The Munk Debates Podcast - Be it Resolved, Trump’s prosecution is bad for American democracy

Episode Date: April 17, 2023

The indictment of Donald Trump is an historic event. The 45th president of the United States now holds the unique distinction of being the first president to face criminal prosecution in the country��s history. Some legal experts believe that prosecuting Trump sets a dangerous precedent that will open an era of politically motivated prosecutions undermining democracy and the rule of law. Future presidents will be more likely to stay in office – through undemocratic means – in order to avoid trial. Furthermore, bringing this particular case against Trump, one which has nothing to do with his time in office, will undermine and delegitimize more important prosecutions that he could face in the future. And doing so will almost certainly galvanize his supporters and all but secure his nomination as the GOP presidential candidate in the 2024 election. Other experts argue that the opposite is true. Not holding Trump accountable to the rule of law would undermine democracy and send a message to the public that elected officials are not subject to the same justice system as ordinary citizens. Prosecuting Trump shows a commitment to basic legal principles and strengthens American democracy. Arguing for the motion is Sarah Isgur, attorney, political commentator, and former spokesperson in the United States Department of Justice Arguing against the motion is Norman Eisen who served as special counsel to the House Judiciary Committee for the Trump impeachment, and was the White House's chief ethics lawyer in the Obama administration   The host of the Munk Debates is Rudyard Griffiths - @rudyardg.   Tweet your comments about this episode to @munkdebate or comment on our Facebook page https://www.facebook.com/munkdebates/ To sign up for a weekly email reminder for this podcast, send an email to [e-mail].   To support civil and substantive debate on the big questions of the day, consider becoming a Munk Member at https://munkdebates.com/membership Members receive access to our 10+ year library of great debates in HD video, a free Munk Debates book, newsletter and ticketing privileges at our live events. This podcast is a project of the Munk Debates, a Canadian charitable organization dedicated to fostering civil and substantive public dialogue - https://munkdebates.com/   Senior Producer: Ricki Gurwitz Editor: Kieran Lynch  Become a Munk Donor ($50 annually) to get 72-hour advanced access to the full length editions of Friday Focus and Munk Dialogues. Go to www.munkdebates.com to sign up. Hosted on Acast. See acast.com/privacy for more information.

When you're a journalist and people don't trust you, it's always your fault. These people need to be represented. They are Canadian. They deserve to have a voice and a seat at the table. It is time to go back to the office, and the time is now. Russia had reasons to be concerned. They had reasons to be fearful. We're at an absolute turning point in reproduction. This is the problem with realism. They just treat all countries the same. They don't distinguish between dictatorships and democracies. Welcome to the Monk Debates. Every episode

we provide you with a civil and substantive debate on the big issue of the day to arm you, the listener, with enough information to make up your own mind. Today's debate, be it resolved. Trump's prosecution is bad for American democracy. You want to get President Trump at any cost and this before he knew anything about me, didn't know a thing about me. He was campaigning. As it turns out, virtually everybody that has looked at this case, including rhinos and even hardcore Democrats, say there is no crime and that it should never have been brought. Hi, I'm your moderator, Rudyard Griffith.

Well, Donald Trump faces 34 felony counts related to his role in what New York prosecutors described as hush money payments to two women before the 2016 U.S. election. It's an unprecedented indictment, never in America's 240. 46-year history has a former U.S. president faced criminal prosecution. Some legal experts are warning that Trump's prosecution sets a dangerous precedent that will open an era of politically motivated lawfare against former presidents and public officials on a scale hitherto unseen in American democracy.

Here's Trump's attorney, James Trustee. He is literally the first person subjected to this new model. of upside down justice, of political persecution. And, you know, you let the genie out of the bottle with this new mode of prosecution, it's not going to go back by itself. It's going to be a problem for generations. Other voices in the legal community and U.S. politics maintain that the opposite is true. Not holding Trump accountable to the rule of law would fundamentally undermine American democracy

and send a message to the public that elected officials are not subject to the same. same judicial system and the consequences of it as ordinary citizens. Here's Alvin Bragg, Manhattan District Attorney who brought the charges against Donald Trump. At its core, this case today is one with allegations like so many of our white-collar cases. Allegations that someone lied again and again to protect their interests and evade the laws to which we are all held accountable. As this office has done time and time again, we today uphold our solemn responsibility

to ensure that everyone stands equal before the law. No amount of money and no amount of power changes that enduring American principle. On this installment of the Monk debates, we're going to go to the essence of this debate by moving the motion, be it resolved, Trump's prosecution is bad for American democracy. Arguing for the motion is Sarah Isgher. She is an attorney, political commentator, and former spokesperson in the U.S. Department of Justice.

Arguing against the motion is Norman Eisen. He served as special counsel to the House Judiciary Committee for the Trump impeachment and was the White House Chief Ethics Advisor in the Obama administration. Sarah, Norm, welcome to the Monk debates. Hello. Great to be here. I'm looking forward to today's debates. Topical on point. It's what everybody is talking about. Our motion today, be it resolved, Trump's prosecution is bad for American democracy.

Sarah, you're up first arguing in favor the motion. I'll put a couple minutes on the show clock and turn the program over to you. I want to start with an area that I think Norm and I almost certainly agree on, which is no citizen in the United States is or should be privileged above any other. The former president should not be treated any better than anyone else. And it doesn't undermine the rule of law to indict a former president for crimes that he's committed. But here's where Norm and I perhaps differ. I think that the problem for the Manhattan District Attorney and for our democracy is not to show that Donald Trump was indicted despite him being a former president, but rather to prove that

Trump wasn't indicted because he's the former president. And to use one example, I have no problem with Al Capone being prosecuted for tax fraud. Tax fraud is a crime and it has specific elements and there was evidence that Al Capone had committed each of those elements of the crime. Here, however, this isn't a question about evidentiary sufficiency that the facts are there. Even if all of the facts that Alvin Bragg says that he can prove, we just, it's except as true. I think there are serious legal problems with this case, that if all those facts are true, it is still not a crime. Doesn't mean Trump's a good guy. Doesn't mean you have to like him.

But where I think our democracy is being hurt by this indictment is not by the norms of the world who actually believe that there is legal sufficiency to this case, but rather all of the people who don't seem to care. Donald Trump's a bad guy. He had it coming. If you poke the bear, you get mauled. You know, this idea that we can wield our criminal justice system simply to be able to get bad people. That way lies tyranny. That way undermines the rule of law. And it's a dangerous precedent. Thank you, Sarah, for that opening statement. Okay, Norm, your opportunity now to come into this debate. You're arguing against our motion today. Be it resolved, Trump's prosecution is bad for American democracy. Take us away with your opening statement.

Trump's prosecution is not bad for American democracy. It's the right thing to do for rule of law, accountability, and our country. If anybody else committed these crimes to go to the heart of Sarah's point, I believe that they would be prosecuted by Alvin Bragg because they have been prosecuted by DAs across New York. And we'll talk about this. But the case that Alvin Bragg has brought here, creating false books and records, in this case calling hush money payments legal fees to cover up a campaign finance violation was prosecuted by New York prosecutors in the Richard Brege case, in the Clarence Norman case, in the Richard Luthman case, in the John Dote case. So the Donald Trump case should not be any different. Sarah makes the point that there's no legal foundation to do it. I will get into the legalities. I believe the case is well-founded and well-plaid by Alvin Bragg as a violation of state campaign finance law and of federal law. And that the rules prohibiting that, known as federal preemption doctrine, do not apply here. And the final thing I'll say is out of all the Donald Trump cases, and Sarah has written and spoken eloquently at the dispatch, at advisory opinions about this point, that there are other very important democracy cases. This is the only case where the alleged misconduct might have actually swung the outcome of an election.

after Access Hollywood, another sex scandal could have changed an election that was decided by a little over 70,000 votes in three states. So I think it is an important case for our democracy. It's a valid one under the rule of law. As we say in the criminal law game, it's a righteous prosecution. Thank you, Norman. You're listening to our debate today, be it resolved. Trump's prosecution is bad for American democracy. Okay, Sarah, your opportunity now for a rebuttal. What Norm brings up again, and I'm glad we'll get into some of the legal sides, but this was already baked in. This happened in 2016. In fact, the only reason that I believe that this is being charged the way that it is with a really amorphous and perhaps even moving legal foundation under it is because the statute of limitations had run.

The Department of Justice declined under both the Trump. administration, not surprisingly, but also under the Biden administration to bring charges against Donald Trump for the campaign finance violations that we think this lies on at least a bit. And Alvin Bragg's own office had declined to bring these charges. And so now Alvin Bragg is left trying to find a way to get past the statute of limitations by tying this to a secondary crime. That's where we get into the federal campaign finance violations or the state campaign finance violations. And even there, when Norm is talking about how this gets charged all the time, no. Yes, falsification of business records does get charged. But the falsification of business records

where a state prosecutor is having to prove up a federal case that wasn't charged, that wasn't convicted, or a state crime on a federal candidate related to campaign finance, that is wholly unique. and only because Alvin Bragg said during his campaign that it was important to elect someone who would hold Donald Trump accountable. That is why this is, I think, undermining democracy, again, because it wasn't about indicting Donald Trump despite him being president. It was about indicting Donald Trump because a large portion of the country doesn't care whether it's against the law. They think Donald Trump's a bad guy and they want to indict him for something. Thank you, Sarah. Okay, Norman, your opportunity for a rebuttal. You can react to what you've just heard from Sarah or her opening statement. The case is an important one for our democracy. I don't think Sarah and I disagree on the premise that hush money was paid or that the payment of that hush money could have altered the outcome of the election.

Perhaps Sarah would agree with me that someone should have prosecuted this case. It is not accurate that Braggians. declined to bring the case. Sy Vance went on TV and said that it was an open matter. I think it's fair to give Bragg a little bit over a year. That's all he's been in office to review this case. I do think it is shameful that DOJ prosecuted Michael Cohen for the identical campaign finance conspiracy and passed on this case. There's nothing unusual about the basic structure of the case or state prosecutors using federal crimes to bump up to charge state crimes as a felony.

That happened in the case of another Trump associate, Alan Weisselberg, federal tax crimes. The Manhattan DA does it all the time. They charge the BNPP, financial fraud, bank fraud case using federal crimes. Of course, in any case, you're going to have some unusual circumstances, but let me point out that there is a federal case on point that was legally sufficient that survived scrutiny and made it to the jury. That's the John Edwards case. There was Sarah, the difference is the facts, the evidence which is much, much stronger here

than it was in the Edwards case. Totally legally. sufficient and there are many other cases on point that we'll chat about. So this was the right thing to do for the rule of law and for our democracy. I'm glad Bragg did it. Thank you, Norman. Okay, let me join the debate and try to think of some questions that are top of mind for our listeners and come to you first, Sarah. You started this debate saying in effect that you and Norman would agree on the fact that no one is above the law. That's just simply how the rule of law works in a democracy. it's a hard and fast rule. There are no if-thans or but. So why isn't that premise, that contention, the kind of beginning and the end of this debate? No one's above the law. He did something

illegal. He can and will and should be prosecuted. Let me give an example that I think Norm might actually agree with. I think we're disagreeing on some of the details here, whether there is legal sufficiency in this exact case. But your question is actually, I think, to my philosophical objection. So assume for a moment that you agree with me that there's not legal sufficiency. Then let me give you another example, which is Hunter Biden is being investigated right now. Let's imagine a world in which a state prosecutor, a local district attorney, charges Hunter Biden with treason. Treason is absolutely a crime. Treason has specific elements of that crime. And Hunter Biden is charged with aiding and abetting our foreign adventists.

related to his work with China, roughly speaking. I think we would all, Norm included, agree that that is not holding every citizen, you know, to not being above the law. That is not stretching the facts. That is stretching the law itself. And it undermines the rule of law to simply, you know, as Soljianitin once said, you know, find me the man. I'll show you the crime.

And so that's why I say that this case, in my view, if you agree that the law isn't sufficient, then you don't, it's not okay simply to charge someone and say, yeah, well, if the law isn't sufficient, the appellate courts will work it out, Donald Trump will have fine legal representation. Bringing criminal process against someone without legal justification is bad. And we've held that throughout our country's history. Again, I'm not asking you to feel bad for Donald Trump here or to think that, What he did was good, but rather to understand why it undermines the rule of law for prosecutors to try to stretch the law to reach a bad person. Thank you, Sarah.

Okay, Norm, come back on this. You know, just if we're going to try Donald Trump for something, then why shouldn't have been election interference in Georgia or the Mar-a-Lago treasure trove of top secret documents, things that were more obviously. breaches of legal doctrine and theory that for everyone reach a much higher bar than what is currently being considered by the Southern District in New York. Those are important cases and they should be brought. I think the evidence of the law is there and they will be brought. But this is an important case too. It was the first in time relating to the 2016 election.

out of this whole complex of cases, the attempted coup after the 2020 election failed. It did not alter the election outcome. The classified document story, as terrible as it is, if Sarah or I had taken a single one of those documents with us when we left government, we'd be doing this debate from federal penitentiary today. Those are terrible offenses against our democracy. But this is one that is also very very. serious and that as I say may have altered the outcome of an election. If you want to look at the legalities, and I do think that is where we disagree, we should look at the applicable law.

And the difference between Sarah and myself on the law, I think comes down to the question of, is there, I think Sarah, we agree that it's a misdemeanor. There was a falsification in the books records. They called hush money legal fees. So the question is, can you bump up that misdemeanor, as you need to do under New York law, to a felony by saying another, it was done to commit or to cover up another crime? I think it was. I think that there was a violation of New York law that the DA pointed to an unlawful conspiracy to advantage Donald Trump. And I think the nature of that violation was under both state and federal campaign finance law. You are not allowed to benefit a campaign by making a contribution in any form that would not have been made irrespective of the campaign.

And I think the evidence is very clear here that this hush money payment was made solely for the campaign. You get that from the timing. You get that from the agreement of Donald Trump and his co-conspirators. And you get it from the fact that Donald Trump told Michael Cohen to stall this as long as possible because he wouldn't care about it when the campaign was over. So I think there is, we can go into more depth on the state and federal violations here, but I think there is a clear violation that will be successfully, in my view, proven to a New York jury. I'll just, on just the falsification of business records, the misdemeanor crime and not this underlying legal foundation before you get to your next question. I would agree that if this were that case alone, we wouldn't be having this debate.

bait. That being said, I feel the need to answer that there are potentially some legal questions around that. For instance, this was Trump's personal funds, but business employees were doing the payments. Is that actually a business record then when it's personal funds? Number two, these business records weren't relied on for tax purposes or loan purposes. Is that then the falsification of business records? Again, I'd rather be on norm side than mine. you know, or rather on the prosecution than the defense on that one. But it's worth laying out that there are potential legal questions around that. But by and large, I think Norm and I agree, at least, that if that were the only case being brought, the misdemeanor falsification of business records, we wouldn't be here.

Hey, Monk podcast listeners. I wanted to let you know about our other weekly audio program. It's called Friday Focus. And hey, guess what? It comes out each and every Friday. It's half an hour long, and it provides you with a masterclass on international events, all the big issues and ideas shaping our world. We've got that for you each and every Friday here at the Monk Debates.

Simply access via our website, www.com. Click on Friday Focus in the top right navigation. You'll get all the details or check out a sample of the program in the same podcast feed as the main monk debates podcast. I hope you'll join us for the next edition of the Friday Focus podcast. Now back to our program. So Norm, let's imagine that you're the prosecutor for the Southern District. Would you have brought this case?

I mean, considering the complexities of it, the nuances, the risks. I mean, there are risks here, right? I mean, this thing could get thrown out. And then what are the consequences of this getting thrown out? What does that say about this whole process, about the judicial system, about Americans' perceptions, the tens of millions of voters who are still ardent supporters of this president? Would you've done this? I'm asking about the Manhattan DA case. I think part of the reason Sarah and I joined battle on the timing question, I think part of the reason that Alvin Bragg, I surmise, part of the reason that. Alvin Bragg took the little over a year that he's been in office to really, as far as we can tell,

start again from scratch, build the case, look at the evidence, look at the law, decide what to do, work with his grand jury is precisely because of the risks that you correctly identify. If the case fails, it will be harmful to the confidence. of the public. But that's not the test for a prosecutor. What a prosecutor is supposed to assess is, does the prosecutor believe that there's proof beyond a reasonable doubt such that a jury can convict? Does the prosecutor believe the defendant is guilty? And I think the answer to both of those questions to Alvin Bragg's ethical obligations

is yes. And then he looks at these other political figures. admittedly, they're lower-level New York political figures who have been prosecuted for the same pattern, making false statements in business records. I'm not unduly deterred. Part of the reason that Sarah graciously admits Bragg has the upper hand on those misdemeanors is because Trump ran all this through his trust. A trust is, in addition to involving the Trump work his business, a trust is a business org under New York. York law. So these arguments will be made, but I think, I think Bragg's very, very likely to win him. You look at, but if you look at the pattern of case after case, never mind that Bragg had charged 29 others with false business records, over 100 counts of false business records. It's charged.

It is the bread and butter. It's the like the mail and wire fraud of DAs in New York. But then you look at Mr. Brega, Clarence Norman, Mr. Luffman, John Dote, all of them, same pattern. Creating false business records in order to cover up a campaign finance violation. If you think you got proof beyond a reasonable doubt, it's your duty as a prosecutor not to treat Donald Trump better just because he's a federal candidate. And there'll be some tough legal arguments. There will be tough legal arguments. but I think under state law and federal law, Bragg also has the winning hand on the felony. He's got to do it.

So Sarah respond to that. He had an obligation here. It met the litmus tests that Norman set out, that he was guilty and that that could be proved beyond a reasonable doubt. There wasn't a choice here. The train left the station a while ago, and it left the station because of what Donald Trump did, not because what Mr. Bragg ultimately charged. If the case were as clean as Norm said it is, then, man, I would be on the Norm train here, on the Bragg train, but it's not.

And the reason we know that is because of the statement of facts that Bragg put out. So you have the 34 counts, all of which relate to payments for Stormy Daniels. And forgive me, listeners, because at this point, I think Norm and I might go into the legal weeds a bit here. It was always going to happen. Sarah, we did so well. We made it halfway through before we got to preemption doctrine. Our Fed courts professors would be proud. You have 34 counts, all of which relate specifically and only to payments to Stormy Daniels

that, that as Norm said, were paid out of that trust. In order to turn this into a felony, however, you've got to tie it to furthering or hiding another crime. This is where the statement of facts became so important. We expected Alvin Bragg to lay out a narrative, something like what we'd call a speaking indictment. Basically, what would be a prosecutor's opening statement at trial? That is not what the statement of faxes. Instead, it was a bunch of spaghetti thrown against the wall.

There was a typo in one footnote, which I found sort of baffling, given how much scrutiny he knew this statement of facts was going to have. And the opening of the statement of facts is all about AMI, which is the National Inquirer's parent company, a different set of hush money payments, a doorman and a secret love child, none of which are charged in the 34 counts. He never lays out. He never said in the statement of facts what the theory of the other case, the other crime is. So we're left, you know, picking through the lentils in the fireplace like Cinderella here,

trying to get to the ball if you're norm. And the problem is there's the campaign finance, federal campaign finance problem that he talks about, which is that there's no charges and there's no conviction. And what John Edwards was tried for, first of all, he was hung on five counts, acquitted on one count, and DOJ declined to pursue it further. So while Norm says the case was brought, that's true, but there's no conviction, is there? So there was nothing to appeal on like the Bob McDonald case, where, again, assume Bob McDonald was the governor of Virginia.

He was convicted for corruption. So we did on appeal then assume everything that the prosecutor said Bob McDonald did, that he did. And the Supreme Court unanimously overturned that, holding that that was not quid pro quo corruption, even though it was icky. I think Norm and I will both agree. It was icky, icky, gross stuff. Career ending for Bob McDonald, who was a superstar in the party.

Right, a guy who was going to be running for president. Totally. Fascinating little political history there. So you have the campaign finance problem. You have Michael Cohen pleading to something that might not have been a crime. And so, and I'll just stay on this for one more moment, which is, yes, they have the Michael Cohen conviction because Michael Cohen pled. However, if Michael Cohen pled to something that isn't a crime, meaning that, for instance, this was not for the sole purpose of

benefiting the campaign. You couldn't have used campaign dollars to pay for it, so it wasn't a campaign expenditure. All of these arguments that former FEC Commissioner Brad Smith made back when Cohen pled to this, by the way, back in 2018, he said, Michael Cohen is pleaded. to something that isn't a crime. It will not help with the legal sufficiency argument. Donald Trump will still be able to challenge it. The prosecutors can't say, well, it's legally sufficient because a third party pled to it.

So you've got that problem. You've got the state campaign finance problem. The cases that Norm is mentioning that make this sound like such a slam dunk were state officials who were bound by state campaign finance law when it comes to federal donations federal expenditures and filings, not bound by New York law. I've worked on multiple presidential races.

Can you imagine what it was a disaster it would be if you had to file in all 50 states and know their exact campaign donation rules? So you've got a problem using state campaign finance law. And then finally, he mentions tax problems. Okay. That's literally one sentence in the statement of facts. We don't really know what he's talking about. Again, uncharged, unconvicted.

And I think that all in all, the weakness of Bragg's case, he would be far better off if Norm had written the statement of facts because that was not a statement of fact from a prosecutor who is confident and who is coming from a position of strength in this case. Norm, let's hear your rebuttal. Well, Sarah, when I got the statement of facts, I felt more like Prince Charming. when he spotted Cinderella because everything I was looking for was there. First of all, so I'm going to go through point by point. One, I'm going to explain why it's an excellent articulation of the factual basis that Bragg is going to need to establish to prove Trump's intent. That's why these other examples of conduct come in.

And then number two, I'm going to break down the state and federal offenses here, and I'll touch on the tax issues. So in terms of why Bragg provided this, I think, very damning 44 paragraph articulation of Trump's scheme, you have to go back to August 2015. and you have to understand in order to understand why Donald Trump intended to violate campaign finance law here, you have to go back to the beginning. And the beginning was in August 2015 meeting with Michael Cohen, David Pecker of AMI, the National Enquirer, and Donald Trump, in which, as bragg averse here, and witness after witness, backed up by extensive e-mobile. emails, text, even tapes, and other proof.

So it's all corroborated is going to say no. Donald Trump sat with Pecker and Cohen, and they agreed that there was going to be a plan to catch and kill that they were going to pay for these stories. Why? If you read the statement of facts to help Trump's campaign. And that is the key thing. That is a why under federal. law, this is a contribution. The only test is, is it a contribution that would have been made irrespective these payments, irrespective that would not have been made, rather, irrespective of the

campaign? And Donald Trump would not have made the Stormy Daniels payments if it were not for his campaign. His intent is very clearly set up. And Brad goes through step by step, just like he's going to do a trial to say, of course Donald Trump, who bragged that he knew more about campaign finance law than anyone. He's a very experienced donor and candidate. He knows that he cannot pump $130,000 of hush money in at the last minute in his campaign after the Access Hollywood scandal in order to spare him another crippling sex scandal. Of course, that's a contribution that was made irrespective. Just a word on the state and federal violations. Under state law, Bragg needs to show an unlawful purpose. That's why you have this statement of facts.

It's unlawful to try to secretly pump money into a campaign. It's not fancy. But legally, Sarah, you focused on the legal insufficiency. The reason the Edwards case and these other cases are so important because they uniformly say that is a legally sufficient. theory. So if you actually look at the law on whether state law enforcement officials can go after cases relating to federal campaign misconduct, case after case after case in the federal courts has held they can. The preemption doctrine here when it comes to these FICA, federal campaign finance violations is as full of holes as a Swiss cheese. Okay, Sarah, I know you're going to have something to say in response to that.

So let's do one more round of In the Legal Weeds. And then I'm going to pull us up to 30,000 feet to talk about the fate and future of American democracy as we wrap up this terrific debate that you're all listening to. Our resolution today, be it resolved, the prosecution of Donald Trump is bad for American democracy. So first of all, what a treat to have this conversation with Norm, if for no other reason, then we both love metaphors. We went from Cinderella to Swiss cheese. Yeah, I don't know that other people would approve of our mixed metaphor usage here, but I'm enjoying it.

And that's what's important. I guess I want to follow up a bit on the philosophical problem with allowing local district attorneys to rely on uncharged, unconvicted federal crimes in order to beef up their own misdemeanors into felonies in order to get around the statute of limitations. Again, here I think that Bragg's purpose is pretty clear. He talked about it during the campaign. He said, elect someone who can hold Donald Trump accountable. I've proven that I can do it. I find it pretty distasteful, the idea of district attorneys running on prosecuting someone before they're in the office to see what the charges are, what the evidence is.

So we know that Bragg had an end in mind here and he was going to have to figure out how to get it done. In this case, you know, you have prosecutors from the office before he was district attorney publishing books, again, on someone who had not been charged with a crime yet on the evidence that had been there. There's all sorts of ethical weirdness around that that, again, I think is bad for democracy. I think it goes to this, there's a bad man we must find a crime to charge him with. And so when you have a local district attorney having to then prove up a federal crime under his own theories of what's required for that federal crime, I mean, we're way past our Fed courts class now, Norm.

You're in shaky territory. And it's what, by the way, is going to potentially allow Donald Trump to get this into federal court. and allow this to go up on appeal. Otherwise, this would simply stay in state court, like the Georgia case will, for instance, if it's charged based on election interference under Georgia state law. You'll notice, by the way, I have no problem with that case, and that's a state law case. So it's not that this is all state prosecutors are bad or don't get Donald Trump or he's never broken the law.

None of those are my arguments for why this case is bad for democracy. This case is bad for democracy because they knew they wanted to get the guy. There were political reasons why they wanted to do it. And what they're having to do to the law to bring this case, I think, sets a dangerous precedent down the road that will be followed by Republican elected district attorneys. Other democratically elected district attorneys, that's what I'm worried about are the consequences yet to come. It's a legit question. And I think it's an important debate to have. So, Sarah, I value you asking the hard questions.

There's another hard question, though, that we have to answer, which is if an individual would get prosecuted, but for the fact that they were the President of the United States, even if it's for political reasons that you hesitate, is that America? I don't think it is. And I'm convinced when you look at how non-presidents have been treated by the Manhattan DA and other DAs when they falsify records in order to cover up a campaign contribution. And I'm convinced when you look at the application of federal law, the huge array of things, that as long as it passes that irrespective test, have constituted a benefit to a

campaign. And I'm convinced when you look at the facts here that, of course, Donald Trump, starting at that 2015 meeting that we talked about that begins this very eloquent statement of facts where they agree to influence the campaign with these covert payments, I'm convinced that that makes a case that any prosecutor in good faith would have to bring. I look at Alvin Bragg struggling with this case for a year. Syvance has said, said the Southern District of New York told him not to work on it and that he did not decide it. He left it for Bragg. So Bragg gets this case.

When I look at him struggling for a year, I see somebody not who's attempting to be political, but who's trying to put blinkers on and ask, hey, what is the right thing to do here? And I think the political message would be worse if we said, oh, an egregious case that could have change the outcome of an election, but we're going to let it go because we're worried that DAs everywhere are going to now start charging presidents. That's not so easy to do. Everybody's been sniping at Donald Trump for over six years now. These are the first charges. There are huge legal hurdles in order to do that. And Sarah, if you look at the other precedents, particularly around the world, where the Sarko Zs, the former

Premier of France and others like that who have been prosecuted. It is not uncommon. Berlusconi was prosecuted in Italy. These kinds of prosecutions where former leaders of a country engage in conduct that is, frankly, corruption, and this is another form of corruption. Where that happens, they should be prosecuted. And it has happened without setting off these mad retaliatory cycles. That's not going to happen here either. It's just too hard to prosecute a president or an ex-president. Just very quick, I want to point out what a fabulous attorney, Norm is in the sleight of hand.

he pulled there, which is he talks about the egregious crime that might have changed the election. But what he's not saying is that's not the state crime that he's talking about. He's talking about the federal crime of campaign finance violations that both the Trump Department of Justice and the Biden Department of Justice declined to prosecute. It was a federal crime. It was up to the feds to charge it, not up to a local district attorney. Also worth noting, this isn't that he is being charged. You know, that, well, gosh, they would have charged anyone else.

Alvin Bragg didn't run a campaign on charging whoever you mentioned with falsification of business records in those other 29 cases. He specifically mentioned this target of an investigation that he wanted to bring. That's the danger. And I absolutely agree with you that former presidents are not above indictment. Look at Georgia. Look at the federal cases. I'm right there with you. And those other countries are great examples of democracies surviving.

just fine. However, be cognizant of my treason example on Hunter Biden or Joe Biden, this idea that now district attorneys can use a grand jury to indict someone based on facts that do not add up to a crime. And that's the concern. There's two little problems with that example, the facts and the law. I spent a year of my life on the Trump impeachment working on these allegations. They have no connection to Joe Biden whatsoever. So that's going to wash out. And then you're not there on Hunter either. So look, if there's another truly meritorious case. That's my point. It doesn't have to be meritorious. You have a Republican elected district attorney who brings a treason charge under state law. It won't survive for five minutes. There are so many procedural evidentiary legal hurdles to that.

The reason that the Brad case so far hasn't survived any motions yet, by the way. Well, so far is, has been brought. Well, some people said it was going to be immediately yanked to federal court. That hasn't happened. Where? It's been two weeks. Give a time. No.

With Trump was not so slow in moving on other cases. pulling him up to federal court. He does it in minutes. But Norm, he files very quickly. Are you saying that you don't think a state, a local district attorney who's Republican elected

could bring their version of falsification of business records to hide or conceal and as their other crime, it's federal treason? You don't think they could get a grand jury to indict Hunter Biden on that? No, I do not.

I think these kinds of, I think when you, absolutely not, it doesn't fit the definition of treason. Agreed. They could not get an indictment. They would be at great risk of their law license. And I think that the reason that these other examples,

like Sarkozy, Berlusconi, Park Gun He and South Korea, and on and on, there's dozens of them around the world. And you see it in the states, too, where you have governors and other senators who are charged. The reason you don't get that kind of tit for tat is, American law has actually put up a tremendous number of barriers to that kind of retaliation. This is a righteous case. It is going to survive. It is going to make it pass the motions to dismiss. State cases use federal bump up, federal predicates all the time. It's been done in the Weisselberg case. It's been done over and over again, like with the BNPP case, the bank fraud case by this office.

It's common. This case is going to be just fine on appellate review. It's going to get a very tough challenge. You should be putting me and Alvin Bragg to our paces. That's the beauty of the American system. But there are strong answers to those questions. And because of that, Bragg has the upper hand, not just on the misdemeanor, but also on the felony. I'm going to take that as a fabulous closing statement for you, Norman, for the sake of time on this podcast. And because Sarah was courageous enough to enter into this debate and take on our motion today, be a resolve. The prosecution of Donald Trump is bad for American democracy. As per debate convention, I'm going to give her the last word in this terrific exchange. And she richly deserves it. the way that I know that my constitutional rights are protected is not when we give the benefit of those rights to people we all like, people we all agree with. My First Amendment rights,

my speech rights are protected because the Nazis were allowed to march in Skokie and given that parade permit. Nobody liked the Nazis. Nobody wanted them to march, but we protect the speech of the bad people. That's when our rights are protected. And here, the same applies. And I just will, will close with the little portion of a man for all seasons. William Roper, so now you give the devil the benefit of the law? Thomas Moore. Yes, what would you do? Cut a great road through the law to get after the devil? William Roper, yes, I'd cut down every law in England to do that. More. Oh, and when the last law was down and the devil turned round on you, where would you hide, Roper? The law is all being flat. This

country is planted thick with laws from coast to coast, man's laws, not gods. And if you cut them down and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the devil the benefit of the law for my own safety's sake. That is what is at stake here. And that is what I absolutely believe Norm has spent his career fighting for as well. And I think we will look back one way or another on this debate to see who's whose version of history played out? Look, any monk debate that mentions Schultzen-Etson and Thomas Moore in 40 minutes

gets a 10 out of 10 from our monk membership. So, guys, thank you so much for coming on. Such a civil, substantive, rich conversation. I've learned so much. I know our community has, too. And let's have a rematch. Let's do this again. Maybe 12 months' time.

We'll see how this plays out. It'd be fascinating to have you both back on. So thanks again, both for coming on. the monk debates today. Thank you. Thank you, Redyard. Thanks to all the listeners. And above all, thanks to Sarah. That was really great. Well, that wraps up today's debate. I want to thank Sarah and Norman for a terrific back and forth. I certainly learned a lot. I hope you did too. Give us your feedback and suggestions on this debate, what you've just heard. You can do that right now by sending us an email to podcast at monk debates.com. That's MUNK Debates with an S.com. And while you're on

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