Hey, guys, ready or not, twenty twenty four is here, and we here at.
Breaking points, are already thinking of ways we can up our game for this critical election.
We rely on our premium subs to expand coverage, upgrade the studio ad staff, give you, guys, the best independent.
Coverage that is possible.
If you like what we're all about, it just means the absolute world to have your support.
But enough with that, let's get to the show.
This isn't uncommon in law generally, and it's how this law has always been prosecuted. There was no special rule created to make it easier to convict Donald Trump. It's just how the law works.
The novel theory is the idea that there's a duty to keep Christine business records that will never be seen by anybody else.
That's never been prosecuted.
Normally, when you have qualification of business records, it's prosecuted because there's embezzlement or there's fraud. Somebody else is going to see these records and therefore be a victim of a crime.
But there's no victim here. No one was defrauded, no one was hurt. Welcome to counterpoints. Today, we're going to be debating lock Trump up.
Yes or no is the resolution before us, and we're joined now by two guests who are basically polar opposis on this question, and we're excited to kind of dive into it. Will Chamberlain is the senior counsul over at Article three Project. Brian Buehler writes the off message substack Will, Brian, thanks for joining.
Us, Thanks for having me.
It's great to be here.
All right, let's have some fun with this to the extent that it's possible. Brian, I'll start with you if we take the sort of law fair against Donald Trump in the aggregate, because there are a million different cases happening right now, there are appeals, there are so many different things happening in the aggregate. Though, Are the prosecutions, the tempted convictions of Donald Trump, the convictions on thirty four fellon accounts last week in the aggregate? Is all of this fundamentally just.
Yes?
Can I just give the one word answer, I mean the I since Donald Trump got convicted of crime that I think all of us here understand a bit less intuitively than, for instance, the stolen classified documents case or the January sixth case, It's generated a level of controversy about whether the charges were valid or the case was
good that those cases didn't. But I think close study of what he was charged with in New York and why he was convicted would lead people to see them kind of all as of a single piece, rather than as three different cases brought by three different prosecutors, all of whom are out to get Donald Trump.
Okay, so will then we'll stay at that kind of basic level for now. Will these prosecutions of Donald Trump, the attempt at convictions of Donald Trump, the thirty four found account convictions of Donald Trump fundamentally unjust. I'm assuming, as your position, tell us a little bit about why.
Oh yeah, I mean foundationally unjust.
These prosecutions never would have been brought if the defendant's name wasn't Donald Trump. They are completely novel theory of falsefcation of business records in New York. In every other instance, there's some idea that these records would be seen by other people, But the New York State is putting forward a completely novel theory that President Trump has a duty to the state to maintain pristine business records, even if those records will never be seen by anybody else. There
was no victim to this crime. No one was harmed. There's nobody ever who said anybody was harmed. The best theory they could come up with was that he promoted himself in the election, but of course that's allowed. And then if you actually look at the technical issues with the trial that were so probably there were a number of them that were hugely problematic. I mean, the first and most obvious is that they managed to find the one judge who violated his judicial code of conduct by
donating to Joe Biden. Judges are not supposed to make political donations. It's explicit in the New York Code. And there's plenty of other New York judges who could have handled this case. But they found the one judge who violated his oath in a way that was so trivial because it's he gave a ten dollars donation. What does that mean, Well, it doesn't actually sway anything, but it does raise your hand to say that you're on the
team that you're part of of. You know, you're one of the people who is happy to work towards the imprisonment of the most prominent Republican in the country. So I mean, we can go down to this. I mean, there's plenty more in terms of what was wrong with this trial, what was wrong with this prosecution from its inception, but certainly unjust is the least of it.
Yeah, and Brian, I thought your point was interesting that this particular case has raises more questions in people's minds than the other kind of more obvious ones. I mean, do you think it was a mistake for Democrats to kind of lead with this one? I mean, it's not as if though Democrats were in a room and said, Okay, who's going to go first? All right, Alvin, you've got this. But that is the way it shook out. Alvin Bragg went first. Alvin Bragg is the first to get a conviction.
The rest are just languishing. Do you think that his being the only one to make any progress is undermining the broader public's kind of faith in this or do you think that you know, guys seemed guilty, so you know, let's move the sentencing.
Yeah, I mean, to the extent that you want to define Alvin Bragg or one Maershawn as Democrats. This shook out this way in large part because of the actual lawfair that Donald Trump engaged in to delay his other trials.
This trial was set to go second and possibly never at all, because Alvin Bragg recognized that the January sixth prosecution that Jack Smith brought was the more important one, and that if that was teed up that he would basically take his case into abeyance and then try Donald Trump at a later time, or maybe just just let things fly. To respond to what Will said, you know, one Marechawan wasn't picked at random, or one Mchon didn't. They didn't land on him. He was picked at random.
And the donation that he gave to Joe Biden. He ran that by a New York ethics panel, which determined that he could not be deemed too biased to preside over this case. What would have been sort of outside the normal practice would have been for Alvin Bragg to discover this crime and not charge it. This is a law that New York State prosecutes very vigorously, and contra
what Matt says, it's it. They do it not because they're out of the goodness of their hearts, because America has this robust culture of prosecuting white collar crimes, but because New York is the business capital of the world, and people who do business there need to have faith that the business records that they encounter are not fraudulent. That's why it's so aggressively policed in New York, and not prosecuting Donald Trump for falsifying his business records would
have been placing him above the law. And if if an appeals court or the New York legislator or whatever determines that actually, because of Donald Trump, we need to toss this law out the window. It's not like Donald Trump is the only one who gets off. A bunch of other fraudsters get off too, which I suppose is fine with MAGA, but it's not.
It's not that would actually not be good for me.
York will go ahead.
I mean, I think you missed the thrust of my point that this is an entirely novel theory that's never been prosecuted in this manner before.
Well, there's never been a presidential candidate who falsified business records to cover up his election crimes.
That's the I mean, you're narrowing the scope then too much. The novel theory is the idea that there's a duty to keep pristine business records that will never be seen by anybody else, that's never been prosecuted. And I'm not the only person saying this. This isn't just some rkling conspiracy theory. This is Jed Sugarman, who's a very liberal law professor, who pointed this out months ago, in actually probably last year,
when this prosecution was initially brought. This is incredibly, incredibly novel because normally, when you have falsification of business records, it's prosecuted because there's embezzlement or there's fraud. Somebody else is going to see these records and therefore be a victim of a crime. But there's there's no victim here. No one was defrauded, no one was hurt, and so the clearly like this. Actually, when you say, oh, this is so aggressively police, you're just wrong.
Fact on the fact were.
Judge Sugarman is not a former assistant District attorney for the for Manhattan. If you talk to people who used to work in that office and used to prosecute those crimes, they say that this is like was a paint by numbers prosecutions for the reasons that I said, and that new York does have a compelling interest in making sure
that people's business records are not fraudulent. I would agree with you that were Donald Trump not Donald Trump, or if you had lost the twenty sixteen election, this case might not have been brought because it might not have been discovered right because the business w records would never have come out. Nobody would have seen them, The prosecutors would not have had anything to work with. They would have gone fish fishing through his business records to find them,
but that might have been an abuse. Instead, what happened is he was elected president, the business records became public. The prosecutors were aware that he committed the crime. It would have been malpractice of them to just like let him off the hook.
Because side Vance had this case years ago and looked at it and passed.
I mean this is like it took years.
I mean that like I mean remember that this transaction, these transactions happened in twenty seventeen. There have been there's been years where this has been available as a possibility to prosecute. And then, but not only did Vance look at it in past Federal election Commission looked at it in passed and all of a sudden, Alvin Bragg comes into the help of Matthew the feder election comment, and
everybody's like, oh, big time prosecution here. I mean it just election commission that this is anything but lawfair.
The Federal Election Committee is neutered by people who won't apply the law of Donald Trump. If Simon Vance made a mistake, and somebody should ask him now, because the jury came back unanimously that Donald Trump Trump committed all thirty four of these felonies, that's sy Vance's problem.
Brian, what about the I mean a huge complaint, and well you can flush this out as well. But one of the huge complaints is that Donald Trump is not charged with the underlying crime that he was convicted of thirty four felonies of furtherance. So if he was not charged with, for example, election in a federal election crime, why then is it appropriate to convict him on thirty four counts that were trumped up to a felony because they
were in furtherance of this other crime. How do you sort of justify that then?
So I'd say two things.
One is that I think it speaks poorly of Merrick Garland's Justice Department that he let the statute of limitations on Donald Trump as individual one lapse. And then the second thing I'd say about it is that I think that the argument is a canard, and lawyers will presumably understand that there's like a very close analogy to this
in obstruction law. That if somebody shreds documents to cover up bank fraud and or drug trafficking, but the destruction of the evidence prevents prosecutors from proving beyond a reasonable doubt that a defendant committed bank fraud or traffic drugs, there's still guilty of obstruction, and the jury does not have to be unanimous as to whether the shredding of the documents was to cover up one crime or the other or both. This isn't uncommon in in law generally,
and it's how this law has always been prosecuted. There was no special rule created to make it easier to convict Donald Trump. It's just how the law works. Again, if if Donald Trump has a problem with the constitutionality of that of this law for that reason, he can take it on appeal. But there's there's nothing unusual about it at all.
Go ahead.
Well, I mean, another point that was made is that this is the first time that these federal election laws have been used as a predicate anywhere in the country under any circumstances.
Well, it's New York state law. It's it's not right.
The New York stated the New York state law prohibits the promotion of a candidate by unlawful means, that itself contains the predicate, and that that included a violation of federal election law. Right, it's understanding how convoluted this theory, this legal theory is why it's so bizarre. There's levels
of predicates here. There's the falsification charge, then there's they said that has to be in further instant of the crime because they needed to bump it up to a felony in order to get past the statute limitations problems. They did that by saying, you know, saying that the predicates of that was a New York state election law of promoting a candidate the unlawful means. But that unlawful
means itself, it requires a predicate. And then that they gave Judge Merschan gave a menu, or the prosecutors did, of three different possible crimes. And this is yet another problem with the prosecution a total failure in the jury instructions to note that they had to prove the elements of each of the of the one of the three predicate crimes and have say that those were proven. Unreasonable about the jury instructions didn't do that.
So, I mean, that's that's not true. That's not true under the New York law. But if you think that that's unfair or something like that, Donald.
Trump cantey, that's basically this is like the core system. You have to prove every element of reason.
Go back to go back to the analogy to obstruction law. There is no issue with charging somebody for obstruction without charging them for the crime that they were obstructing. That I don't think that you believe that that that the obstruction law is unconstitutional or violates to process law if you don't also charge the obstructive offense, you don't think that.
I mean no, But if you think it's distinct, if it's an if it's a predicate element of the crime, every element that that also has to be proven, like even if you don't independently charge it, that's a distinct question from you know, people don'ty of the crime.
What made you have to establish I mean, do you do you think it?
Do you think it's legal for a corporation to to pay.
Hush money on behalf of a candidate.
I mean, I know that wasn't proven beyond a reasonable doubt, but that is an element of the crime. That the falsified documents were mental and zeal. I mean, I mean I don't think that I would.
I don't.
I don't imagine that you think that that should be legal practice for campaigns.
I mean it's not clear, right, Like, that's just not clear under your current law, right, Like, this is why they didn't rebring the John Edwards prosecution because he did something something similar happened in his instance, and they didn't want to bring it because it's just not it's not clear if there's a mixed motive.
For why what was the corporation that paid John Edwards hush money and that he didn't remembert well?
I mean, because the question is not whether a corporation or somebody else does it. I mean, if it's any instry other than the person who's the candidate. I mean, because obviously candad cans spend as much money on himself as he wants. If the candidate wants to sign an NBA and a bazillion dollars on their own behalf.
Yeah, problem, I agree with that.
So whether or not it's a corporation or other individuals is sort of irrelevant.
Would it be the case that if Trump himself and maybe this is obvious, so if Trump cut the check himself, Donald J. Trump, you know two Stormy Daniels one hundred and thirty five thousand dollars, you know memo, you know, hush money sends her that check. You know, he's allegedly a billionaire, Like you can write one hundred and thirty thousand OAR check if you're a billionaire. If he does that, and I break, Brian, I guess curious for your take on this.
So would that have been legal like that? It seems like we would.
Have, right, Yeah, that's because it would be the same as a billionaire. I mean, assuming again that these are constitute campaign donations, which you assume for the state of argument. I mean, you know, you can donate as much to your own campaign as you want, So it would mean I.
Mean, with with with having like the legal expertise to answer the question definitively, as I recall from when the hush money story first came out in twenty eighteen. I believe the I think the concern at the time was not would it be legal for a candidate to take money out of their own bank account, put it in a suitcase, hand it to their mistress, make them sign an NDA, and then the story goes away. I think
that that per se would be legal. The question is whether then it was disclosed as a campaign expenditure or else separately disclosed on like the financial filings that the presidents are obligated to fill out, and would Donald Trump have done that? But we ended up not reaching that point because he went he went through Ami and Michael Cohens.
And I want to move on from this case in a minute, but just to pick up on one thing that Will said, Will you mentioned you describe it as kind of like a victimless crime, and I think you're referring to the business records, because you know, you're allowed to have sloppy business records the But broadly speaking, the victim here would be the American public that was deprived of, you know, learning about this scandal in the wake of
the Access Hollywood video. Yet on the other hand, we do accept the idea that parties are allowed to get together and page other settlements in.
Exchange for an NBA.
So I guess, and this is the question for Brian too, how does this become legal?
Like?
Would you you pay the hush money and then you just write in the FEC one hundred and thirty thousand dollars for pr legal expenses, like because you obviously can't put in the FEC hush money for sleeping with a horn star because that undoes the whole point of paying the hush money. And so is it really as simple as that if he had just kind of written a couple of things differently in his ledger back at the Trump organization and in the FEC that the whole transaction was fine.
I mean, it's it's not clear that it would have been fine, because honestly, he does it differently. He's got an independent problem, right, So say it's a campaign expense, Well, then could he pay for it out of his campaign account?
That would lead to an obvious problem of oh, you're using your campaign for personal expenses, because you could reframe it entirely and say, oh, the point the entire point of paying is hush money is to avoid the public embarrassment to your family into you know, your wife and your children about having an affair revealed, and you're using campaign money for that, right like you think about all the other scandals we have where we go after politicians
like elin Omar, for example, for using campaign money for personal expenses. So I mean it just literally, you could invert the way the prism through which you view the transaction entirely realized that if he had done it in a different manner, he also would have been prosecuted under this theory, which again goes back to why this was unjust in the first instance.
And so, Brian, here's a question that might be clarifying and help us even broaden it up beyond just the album Brad case. I think Will and I won't put murds in Will's mouth. He can make this argument if it's one he agrees with. But a lot of people on the right, myself included, look at this case and think to ourselves, is this the way if you know you have the way that James Comy treated Hillary Clinton, we can open up that can of worms too. But is this worth the level of this particular case, is
the lawfair against Donald Trump in general? Is this worth what it will do to the country? Are these severe enough, grave enough offenses that justify breaking what we're previously seen as norms? You know, they are not like codified in the Constitution. You can't touch a president, though we can get done. We can also talk about the immunity case
at the Supreme Court. But just in like a purely political sense, in the question of like will this, will this be worth what it does to the country, Brian, I imagine you might say, would it be worth not prosecuting? You know, what does it do to the country if you don't prosecute Donald Trump on some of these charges? How do you respond to how do you respond to that?
So without stipulating that any of this is law fair, I can imagine an infraction that Donald Trump committed that I would argue, look for prudential reasons, it's not worth going after him for that. I wouldn't put the hush money election interference case in that bucket, But you can cook up a hypothetical scenario. I think the norm that was violated here is not there's like no norm in
the United States against prosecuting a former president. The norm is having a former president who's an inveterate criminal, and the I think the implication is, well, now this is just going to become standard. Presidents are going to leave office, and whether they've committed crimes or not, prosecutors from the other party are going to go after them. I'm personally not not worried about any kind of Pandora's box like that.
Like I do worry that a second Trump administration would go after innos and people were ruin inocent people's lives, and I'm thinking mostly of people who who don't have high profiles or lots of money. But I've seen since the verdict came out, I've seen many conservatives say, for instance, that you know, Nancy Pelosi, better watch out, like a MAGA prosecutor will now indict her for insider trading. And my response to that is, go for it, like give
it your best shot. I don't think MAGA activists have much of a principal issue with insider trading because Donald Trump pardoned Chris Collins, the Republican congressman who's convicted of insider trading. But if a right wing prosecutor wants to get revenge by going after Nancy Pelosi, they should look for evidence that you did insider trading, and they should
seek an indictment and persuaded jury. But if it's just tit for tet corruption, I'm pretty confident that the case would stink and either the grand jury would return no bill, or the trial jury would acquit her or hang. Donald Trump got convicted because he committed the crime. And to anticipate what I think the objection will be, yes, New York is a very democratic jurisdiction, but not all Democratic voters are rabid partisans. And Donald Trump won like fifteen
percent of the vote in Manhattan. Just picking twelve people at random, you would anticipate one or two of them to have been Donald Trump voters.
It wasn't a random process.
Trump's lawyers picked six of the jurors, and it would be nice if in the aftermath of this verdict we could hear from some of those jurors right like they could. A Republican voting juror could say, you know what, I respect the former president. I thought he was a good president. But the evidence was there and it was my duty to convict. Unfortunately, any juror who came forward to explain
their reasoning would be subject to death. Threats they might have to leave their home, and that's that's the MAGA movement. And I think that not prosecuting because you're afraid of that kind of you know, public reaction is just normalizing that kind of intimidation.
And it's good that it wasn't done in this case.
Did James Comy make the right decision when it came to not bringing charges against Hillary Clinton? From your perspective, Brian.
Well, James Comy was the FBI director, so it wasn't his place to bring charges brought to recommend that DOJ
not pursue charges, Yes, I think that. I think that his calculation was that, I mean, his the legal point that he was making is that if I tell DOJ to go indict her and then we bring this to trial, we're going to lose the trial, right and and we've seen this right like like Donald Trump did actually try to do something that I would call law fare by getting Bill Barr to appoint Durham to be special counsel who brought cases against people trying to disprove the the
or to undermine the Russian investigation, and those people were quitted.
After the FBI created the Russian investigation.
The FBI.
Well, the FBI engaged Russian that they had a predicate for it, they pursued it, and they special counsel Robert Muller brought charges against many people. Those people were by and large convicted, and there are only many of them are only out of prison now because Donald Trump pardoned them.
Well, what's your response to that.
I mean, there's a lot of respond to there. I mean, first and foremost this idea that Durham was just lawfair. I mean, Durham found a guy who falsified an application for a FIZ that Kevin Klinsmith, who could fled guilty to falsifying.
I mean, and also we can you know me, I think you got probation.
Yeah, that was his trophy and that is true. I'm not denying that that happened.
It was just not It did not collapse the merits of what was in the Muller Report or the Senate's report on Russian interference.
I mean, the Muller report didn't have anything of merit to talk about. There was a pression collusion was bs and the obstruction charges were ridiculous. They were predicated on a completely complete misunderstanding of how obstruction of justice works. I mean, Bill Barr explained this thoroughly in the memo he wrote before he became Attorney General and then became when after he became Attorney General. He demonstrated that what Andrew Weisman and the theory of fifteen Salts to two
that they were all prosecuting was just bizarre. And we're about to find out that Supreme Court agrees with that entirely, because when the Fisher opinion comes down a few weeks, they're going to drastically narrow the scope of fifteen twelve c. Two, this sort of this vague general obstruction statute that's going to be narrowed down to actual impairment of evidence.
Well, let me pick up on something that that Brian said that, Yeah, it's it's true that I think none of us here want to see the norm broken where we start to have political prisoners on each side and like one party doesn't want to leave office because they're afraid they're going to get jailed by the other party.
Like none of that is healthy for us.
But Brian makes an interesting point that a norm that was broken before was by was by Donald Trump, you know who's doing all of these crimes now I'm that one like standing up for all the sanctity of let's say,
classified documents. But you read that case, it's like the guy was getting begged by the records folks to like return the classified documents, and he's like moving them to the bathroom and like telling people move them here, and like flooding the flooding the like office and then saying, oh, I'm not supposed to have this, this is classified. You want to look at this. But then even setting aside that,
which I do think is setting that aside. You had several hours where Trump supporters are ransacking the Capitol and Kevin McCarthy and other Republican leaders are begging Trump to put an end to the lawlessness, to this, to this violent attempt to stop the certification of the election. And he sat there for hours, and whereas a public just supposed to be kind of okay with that. I mean, at some point does there have to be some accountability.
I mean, that was CREDI but it's not the crime he's being charged with, right Like, I mean, we people do bad things all the time that are not criminal, and that are ethical things all the time that are not criminal, And the charges in the January sixth case just aren't about that. They're about like the elector's scheme, right, which is the idea of like having these alternate slates of electors put forward to facilitate legal challenges. And I mean,
the lawfair against those people is just absolutely absurd. There's precedent for doing that, and there was no fraud because they publicly posted on Twitter exactly what they were doing. They weren't saying they weren't trying to secretly be electors in the middle of the night that no one would know.
They were publicly like we are trying to like set up you know, we are meeting to convene to have these votes so that in the event that Trump's legal challenges prevail, the failure to have electors sign off on the required day isn't going to be a hindrance. They weren't committing any sort of fraud any They're all being criminally prosecuted. That's that is lawfair, and the precedent for having doing that particular thing to preserve your effectively your
legal challenge. I mean that was done in nineteen sixty with Kennedy, So I mean, but I think going back to the macro view, which is the really important point. Joe Biden really better hope that Donald Trump prevails on
his presidential immunity. I think he will, but he better hope that he will because if if that's not the case and official acts have no immunity for presidents, which is actually a really quite bizarre position if you read a case like Nixon Beefazgerald, Joe Biden is going to get prosecuted by Republicans if we're in power, no question about that. You won't have much of a defense either to what you just something, right, I mean, you know,
like all like official acts. Obviously, Barack Obama can just be prosecuted for murder the moment we get back into office for killing a dula from.
Ryan just gave a thumbs up. If you're listening to this, yes, right.
Like I mean it's I don't.
I don't think that's a good outcome actually for the country, because I think it means that we massively weakened the presidency of the United States. And I mean I'm actually you know not, I think executive power is probably a good thing.
Relative, you know, rather than just elevating the legislature. Uh, And I think you know, we have a lot of these.
Kavanaugh made a really good point in one of the and I think the presidential immunity oral argument. He said, well, we come up with these structures to try and like punish and restrain presidents, and they end up doing a real huge amount of harm. Like the independent council structure
was a good example of this. Democrats were all for the independent council, thought it was a great idea, and then independent councils started getting appointed all the time during the Clinic administration, and suddenly they realized, hey, this really inhibits the functioning of the executive means that everybody who works in the executive branch gets subpoena and has to, you know, spend huge amounts of money on legal fees.
This just isn't worth it.
And I think maybe I think the best outcome here is one where we stop harassing our presidents during and after their their terms. I think it's I think president there should be presidential criminal immunity and things.
I think that creates a huge like that creates just a huge loophole for for scoff law presidents, and like Ryan might support prosecuting Barack Obama for for for drum strikes, and you might in the event that Donald Trump get there will Donald Trump has been convicted. That Donald Trump is not granted official Acts community for what stealing classified documents or trying to overturn the election, that Joe Biden should be prosecuted for like giving student people student loan
relief or something like that. But Barack Obama and Joe Biden went through normal processes. They were given advice by some of the best lawyers in the country about how to proceed. They carried out their policies and so if you try to charge them later, they're going to have a good defense. But Donald Trump is being convicted of crimes because he has no defense. He didn't offer defend.
Right if you don't have official Acts community as president. I mean, he just murdered an American citizen without trial. I mean, does the fact that he has an OLC memo that says, oh, this is okay, just mean that it's that insulates him from a murder charge.
Yeah, because on advice of counsel, he thought that this was consistent with America's na A Trump.
Need to do is find some blacky to be his OLC guy. Remember you don't have that's not a president, that's not a Senate confirmed position. He just finds some lacky to be an OLLC guy and say, oh, yeah, everything you do is legal.
And then okay, Donald Trump had lackeys and they told him that his efforts to steal the election were illegal.
And then they went, I.
Mean that's a dodge from the broader point, right, Like the idea that this sort of.
Oh, it's not that's that's exactly.
The potential community is, or like means that you can we don't need a concept of presidential community just goes isn't right? And I think the other problem, here's the way to think about it. You are right that like the choice of saying that there was presidential acts immunity creates a potential scoff law president problem. This this dilemma was was analyzed in detailed by the Supreme Court in
Nixon Vivisgerald, where they considered exactly that problem. But they said, the efficient functioning of the executive branch and incentivizing boldness is sufficient to completely immunize presidents from civil immunity. And I mean, you're going to see I'm very confident that the courts are going to end up ruling at least to some degree for an in Trump that there is
going to be some amount of immunity. Because the other thing is even the even DJ and Michael Dribin didn't defend the d Circuit opinion that said there's no such thing as official acts community like he was he was asked that point blank in the oral argument, do you agree with the d C Circuit And Dreamin's like, well, maybe I don't know. That's you know, we're going to prevail in this question, and it's a good thing that we do, because I mean, here's the other thing.
I mean, like Joe Biden's you know, sorry, I actually mix things up.
But Joe Biden, you know, if we wanted to talk about if there's no official acts community, then Joe Biden facilitated the mass migration of illegal immigrants across our border by like failing to enforce our laws. Another point, Joe Biden, in explicit violation of Supreme Court uh Supreme Court cases, decided to like go ahead and try and push for
a student loan forgiveness without any lawful backing. It's like if that's not if he doesn't get any official Act community well, you know we're talking about, you know, promoting your election via unlawful means. In the New York case, well, I guess we could just have somebody prosecute him for essentially trying to win a you know, bribe college students and using unlawful means right in unlawful executive order to do so. You know that the Pandora's box is real.
And trust me, if we get back into power and we don't win these presidential community cases, you will see just how far that Pandora's box goes.
And I just want to I want to reiterate that, like, I'm not worried about that Pandora's box, and I would I would, I would welcome some Republican prosecutor to prosecute Joe. I'll forgive this, but let me let me be magnanimous about another thing, which is you mentioned Jim come earlier in Hillary Clinton and we're talking a little bit about official ex community.
When Jim Comey was.
I believe running s D and Y as a US attorney at the end of the Clinton administration, he investigated Bill Clinton for pardoning Mark Mark rich to to on the on the theory that this was essentially like a bribe, a quid pro quo. I think that that was like a good theory if, like I don't know the details of the case or why he declined to prosecute, but I would absolutely support the idea that if a president takes money in order to issue a pardon, that that
that the president is not immune from that. Now, that doesn't mean that the pardon becomes invalid, right, It's still an official act. The pardon was granted while Bill Clinton was president, Mark Rich gets off the hook. But if there was a corrupt purpose there, then of course Bill Clinton should be prosecuted for it. And the pardon power is like the core of presidential power, right, like it's it's it's plenary, right, there's no uh, there's there's no review,
and only the president can pardon somebody. And the the idea that like you create an official act community, you're you're you're gonna get let people like Bill Clinton off the hook for stuff like that.
Not necessarily, I don't.
Think you should want that. And I'm saying that as a liberal, I.
Mean not necessarily. So can I answer this one? I mean, yeah, So, I two reasons. One, I think people have glossed over the fact that the position of the Trump legal team and the sensible position. I think it's not that all official acts always provide immunity. It's that if you are impeaching, convicted, stunt for something, your official ac community goes away. You can read the briefing. But that's been the Trump team's position.
I think that's the right one. Also jives with the constitution, right. The Constitution explicitly talks about bribery as a basis for impeachment, So clearly that would be an exception to whatever immunity provides. Like you take a bribe for something as the president, Yeah, you can be prosecuted for it after you're impeached and convicted.
I think that's so.
But but you can't be But you can't be impeached and convicted.
Most almost for certain if you if you're issuing pardons on your way out the door, which is what Bill Clinton did in this case.
I mean.
Partners, campaign campaigned owners.
I mean Joe Biden, can President Trump partner?
Can can Joe Biden part hunter Biden without facing and he should have official acts community for doing that?
That's his son absolutely.
Oh yeah, Joe Biden can parton.
I mean you and you, and you wouldn't come on this program, and you wouldn't come on this program and say and and like now he needs to be impeached, he needs to be convicted, he needs to be prosecuted.
No, No, it's very straightforward.
I always I don't understand what could possibly be the argument against, what would possibly be the argument that Joe Biden couldn't pardon his son.
So of course he could, of course, but even for you know, if he did it for purely nepotistic, selfish reasons, I don't that's you made the guy the president, that's his power.
I don't see a way that he can be prosecuted for.
There's an interesting question that will come up when we agree on you know, whether this is a just use of legal power. What the law actually says one thing. The other question I have for you, Brian, is what
you make of the argument from the right. And this is where I brought Comy and Clinton into it, that for the last let's say ten years, this has almost always gone in one direction, the quote unquote law fair, which I know you don't use that word, but that, like the prosecutions have been almost exclusively of Trump allies. What do you make of that.
They're criminals?
I mean you could people people would say that Hillary Clinton is a criminal, and yes, sure, sure, but like but like the scale of the you know we've had, what does the matter?
President?
Why should the scale that matter?
Because people who aren't inveterate criminals don't leave behind nearly as much evidence as Donald Trump has.
Well, they destroy it.
They if they're Hillary Clinton, they bleach bit the evidence.
The I mean if Hillary, if Jim Comey had made the opposite recommendation, if he had said, this is like a winner of a case and Loretta Lynch should try it. I either I suspect that the case would have gone forward at one point or another. Hillary Clinton would have lost the election more badly than she did. There wouldn't have been any need for Donald Trump to threaten to lock her up. I don't think Jim was doing Hillary Clinton a favor by intervening and saying she was extremely reckless.
But there's no no like a convictable crime here. Yeah, Like I feel I feel like I'm in.
Like in upside downland, where we're saying like this only ever goes one way. Yes, Hillary Clinton wasn't wasn't tried for that. But she was the she was the candidate who lost the election because the FBI director inserted himself in the election to say that that she was careless with classified information. And then he did it again right before the election and the election turned on eight thousand votes in three.
States and she lost.
I mean, right, that's right, right.
That's an abuse that that's an abuse of law enforcement power to hurt. Like if they had indicted her, then that.
That was the official reason process, that was the official.
Reason that Comy was fired. It wasn't the actual reason, but it's the official reason that Commy was fired. That was that justified to Comy's fire.
Yes, there so after after after demand, yes, I.
Yeah, but I think I think there is still there's a there's a different point here, which is that I mean, not only Hillary Clinton, but Joe Biden's got a hug classified information problem.
I mean, and in my opinion, more dramatic as he President Trump's.
Yeah, he had classified documents in his garage, classified documents from when he was a senator.
That's you don't just what the republic, what did the republic, what did the Republican Special councils say about that, what were the charges.
That they said he was too infirmed to be able to get to extract a conviction? Right like these that's not exactly a vote of confidence. It doesn't say he didn't commit the crime. It says I couldn't extract conviction in DC for a couple of reasons, right, but it.
Doesn't need so, So you think that that, like, like, if Joe Biden loses the election, he'll be prosecuted for those for retaining those classified documents and he'll be be surprised.
Brian, do you think he should be? Brian, do you think he should be? Should Joe Biden under the logic.
And no, under the read of the her report, No, he shouldn't be tried. But if he is, I'm not going to you know, I'm not going to like sit here sweating it for Joe Biden that he might spend a lot of time in prison, should because murder?
So your your position is that neither by Obama's cases rise to the level that they should be brought.
I mean, if if, if, if the Supreme Court says nothing a president don it does in his official capacity carries any immunity with it, and some prosecutor wants to go after Barack Obama, I will probably argue that that prosecutor is engaging in a partisan form of corruption. But I'm not going to worry about, you know, Barack Obama becoming a political prisoner because he's going to beat the charges.
Brian, I know you have to go in like one or two minutes, but let me finish with a.
Question about that, because I do worry about the pandora's box that that we'll mention, because you could imagine, let's say an Alabama prosecutor finds somebody who was, you know, killed by an immigrant who came across the border in an unauthorized fashion, and they bring a charge against Biden for complicity in that murder, and they get a jury of they get a mega jury, Like is that is that a thing that we should be worried about.
I lose no sleep over it personally. I mean, Alabama is much. I mean I feel like it's it's silly to be to be like so part of like who about it in partisan terms, because I think Joe Biden would be acquitted of.
Charges along those lines even in Alabama.
But if six of the jurors were magas selected by the prosecutor because he had identified them as supporters of Donald Trump who wanted revenge on Joe Biden.
Joe Biden would still get to pick the other six jurors. And Alabama is less.
Is more democratic than Manhattan is Republicans, so you can hang the jury. I mean, it's just like I am, not like. It does not cause me to lose any sleep at night when people like will come out lobby lobbying these threats that if you put a criminal like Donald Trump in jail, will put a non criminal like Joe Biden in jail.
So I know he doesn't sweat.
I know you've got to run to an appointment. Really appreciate you joining us. Feel free to log off because I know you got it.
You'll be late for it.
I appreciate the panel. I appreciate you guys having me on.
Thank you. Brian. All right, well, do you have any final thoughts? Brian ran obviously, so don't hit him too hard because it's not here to defend himself.
But I didn't run on parts. He told us he had us.
Yeah, that's right, he had a heart out. In all fairness, we just went long because this was so fascinating, But any final thoughts on Brian's last answer there.
So, I think that multiparty democracy doesn't really work unless the parties show each other a basic amount of honor, Like think about how the British Parliament works, where we talk about the honorable gentleman or the honorable member of opposite and there's that's actually kind of important, right, these rules of decorum in the sense that the two parties need to be respected because there's there's a fundamental instability to any democracy, which is that if that honor dissipates,
then one party decides, okay, well, we don't really think these election things are that good. We see you, the other party is entirely illegitimate, and we want to take power. And these kind of like lawfare style prosecutions of reciprocal prosecutions that I think would occur in a world where there wasn't presidential immunity or you know, we didn't stop this Pandora's box ultimately leads to some really bad outcomes. So I'm a big believer that I think it would be better if we all stopped.
Trying to prosecute each other. But that's it.
I don't believe in the Republicans unilaterally disarming. That there has to be a response to what they've done to Donald Trump. So you know, it might ultimately hope to get to a settlement eventually.
My own view will and I'm curious for your take on this, is that I would have preferred to see Trump prosecuted for the flagrant bribery level corruption, a lot of which flowed out of the Middle East and then flowed in float in through his family into the White House. But not all Middle East, but a lot of it flowed through the post that that you know, in that like Postal hotel, and he's got all these people, like you know, paying extraordinarily over over market price to stay
in his hotel nearby. But that to me cut too close to the bone for Democrats because while it's it was worse in degree then what is typical in Washington, it was this, it was similar in kind. Yeah, so if you come after, if you come after, you come after everything.
Yeah, all the Biden China stuff, I mean, what you know, the Tony Bobolinski revelations, Obama lives in Martha's vineyard. I mean, you it seems that you know, Donald Trump has the credit of being the one politician who's networth substantially decreased as a result of his presidence. I don't know he's the right person to look at for you know, the beneficiary.
Of Kushner went from near bankrupt because of yeah, a six six six fifth avenue investment to doing just fine.
So yeah, that's funny.
It was a transfer of It's a generational transfer of wealth.
There you go. Will Chamberlain is senior counsel at the Article three Project. Brian Buehler is the right of the off message. There you go, off message, substack, will thank you so much for joining us.
Thanks for having me, all.
Right, Ran, I don't think I agree one hundred percent with either of them, And I thought that was a really clarifying debate because to your point, liberal Democrats are different from the sort of lock them all up, you know perspective that you know, when you gave that big thumbs up to prosecuting Obama for murder. There's a difference on the left, a pretty important distinction on the left.
And of course prosecute Cheney and Bush for torture. On the other hand, I'm ambivalent about it because I agree with Will when he says you need and you need executive power to be able to function like we actually do. What is Trump's funny line, We got to have a country. Yeah, Like you actually do have to have a government, and you have to have a government that is able to take the laws.
And execute them. And if you're if.
You do prosecute everybody in a partisan way, you can always find crimes. Now I wish that we were we were less of a bloodthirsty uh empire. But basically, any any president, uh you know who of the United States over the last century is going to be responsible for an enormous amount of death.
Show me a man, and I'll show you.
I'll find the crime, right and then then the idea that like locking up those individuals would do anything about it under underminds what we understand about the logic of imperial power.
And so I think they were both like very honest representations of their side. And Will saying with the we pronoun actually like if you know Republicans, he was saying, we retake power. And obviously I don't include myself in that,
but he was saying we will. We cannot unilaterally disarm, and that's the phrase that is like a buzzword in conservative circles right now is unilateral disarmament, because they feel that the Department of Justice, the FBI has been weaponized against the right in the era of Trump, not necessarily
pre Trump, but in the era of Trump. And they'll point to, for example, informants at traditional Latin mass that's something that happened in the FBI under the Biden administration in Virginia, pointing to the excessive prosecutions of anti abortion protesters under the Face Act and gone down the line. That's a really really interesting perspective, and a lot of people on the right, I think, don't even say it aloud unless you're in like sort of conservative movements.
So I assume they'll go after poor Hunter Biden. Who are there other targets? You think that they'll actually go.
For, probably Joe Biden because of all of this, and there's just a million different ways to go after any president, doesn't matter who it is. And I think that's one of the things that I found that was hard to maintain from Brian's perspective is that Obama Clinton and who else will we talk oh Biden, that none of the potential charges against them rise to the scale of the hush money porn star pay.
Brian's point was interesting though that he's like, oh, ahead, bring it. You're not going to get a jury to convict on any of this stuff.
And I appreciate the honesty honestly, because that's like a pun intended. But I didn't mean to say it that way. But it's a lot of people won't admit that. They would say, it's just ridiculous that you would even think to bring charges against anyone, blah blah blah. But go ahead, do it.
Let the legal system do its work, all right, there we go.
I also not worrying about the Pandora's box being opened. I just have a hard time with that too.
I think it is open, Yeah, I mean Pandora is the Is Pandora inside the box?
Or did Pandora build the box?
It is her box.
It's her looks inside of things you don't want to come out, Okay.
I don't think it's they're worried about Pandora.
Coming out, okay, because she built the box.
All right.
Every single time we like end up confused than when we started. Yeah, anyway, that was I thought that was a great debate. So we'll be back next week with more we're expecting. One of the reasons we set up this debate when we did, because we're expecting a potential
ruling on the immunity case any day. So it's not just that the brag phony convictions came out last week, but also this immunity case, which has huge implications for all the other cases, could be decided by the Supreme Court anytime between now and early July, So stay tuned for that and stay tuned for what we come up with for next week. I don't think we have anything on.
The books yet, so it'll be good.
Don't worry.
It'll be good. Yeah, we don't know what it is, but we know it'll be good, all right.
See then,