditure. So in this case, even though they might've had the

subjective intent, it's not going to be a campaign expenditure. And at that point, I think the entire case pretty much falls apart. Give us an example, Brad, of what they would have had to do to make it an illegal campaign expenditure. Okay. Well, let me talk a touch more to get to that about what maybe is not. So let's take Pecker. He publishes the National Enquirer and we have varying views of the Enquirer and so on as to its reliability and such, right? But it is, I think by most definitions, press, okay? You would think that newspapers and other press around the country would be very concerned about defending Pecker because while catch and kill

is not a common practice here, it is in, for example, the United Kingdom. And while our papers don't use catch and kill, do you mean to tell me the Washington Post and the New York Times have not on various occasions spent tens of thousands of dollars investigating a story and then not run it because they thought- Hello, I used to work at NBC and the Harvey Weinstein scandal. Arthur represented Harvey at trial, but that's what led to the whole breakdown with Ronan Farrow. He had the Harvey Weinstein story. NBC buried it. Many of us believe that was done to protect Matt Lauer. And Ronan Farrow walked out and said, I'm bringing my story and they let him go. And NBC didn't say, okay, you can walk out and take

your story to the New Yorker for which you want to pull a surprise and we'll keep working it. We'll keep sending our, you know, our intrepid reporters to try to nail this huge story of one of the biggest producers in Hollywood, allegedly harassing all these women. No, they let him go and they let the story go with him. And they never, that's, that was a kill. They had the story, they'd caught it, they killed it. And then there was a reporter who said, screw you, I'm going to get this on the pages of a print magazine one way or another and walked out. So that was another version to your point. It's not just the national inquirer that does it. Right. And so what actually would have been a crime would have been had they paid for this with

campaign funds. And again, it doesn't go to the fact that maybe Stormy Daniels wouldn't have asked for money. Maybe Trump wouldn't have agreed to pay her if he were running for office. It goes to what created the obligation, right? And that wasn't anything to do with the campaign. Campaign expenditures are things that no one would spend money on unless you're running for office. So if I buy ads saying vote for Brad Smith for Congress, that's a campaign expenditure, right? If I hire a campaign manager, that's a campaign expenditure.

If I set up field offices, nobody sets up campaign field offices unless they're running for office. They're going to argue he never would have paid Stormy Daniels $130,000 hush money or the other two if you weren't running for office. The affair happened 10 years earlier, yes, but her attempted extortion, her attempt to come forward and say, I'm going public unless you pay me happened right before the election. But exactly. We're not focused on, again, why Trump did it. We're focused on the nature of the expenditure. So people do pay hush money, even if they're not running for office. Like I said, we use the example of a suit I used earlier. People do buy clothes, even if they wouldn't buy a $2,000 suit unless they were running for office.

So again, it's not the subjective reason why Trump made the payment. It's the actual nature of the payment itself. And that's just common sense, right? Ask people, if you contribute 20 or 50 or $500 or $1,000 to a candidate, whatever you can afford, do you think that's being used to pay hush money? And the answer is no, it's being used to convince an electorate. And so even though that argument that, well, he wouldn't have paid this otherwise, doesn't matter. Again, imagine my example of the person hiring a divorce attorney to seal up his records. Or imagine any businessman going to his corporate attorney and saying, look, I'm going to run for office. I know these lawsuits against me alleging race discrimination are bogus, but they would really damage my candidacy. So pay these people off quietly with a non-disclosure

agreement. It's for the purpose of influencing a campaign, but I don't think anybody would think you can use campaign funds to pay for that rather than business funds. And that's the problem the prosecutor has. I see what you're saying. So if you could use campaign funds to pay it, then it's a campaign expenditure. And there's no question he couldn't have used campaign funds to pay off Stormy or these other two. Right, right. He could not have done that.

And one more thought for people to bear in mind is think about that. The fundamental difference between a campaign expenditure and a personal sort of expenditure or bribe, I guess we would say, is that the campaign expenditure has to be spent to try to convince people to vote for you. So having a strong line that says you can't spend the money on things that are of personal benefit, that are not, again, created by the act of campaigning, such as running an ad saying, vote for me, hiring a campaign manager, hiring a lawyer to comply with campaign finance laws. You don't do those things unless you're running for office. And regardless of what Trump personally would have done, generally speaking, people do sometimes, unfortunately, pay hush money,

even if they're not running for office. And that's why it's not a campaign expense. I see you're kind of coming at it from the other way. Like if you would have had to, like sometimes people want to write it off as a campaign expenditure because that's a benefit to them. And your group would say, no, that doesn't qualify. No, you can't use your $2,000 suit. No, you can't use this either because it wasn't done solely for your election. And it's sort of the reverse analysis and looking at payments that came out of Trump's personal checking account, from what we're told. None of this came out of the Trump organization checking account. Go ahead, Brad. point, the FEC, when it wrote regulations on this 25 years ago, it specifically rejected a formula,

which some people advocated, that if something was primarily to influence an election, it should count. Instead, the FEC said, nope, it has to be an obligation that only exists because one is campaigning. Not that one wanted to pay it because one is campaigning, but that it only existed because of that. And again, Stormy Daniels had the right to blackmail Donald Trump, whether he was running for office or not. Trump could have paid it whether he was running for office or not. So, you know, people can judge for themselves what they think of the behavior and so on. And that's legitimate things for voters to look at. But in terms of is it a violation of campaign finance law? I just think the answer

is no. And I think we wouldn't want it to be yes. That would open up a whole can of worms down the line for future candidates who would start stuffing everything into their campaigns. Well, I'm only doing this because I'm running for office. So therefore it's a campaign expenditure. And then they go out and ask people, give me money so I can make this expenditure. It starts to look much more like a bribe. It's very difficult. Let me ask you one other question before I bring him back in the legal panel. And that is, let's say it was a campaign expenditure. Okay, let's say everything you just said is rejected. And the court says, no, we see it as a campaign expenditure. And it exceeded, this was what was suggested by prosecutor, it exceeded the amount that's proper as a campaign donation. I heard Hans von Spakovsky, who's at the Heritage Foundation now, he used to be on the FEC, saying there is no limit on what an individual can donate to his own campaign. And therefore, even if you get to the worst case scenario, which is, yes, it was a campaign expenditure,

it's still not problematic for Trump because he can donate just as much as he wants to his own campaign. Do you agree with that? Right. I do. And Hans is a super guy. In fact, he literally sat in my chair at the FEC. He replaced me at the FEC. He's right that a candidate can give whatever they want. You would still arguably have a claim, which would be that it wasn't reported. So the candidate can spend whatever he wants on his own campaign, but he would have to report it as a campaign expenditure. I don't know. That's a pretty petty offense. So even if you took sort of that best case scenario, I'm not sure that we get very far. And it is interesting. I had thought that they might allege that these were corporate funds, which would be an illegal corporate expenditure,

but they haven't done that in the indictment. They've, as you said earlier, suggested it's all personal funds. And yes, Trump can contribute as much of his personal money to the campaign as he would like. This is so interesting. Arthur and Dave, isn't this so fascinating, right, to hear right from Brad's mouth? I was very, very informative. And I will tell you, Joe Tacopina has been saying in all of his media appearances that he has consulted with someone with Brad's qualifications.

And everyone he's spoken to said, there's no crime here. There's no federal election law crime here. There's no crime here. And Bragg is saying, well, that's the crime. Now, I don't know, Megan, did you touch on that? Like the tax part of it, this little, they try to, they try to, Bragg is trying to give you a multiple choice. You can choose what crime it is. Maybe it's the election law crime. Maybe it's this tax thing. And I think he had one other thing in his bag. It was, it was federal election law, state election law and state tax law. But I think Dave just hit on the state tax law thing accurately, which is the, or the, sorry, the state, um, I can't remember how we went. Yeah. The state election law, because the

state election law is really kind of indistinguishable from the federal one violation of state election law, if that's the underlying felony, he's got to prove that Trump conspired to promote a candidacy by unlawful means. And that leads us back to Brad. What are the unlawful means? It's like a rope-a-dope. You still need something unlawful.

You try to promote your candidacy unlawfully. And that again is how? How? Go ahead, Dave. Oh, thank you. I have a couple of questions here. First, the indictment does say that the money was reimbursed for the first two months by the Trump trust. So it wasn't Trump personally, it was the trust that they put all their assets to when he became president. I don't know if that is a difference, but that's not his own pocket. Then later, he switched to paying it out from his own pocket. And number two, my big question, though, for Brad is, John Edwards was prosecuted by the feds for something just like this. Now,

I know he wasn't convicted. One county was acquitted, but the others were hung. How did that get to a jury? Because this is the same conduct. He had an outside, some rich folks who are paying off his mistress so that he could help win the election. Now in his John Edwards case, it's actually, I think a weaker case than Trump case because they kept paying off the mistress even after the election. And he, his wife had cancer and it was clear that she, he didn't want her to know. I think the facts are much stronger for Alvin Bragg to say that this was intended to influence an election. So my question is, how then were the feds able to prosecute John Edwards under the same set of facts?

Right. That's a great question. And it's a valid point, and it's probably the best point Bragg has going for him. So a federal judge in North Carolina, district judge, let this case go to trial on what is essentially the identical theory of the law. And it's fair to say that a lot of people, you know, you read the law, you said it's for the purpose of influencing the election. Judges are not experts in campaign finance law. Most prosecutors are not. And I think it was just a wrong decision. It was not one that could ever have been appealed. And as you gentlemen, I think you probably know more than I do, you know, a judge, even after it goes to the

jury, you know, sometimes the judge will let it go to the jury, hoping the jury will do the right thing. Or after the jury comes in, they'll realize that case should never have gone to the jury and they can still, you know, take the case away. So, you know, there's no appeal there. It's no precedent. The Supreme Court has never decided this exact issue, never interpreted this particular part of the statute, nor is there much other court precedent on it. But there is a lot of Supreme Court precedent emphasizing that idea that you have to use objective standards for campaign finance law, not subjective standards. And as I say, it's also supported by the FEC regulations that interpreted the statute. And I think it's the sort of the only logical

reading of the statute because otherwise, you know, take a person like Hillary Clinton, right? One could at least theoretically argue that everything she did between 1976 and 2016 was for the purpose of influencing her election as president. You know, and I kind of exaggerate there, but not too much. A lot of things people do are for the purpose of influencing their election and that doesn't make them campaign expenditures. We need an objective line there. This is so interesting. And then on the tax, the state tax law, which was the only other thing Bragg mentioned, I mean, that to me seems like such a farce. And I think there's a reason he threw it in there as just a throwaway. It's really not emphasized at all in the indictment

or in his statement of facts. And he seems to be saying that because the way they paid off Michael Cohen, he paid Stormy 130, Karen McDougal 150, whatever the total was, or 30, the total number that he paid was 180. And they doubled that and added a $60,000 bonus on top of it. And that's what they repaid Michael Cohen over the course of 12 plus months, saying reimbursement for legal expenses. And the reason they doubled repaid Michael Cohen over the course of 12 plus months saying reimbursement for legal expenses. And the reason they doubled it is because we all know we pay 50% in taxes in New York city. So they wanted to make sure he was whole at the end of it. Cause he paid it out of his own account and then it was paid back to him out of Trump's account. Um, so that's, so even under Alvin Bragg's theory, Arthur, the state wasn't deprived of $1. It's not like they committed a tax fraud and New York State didn't get its money.

Actually, Cohen wound up putting more into the New York State coffers by counting this as salary, right, as reimbursement for a legal expense. So where's the damage again? Like, this is like another crime in search of a victim. You just hit the nail on the head. And that's what I've been saying nonstop. And that's really why I'm sad. And, you know, in my law firm, I have two former Manhattan DAs, like very former. They're very proud of that office. If you're going to bring the first case against the president of the United States, not only the past president, the guy who was the leading candidate for his own party to become the next president of the United States, not only the past president of the United States, the guy who was the leading candidate for his own party to become the next president of the United States, you've got to do better than this. There's not going to be one family member

sitting behind the prosecutor during any of these proceedings saying, thank you, Mr. Bragg, for doing justice for my family. There's not going to be anyone from the IRS saying, thank you, Mr. Bragg, you brought $8 million in, we're going to be able to pay all these school teachers. It is a victimless crime. And the fact that you have to have legal experts and FEC experts to dissect this indictment, it's just like, I mean, look, thank God I have Judge Barry Cummins, who's my partner, who's a scholar. I mean, we sat here for an hour, like, trying to figure out what this indictment really means. That is not the type of case you should be bringing. A case of first impression.

Cy Vance never brought the case. They asked Bragg that in the news conference. How come Cy Vance didn't have it? And he kind of hedged. He said, well, I wanted to do a more. And they asked Bragg, you didn't bring it when you first came in. He goes, well, I want to do a more thorough investigation and new evidence has come to light. No new evidence has come to light. It's the exact same thing that they had.

And I don't know what happened. I don't know if they got such an easy conviction conviction on the Trump corporation case. I don't know if George Soros picked up the phone and said, you know what, Trump seems to be surging and we got to put a speed bump in front of him. Maybe you want to take a second look at that case. I don't know. Or if Alvin Bragg wants to figure out if this is his way to become Senator Bragg or United States Supreme Court Justice Bragg. I don't know, but it makes no sense from a former prosecutor in New York, surrounded by former prosecutors in New York, who's been a criminal defense attorney for 25 years and is a diehard New Yorker. This sucks. I like it.

Give it to us in New York language. Now, wait, Dave raised this point the other day that Cy Vance said I stood down the previous DA because the feds came to me and said, stand down. And so I thought they were going to take it. And that's why I stood down. Now, he still could have brought it. Alvin Bragg could have brought it. Are you persuaded by that, Arthur? Because that's a lot of the left yesterday, they were sure to raise that point. They love the fact that Cy Vance said he was told to stand down by the feds. Well, I think two things. Number one, I know Cy Vance pretty well. He wasn't exactly a prosecutor who put his neck out on the line too much.

And he knew that if he brought this kind of case, he would be getting the storm that Bragg is encountering. And I don't think that's how he wanted to leave office, number one. Number two, there were two federal prosecutors who looked at this case, one under the Trump administration and one under the Biden administration, and neither of them went forward. As you know, the Southern District of New York, unlike maybe the Manhattan District Attorney's Office, they're not shy about going after the big guys. They do it all the time. That's how they make their name. So I think they looked at this case and they said, you know what? There's just not enough there there for this particular case. Mr. Trump may have some big problems in Georgia, in Mar-a-Lago regarding January 6th.

Those may be some other real cases, but this is not the case that should have been brought. A case of first impression. This judge, Judge Brescian has a lot on his plate. He better have a big set of cojones when he digests the law, because I think he's going to have some really tough decisions to make. This is the kind of case that's on a knife's edge, and one judge could rule one way, and a different judge could rule another way. And obviously, there's going to be a lot, a lot of pressure on this judge to, in my opinion, to not dismiss this case. But there may be case law or lack of case law that puts him in the position where he has to dismiss this case. He has to dismiss it if there is not the intent to cover up an underlying crime.

He has no choice. The statute of limitations will have run on what will then be a misdemeanor. And so finding the underlying crime is critical to Alvin. I think, Megan, I think that's going to be they're going to have to rely on Michael Cohen's testimony and said Cohen's going to have to have testified in the grand jury. What's he going to say? Donald Trump told me A, told me B, told me C. Even no matter what he says. I mean, Brad is telling us the subjective intent or what's in Donald Trump's.

If Donald Trump said to Michael Cohen, get rid of Stormy and McDougal and the doorman, they're going to ruin my chances of being president. Pay him off. Brad is telling us that doesn't do it. Well, there was a federal judge who said differently. And that's why John Edwards was a defendant and was close to getting convicted. There were many counts that were hung and the feds decided not to pursue the trial again. So look, Brad knows more about election

law than anyone I know, but I guess got to say a federal judge did say the opposite. And if I could also add something, Megan, first, the part I agree with Arthur about is I do wish that my counterpart, the DA, had done more with this indictment. And it wasn't – it's incomplete. It should reveal the details of what the second crime is. I don't like playing hide the ball, especially with something so politically charged. So I agree with him on that. But I have to disagree on a couple other things. First, Cy Vance said that the reason why he didn't pursue this was he was told to stand down and we state prosecutors defer to the feds. He assumed the feds were taking up the case.

They didn't. This happens all the time when the feds come to us and say, hey, stand down, we're going to do this. OK, no problem. That's how it works. Also, the two prosecutors who left Pomerantz and Dunn, they left because they wanted to pursue the financial crime case that Trump had overvalued his assets and had committed financial fraud. And Bragg said, no, there's not enough there, there, not enough evidence, so we can't do it. So they left. According to what I have seen, this case is the zombie theory. It wasn't right when Bragg took office. It died.

It came back. And he said, now there's more evidence. So I don't think it's quite accurate to say that those guys left because that he wouldn't pursue the zombie case was because of the financial crime case. And then, as far as this, the victimless crime, look, the argument is that the voters were deprived of knowing important information. That's why it's an election law crime. That's why it's a crime. Have they known this information? No, show me the statute. What statute says the voters get to know everything? Where's that statute, Brad?

Does that exist? Well, that's what Bragg is saying. David is making Bragg's argument. And the thing is, from a lawyer's point of view, these crimes took place in 2017, right? Because the crime is writing the check. The crime is not the actual deprivation. The deprivation happened in 2016.

And so, right, that's when the vote took place. Then we're way past the statute. That's what makes sense. Then we're way past the statute. And David, if I just might say something. Bob Morgenthau, when he was the district attorney in Manhattan, there were plenty of times when the feds would come in and say, step down and we're doing this. And Bob Morgenthau it? Uh-uh. Nope. This is the Manhattan DA.

Can I just say, so stand by because I got to get a break in, but can I just say this? The other thing is, so was Cy Vance told to stand down under the Bill Barr AG's office? Yes, it would have been under Bill Barr. Correct. Okay. So that's all right. So then the evil Trump administration decided not to go after this. I get it. But then Merrick Garland took over and Merrick Garland, a guy who worked as assistant AG under Merrick Garland was on MSNBC yesterday. I tweeted it out if you want to see it with your own eyes, went on MSNBC and greatly disappointed the panel by saying Merrick Garland rejected bringing these Alvin Bragg claims because they are, quote, relatively trivial and insignificant, relatively trivial

and insignificant as adjudged by Merrick Garland, according to a guy who worked as the assistant AG in the office. And that's that's what everyone's saying, that even if the worst case scenario, they exist. They are relatively trivial, trivial and insignificant and not something you cross the Rubicon to use the term everybody's been using of indicting not just a former president for the first time ever, but the forerunner for the GOP nomination in the existing presidential race. OK, so that's where we are. Quick pause. Got to pay some bills. Be right back. Arthur, Dave and Brad after this. So, Arthur, you were there yesterday when last we spoke, you weren't sure you were going to get in. What did you see? It's a day I'll never forget.

I mean, and I literally started interning there in that building in 1990. My father worked there on the Frank Hogan. First time I walked in, it was like 1973. But it was, I was there for DSK. That was DSK, if you remember. That was the biggest media turnout I ever saw because it was international. There were people there from all... Oh, the guy who allegedly raped the maid?

Exactly. Yes. The International Monetary Fund guy? Right, exactly. He was going to be president of the International Monetary Fund. And there were people there from literally all over the world. And then Harvey, which I handled, was probably second to that. That was pretty nuts.

But yesterday was... I mean, there was more media than there was at the Super Bowl. And I don't think I'm exaggerating when I say that. It was insane. But the only reason why I was able to get in there was, number one, we represent, my law firm represents the New York State Court Officers Union. And number two, Megan, it's the exact same crew in terms of law enforcement personnel in the courthouse from Harvey Weinstein's case. So I know all of them. And you know me, Megan.

During the trial, I was bringing them loaves of Italian bread from Brooklyn and Butz and Al and all that stuff. And they were fantastic, the New York State officers. I wrote a beautiful letter to them. So they're very, very nice to me. So I was able to go right there. I mean, Secret Service didn't let me get anywhere near the president. But, you know, just it really was a historic moment.

And it did make me happy. I wasn't happy. You know, my dad, who was a prosecutor under Frank Hogan, who was the DA, even more so than Morgenthau, you know, he always had the term, you know, you don't play politics with people's lives. And that's really what was going on here. The logistics, the amount of money that Alvin Bragg spent yesterday or was caused to spend yesterday. He estimated 200 million. All the cops, he had to divert to this instead of fighting crime. Correct. Correct. If you took that energy, the brainpower, all of that, and you put it into Brownsville in Brooklyn orlyn or east new york

like the worst neighborhoods he said okay we're gonna do all of this we're gonna put all this in here you'd solve all the crime you'd solve all the issues of the world and the fact that the judge they asked can you waive donald trump's appearance on december 4th they just said no i'd like him here why to have this craziness once again just to hear the answer to the motions but then the judge hedged and said, well, write me a letter if there's some scheduling issues. But it was a historic day in New York City. I'm so glad everyone has been safe so far. I hope no nut job gets any stupid ideas about going down to the courthouse and doing anything silly. But kudos to New York City because it was

really handled very well considering everything that was going on. It was, but it's such a waste. It's like, what a waste of resources on this inflated misdemeanor, which as we've been discussing is based on a lie. There's nothing to inflate it with. How could we divert all those cops and spend all that city money on what's essentially a misdemeanor that could potentially result in probation. This is how rabid Alvin Bragg is. And while normally, honestly, while normally I'd be like, this is terrible, like the things that Trump is tweeting about him and what his wife and I says, normally my instincts are protect the DA. He's made it personal.

He's crossed a line that no other DA would cross. So there is a piece of me that's like, you asked for this. You crossed the line first. It wasn't Trump. I got to leave it at that. I know Arthur's got a piece out, but Dave and Brad stay with us. Great to see you, my friend Arthur. I want some of that mozzarella as well. We'll be right back because we've got a few more topics to get to. 34 felony counts of falsifying business records in the first degree. It is a felony to falsify business records with intent to defraud and intent to conceal another crime. 34 false statements made to cover up other crimes. And they were done to conceal another crime, but indictment does not specify what those crimes were, what laws were also known.

The indictment doesn't specify it because the law does not so require. Oh, it's pin the tail on the crime. Pin the tail on the felony. We'll figure it out. Just place it anywhere. I don't have to tell you. Na, na-na-boo-boo. That was such an unbelievable moment in the case of this magnitude yesterday. Joining me still, Palm Beach County State Attorney Dave Ehrenberg and former FEC, Federal Election Commission Commissioner Brad Smith. Remain with me. Arthur's off to his day job. Okay, so again, you have to falsify the business records with the intent of covering up a crime. So we kind of went right with, yeah, Trump intended to buy off these women and buy off the doormen. Okay, let's say he intended it. And he intended it for the worst purpose, which is to make sure he got elected.

And, you know, you heard Brad saying that's not going to do it. Trump's lawyers appear like they are going to argue not only that, but he had no intent because he did not know about this. This is a Michael Cohen operation. And Michael Cohen, I mean, I can speak to this personally. He really was Trump's conciliary. You know, he was not a good man. I think everybody knows that now. He's a convicted felon. He is a serial liar. He's lied both ways. He tried to cut a deal with the feds. He's trying to reverse himself on that now, too. I mean, he's just you cannot take his word. Never mind to the bank. You can't take it. You can't put it in a piggy bank. You can't get anywhere near a bank with Mike Cohen's word, Lanny Davis, to CNN and MSNBC played it yesterday as well, where Trump's saying, OK, he's saying, I got to set up the fund we discussed with David. One presumes David Pecker. I think he mentions Allen Weisselberg on it. And Trump says paying

cash. OK, I don't know what that's telling us. There's a discussion. Sure. It talks about names that we've heard. I'm not sure what that fund was or whether Trump understood what was going on. They don't have to prove all that, but they are going to argue. I think Dave, that Trump did not know about this whole deal that Michael Cohen is making it up because he's a liar and he really, really hates Trump. And one of the last witnesses, the grand jury heard from was this guy, Bob Costello, who was brought in as a Michael Cohen legal advisor. So the way I read it, tell me if you disagree. He was kind of both Michael Cohen's and Donald Trump's legal advisor in the beginning. So he had that sort of divided loyalty when things started to go south.

And it was like Trump at that point was already president. And they were kind of like, all right, let's make sure we're all covered. That's how I read it. Anyway, they got him on tape. But this is what Bob Costello says. Michael Cohen was saying as the law enforcement was starting to circle in on him

and he knew not just this alleged crime, but many other alleged crimes that he's pleaded guilty to might come back to haunt him. Listen. What do you have on Donald Trump? And that's when he started with the same litany that he used for the rest of the two hours. I swear to God, Bob, I don't have anything on Donald Trump. But the point is, when somebody is is really thinking of committing suicide and you're offering them a legal way out of this.

If he had any information about Donald Trump, that would have been the one time, even for a serial liar like Michael Cohen, to to fess up and say, well, I know this or that because I want to save my own hide. But he didn't do that. Michael Cohen, who, as I said before, was pacing back and forth, would suddenly stop in the middle of whatever he was talking about and turn and point his finger at us and say, I want you guys to understand, I will do whatever the F I have to do. I will never spend a day in jail. So, David, to the point now where people like Alan Dershowitz are saying there is no way alvin bragg can put michael cohen on the stand do you agree i would disagree with my former law professor i don't know if brad had uh at law school but uh didn't every lawyer who went through harvard have him no no you're 25 percent uh would be able to get. And I was one of those lucky few. So doesn't make sense because that would mean that Michael Cohen, a man of not extravagant means,

he took a home equity loan out for $130,000 to pay off a woman he did not know to benefit his boss and didn't tell the boss. Really? That means he's the most magnanimous, selfless liar in the world. And it doesn't pass the smell test. So, look, I think he definitely got reimbursed for it. Right, Dave. I mean, we we appear to know that he was reimbursed.

Maybe the maybe the story from the Trump team is going to be they didn't realize what they were reimbursing him from for. They just paid him off, but they knew it was for for Stormy Daniels. I mean, I can't imagine that or else they just didn't know, intentionally does not want to know. But that would matter in this case because Trump's falsification of business records has to be because he has an intent to conceal his underlying crime. And the argument is going to be he didn't even know he commitment. He committed one. Well, that's what David Pecker's testimony would be important. That's where the text messages referred to in the indictment would be important. And also what's important is that Trump has been making admissions throughout this whole thing on his true social site. He actually

said that this was a long time ago and it happened and he relied on Michael Cohen's advice. It's a reliance on counsel advice. So again, you know, he keeps, that's why his lawyers probably want a gag order in place to keep him from keep making these admissions. He keeps changing his defense. I think for his sake, it would be better if he just said, yeah, I did it. I didn't want Melania to find out, but to this day, he still says, no, I never did it. Has nothing to do with Melania. I never did it. Never even had it done. I was just being extorted. And I think that costs him an ability to give what may be his best defense, which is the John Edwards defense, which is I did this to protect my marriage.

Or better yet, Barron, the son, the young son from seeing an allegation about an affair with a porn star and some other woman and some alleged love child, which we know is a lie. Trump says the first two are lies too, from reading that in the paper. I mean, I don't know what kind of marriage Trump and Melania have. It seems to me to be unconventional. So I think it'd be a better, an easier sell to say, I didn't want my kids reading that about me in the paper. But yeah, so far he's saying didn't happen. So Brad, question for you on a New York times op-ed that was submitted today. And this pair of lawyers also went on CNN and they're defending Alvin Bragg and the whole campaign finance, uh, lane as the underlying felony. They, uh, the one woman's name is Karen

Friedman Agnifilo. I'm really wondering if she's married to Mark Agnifilo, who was the lawyer in the NXIVM cult case. I interviewed him when I was at MNC. It's such an unusual last name, at least in my experience. And they're both lawyers. Anyway, we'll look into it. Karen Agnifilo files this op-ed, and she used to work in the DA's office. And she says, has recognized state authorities can enforce state law in cases relating to federal candidates. Now, how about that, Brad? Because some people have said Bragg has no jurisdiction or authority to assert that there's been a violation of federal election law. He's outside of his remit. And if the underlying felony is federal election law, he needs to stand down. Do you agree with that? The Federal Election Campaign Act is the governing statute. It includes a broad preemption provision. Now, state laws can be fulfilled concurrently

if they don't conflict with the Federal Election Campaign Act. And there's been a fair amount of debate, both among commissioners on the commission and in courts as to how far the preemption extends. But the difference here is that he's not saying I'm enforcing a separate state law that doesn't conflict with the Federal Campaign Act. He says, I'm enforcing, you know, I think the underlying crime is the Federal Campaign Act. And to the extent he cited a state law, it seems to be a state law that says it's illegal to try to influence an election through an unlawful process. Well, what is the unlawful process? We're back to the Federal Election Campaign Act.

So I don't think that that argument works here. You know, in truth, I mean, the much stronger argument is the argument that David pointed out, which is to say, look, Smith's wrong. And, you know, general intent can do it. But even if you got to that general intent, and by the way, I agree with what David just said, too. I think Trump made a huge mistake right at the beginning. They didn't quite seem to know how to respond. His proper response at the beginning of his legal team with getting him to be quiet would have been, look, this was a personal expense and it was paid for personally. And I think that's right. I think it's right as a matter of law. And I think that would have been, look, this was a personal expense and it was paid for personally. And I think that's right. I think it's right as a matter of law.

And I think that would have solved a lot of issues. But instead, they kind of said, well, it was this, it was that, it was the other. I did it for this reason, for that reason. And I think in part, that's because they didn't know the law. So even if we went to his subjective intent, remember the FEC regulation, which also has the force of law, is that you have to be solely for the campaign, not primarily for the campaign. And so to the extent he has any reasonable argument, this has been suggested, protecting Barron, protecting his family, protecting his image

for future commercial endeavors, anything like that, he would have, I think, a pretty strong case there. And once again, you've wiped out the underlying felony, which reduces the records violations to misdemeanors, which means we're past the statute of limitations. I mean, that's just, you can just keep going round and round on it. I will give you a sampling of what Trump said. He spoke at Mar-a-Lago last night on the gag order, which we discussed at length, Dave, the other day, you and Arthur and I. The judge did not impose one and, you know, really felt like, I think, you just can't, you know. But free speech is at its apex in terms of importance when it's a public figure discussing politics, you know, the political doings of a campaign and so on. And that's this case.

And so he said, I'm not going to do it yet. But he kind of urged the lawyers to have a talk with their clients. I mean, really, hello, Trump, about proper decorum and not saying anything that would be unnecessarily inflammatory. And then Trump went down to Mar-a-Lago. And here's a bit of what he said. And now this massive election interference at a scale never seen before in our country, beginning with the radical left George Soros-backed prosecutor Alvin Bragg. The criminal is the district attorney because he illegally leaked massive amounts of grand jury evidence for which he should be prosecuted or at a minimum, you should resign. Alvin Bragg's wife confirmed a report that claimed

her husband has Trump nailed on felonies. She has since locked down her Twitter account. I have a Trump hating judge with the Trump hating wife and family whose daughter worked for Kamala Harris. And then I think it was Don Jr. tweeted out a picture of the judge's daughter. Or on thin ice, Dave, you're a prosecutor. You have to deal with threats all the time. I don't know. What do you make of it? I don't think it's a crime. That's the best thing I can say for Trump. But I think he is treading on thin ice. And the judge gave him a reprieve, as we predicted. And look, I'll admit that I thought there would be a Jennifer Weisselberg connection here.

And it wasn't. But one thing that Arthur and I got right was that we predicted the judge would just admonish the parties and not impose a gag order. Well, he's been admonished and he went ahead and did it anyways. He can't contain himself. And he went after not just the judge and the prosecutor, but their families. That's a big no-no. And as such, I do expect the judge to issue at some point a partial gag order. He recognizes that Trump has not only First Amendment rights, but he's campaigning for president. So he needs to be able to speak about things. So I think he's going to rein him in somewhat. The danger for Trump is

that if you violate even a partial gag order, then you could be held in contempt of court and get up to 30 days in jail. He won't get 30 days, but it's possible if it's an egregious violation, that he could be wearing an orange jumpsuit at some point, which is probably the most likely time that he would in this case, because I don't see necessarily he'd get prison time at the end of this case. But could he actually get in trouble by violating a gag order? Yeah, very possible. Oh, my goodness. The other issue was that tweet that Trump sent out. I think it was a retweet or a retruth, whatever. It showed a picture of him holding a baseball bat and Alvin Bragg right next to him, the prosecutor. And then Trump did take this down.

It can it can. It's a crime to to threaten a prosecutor. You can argue about whether this is what that was. Joe Takapina, Trump's lawyer, tried to defend Trump on this. Here's what he said. That picture was not swinging a baseball bat. I mean, if you want to distort the facts, go right ahead. I won't address that. Yes, it is. He wasn't swinging a baseball bat at anyone's head. That was a picture

of him showing off an American-made bat. Someone else put a picture of the district attorney next to him and in an article posted that. That's not his article, that's not his photos. But Trump, I'm told, also tweeted it or whatever, truth social, and then took it down.

So, you know, that's the kind of thing that's going to get him in trouble. Do you actually think, though, I mean, would a fine, would a thousand dollar fine do it? If he imposes the gag order, do you think we have a judge who's got the spine to start actually punishing Donald Trump? I think it would be done in stages. I think that next step would be to impose a partial gag order. And then if he violates that, then he could hit him with a fine and then even strengthen the gag order. And if he does it again and again, yeah, I could envision the nuclear option where he could serve a night in jail.

I mean, it's very possible. I mean, because we're dealing with someone who can't stop talking about this stuff. I mean, last night, he admitted he moved the boxes around at the Mar-a-Lago Doctrine and Matter. He did. Right. So if there's anyone who supports a gag order, wouldn't you think it'd be Trump's own lawyers? You'd probably say, please, dude, stop talking. You're making our jobs harder. Yes, I know. Right. Exactly. Because that, of course, as we discussed the other day, is one of the main avenues that could result in real legal trouble for him. I also think that that's just absurd, too. We've given a pass to Hillary Clinton. We could go down the list again. But anyway, all of this is so disconcerting unless you're James Comey, who just revels in anything bad for Donald Trump, irrespective of how bad it is for the country. That man, my, I don't think there's a person in America who my image of has done such a 180 on, right?

Do you guys, I'm like, I'm sorry, but do you remember, I used to deeply respect that guy, Robert Mueller, and I'm not a hard partisan. I'm a lawyer. I thought, you know, I'd love the whole story of those two and the one in the hospital bed. I find his comments absolutely disgusting. All right. Sorry. I stole the last word. I find his comments absolutely disgusting. All right, sorry, I stole the last word. You guys, thank you both so much for your legal expertise. It's been a pleasure. Thanks for having us. We just discussed the legal issues at play in the case against Donald Trump, but the political ramifications cannot be overstated. While some of the left and Trump's

fiercest media critics have reacted with outright glee, this situation threatens to tear at the very fabric of who we are as a country. I said yesterday, this is a before and after moment for us. There's no going back now, now that we've done this. Byron Donalds is a Republican U.S. representative for Florida, and he joins me now. Congressman, welcome to the show. It's good to be with you. Actually, real quick, I'm a big fan. I love the show, love the pod. I've been listening for a while, so this is actually pretty exciting for me. Okay, I'm going to stop being a fanboy. We can get to it now. Thank you. No, no, go on. Thank you so much. I appreciate it. So, I mean, I hate to make the whole show about James Comey,

but I just thought it was such a petty moment that embodied so much of what we're seeing on the left. Glee because they hate Trump so much and have the Trump derangement syndrome without being able to see beyond it to what this just did to the United States of America. I mean, look, unfortunately, this is where we are. You know, we have a situation in our country where we become heads I win tells you lose and who really loses are the American people. So for him not to be able to do his job and actually look at the facts as they are, look at the law and make a determination, he's still caught up in his petty grievances with Donald Trump, the individual, as opposed to looking at the fabric of not just criminal justice in America, but just the law in general in America. This is the same guy who went out in 2016 and said, no reasonable prosecutor

will bring charges, even though everybody knew that Hillary Clinton violated the Espionage Act. It was clear as day. He's the no reasonable prosecutor guy. I guess in his mind, Alvin Bragg is reasonable, but in nobody else's. The media glee was in your face on every channel and I searched them all. And the overreach, I don't know if you caught any of the body language analysis that some people were doing. We only got still shots of Trump inside the courtroom. They let a couple of still photographers go in there. And of course, that didn't stop CNN from going there. Here is some of that, SOP 14. Seeing that wide shot where he is at

the defense table and you see the court police, he's in custody, he's in their control, I think is very striking. His body language hunched over, hands clasped between his legs. That is an angry Trump. And he's forced today to live in reality. We're reading body language right now. Pretty soon we'll get to read an indictment. This has to be a thud for him because he lives in a fantasy land. He looked really irritated and annoyed. That is a pissed off Donald Trump. I mean, like, okay, right? This is where they're going to go. But they're drunk on the Trump wine again already. And this is what we're going to get. What? The next court appearance is in December now through December. Is this how it's going to be?

Unfortunately, yeah. Look, a couple of things. One, the media need their ratings and ratings gold for them has always been Donald Trump. Let's just be perfectly clear. A lot of the big media, they are corporations. As much as the left loves to decry profits, the big media make big profits off of scandalized news coverage because it keeps eyeballs on the coverage. This is what they're going to do. And we're going to see more of it, not just through the, I guess, the next court date, which is December or January, but frankly, throughout the rest of the presidential cycle. Number two, Number two, the people who are describing it as, oh my gosh, he's leaned forward with clenched hands. Have they ever seen Donald Trump sit in any meeting? I mean, look, take any White House, any Oval Office meeting, what's he doing? Leaning forward,

hands clasped together in front of him. That's his normal posture anyway. And the last piece is, what American wouldn't be pissed? You're sitting in front of a judge on trumped up foolishness, no pun intended. And you realize you're being taken to the woodshed simply because the prosecutor doesn't like you. And you're going to sit there with a smile on your face. I mean, these guys are silly. You know, I was listening to Brigham yesterday and he was talking about how the average American is dealing with rising inflation and their own financial issues and concerned about what's happening with Ukraine and China and so on. And they look up, they see this aged 82 year old almost president who can't even put two sentences together when he's on cam. And then on the other hand, they have Donald Trump, who's the front runner on the GOP side, who's dealing with, you know, allegations of the porn stars and so on.

OK, that's one way of looking at this. Then I listened to Mark Levin, who came on in a barn burner on Hannity last night and just went off on how the number one takeaway here is Donald Trump is literally the only person who can be elected president right now. that there is no way of fighting the radical left that wants to undo virtually every norm we have besides electing Donald Trump. There may be time in the future for other candidates, but now's the time for this guy because who else could withstand this nonstop harassment and still want the job? Where do you fall? Look, I got to tell you, I think what Mark Levin said is a lot of credence to that. This is the Democrat playbook now that it's fully being played out. At first,

they just try to ridicule you. And a lot of Republican leaders in the past have just stopped at the ridiculing because they just couldn't take it. It was hurting their poll numbers. Then they try to demoralize you. And that's where the rest of them will typically get off the ship. Then they will go to demonization. And we've already seen the demonization plays, and now they're at criminalization. They're not going to stop. And so the question for any other Republican who wants to step into this job is, are you prepared to deal with the constant onslaught, or are you going to just give up certain pieces and let the Democrats have their way in their agenda? Because at the end of the day, Megan,

this is about the agenda. It just so happens that Donald Trump is the target because they know he will not yield. He will not bend the knee. He will continue to fight for what he believes in, in the correct direction of the country, being America first. He's going to go forward with that, regardless of what the press think, regardless of what the Democrat thinks, regardless of what the massive donors think, he's going to press forward. And so that's how you arrive at this juncture. So if you're looking at having to go through the federal agencies and clean house, if you're looking at trying to find a way to get our budget under control, if you're looking at how to secure our southern border, how to deal with the Chinese who are on the move and are our largest adversary on the globe,

who do you bring in to get all that work done in a four-year period? That's the kind of work you describe for two terms as president, not just one. And if you try to take a psychological viewpoint of everybody who's trying to apply for this job or even maybe want to apply for this job, the person at the top of that list to get it all done is Donald Trump. And I think that's where Mark Levin is going. Now, what about Ron DeSantis? You're in Florida. He's done so well there. His approval ratings have only gone up since he slayed, as my children would say, in the midterm election. And he is a fighter. He doesn't get as much press as Donald Trump because the baggage. Of course, the Democrats will try to demonize him. But there's just a particular thing about Donald Trump that makes him especially toxic. Time to move on. Do you think that the latest legal events have changed that analysis? No, I really don't think so. I think if anything,

the current legal problems have rallied more Republican voters around Donald Trump, because even some of those who you look at him and say, you know what, maybe we can make that shift. I think for a lot of voters, they got to understand it doesn't matter if it's Donald Trump or Ron DeSantis. This is what happens when you say no to the Democrat agenda. They will not stop. They're going to press forward. Do I think Ron DeSantis has the necessary strength to step into that forefront? I actually do. I think he would he would step into it and do it because knowing him, he just doesn't care. He's just going to do what he thinks is right. But I think also you're looking at a situation where muscle memory, I think, is key.

Donald Trump has been through these fights. He knows where these landmines are. And so he can walk in and be effective. But to a broader perspective, I think that what's going to happen in the Republican primaries, voters are going to rally around Donald Trump, especially if the New York DA is going to stretch these cases through the primaries, because what voters are going to see, especially in a Republican primary, is that you are politically persecuting this man simply because you don't agree with his policy set or how he goes about his business.

And that's just un-American. Republican voters are going to rally to that kind of a cause. I don't think they're going to say, you know what, too much baggage here. We're going to move on. Now, here's the key thing. In a general election, I think you're going to have a situation where independent voters, soft Democrats are going to look at this and say, okay, we can do four more years of Joe Biden where the country is a mess, or we can go back to the guy who actually had my 401k and my business thriving. Like my 401k was thriving. My business was thriving under this guy. I get the mean tweets and all, but then they look at these things with these cases and all this other stuff and they say to themselves, man, they really are out to get this guy. And things have sucked under Joe Biden. I think that's going to be your political question in 2024.

That's the thing is, it's like I think the Democrats and these media who are just so gleeful about this are misunderstanding how the average person at home sees this. I have friends who marched against Trump, marched against him, texting me that they're ready to donate to his campaign. They're so mad. They can see what's being done to him. And, you know, this is on the heels of so many targeting instances of targeting of Trump. You know, we could go through, obviously, the whole list of Russiagate and the double indictments and everything they've done and the numerous lawsuits. I mean, Alvin Bragg bragging about being part of over 100 lawsuits that the AG's office filed against Trump and Trump organization and Trump and his family. And that's not including what's happening now with this latest indictment, what's going to happen in Atlanta, what's going

to happen in the special prosecutor's office in Washington, D.C. I mean, it's so much they're making a victim out of the guy they wanted to be seen as the villain. I mean, it's so much they're making a victim out of the guy they wanted to be seen as the villain. I mean, do you think they're in danger of overplaying their hand or have already? I think they've already overplayed their hand, and I don't think they're going to stop because the radical elements of the Democrat base want this. They thrive on this. And let's be very clear, for the Democrat party, they're in a catch-22. They have to try to go after Trump to motivate their base. But in the process of doing that, you elevate Trump. And then you're in this, not even a part

of, well, maybe he did it, maybe he did. You're in a mean-spirited argument. You're in an un-American argument. You're in a turning the legal system on its head to go after your political enemy's argument. And that puts them in a very terrible position. But Megan, let's remember one thing. In 2016, Hillary Clinton funded a fake dossier to go after Donald Trump. In 2020, the media, by the way, what Alvin Bragg is accusing Donald Trump of, he might as well accuse big media of because they suppressed information about Hunter Biden in the middle of that presidential election, the 2020 election. And by the way, FEC came out with a ruling that said this is not an in-kind contribution from media, although you could argue that was by far the largest in-kind contribution ever conceived of in politics. And now 2024, you have Alvin Bragg and these DAs in his various jurisdictions. So what you're actually seeing is Democrat interference in elections by suppressing information or shoving new information into the field, which distracts from the things that actually do matter to the American people, our economy, our border, our security, foreign policy, the things that the

federal government should actually be focused on and doing. And it's like you look at what they're coming after him for in these three potential investigations, one that's resulted in an indictment in New York. It's really about paperwork. You didn't fill out the right papers revealing what those payments were for. That's really Alvin Bragg's case. You wrote down the wrong thing in your ledger. And I really care about ledgers in Manhattan because we're the financial capital of the world. He's on camera. That's what he's saying. That's his case. Then there's Washington, D.C. What is that special prosecutor Jack Smith worried about? Trump and documents. He didn't keep the proper documents. You didn't satisfy the little national archivist who was definitely a Trump hater who didn't decide to do this with any other president. Try to go through and see exactly what had been returned to what hadn't. That guy wasn't satisfied. And then Trump apparently didn't turn over all the documents. It's just, it's hard to feel the heartstrings swell on documents. And even the

Fulton County, Georgia one is about Trump in a phone call where he was saying, find me the votes, which is very ambiguous and honestly can be spun either way. So it's tough, you know, to get people emotionally behind you, which you need to, given the context here, with documents and a one-liner on a phone call. Well, I think, look, for Democrats, this will be the second time they try to get Trump on a phone call. I mean, that's what the first impeachment was about a phone call. That was stupid, too. You're right. This stuff is so thin and it's frankly it's deranged at this point. Donald Trump's not president right now. He's not been running the country for two and a half years. And now Joe Biden's been president. Yes, he's coming back. He wants to run. He wants to finish the job that he started.

But they are so deranged on this stuff. And frankly, it's almost like Stockholm syndrome. It's like they can't live with them. They can't live without them. It's a very weird place to be in. But the fact of the matter is, is that policy and how you're actually going to manage the country, those are the things that really matter to the voters at the end of the day. What this is, is for them to try to find those emotional cords to drive turnout. I mean, it's not something we're talking about. But yesterday, you had the election in Wisconsin, the election in Chicago. What the Democrats are doing there is using emotion to drive those elections. That's what they're doing here with Donald Trump.

They're trying to use the emotions to drive their turnout. Because if you look at their policy and what they stand for, what they really want to accomplish, man, nobody wants to deal with that. That stuff is crazy. But that's what they have to do in order to get electoral success. Can you believe Chicago went farther to the left? Yeah. It's unbelievable to me that they had a relatively reasonable candidate right there for the taking.

They rejected that candidate and now have gone more left than they had under Lori Lightfoot. How? How? Given the crime stats there, how? Because elections are part policy, but they're really emotional creatures. And I didn't really follow that mayoral race. But if you were going to ask me how they kind of pull it together, I think it's Brandon. I forget his last name. Doesn't really matter right now that he's the new wave of leadership. He's going to make things better, even though his policy set is going to make things far worse.

And I think obviously the electorate in Chicago is largely Black, largely African-American. Look, you got to understand there is a sense of pride for Black people to see somebody leading their city. That's an emotional tie. That is a pride, a matter of pride for the Black community. But at the end of the day, policies matter. I can have pride in you, but if my kids can't walk down the street to go to school, you know, that's a tragedy for my own family. And my hope is, is that the voters in Chicago begin to see through this. But unfortunately, Chicago is going to take the same walk that San Francisco has taken, you know, my former city of New York has already taken.

Yep. Baltimore, we could go down the list. You know, in the meantime, I spoke about how it's tough for people to emotionally connect on document management and a one line and a phone call in times like this. And it is a big day. Yesterday was a very big day for America. You look to the commander in chief, you know, to our presidential leadership to to set the tone, you know, somber. Had I been advising him, I would have said you can comment on it. Stay somber. Had I been advising him, I would have said, you can comment on it. Stay somber. Tip of the hat to the people who are pained right now because they understand this is a before and

after moment. Don't be gleeful and make some larger statement about how America will get through it. That's what I would advise. Here's what happened instead. Take a listen. SOT16. Okay. So what they said was, is the indictment of your predecessor politically divisive? He understood what they were yelling at him because they were all yelling the same thing. He's just smirked and smiled, didn't really say anything. Karine Jean-Pierre was also asked about it. Here's how she handled it. Biden is a lawyer. And the president of the United States and the commander in chief. He is. But as a lawyer, is he concerned at all that a local D.A.

indicting a former president could down the line open up the possibility, set the precedent that local DAs that don't like former President Biden could indict him. I'm not going to comment from here. Why don't you have more to say about the Trump indictment? It is an ongoing case, and I've been very clear about that. We've been prudent about that, not commenting on ongoing cases, and we're going to stick to that. So that's a lie. That's a lie. Any case involving, you know, police and a Black defendant, in which case, you know, there was violence. They've weighed in every single time. But this one, they want to act like they're above board, and there's absolutely no tone setting for the country from the commander-in-chief himself.

Well, look, I'm going to do some body language some body language analysis. Shout out to Bill O'Reilly on the old show. They would bring that segment. I actually liked that segment. It was pretty cool. That was a good segment. But anyway, here's what I will tell you. What you see from Corinne Jean-Pierre and from Joe Biden is smugness. It is a smug look on their faces like they're doing our work for us and we're just going to sit back in the catbird seat and watch it all unfold. And I think that smugness is really going to come back to bite them. Because no matter how you feel about Donald Trump, what you don't want to see is this political

persecution of people. Like, look, some people, the Democrats will say, oh, but Donald Trump said, you know, lock up Hillary Clinton. OK, yeah, he definitely said that. He said that in a speech many, many times, many, many rallies. Megan, you've covered it. But he didn't turn his Department of Justice loose on Hillary Clinton. That never happened. He didn't send the word out to local DAs around the country to say, hey, now's the time. Go get Hillary Clinton. That never happened. And so I think it's important for the president to understand that our country has to be able to still be a united country, which is becoming harder and harder as the days go by, after the next presidential election. That's something that all presidents have to make sure that they guard carefully.

Do you think, because this trial is likely to be going on past November, November, 2024, and with every moment that the other two are delayed those as well. So we could have, if Donald Trump gets the GOP nomination, a candidate and potentially even a president who's having to deal with this stuff while the leader of the free world, um, how do you, how do you factor that in? Because the concern in Republican circles, even though they don't like these prosecutions, they don't believe that they're valid, is that it's going to do what some of these prosecutors may hope, which is hamper him electorally, and that it's going to be very hard if he becomes the nominee for him to run against somebody with

three indictments around his neck. The other person is going to try to play high road, Joe Biden, Kamala Harris, whoever winds up being is probably Biden. You know, it's unfortunate that we're dealing with a felon, an accused felon on the other side of the aisle. That's not what America needs. You know, we don't need to put the country through this. We're going to get a lot of that if this plays out, as I just described. So that's an argument potentially for somebody other than Trump. How do you see that? It's going to be a tough one, but my argument back will be like, Joe Biden has been a disastrous president. Who cares if the activist DAs have left him alone? Who cares if they've not looked into the fact that his family has been getting millions of

dollars from the Chinese? The truth of the matter is, is that our border is wide open. Our economy is a mess. Foreign policy is a mess. We're leading from behind. Americans are not in the position they are supposed to be in, and he's only going to make it worse. The second thing I would say, and this is just more on a practical side, it'll be very difficult for Alvin Bragg or anybody else to have this case with a sitting president of the United States. I think the American people are going to look through this for what it is. A lot of this is going to depend on how, if it is Donald Trump as a nominee, how he manages that situation through the November election and how the radical left responds to this, because that's going to be one

of their key talking points. They're going to keep pressing that point. But it's essentially like saying, how can you say I'm not qualified when the person coming after me is you? It's not like it's just normal people coming after me. It's you crazy people are coming after me. And you're trying to use that to say that now I'm not qualified to hold the highest office in the land, which by the way, I've already done once. And I did the job better than you. It's it's crazy because it's really like your bullies, your bullies have punched you repeatedly. You got a couple of bumps and bruises, but you're still standing. And then the bullies want to say, look at all the bumps and bruises on him. Do you really want to do you really want to elect him?

And they run a real risk of the electorate saying we understand how those bumps and bruises got there. And we respect the man for still standing. Congressman Byron Donald, please come back. I'd love to have a longer talk. I'd love to do an in-depth profile on you, your whole history and your run. It's,

it's all been fascinating. Well, listen, anytime I would love to come back, love the podcast, like I said, and look, looking forward to listening to more.

Thank you. Thank you so much. All the best tomorrow. We're going to be joined by our friends from Ruthless, and we'll take a deep dive into other things, the media. Thanks for listening to The Megyn Kelly Show. No BS, no agenda, and no fear.