>> Tom Church: This is the libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined, as always, by the libertarian professor Richard Epstein. Richard is the Peter and Kirsten Bedford senior fellow here at the Hoover Institution. He's the Lawrence A Lisch professor of law at NYU and is a senior lecturer at the University of Chicago.
Richard, it is Thursday, March 30th, a date that is gonna be in history books, because it is now the first time that a former president has been indicted. So news just broke that former President Trump has been indicted in New York for his involvement with hush money payments made to Stormy Daniels, and as the Wall Street Journal reporting, maybe another woman. We're still getting details because this has literally just happened.
But I'd like you, Richard, to start by walking me through the case that you think is going to be made in court here. I mean, hash money payments in and of themselves, I don't think are illegal. But the question here is, how is this gonna be charged in conjunction with campaign finance rules and business expenses? >> Richard Epstein: Well, we haven't seen the indictment. And what that indictment will do is contain some effort to link the two things together.
It will rely very heavily on the testimony of Michael Cohen, who says that this was not done in order to prevent marital embarrassments by Trump and his wife. And the argument that will be made in favor of that is she knew about all this stuff to begin with, so there's no way they could conceal to her any of his philandering. This was just part of the DNA of that particular marriage. And so if you can exclude, would be the argument, an effort to protect his reputation within the family.
There's only one thing left, which what he's trying to do is to alter the outcome of a political election. If he does that, then the argument will continue that this now counts as a campaign contribution in order to stave this. This is a campaign contribution like no other that has ever been made. Generally, what you do is you give money to a PAC or to some kind of the candidate directly himself to spend on various kinds of activities.
Here in effect, what you're saying is the effort to keep this woman silent is an effort to advance the election. The federal government thought it was a bit too exotic to bring this particular charge, so they did not do so. There's always been a lot of objection in the press to that charge being done on itself, but now it's kind of compounded, because what happens is you have to bring a very dubious claim and then append it to a state claim.
Because otherwise the statute of limitations of two years would probably protect them from a mere misdemeanor charge, although that statute isn't essentially ironclad in what it says. But basically, so long as you have at least an occasional presence in New York, I think you're gonna be subject to the indictment. And Trump was active in this city at one time or another for as late as 2020. So they certainly had all sorts of opportunities to do it.
I don't think that the only way that you can do this is to prove that he was resident all the time. That's too strong of a stand to do it, but they can show that he wasn't a resident or in the state at any time. So I think the statute of limitations will hold with respect to the misdemeanor. Then you get six years for a felony, and they're going to try to do this.
It is not at all clear that a state prosecutor is authorized to produce a federal claim if the federal prosecutors are not prepared to do this. Indeed, there was an ironic case somewhat related to this, which hit the papers this morning about Neil Gorsuch and Steven Menashi. Where the question was if the federal government decided not to prosecute a case and the district judge ordered a private prosecutor to take it.
Can you prevent this on the grounds that the exclusive function of federal prosecution under a separation of doc powers doctrine has to be with the federal government, all right. And rather with the administrative state, and a judge cannot basically appoint a private prosecutor? When Steve Menashi said it, it turned out that Neil Gorsuch endorsed what he said. The other justices just simply said no. But you could easily think of the way in which this thing could be extended as an issue.
Saying, look, it turns out that this exclusive power to issue an indictment under federal law has to be in the federal government, and the state governments are not allowed to intrude and to act any more than a private prosecutor is. I actually think that's a very, very good argument in a case like this, to say that you cannot have 50 state attorney generals of one kind or another bringing all these federal cases that the federal government doesn't want to bring.
And it also would be the case if Mister Bragg can do this, then any other like minded, zealous person could probably do it as well as if they could find a locus for the state crime. I don't think it's happened. I think the general view that one wants to take on this is a good reason why no ex president has been indicted since George Washington was elected. And that's because it's a very precarious game. So the usual prudential rule is you only bring precarious games if the case is open and shut.
You don't try to take a dangerous political maneuver and then use it to support a highly dubious legal theory. There are other problems with the case. It's not clear that Bragg has given all the relevant information about exculpation to the Trump forces. Which would give rise to what they call a Brady violation, which has consequences to at least slow down the prosecution, maybe in some cases to stop it altogether. So I think this is a very rickety kind of case.
Why he's doing it, anybody could speculate. He may think it will hurt Trump and he doesn't care if it hurts himself, or he may think that he's in trouble on all sorts of domestic issues relating to local crime offenses, bail and prosecution and so forth. And this is a way to get the liberal sees in New York back on his side. Time will tell, we haven't seen the indictment.
I've predicted just a couple of hours ago that it was gonna be a long time in coming because Bragg would have good reason to have second thoughts. This shows you what a great seer and predictor I am in these cases and I will now make the following statements. Law professors, if I have enough trouble answering and understanding the past, they are not very good at being prophets with respect to the future. >> Tom Church: I still have to put you on record about a future guess.
Not even a future guess, I won't say guess. I more just want to know the mechanics that will follow from this. I mean, let's say he actually gets convicted of a charged felony here. I mean, do we actually think we're going to see, we're gonna see probably a mug shot, because that's what happens when you're indicted and have to surrender yourself. But is he actually gonna go to jail? Is it going to be some sort of suspended sentence? I mean, what would actually, what would this look like?
>> Richard Epstein: Well, I mean, well, of course, the first thing you're gonna see is the perp walk, right? >> Tom Church: Yeah. >> Richard Epstein: They'll try to do it. Now the question is if he's in Florida, will there be a need for some degree of extradition? And in the great style of a drama and novel, it turns out the one man who could send him back to New York is Ron DeSantis, who's his main opponent at this particular point in time.
Yeah, we just have to think of all this or Trump with an eye for theater, may decide that he wants to surrender on the grounds that the perp walk and the handcuffs will work more in his favor than on the other side. The Wall Street Journal speculated, I have no idea whether they're right, is that this will help him inside the Republican Party by making him a martyr.
But with the people in the world who are already violently anti-Trump, and that's probably close to half the voters, an indictment will only make them more angry so that it will help Joe Biden win the election if he runs again. It's looking more like that he will, not because he deserves it, I think, but because no other Democrat wants to be able to take him on. And essentially, what happened is the American left Elizabeth Warren and Bernie Sanders.
They got their man, and they have no desire to sort of upset the apple cart so long as Biden does exactly what they want him to do on all these issues. Now, anybody can speculate about all of this. My view is it will have a series of unexpected turns, which by definition, I cannot tell you about, which will make the thing even uglier and more controversial than it currently is. I am generally of the very strong prudential view that novel indictments and weak cases were never to be made.
And when I hear Mister Bragg said, he looks at the law, he looks at the facts, he looks at the strength of the case, and nothing else influences his judgment, I think per se, I can't believe a word of that. He is an intensely political figure, he has run against Trump when he was trying to get elected to the particular office. The whole thing will reek of politics in one way or another. And it may well be in that he who makes the first blunder will lose, and we have no idea who that will be.
>> Tom Church: Tell me, Richard, what do you think the reaction is from the prosecution looking into the Georgia case regarding the call President Trump made at the time. And the federal case, looking at his retention of top secret documents and the back and forth with the FBI? >> Richard Epstein: Look, I think both of those cases have a kind of a weakness associated with them, but I don't know whether they're gonna be fatal when Trump gets on the phone.
The circumstances at the time was that the mysterious shutdown of the Atlanta voting places for several hours to fix a pipe, and then the surge of new votes come in. Well, that's enough to really raise the hackles of anybody and so what is Trump trying to say? Is he saying, find the balance by making them up, whether they're there or not? Or is he saying, make sure that the irregularities are exposed.
And in that particular case, the clear element is that any secretary of state, Republican or Democrat, has every incentive to defend the integrity of his particular system, even if the charges against him have some validity. Nobody in his right mind will come out and speak on behalf of Trump at this point. Because whether or not his behavior was criminal, it was so over the top and so utterly stupid in many ways.
That independent people who might want to have supported some argument on the election situation are not gonna publish it unless their name is Dinesh Souza. It's just an impossible thing. One of the things I've always said about Trump is when he occupies a space in the world in which I agree with him. He often makes such robust and overstated situation that it's impossible to speak publicly on behalf of a position that he's endorsed.
Because everybody will assume that you think that the arguments that he made are the ones that are true. So he does have this real capacity for self inflicted harm, Trump is a man. If you can goat him, he will rise to debate every time, and he will make your case for you. As to the federal situation, look, I think this is extremely troublesome. It turns out, again, at this point, you now have a democratic person. As far as I can see, Merrick Garland is a totally inept attorney general.
There were some releases just yesterday, for example, saying that he did not know when and all of his people told the federal marshals not to remove the pickets from around conservative Supreme Court houses. So there's one of two things. Either he did know about it, and he's lying, which I doubt, or he didn't know about it, at which point he doesn't know how to run his own office on these things, because the statutes are quite clear.
He appointed this fellow, Jack Smith, I think is his name, who's a bit of a real go getter when it comes to criminal prosecutions. He's running it in quiet, he's much more professional on these things and much more effective than I think is bragged. The situation at Mar-a-Lago presents itself for certainly an obstruction of justice case, as does the Biden retention of documents at his various residences and offices and so forth. How fast he's gonna go, I don't know. It is gonna be kept secret.
Mr. Garland says I don't have any real control over this, which is largely true, but the thing that is most important is whom you select determines the way the case is going. So they also are going to investigate Hunter Biden my guess is that investigation will be done somewhere around 2028. That is what's really happening in these cases is you appoint parallel officers with very different agendas. And in one case, you're defending your own. In the other case, you're attacking your enemy.
And the attorney general, I just don't think is up to starting to do this. I think it's highly likely that there will be some kind of an indictment coming out of those things for obstruction of justice or illegal retention of papers or something of the sort. I don't think that this is the kind of issue which is important enough that one ought to resort to a criminal prosecution.
But I think it's possible, and it may well be that there's gonna be a trifecta out there in Georgia, the Federal government in New York state. I do not like this. I think it increases the probability that Trump will get the nomination, which I regard as an unmitigated disaster. Remember, I was on record for getting him to resign February 1st, 2017, cuz I just don't think he has the character or the temperament to be President of the United States.
And I still think that that's the case, and anything that advances him closer to that goal is a mistake. Anything that makes it possible to keep Biden in office, which a Trump candidacy would likely do, is a mistake. And so the great tragedy of 2024 could be that two totally infirm and weak candidates will run by virtue of the fact that this indictment is being brought.
And everybody in the United States, regardless of their political affiliation, should remember that these two men are completely unable to do the job as a 2024, but they're gonna be in office if they don't die in the interim until 2028. This is a major political crisis for the United States in which non-cooperative behavior by short-sighted public officials, I think, is gonna lead this nature into a genuine kind of constitutional crisis of one sort or another down the road.
I have no idea what it will be, but this is the makings of a fatal stew from which all of us could suffer very serious adverse consequences. >> Tom Church: All right, last one for you, Richard. And here's a prediction for you, by the way. I mean, we all remember President Obama's hope poster for his campaign. I have to think that former President Trump's campaign poster is gonna be his mug shot, and I think his base is probably going to rally around that.
>> Richard Epstein: Well, we both seem to have that view. The problem is, it's always the case about primary elections as opposed to smoke filled room situation. In a primary, the person who tends to win, unless people are voting very strategically, will be the person who is close to the median voter of that population group and within the Republicans. As such, I think Donald Trump has a very strong lead and a very powerful hold on a large part of the population.
But every time he says something which will rally the base, the ten people that will join him will be matched by 20 people. So I can't take this man on a bet. So what you're doing is you're the basically having a popular election in the primary that spells defeat in the general election. If you do smoke filled rooms, which we don't have anymore, what's gonna happen is the people who are making the first pick are gonna do it with an eye to the second election.
And they will not pick as a presidential nominee as somebody who has a disapproval rate, which is probably close to 50%, if not beyond. The same thing would be true on the democratic side. I think Biden's popularity rate is at this point, hovering around 40% and sinking. I think he's an incredibly inept president in the way in which it works.
But if you're just running a democratic primary and you get all the progressive lining up behind him, Biden can become reelected, even though it's not there. So what you do is you get two utterly unacceptable candidates, Trump and Biden in the general election, and the rest of us are forced to choose between them. I don't think there's gonna be any third party candidate.
If Trump loses, I think there's a possibility that he would try to become a third party candidate, because I think spite is very much a part of his general nature. So I think what we should do is look upon this event as the opening chapter was likely to be a very long, drawn out, and embarrassing, and dangerous set of moves that are taking place.
Remember, everybody who's playing this game is not thinking about the overall welfare of the nation, and yet those actions will do everything they can to frustrate any return to political normalcy in the United States. So I think that this is an occasion for deep mourning rather than occasion for any kind of satisfaction. Sometimes, no matter how guilty Trump is, it's better that you let the criminal go free than the nation crumble.
>> Tom Church: You've been listening to the Libertarian Podcast with Richard Epstein. If you'd like to learn more, make sure to read Richard's column, the Libertarian, published on [email protected]. If you found this conversation thought provoking or informative, please share it with your friends and rate the show on Apple Podcasts or wherever you're tuning in. For Richard Epstein, I'm Tom Church, we'll talk to you next time. [MUSIC]
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