Indictments: Infinity War

>> Troy Senik: I kill my video. That's a mercy killing. And you're off. Welcome back to the Law Talk podcast from the Hoover Institution, coming to you, as we always do, from the faculty lounge of the Epstein and Mewes School of Law, where we were unaffected by the affirmative action ruling because we've yet to receive any applications.

I'm your host, Troy Senik, former White House speechwriter, co founder of Chitin Key Media in America's leading purveyor of Mr. Belvedere fan fiction. And I am joined, as always, by the Zuckerberg and Musk of the conservative legal movement. This cage match has now been going on for 13 years.

They are Richard Epstein, the Peter and Kirsten Bedford, senior fellow at the Hoover Institution, Lawrence A Tisch, professor of law at NYU, and senior lecturer at the University of Chicago. And John Yoo, visiting fellow at the Hoover Institution, the Emmanuel S Heller, professor of law at the University of California, Berkeley and former deputy assistant attorney general in the Bush administration.

So let me start briefly with just a programming note, because we usually reserve our August episode for listener Q&A. We are, for what are about to be obvious reasons, not going to be doing that this year. We will take audience questions next month for the September episode. So if you have something you want to ask the professors, send your questions to lawtalkq&a, all one word, lawtalkq&a@gmail.com and we will get to those next month.

And fellas, the reason we are not doing Q&A this month is because we are 15 months away from the 2024 presidential election. And the front runners for both parties, Donald Trump and Joe Biden, are both in the middle of swirling legal controversies that seem like they may have the potential to swing the election, may even have the potential to maybe even keep one or both of these guys off the ballot next year.

I'm going to start with Donald Trump, because the most recent news is that last night we finally got what seems to be the last piece of the puzzle. In the various cases being brought against him in Fulton County, Georgia, the DA bringing a sprawling set of charges related to Trump's attempt to influence the allocation of Georgia's electoral votes in the 2020 election.

41 felony counts against 19 defendants. 13 of those charges are against Trump himself, but this also sweeps up Rudy Giuliani, John Eastman, Sidney Powell, Mark Meadows, a lot of familiar faces here. And notably, this is a RICO case, a lot being made of that, especially since Georgia has a pretty expansive standard for RICO.

So, John, why don't we actually start there? Because RICO, as we know, is Hollywood's favorite legal plot device. But maybe because they've seen it in too many movies, a lot of our listeners may not understand exactly how it works in the real world. So walk us through that and whether you think it's appropriate here.

 

>> John Yoo: So, Troy, there's a famous quote by an old school journalist named Stan Evans. This was told to me by Steve Hayward, contributor often to Ricochet podcast. And Stan Evans apparently said, well, the problem with RICO was originally, it was just supposed to be used against people named Rico, which means it was supposed to be used against organized criminals.

But now, it's being used against people named Donald or John Eastman. It's being used against white collar people, and it's being used against things which are not traditionally thought of as criminal. That's the problem. The reason why is because, and here I'll talk about federal Rico, but Georgia Rico is not that much different in the text.

The idea, and this is why it was written for organized crime groups, mafia, drug cartels and so on, is that what if you have this big organization and you can prove some things against, say, the foot soldiers? How do you prove that the foot soldiers are working in a common enterprise, common criminal enterprise with the higher ups, right?

It's like in The Godfather, Michael Corleone doesn't actually shoot anyone. Well, though he did in the first movie, but after that, he doesn't actually push the button on somebody. He has someone lowered down who does it. And so what RICO does is it says you can be charged as being part of a criminal enterprise, and all you have to really do is show that that criminal enterprise committed two violations of other criminal law.

And then you have to show they were all in it together. Now, the problem with RICO, and I think that's the problem with it here, is that when you hear how this is described, you might wonder, what's the limiting principle to this? I mean, for example, people have also said, no.

What if you're a legitimate business and you have one guy who's a criminal in the legitimate business and starts doing things like committing crimes and claims that it was part of the business? Does that mean everybody in the business is captured? You could say this is, right, the theory of prosecution that might be brought against an accounting company named Arthur Andersen, for example, in the wake of the 2000 Enron scandals.

And now, for the first time, I think it's being used to go after a political campaign. The political campaign here, the Trump campaign, is the criminal enterprise, according to the DA. So I think that's going to be a really difficult problem for the prosecution. Here is to say, yes, a criminal enterprise can also encompass a political campaign.

And even if Trump himself didn't do anything illegal, he is responsible for the little guys who are stealing data from voting machines or who are, I think, illegally harassing election workers. Does that really allow you to use RICO to say, everyone connected with that political campaign is part of this criminal enterprise that can all be put in jail for a minimum mandatory five years?

 

>> Richard A. Epstein: Well, John, you make it sound very appetizing to be a RICO defendant.

>> Richard A. Epstein: And what they do in the statute, they say the enterprise is an association, in fact, very early on in the environment. But I think there's some other problems that one has to worry about this.

First of all, whenever you deal with either RICO or the law law of conspiracy, there's always a question of how many enterprises are involved in these sorts of cases. And if you start looking at this very weird indictment, the first 50 or 60 pages are all devoted to listing acts in furtherance of the conspiracy.

Now, an act in furtherance of the conspiracy does not have to be an act which, as Malliman say, it doesn't have to be killing somebody, supplying them with a weapon. An act in furtherance of a conspiracy can be to place a phone call which will get two people together to speak about what's going on further.

And so as you start to use more and more of this kind of filler to bring more and more people into the situation, the entire valence starts to become very dubious. So you contrast this to the way in which the Jack Smith prosecution went. It's twice as long in what is going on.

It's got many more defendants, many more crimes, but it has no narrative. So it's extremely difficult to figure what's happening. Now, the general law of conspiracy is also tricky, because what it does is it says, in fact, if you are part of a conspiracy and an act is done by somebody else in furtherance of the conspiracy that links you together.

You can be held as part of the conspiracy even if you don't commit the particular offense that is being charged. And that is carried over from general criminal law into the RICO law. But as John starts to say, what you're always worried about here is whether or not everybody who's in this thing is has got some part to play with respect to the conspiracy.

Or whether or not, if you're a conspirator with A, and A is a conspirator with X, does that mean that you and X are part of the same conspiracy? She doesn't put a beginning on this particular thing. She doesn't put an end on this particular thing. The one act, which is obviously the most dramatic act of it all, was the famous phone call that Donald Trump made in which he said to, I guess it was.

Who was, it was the secretary of state. He said, you've gotta find me 11,000 exit votes so that I could swoop this thing around. Now, one of the other problems that they have to face with this is if you just mention that particular statement and they don't make very much of it, you can make this a very credible argument.

Look, Donald Trump would say, we saw what happened in Fulton County. There was this mysterious shutdown that took place in the middle of the night. It turns out that the Democrats were in complete control of the operation. People were forced out of the room one way or another.

There were lots of things that were said during the run up to the final count, which indicated that there were real irregularities there. And he's saying, well, I want you to find those votes, it means, I think that there's enough fire, enough smoke around that there's gonna be a fire, and you should do it.

And if that's what he turns out he's saying, then that's probably not gonna be indictable. That makes it more complicated, is what Smith mentioned, which he said. And if you don't do this, well, we could subject you to criminal prosecution, which could either be banter on the one hand, or a deadly threat on the other.

So I think this, in this particular case, I think I agree with John on this case, that there is essentially no real strong focal point to this case, which means that the prosecution has a bunch of strong momentum going into this situation. There is nothing remotely like what happened in the federal case where you have these dramatic confrontations, as yet fully understood, between the Trump people in Pence over the question of whether or not he has the power to send this thing back to the states.

And that's an issue which I think it's clear that Pence did not have that power. I think the text is eminently clear on that. But that issue is not in this particular case. And so, I guess my bottom line about it is, I think there's a lot of sound and fury in this particular indictment.

But I'm not sure that it's going to carry the day against the spirited defense. Although I am quite sure that to prosecute and to defend this case is like trying to fight the entire war on the Russian front in World War II instead of the Battle of Leningrad.

 

>> Troy Senik: I wanna turn you guys to that federal case in a moment. But before we do that, I just wanna put a finer point on the Fulton county case. Richard, I'll let you go first here, but I'd like you both to answer this question, because it wasn't clear to me, listening to that original analysis.

I'm giving you what is maybe a false dichotomy here. But is your judgment of what this is, based on the fact that the indictment's out now, is that the prosecution here by the DA's office in Fulton County is entirely misbegotten, or that it was mischarged, that the strategy was wrong?

 

>> Richard A. Epstein: Well, I think the strategy was wrong. I think the indictment turns out to be weak. I think that what it has to do, I guess it was Rafflesberger was the man's name, or whatever it was.

>> Troy Senik: Brad Raffensperger.

>> Richard A. Epstein: Yeah, but you have to really do is to focus on those kinds of interactions.

Generally speaking, when you're talking about indictments and so forth. If you have one strong claim and you bring five weak claims with it, strangely enough, your strong claim starts to look like your weak claims and you're worse off. And so what you try to do is to isolate the strong case and leave everything else on the side.

That is, roughly speaking, what Smith tried to do. He didn't quite do it, because he also brought two things which he should not have brought. One is, he brought this sort of honest services fraud case. But the Supreme Court in the Skilling case made it pretty clear that there had to be money or property at the end of it, a breach of fiduciary duty, and that just didn't match this case.

And then he started to talk about the various speech protests at the Capitol in which Trump said, go there and make your voices heard and be peaceful. And I don't think that's gonna be indictable. So my view is he would have done better getting rid of all of that stuff and just concentrating on the single most controversial feature of the case.

Did he try to take the election by having somebody illegally count votes that were not cast and disregard votes that were cast? That's a serious charge. I mean, how do we think about it is odd. I will mention just two extremes to show you why the world is very fluid.

On the one side, there was a recent article that's got an incredible number of hits by Will Baude and Michael Paulsen in which they said, this is an insurrection. And so therefore, the 14th amendment, Clause 3 is self-executing, and this guy essentially is out. And then on the other side, there are passionate defenses of the same incident, saying it's a classic illustration of political free speech.

Well, you don't take much of an imagination to realize that if you think of this as 180 degrees, you have somebody at zero and another at 108. I'm sort of in the middle. I tend to think it's a serious criminal charge, but I don't think it's an insurrection, and I don't think it's free speech.

I seem to be pretty alone on that. I don't think even that a certain John Yoo agrees with me.

>> Troy Senik: John, Richard covered a lot of ground there, took us to the federal case and the Will Baude article, both of which I wanted to ask you guys about.

But first, let me just have you go back to the question that I initially posed to Richard in the Georgia case, misbegotten or mischarged?

>> John Yoo: This is a classic throw everything against the wall and see what sticks strategy. Yeah, see what happens. So there's a lot of stuff in the indictment that's not individually illegal.

One of the things that's quite telling about how it's the whole kitchen sink is in here, sorry to use yet another common metaphor. But the alleged conspiracy starts on Election Day, and it doesn't seem like there's anything illegal that happens on that day. That's just when she says the enterprise started.

So this is the problem, if you're gonna say the entire re-election, after the election was over, the entire re-election campaign, everything it does is a criminal enterprise. Then it allows you to bring in every single act that occurs. And if you read the indictment, a lot of the acts that are allegedly part of this criminal enterprise are not by themselves illegal.

So, for example, several of the acts that are allegedly criminal are Donald Trump leaving a voicemail for some Georgia official saying, please call me back. I'd like to talk to you about the election. And that's listed as an act of criminal enterprise. I'm not sure exactly how Trump's lawyers will do this.

But I think they could make a, I don't know, some kind of void for vagueness claim or rule of lenity claim saying, look, it's hard for us to tell exactly what's illegal here. Most of the things that you're charging us with are individual acts of conduct that we would have in a campaign.

 

>> Richard A. Epstein: Yeah.

>> John Yoo: And so-

>> Richard A. Epstein: They were just overt acts.

>> John Yoo: Yeah, they're just acts, right? They're not even illegal. So this is what she's done, which I think is dangerous. If you think about how would it apply to other organizations, to the other candidate, the other political parties.

What if you apply this to the Hillary Clinton campaign? And there's still, its creation and propagation of the steel dossier, for example. What if he used this against Al Gore's campaign in Florida 2000 after the election was over? All she's doing is she's taking one or two things which I think you could make a case, or illegal harassment of the election official, which is I think should be prosecuted.

Breaking into and stealing data from election machines, or even if you think the Raffensperger call skirted on the lines. I think when you read the transcript, to me, it's right up against the line, but I'm not sure it crosses the line into illegality. But you could try each of those.

The problem why it's overcharged and too much is that it tries to take every single thing to Trump did after the election was over and tries to make it criminal, and they're just not. So this is gonna cause a problem when it comes time to try the case, because think how long it's gonna take with whatever, 18 defendants gonna defend.

They're gonna retell the entire story of everything the Trump campaign did after November 4th of 2020. It's gonna take forever. There's no way this trial is gonna be finished, even if it could start by the time of the election.

>> Richard A. Epstein: There also has to be an appeal. I'm gonna read one headline from the New York Sun, because I think it may influence how you think about this.

The Fulton County district attorney has said, notice passive voice, have messages, text messages and emails directly connecting the Trump legal team to a breach of the election systems in the state of Georgia in January 2021. And so the single biggest piece that's left here is this is a complaint.

Generally, complaints don't have to give evidence, so they often try to tell a story. And so the hard question is, can she get rid of many of the defects in this particular case by strategies? One, after a while, pairing with some of the defendants, who seem to be at most marginal.

And two, coming forward with a set of emails which, in fact, do connect the things further. So it's extremely difficult when you're dealing with this kind of notice pleading situation, to know what it is that a prosecutor has up her sleeve. And that, I think, is the source of genuine situation.

Now, if I'm not mistaken, I'm brushing up on my criminal law. It turns out there's a thing known as the Brady doctrine, which I think would apply here, in which it says if you got exculpatory evidences, the prosecutor have to turn it over to the defense. And so you can now start to see yet another round of complications.

Some of these emails start to come, and they sound pretty damning. And the defense says, well, I wanna see all the emails that were surrounding it to see if I could put it in context, which may well turn the meetings around. So what happens is a huge amount of this case is gonna depend upon whether or not she can effectively narrow the prosecution to a point where it looks more credible.

My own strategy, never having prosecuted a case but having thought about this before, is you don't wanna start broad and then get narrow. What you want to do is to give a very powerful, immediate narrative which comes forward with your best shot, and then not deviate from that.

Because at this particular point in time, my guess is that if you were a Trump supporter and you thought this was a political vendetta by a deep blue Democrat, you would see enormous amounts of this stuff that confirms your worst suspicion about the way in which this case is taking place.

So my own guess is that the paradox will continue. The Trump supporters will see in this a vindictive type situation. And if anything, they will get stronger. As they get stronger and more vocal, Donald Trump will take all the oxygen out of the air, which means that the other democratic candidates won't be heard one way or another.

Because after all, we are not talking about what any of them happen to think. We're talking about the issue du jour, at least one of the two issues du jour, the other one being on the democratic side about the relationship of Hunter and Joe, and even that-

>> John Yoo: So wait, Richard, before you get to Hunter-

 

>> Richard A. Epstein: That's been pushed off the table is all I'm saying.

>> John Yoo: Can I just add one more thing?

>> Richard A. Epstein: Sure.

>> John Yoo: That occurred to me while Richard was talking there was if you compare this to a mafia or a terrorist organization prosecution. You could say, well, someone you prosecute for terrorism could say, I was just picking up money in a bag, and I brought it from one place and I brought it to my friends at their office.

What's so illegal about that? So I can see how in the terrorism context, organized crime context, sometimes you are gonna take people and charge them for things which are facially legal and innocent, but which are part of an organized criminal enterprise. The one thing I think Richard ended his previous comment with this that makes us especially different from that, is because of the First Amendment free speech issue.

Because not only can Trump and many of these defendants say, well, the thing I did was just an overt act, but it wasn't in a self criminal is they can say it was actually a speech activity. It's actually protected by the free speech clause of the constitution. So that makes it even harder, I think, to bring a RICO claim against the political.

I mean, I can't think of a case where RICO was used like this against a political campaign where all the activity is free speech activity on its face, right? So that makes it, I think, even harder for this kind of, as opposed to, there's a lot of other counts, like just false statements, there's some weird ones, like trying to impersonate a public officer or trying to get someone to-

 

>> Richard A. Epstein: Forgery.

>> John Yoo: Yeah, forgery abuser oath as a state. But those are all individual charges. That I think is actually where I think, as Richard suggests Willis should actually focus her efforts on, is trying to prove the individual charges against people, including there are some individual charges against Trump and Giuliani, for example.

The one other thing I should have mentioned at the outset is that one of the people charged is John Eastman, and he's a personal friend of mine and Richard's. And so people should know if they wanna take what we say with a grain of salt.

>> Richard A. Epstein: Yeah, no, I mean, John was one of my prized students.

I disagree with him on many of the things that happen here. But let me just mention something else. You did mention the stuff about forgery on the one hand, impersonation on the other. These are just misapplications of a basic document. When these guys signed the signature, they did not sign the name of somebody else.

They signed their own name to a ballot that she regarded as being bogus. That is not a case of forgery. And they did not impersonate the person who was the elector. They said, I'm the proper person to be count. So that's not an impersonation. So one of the things, even on these technical kinds of cases, if you start taking a term which has hundreds of years of well-defined definition.

And you apply it to a circumstance like this where it manifestly doesn't apply. I think the first thing the defendants do is they move to get all these counts out of this situation, because this was not a case of deception, which is the key to both of those other areas.

This is a key statement of saying, we think we're entitled, and you're not entitled. We're not pretending to be you. We're just saying that we don't think you were in the right kind of position. But of course, it's also a different case on that because there is nothing here that is remotely like the 12th Amendment, which generates so much of the confusion on the federal side.

That's not applicable with respect to the stateside and she doesn't try. So this is a very sloppy indictment on those kinds of issues. And again, you destroy your credibility in cases like this when you start to make criminal things that aren't criminal go after everybody. So the things that I think were true, if somebody try to break into a system and take balance or destroy evidence in some form or another, sure, you prosecute for that.

But a lot of this stuff, it seems to me, are things that ought not to be done. And I'll make just one other point, which is the same point you made against Bragg. One of the things that's Terrible about that situation, is he took a simple act like paying a check, and he says, no, I wrote the check, I delivered the check, I got a receipt.

What she's trying to do is to multiply the counts in order to increase the sentencing. And in a case in which you're involved with something as nebulous as this, that's simply an inappropriate type situation. They should be compacting offenses the way in which everybody else tries to understand them.

Bribery is one crime, it's not four different crimes, and that's what she's trying to do with the impersonation stuff and with the forgery stuff.

>> John Yoo: Richard, okay, this is great, I got also another different constitutional provision, which no one has mentioned yet.

>> Richard A. Epstein: God, John is gonna-

>> John Yoo: Which I think is a really interesting defense.

So, what if Trump says, okay, yeah, I went to Raffensperger, I went to all these guys. We went to the legislature, we're under the First Amendment, we are allowed to petition government. Nothing says the petition has to be true.

>> Richard A. Epstein: It's quite the opposite.

>> John Yoo: Yeah, right, usually you're saying, the government has done something really bad to me, which usually the government doesn't think it's done, and a lot of times the petitions are just.

Cuz a lot of the charges are lying and false statements, who says that a petition to the government actually has to be accurate and factual? What's wrong with having a petition to the government that's actually false?

>> Richard A. Epstein: Well, my God.

>> John Yoo: That could be a stunning defense across all counts.

 

>> Richard A. Epstein: I mean, remember, there's the North Pennington doctrine in the antitrust area, which I think is absolutely grotesque in some way. It says that if you're engaged in a cartel and your cartel tries to get the government to give you some kind of

>> John Yoo: Wait, are you turning this into antitrust law?

 

>> Richard A. Epstein: No, I'm just saying the exact point.

>> John Yoo: I knew you were gonna try this.

>> Richard A. Epstein: No, it's the exact point, which is it turns out you get the petitioning protection even with respect to activities which is per se illegal if done on the private side. It's given an extremely broad berth, and I think something like that is going to happen here.

And so I said, to my mind, they do not have anything that looks like the smoking gun, if there is a smoking gun. Which involves the 12th Amendment and the ability of the vice president to so called alter the election. So I think she's in, I mean, the more you talk about this, John, the more persuasive you become, right?

 

>> Richard A. Epstein: And I do see-

>> John Yoo: That's my usual effect on most issues.

>> Richard A. Epstein: Usually it's the opposite, but we forgive you this time.

>> Richard A. Epstein: But I think in this particular case, parsing this thing, it's quite clear she has to do a huge amount of fence mending in order to make this thing credible.

And I don't think she has thought the way through this, and I don't think her staff has done that kind of stuff. This is two and a half years worth of work. It's a bomb, but it's not gonna persuade anybody who was for Trump. This is not gonna say, aha, now that I know that he did this in Georgia, all which was known, it's gonna change it.

The Rafflesberger conversation was 90% of the discussion about this.

>> John Yoo: Well, Richard, here's one thing that she might be doing that people have not really talked about in the media is, maybe she's trying to scare some of the people into cooperating as state witnesses because it's always the case.

One of the lower down figures in all this.

>> Richard A. Epstein: But she's got 24 unnamed people in that campaign, right?

>> John Yoo: You're looking at dozens and dozens of years in prison, because now suddenly, you weren't just petitioning government, you were part of a multistate Rico enterprise. And there's a minimum sentence here of five years, there's no ability to part below five years.

Maybe what she might be trying to do is blunderbuss on people into testifying against Trump, which I don't think Smith is gonna succeed at, but he might.

>> Richard A. Epstein: One of the things that happens when you try to get minor people for major penalties is sometimes there's a little bit of judicial nullification of the statute.

Because they think, well, this is worth 30 days, it's not worth 5 years, and we're just gonna give them nothing at all. And she does have, she's played both strategies, she has all the people who were named, that Smith refused to name, although everybody knows who they are in his case.

But she has 30 people who are listed as somebody who is involved in this and she doesn't give the names. Those are the people I think she's trying to turn, I don't think the named people she's gonna try to turn. But for what, it's whatever's worth for me, it seems to me that this is a case which is, I think in her case, it's an uphill battle.

And I don't think she's lawyered it particularly well.

>> Troy Senik: Okay, so let's consider the whole board here, because Trump is now facing four different cases. There are the two election cases, Jack Smith is the federal one, the one in Georgia, there's the classified documents case out of Florida.

And then there's the Manhattan case about the stormy Daniels Hush money, which, I mean, tell me if you think otherwise, but I think we can stipulate based on our previous conversations. That the Manhattan case seems like the one that is both the most legally flimsy, and for that reason, the one that poses the least danger to Trump.

If that's the case, John, I'll let you start with this, how do you rank the other three in terms of the threat that they pose to Trump?

>> John Yoo: You mean threat in terms of him going to jail?

>> Troy Senik: Yeah.

>> John Yoo: If I was on his defense team and I was ranking the expected harm, which is number of years of sentence times probability of conviction, that's something I learned from reading one of Richard's articles.

Long as a law student, how to do that calculation.

>> John Yoo: Didn't even need a TI calculator to do it. So it's gotta be, the number one threat has got to be the Mar-a-Lago classified information case. I think that the probability of conviction is high, and people generally get tough sentences for violating the classified information procedures under the Espionage Act.

Then I would say, this case is number three, and maybe the January 6th case is number two.

>> Richard A. Epstein: Well, let me say, I think that what happens is the variance in the first case is the lowest, that is the Mar-a-Lago case. But on the other hand, I think the seriousness of the offense is far lower than it is with respect to what's going on on the January 6th case.

Indeed, I mean, if you would ask me to rank two cases in terms of breach of the statute, one is the Trump antics, and two, the Hillary illegal server. Her case is ten times more serious than his, because in his case, we're quite confident that his antics did not result in any document going anywhere, it was all sitting in the basement.

And in her case, she was a live servant, and there are probably a thousand people could hack that thing, getting all sorts of state secrets, becoming fresh all the day. Anything that Trump has is already stale, right, it's been a couple of years since he got all this information.

And so I think if you wanna pick a risk reverse statute, and wanna get him in for five years, and remember, he's 75, 76 years old now, 77, he's going on. You go for the Mar-a-Lago first, cuz you get five years and he's done. But if you think this man has got an infinite life, then you probably will give ten years.

 

>> John Yoo: By the way, Richard, for each document.

>> Richard A. Epstein: Five years for documentary, that's.

>> John Yoo: Yeah, this is each document, that's why there's a lot of years to actually go in.

>> Richard A. Epstein: You got 1,000 documents, I mean, this is, again, the fractionation of complaint. I think it's a box.

The boxes, I would treat the whole thing as one. I think that's the way everybody else does. There's a lot of insurance law about what counts as an occurrence. If there's one fire that destroys two houses, is it one occurrence or is it two occurrences? And if it has ten rooms in a given house, is it one occurrence or is it ten occurrence?

I think you take the largest coherent unit that people have worked with and treat that as the offense. So I think, in fact, there's basically only one serious count out of Mar-a-Lago, but prosecutors will fractionate, and I think judges should stop them. So I think that, John, if it turns out that you've got as many counts as you said, then you're right about Mar-a-Lago.

It's also, I think, the least inflammatory case. You don't have to get into the real complications associated with the 12th Amendment. It's a straight obstruction case, and the free speech defenses are very weak. Now, we still have our other case.

>> Troy Senik: Yeah, and I'm gonna ask you one last question about the Trump thing.

Then we'll talk about Hunter. I wanna ask you about the sort of meta debate that's hovering over all of this. It seems to me that if you're being fair minded about this, regardless of whether or not you think charges should have been brought in any of these cases, you have to concede that it is a big deal to indict former president of the United States.

Now, if one stipulates that there is nevertheless a continuum where on the one side you have people arguing no one can be above the law, it doesn't matter if he's a former president. This is the embodiment of what the rule of law means, that even the highest and mightiest among us can be called to account.

On the other side, you have people who say Lindsey Graham said something similar to this yesterday. Look, even if this is bad, you keep trying to fit a square peg into a round hole. You keep trying to find legal pretexts to essentially criminalize politics, which, even if it's very bad, politics, is still the wrong way to go.

Where do you guys each fall along that continuum?

>> Richard A. Epstein: I'm always torn one way or another. I mean, the more this goes on, the more I tend to agree with Graham because of the excesses in the piling on. Let me put it this way, there's another very unique feature about this.

I would feel very different about this case if we're prosecuted by somebody who was not, in effect, his presidential candidate rival in 2024. What can Joe Biden say? There's no way in my mind that he can distance himself from this case. He has direct control over the attorney general, has direct control over the case.

We already have it on the record that Joe Biden was in favor of the prosecution, not to defend him, of course, but to prevent democracy way or another. But that's just a fig leaf. He knows that he is going to be the beneficiary. Of course he thinks he does.

Now, this is basically the calculation of means end. Is this gonna improve your chances of winning the presidency or reduce it? I think that's very difficult. The ultimate irony would be that Trump wins the election in part because Biden is seen as a prosecutor rather than as a prosecutor.

And it turns out he's in jail in Georgia, for which the federal pardon power does not exist. At that point, I mean, you better let him out of jail or you're not gonna have a democracy. John is ready.

>> John Yoo: No, I couldn't tell when you were finished, Richard.

 

>> Richard A. Epstein: I'll never finish.

>> John Yoo: You don't wanna get the sermon on the mount to stop.

>> Troy Senik: Also, speaking for myself, you laid out such a grotesque hypothetical day to end that with. I think we were still on our heels.

>> Richard A. Epstein: What do you mean?

>> John Yoo: No, Rich, I got a better hypothetical, which is this is a classic law school test of whether you're willing to accept a principal is just switch the parties.

And would you be willing to live with it if it was your side that was under investigation? So would a Democrat be willing to live under this rule of letting state elected DAs investigate and prosecute federal officials for things like this? There are, I think there's something like almost 3,000 elected district attorneys in the country.

Would you be willing to let them start an investigation into Hunter Biden or Joe Biden for corruption and bribery? Because that's what's gonna be permissible now. Maybe this was always possible under our law, but it was just a matter of common sense that our system never indicted a former president under federal or state law until this year.

We just let presidents ride off into the sunset, some very bad presidents too, who probably could have been prosecuted for something. We left them alone. Now on the other hand, we assume they would have some sense of shame and if they did bad things a la Bill Clinton, they would generally stay away from the public sphere and no criminal prosecution would be, they wouldn't run for office again.

No criminal prosecution would be necessary. But I think that's the problem with what we're opening the door to is, and that's another argument in favor of even if you could bring people under criminal investigation and prosecution, it's not a good idea. Just let, I agree with letting politics continue to govern in these areas.

One more thing is, I think that's actually more consistent with the founders views. I mean, think about their primary mechanism they talk about for removing people from office is impeachment. An impeachment is a political, non criminal process. Now yes, the federalist papers talk about once you're removed from office, with impeachment, you can be prosecuted.

 

>> Richard A. Epstein: Including this case.

>> John Yoo: Yeah, but the federalist papers also talk about, they say things like, you would think if someone was impeached or removed from office, they would be so dishonored that prosecution might not even be necessary. The whole society will hold them in such contempt that itself just being removed for abusing the public trust should be enough.

And so maybe the other thing is I could see this being, I'm not persuaded, but I could see the claim being, but we're in a world where people don't have shame, they don't care about their honor. And maybe some people say, well, maybe that's why you have to use a criminal law, cuz that's the only thing left that will have an effect on anybody.

 

>> Richard A. Epstein: All soft sanctions are obsolete now on both sides. I mean, just switching over to the Hunter Biden situation, I think some of these charges are very smart. But if you start looking at the way in which the democratic press has treated them, the way Dan Goldman has treated them, they say, poor hunter, he had alcohol problems.

We can't possibly think of this as anything serious. And so what happens is as you reverse the roles, all of a sudden, the principle of lenity, as you described it, seems to be a paramount virtue amongst the Democrats where nobody has the slightest interest in applying that or any other principle with respect to Trump.

So what you're talking about is not just a hypothetical, John. What you're talking about is a situation where we have these parallel cases going forward. And it turns out that it's very difficult to get much of the press to make a serious engagement in what has happened with Hunter Biden.

You'll recall during the campaign, NPR said, we're not gonna worry about this ridiculous laptop. We're only gonna talk about hard news. And so when you get that kind of asymmetry in the coverage, that's only going to feed the argument that you make, the argument that Alan Dershowitz makes.

You have to be very damn sure that you're right before you do anything. It's clear that by that test Fannie Willis fails. It's clear by that test that Bragg failed. And that what happens is you then have the debate over Mar-a-Lago on the one hand and Chase six on the other.

 

>> Troy Senik: So let's talk about the Hunter Biden case. I wanna start with the plea bargain that fell apart a few weeks ago. The arrangement was supposed to be two misdemeanor tax charges for which he'd serve probation, and then a gun charge that otherwise would have been a felony.

He was gonna go through diversion there. And then they get to court in Delaware and there's this sort of risible scene. There's a dispute between the prosecution and the defense as to whether this deal forecloses further investigations into Hunter Biden. The judge refuses to accept the pleas. You guys haven't actually worked this out.

So Republicans in Congress, even before this happened, were already saying this was a sweetheart deal. And I wanna get your reaction to that but also this bizarre spectacle with the plea deal, which now looks to have entirely fallen apart, though just yesterday, we now have the Biden team arguing that the diversion piece should still hold.

The judge didn't need to approve that in the first place. John, what was going on here?

>> John Yoo: This is really strange, I'd never seen a plea bargain structured this way. And so that's why I think when the judge-

>> Richard A. Epstein: Nobody else has.

>> John Yoo: Yeah, but when the judge asks one question and the whole thing falls apart, that makes me suspicious that at least the Biden people are trying to get away with a fast one.

And maybe the US attorney there in Wilmington didn't quite understand what the government was agreeing to, which makes me wonder whether that's probably the best person to be the continuing special counsel. So the problem was, there was two documents. One was the traditional plea bargain, which says, okay, you're gonna plead guilty.

And then we're gonna give you a reduced sentence. That document itself is fine, although we can say, well, since when do people commit serious felonies, felony tax violations are allowed to get off with no jail time, misdemeanors? But the problem was the question of what could you be charged with in the future?

So the issue was, could Hunter receive any kind of immunity for, right, any charges stemming from this activity? Usually in a plea bargain, you get that, right? You're saying, okay, if you're charging me and I'm pleading guilty to tax evasion in the year 2016, then usually the government can't say, well, we've reinvestigated.

We found new things on your tax returns, are gonna charge you. Usually you get some kind of, this is the settlement of the whole thing that's not in the plea bargain agreement. That's what's really strange, that the one that the judge reviews and has to sign off on, instead, it's in this other second document, which is called a diversion document, which doesn't get presented to the court.

This document is, okay, Hunter, we're not gonna charge you at all, as long as you go get help for your addiction. Basically, that's usually the deal. That's called diversion, cuz it means you're diverting someone out of the criminal justice system and into something like medical treatment or job training or something.

Now, the problem was the immunity that Hunter was gonna get was stuck in that second document. That is not a normal place for that to be. And in fact, I'm not sure whether it's enforceable there because it's not approved by the judge. It's not a plea bargain. So I think this judge was actually quite on to something when she was asking, why are you doing it in this way and sticking the immunity all the way over here?

And my last point is, putting aside the two documents, clearly the US attorney did not think that they were giving up the rest of their investigation. Whereas Hunter thought he couldn't be prosecuted anymore for any tax returns over up until last year. And this is the real problem.

And this is what led to the special counsel, I think was the House and its oversight investigations produced so much information that justify continuing the investigation into Hunter. That talked about many more millions than apparently we know about, that talk about more years of tax evasion. And talk about a bigger criminal enterprise, if you want to call it that potential RICO charge that the US attorney could not say, this is a plea bargain that brings an end to the whole investigation.

There's got to be more. And you would never plea bargain somebody while you're in the middle of an investigation. That's why the whole thing fell apart.

>> Richard A. Epstein: But it's even worse than that, John. Look, the first thing is-

>> John Yoo: Worse? How could it be worse?

>> Richard A. Epstein: Well, remember, there were several serious years in which they let the statute of limitations run on tax counts.

That never happens if it's a serious prosecution. The deal is always, we will bring the suit against you before the statute runs unless you agree to waive the statute of limitations. And that was not done in this particular case. And so what happens? You're saying, well, why is it that you're giving something for nothing?

And this is something which falls squarely on the prosecutor. And instead of this being a situation where Hunter was trying to pull something over on the prosecutor. It now raises the very distinct possibility that the prosecutor or somebody in his office was in on the deal in order to create the illusion that this was a comprehensive settlement.

And that nobody would have mentioned or raised this particular point, that the judge at the trial had not done so. And so you mentioned something which is surely correct. If Weiss himself has to be under, as it were, scrutiny for what he's done, it is simply the worst thing world to make an illegal appointment of him.

And it will be an illegal appointment to become a special prosecutor when regulations say it has to be an independent person and it has to be outside the area. He is not an inside person. And in fact, his reputation is necessarily tarnished by the kinds of things that have gone on in this particular case.

And if my view of this thing, which I think is more likely than not, that essentially there was a deal, and what happened is the deal was to keep all of this silent. And then when it got blown up and it spoke, the prosecutor had no choice but to say, well, of course we can't waive all of these other operations.

But as you said, John, what you do if you're stipulating anything like this, you do not leave this to silence and chance. What you write is this is the only thing that is subject to the particular release, and all the other things are gonna be subject to very further investigation.

Then when you appoint him as the special counsel, the point here is not to have an effective prosecution that's already been botched. The point is to now allow people to say, well, since this is an ongoing investigation, Weiss is not permitted to comment on everything that happened. And so you now manage to insulate him from some kind of review by the very aggressive Republican committees in the House.

Which are trying essentially to bring down not only Hunter Biden, but also Joe Biden by showing the close connections between them. Which would essentially lead to what would be a bribery charge if you could show. And I think there's a real chance that you might be able to show this when the record is developed, that what Hunter did was acted as appointment and put out some of the money that he said were going to Joe Biden.

You need to look at tax returns. You can't obviously take this thing very casually and so forth. But if you take it extremely seriously, you ask the following question, is there enough information now not to prove guilt, which I don't think there is, but to continue investigation? I think the answer is that it surely is.

And so now you run up the other question is in appointing this man as special prosecutor or special counsel, is what basically Merrick Garland has done. Is that a form of obstruction of justice in an effort to try and make sure that a wolf committee standing at the door is not going to be able to do it?

And that then gets compounded with all the stuff about the tax agents who said that they were told by people in the central office that they could not pursue leads involving Hunter Biden. With respect to investigation of other properties and things of that particular sort. And so putting all this thing into crisis, you now have the next question.

And this is the one I would put to you myself. I think this is an illegal appointment that isn't wise. So now if he wants to bring a prosecution somewhere else, can the current judge say, as she's able to do, look, as far as I'm concerned, if that's an illegal appointment, the case is still with me.

And could a judge in California or in Washington DC, the two alternative venues, say, look, since you're not a legal appointment, we just can't carry this case. I'm not gonna hear it until you appoint somebody who's independent, of impeccable integrity. He can't pass the integrity test because there's so many questions about what it is that he did throughout this entire case.

For those of you who are curious, Charles Lipson, a friend of mine, wrote this strong article and spectated, sort of indicating some of the multiple misdeeds that started to take in this area. And that just means that you cannot be involved. There are thousands of people who are independent of this case, who don't have any legacy embarrassment.

And to appoint somebody who's in the middle of this thing, whose own conduct is in fact, under question, to give him some kind of protection, is a real abuse of authority, in my judgment. By Merrick Garland, who I will say again and again, has been the single greatest imaginable disappointment as an attorney general.

He is simply not an independent figure who has demonstrated any real muscle or integrity.

>> Troy Senik: So, John, let me have you pick up on what Richard's putting down there. So just to remind everybody, David Weiss, who's the US Attorney for Delaware, the Trump appointees left in that post under the Biden Justice Department because he was handling this case.

Then we get, as Richard mentioned, these whistleblowers recently alleging that the DOJ had tied his hands, that Weiss had said allegedly to them that he's not able to get special counsel status. Weiss denied that, Merrick Garland denied that. Then all of a sudden, last week, Garland does, in fact give him special counsel status.

And as Richard was referring to, this has been objected to by a lot of people, people like our friend Andy McCarthy, for instance, who said he doesn't fit the requirements. The special counsel is supposed to come from outside of government. So, John, on the spectrum of, on the one side, the DOJ is doing this entirely by the book.

This is as good as you could expect, given the complications of going after the son of the sitting president. Two, on the other side, the fix is in, and DOJ is running interference for the White House. Where, in your judgment, does this fall?

>> John Yoo: First, it is a violation of the regulations.

Regulations do say that a special counsel has to come from outside the government. Robert Mueller is a good example of someone who fits the regulations cuz he, I think, was maybe the finest federal prosecutor of his generation. But at the time he was appointed special counsel, he had left the government and was in private practice.

Now, the problem is that this seems to have happened before and no one raised the fuss about it. John Durham, the Durham report guy, he was the US attorney, I think, in Connecticut.

>> Troy Senik: Connecticut, yeah.

>> John Yoo: And he was appointed while he was still there. Nobody seemed to raise a fuss at that time.

The other thing is, the regulation is just the Justice Department basically regulating itself. So the attorney general could probably just say, I'm waiving this regulation or just retracting it because it's just the limitation on ourself is not actually like any kind of, I don't know. Grab for undue power from Congress, for example, cuz Congress has no role in these special counsels.

I guess my second point, these special counsels are not like the independent councils of the past. They don't really have any kind of legal protection from removal by the president. They don't really have the ability to turn down orders from the president or the attorney general the way the previous special counsels did, like Ken Starr, cuz that statute creating those independent counsels expired in 2000.

So I think this guy is not the best person because he's had such trouble with the investigation to date. I don't think that appointing the special counsel actually, in the end relieves the administration of the political responsibility to carry out a full and fair investigation of Hunter. So this is where I think the Republicans in Congress can really still make progress.

It seems to me there never would have even been a special counsel appointed if it were not for the oversight hearings that the House has been holding. That brought to light the whistleblowers, that brought to light potentially all the other things that Hunter was up to, that brought to light what President Biden had been doing.

 

>> Richard A. Epstein: Well, look, I mean-

>> John Yoo: Back to Hunter. One last point, so I mean, if that's the case that you have this conflict of interest, then that to me, the House can still put a lot of pressure on Garland, on the White House to switch and change special counsels.

People forget in the Whitewater investigation, Ken Starr was not the first Whitewater special counsel. Actually, there was a guy, I think his name was Fisk, who came before, who was seen as so meek.

>> Richard A. Epstein: Robert Fisk.

>> John Yoo: Yeah, he was seen as such a poor special counsel that they had to go back and replace him with Ken Starr.

So I think this is more politics and law, but I think this is where the house can still make progress with these hearings, is a political pressure to force a new special counsel to be put in instead of Weiss.

>> Richard A. Epstein: Look, I'm even harsher on this. This was a regulation put in place as a form of self-regulation, so I agree with that.

And I think it is firstly appropriate if somebody were to say as an abstract matter that we think this is wrong and we'd like to change the regulation going forward. But if it's in place and you have the most obvious form of self-interest for the president, for the attorney general, and for Mr. Weiss to waive it sub silentio, not even explicitly in a particular case, is a form of serious legal malfeasance.

Otherwise, it turns out the law is for thee and it turns out not for me. So if I were a judge sitting there, I would refuse to recognize this. And I would say to them, if you wish to change this kind of thing, you cannot do it as an individual opportunistic waiver.

What you have to do is to go through some kinds of procedure in which you're gonna make the change, and we're not gonna allow you to make that change retroactively to apply to this man. So I would take the very strong view that he is out of this case if it turns out there's gonna be a special counsel who's gonna be in the case.

I know this is not the statute that we had with Morrison and Olson and so forth, but it turns out if we cannot trust the Justice Department to police itself, how is it that we could trust them to do anything else with respect to what's going on? And remember, this is a very high stakes hearing.

They are defending Hunter Biden for a very simple reason. The more he has to talk about things, the more likely it is he's gonna talk about money. And the more likely is he talks about money, somebody's gonna say, who's the big guy? And somebody's gonna wanna look at the books, which they've already looked at.

So you're doing this against a background in which it turns out that there are many millions of dollars funneled through all sorts of rather strange tax vehicles which came from overseas that may well have been connected with what had happened in the Ukraine. We don't know any of this stuff.

But when this thing is hanging over, and remember, bribery is an impeachable offense. If you're trying to talk about that, then to simply say, I'm gonna keep my man in power after he's been inept at best, and perhaps collusive, on the other hand, is just a horrible mistake and it's a cover-up.

And I think the president should be held accountable for it and I think the attorney general should be held accountable for it. And frankly, I think Weiss should not take the job given the fact that his conduct as the district attorney of Delaware is one of the things that is going to matter as you start to investigate this case further.

He just has to absent himself because there's a conflict of interest if he is going to be called to account for the things that he's already done by some independent party outside the government.

>> Troy Senik: The kind of weird part about the whole Hunter Biden saga is that everyone's worked up about this case, and yet the things that have been brought into court so far are not the things that most people care about, right?

 

>> Richard A. Epstein: That's right.

>> Troy Senik: And most people don't admire the fact that he's an addict or that he may have been a tax cheat. What they're worked up about is this idea that he, at least parts of the broader Biden family, maybe, or maybe not including his father, have been making a lot of money on either the illusion of access to Joe Biden or actual access to Joe Biden.

So here's the question I have for you guys, and let's play this forward. Let's say Biden loses. This will be easier if we analyze it with him as an ex-president than in the context of impeachment. What short of showing that money actually ended up in Joe Biden's pocket, that there was actual bribery going on here, what scenarios here would constitute a crime?

Because it's always interesting to me how little the layperson's intuitive definition of corruption lines up with the legal ones.

>> Richard A. Epstein: Well, look, I mean, start with bribery, and I'll give you a tax example. One of the very early cases called Lucas and Earl was a guy earns money, and he says, pay it to my son.

And the son says, I'm gonna report it as income. And the court says, no, it's not income to you. It's income to your father. And he then makes a gift to you or some other transaction. So suppose we have Joe Biden, and he does not take a dime, but he directs it to go, on his instruction, to some people inside the family who are his close relationship.

That is bribery. It's as if he received the money and then doled it out to somebody else. He got rid of the middle step in an effort to circumvent the criminal statute. And that's a very strong kind of prosecution, much stronger than the kinds of prosecutions that Fani Willis is putting forward.

So you don't have to show that he receives the money to make this into a bribery case. What you have to do is you have to show is this thing is going forward, that he had some control over the direction, and then you have to look at every event that he engaged in to see the extent to which it was to protect the family on the one hand, or to protect the integrity of the United States.

He's obviously compromised. He's the official person in charge of the Ukraine arrangements during the last several years of the Obama presidency, and his son is sitting on the board starting in the middle, say, May of 2014, right? And so there's a very substantial overlap going on in those particular time.

And we have to assume that he puts aside his son's interest, is willing to put into place a prosecutor which will go after his son and his son's company. Or we can say, no, the prosecutor was a good guy. You have to find all that stuff out. I mean, it's not something that you can presume one way or another.

And one of the things I would do is I take Chutkan, who's already said that he's innocent. I don't know whether he's telling the truth or not. But suppose you brought him to the House committee to say, tell me, why were you fired? Is that a fair question?

John, I'm gonna ask you cuz you're the lawyer amongst us.

>> John Yoo: I mean, the bribe is one thing. The other thing I thought might arise, although I think this is another thing that the special counsel appointment helps with, is whether there was any kind of obstruction of justice?

Whether, I mean, why is it that it's taking five years to bring these charges to conclusion? Why is it that the Justice Department offered such a slap on the wrist kind of plea bargain? I mean, I don't actually buy the two-tiered system of justice argument that you're hearing people make out in the media, right?

Maybe that is a sign that something funny has been going on that's not leading to the full and vigorous prosecution of this case. Nixon didn't actually commit the crimes. He committed obstruction of justice and engaged in a cover up. And so that's actually the angle I think also ought to be pursued.

In addition to Richard's point, well, is there money? Is there influence being traded? One last thing is it's very hard. I think this is where Troy's question about does the public's impression of what's criminal versus what's really criminal align? Because I think a lot of people would be surprised to learn, actually, that the Supreme Court has been making it harder to prosecute government officials for bribery, right?

For example, we have that case in the McDonnell case, which, by the way, Jack Smith lost unanimously at the Supreme Court. Where the government tried to say, well, this guy gave money to the governor of Virginia, which was true, and he did some acts as governor that helped that person who gave the money.

Now, actually, I think that would probably be most people's view of bribery. In fact, we may well prosecute people abroad under the Foreign Corrupt Practices Act for things like that. But the Supreme Court said without a clear quid pro quo, he gave $50,000 to the governor, and the governor gave him something for that right there.

It's connected.

>> Richard A. Epstein: But the government can't have opportunity to speak to somebody else.

>> John Yoo: If you don't have that, then you're not. Well, it's not criminal.

>> Richard A. Epstein: Yeah, but what happens? The question is here, what did come to Biden? If it's money, then, of course, I think at this particular point, he's not accessing the way it was.

I mean, I think you're correct. If it turned out the only thing that you can show, the only thing that you could show is that he had friendly calls with people and nothing followed from them. You might get yourself within the confines of the recent Supreme Court case, but I think if it goes much further than that.

 

>> John Yoo: Let me make it even harder. So suppose everything is true, what we know about Burisma. So Hunter Biden goes on the board of Burisma, he gets paid, whatever, $600,000 a year. He has no experience or knowledge of the energy industry. Roughly the same time, Vice President Biden puts pressure on Ukraine to fire a prosecutor who's going after Burisma.

 

>> Richard A. Epstein: Who he says is going after Burisma.

>> John Yoo: Yeah, no, I'm just saying suppose that's true. So even then, I'm not sure that the Supreme Court would say that is covered by our federal criminal laws because you need to show some, again, some kind of quid pro quo, a direct connection between the money coming in and the favor going out.

I'm not sure that's met here, but that's why we need more investigation, obviously. I mean, there's a lot of facts we don't know about.

>> Richard A. Epstein: You could not prosecute at this particular point in time on the strength of the evidence that you have. But you could certainly ask lots of hard questions about it which need a more thorough investigation.

Talking to Chutkan would be one way to start. I mean, I've seen the tape in which he says it was absolutely a put up. I don't know whether to believe him or not, but I certainly don't know. Take it as a matter of faith that you don't believe him.

The way in which Biden described this before the Council on Foreign Relations is, well, I got rid of that guy. And when he told me, you don't have any power to do this, I'm gonna go back to the president. He says, go back to the president. But remember, what he didn't say is, I think you ought to change and do it through standard processes.

He says, either he's out of here within the next 6 hours, or I'm going after you. And that is a very different request than saying to somebody, we want you to investigate what's going on. And remember, Donald Trump was prosecuted, impeached for going too slow on an aid package that was given to the Ukraine, right?

And that's right within the heart of the presidential powers. And this is a case in which there's a potential issue of improper interference in the internal affairs of a foreign government. Again, nothing is proved, but there's nothing, in fact, which stops the inquiry. And at this particular point, that is all that is at stake in this case.

And what the Democrats are trying to do is to insulate the hunter Biden issue so that nobody will investigate things that relate him to his father.

>> Troy Senik: Here's my exit question for you guys. Put aside the age and health and cognitive abilities, or lack thereof, of both Donald Trump and Joe Biden purely on the analysis of the legal challenges around them.

Which one of those men is most likely to be knocked out of contention for the presidency before election day 2024? By knocked out, I mean forced to not be on the ticket, forced to see.

>> John Yoo: Trump, because, because of the legal stuff, not because of bad health.

>> Richard A. Epstein: Yeah.

 

>> Troy Senik: Yeah, correct.

>> John Yoo: Yeah.

>> Richard A. Epstein: I mean, with Biden, we're talking about, what are we supposed to ask, with Trump we're talking about four prosecutions, so.

>> John Yoo: And more and possibly more to come.

>> Richard A. Epstein: Yeah, well, I doubt that.

>> John Yoo: No, there's other states.

>> Richard A. Epstein: John has always got another 2,000 district attorneys in his back pocket.

 

>> Richard A. Epstein: I mean, I agree with that, but I think, in effect, that Trump is ahead of the curve. And I think he's gonna be massively disrupted in the way in which he tries to run his campaign. And who knows whether or not the straw will break the camel's back if there's another revelation of serious impropriety that even his friends can't run.

And so I think that the Biden people are ahead on that particular derby and are likely to remain so for the next 14 or 15 months, and that's when the election takes place.

>> Troy Senik: John?

>> John Yoo: No, I think Trump is obviously the one is more legal trouble. Although, on the other hand, I gotta say, it seems hard for me to imagine Biden making it all the way through a grueling race.

 

>> Richard A. Epstein: Well that's a different issue, he can't talk.

>> John Yoo: Yeah, one's legally vulnerable, I think the other one's physically vulnerable.

>> Troy Senik: Okay, on that happy note.

>> Troy Senik: All right, fellas, that's all the time we have for today, my thanks to you both, as always, to our producer, Scott Emmergut, and to all of our wonderful listeners.

Remember, if you wanna send Richard and John questions for the next episode, you can send them to lawtalkqa&a@gmail.com. Also, remember to do us a favor and rank the show wherever you get your podcasts. We'll be back with you soon. Until then, Faculty Lounge is officially closed.

>> Speaker 4: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition.

For more information about our work or to listen to more of our podcasts or watch our videos, please visit hoover.org.