Richard Epstein reacts to Donald Trump being found guilty on 34 counts in New York State and lays out the likely appeal strategy by the former president.
Transcript
Tom Church: [00:00:00] Welcome back to 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. Here at Hoover, Richard is the Peter and Kirsten Bedford Senior Fellow. He's the Lawrence A. Tisch Professor of Law at NYU, and he's a Senior Lecturer at the University of Chicago.
Richard, how are you?
Richard Epstein: Well, I'm fine. I mean, at least I'm not going to jail.
Tom Church: You're not going to jail. Well, that's the question is, will, will former President Donald Trump go to jail? Because we're recording this. moments after Donald Trump was just found guilty on all 34 counts of falsifying business records in New York state.
It looks like sentencing will be on July 11th. And Richard, the first thing I have to ask, of course, is What happens next? I mean, he's out of, uh, he's out on [00:01:00] bail right now until July 11th. We have a presidential debate coming up, I think, June 27th. So legally, what's going to happen next?
Richard Epstein: I think legally, if he's released on his own recognizance, nothing will happen.
Uh, what happens is the lawyers will be preparing furiously to make their various presentations about the severity of the sentences. One of the things that I think will surely come up about this is why is it that there are 34 counts? Um, this was one program in order to, uh, try and, uh, influence the election according to the prosecution.
Is each separate check an offense worthy of a sentence of four or five years? Um, do you really think that for something like this, which for everybody else would amount to a 200 fine, you could throw a guy in sentence for a period that would long exceed his life. And I think that there will be a lot of attention paid to that particular issue.
I'm saying in effect, when you think about the sentencing, you cannot basically think about these as separate charges. I think another thing that they're going to start to worry about is that these are all blind [00:02:00] verdicts. As you look at the. ballot. They simply say count number one and they check guilty, guilty, guilty all the way around.
Uh, you have no idea, for example, of what was the felony that they were trying to aid. Um, Marsha and didn't give them any instructions with respect to that. And so we don't know the answer. And so I think what's going to happen is there's going to be a strong effort to say, Um, given the sentences that we you could impose and the instructions that you give, you have to be on the white side.
So essentially, there's going to be a twofold strategy on this. The defense will argue, given the extraordinary nature of the account inflation, when you do the sentencing, you have to take that into account. And then separately, they will say this whole thing was invalid from start to finish. And you have to grant some kind of a new trial.
Um, I. I think the probability that Marsha and will give a new trial, which means that he would have to find his own instructions defective is highly unlikely under these or any other circumstances. Uh, so that everything is going to go to the sentencing. [00:03:00] Uh, but Trump is now 77 years old and suppose what they do is they cut the sentence down from 40 years to 12 years, right?
It's a life sentence for pretty much a life sentence in any event under those. And the whole thing I think is kind of a, it's a bit of a scandal that they allowed them to get away with this. Uh, I think if you look at this from a global perspective and ask the following question, which of the motions or the requests that were asked by the defense on anything other than tiny procedural issues were granted throughout this trial?
I think the answer would be there were none that were ever granted on every major point of contention, uh, including exclusion of major witnesses like Brad Smith, Who is going to testify that the election law violations they wanted to talk about worship era. I like to give you about one illustration.
This could not be an illegal campaign contributions on the Buckley v. Vallejo, a 1976 case. It is clearly understood that people have an unlimited right to make contributions to their own campaign. And if this [00:04:00] payoff was designed to essentially, uh, be a way to keep the campaign going, then Would be a gift to himself, which is not anything and it can't be a felony.
And if it's not a felony, then it can't be the predicate for what's going on here. And that I think will be one of the grounds on which the legal stuff will appeal. I mean, as I should tell you, I'm not a full time criminal guy. And certainly I could not bring myself to spend a lot of time watching the particulars of the trial.
And so I'm kind of flying a little bit blind on this, but you know, the kinds of people whom I generally respect on this. Um, I tend to have the same kind of view as to what is going on and that seems to me to be pretty important. Dershowitz is a very fine defense lawyer and he starts to do it and there's the fellow from Washington University, Jonathan Turley, I guess is his name, who's also very good on this stuff.
And they start to say that. Uh, Transcription by CastingWords I could assure you the bluebirds will be out on the other side, my colleagues and Andrew Weissman and so forth. I'm sure we'll speak very strongly in [00:05:00] favor of keeping this going. But it's to me, uh, I regard this as a sort of a longterm scandal and, uh, you've sent an ass.
Well, what's going to do the election? I, And, and the polling, I think it will probably help Trump, at least in the short run, if he could persuade people that these are utterly bogus verdicts, a selective prosecution, something which normally nobody worries about years later, resurrected after other prosecutors have decided to turn it down.
Um, I think it campaign off of that. And, um, the contrast between him and the gentle treatment of Hunter Biden today, I think will be fairly clear. So all in all, I mean, my sense is that there is no clear evident immediate direction, will know more in 24 hours when they take the polls. But if I had to make a guess, I think he'll probably increase to some extent his tenuous lead in the presidential election.
What is most striking about the [00:06:00] election are the number of people who are now saying, I never could have thought that I would have voted for Trump, but I'm turning over and voting for him now. Not because I like the guy, but because the other guy is so much worse. And there's nothing about the Trump verdict, which improves the performance of Joe Biden.
And there's something about the Trump verdict, which says, uh, even though he's a president and not a New York state official, Uh, he's lent people to the Brad campaign, and so he's implicated in part in this, and so people will say that, uh, the real corruption is in bringing the case, not in having lost it.
And so that could change it. The key thing to understand, Tom, in this free association. Is that the variance is extremely hard, um, that is, you could see any of the extremes going through because we've never been here or anything like this before. And I just do not know my own sense about this and I feel this in myself.
I see one Biden calamity after another on general policy matters. Um, [00:07:00] it's not that I think that Trump is perfect. But I think, uh, performances that range from a, in some cases down to say B or B minus is better than a consistent series of D to Fs, which is the way in which I see the, the Biden program. So this is going to give rise to the same kind of deliberation you had in 2020.
If you concentrate on personalities, at least in 2020, Biden was generally thought to be a moderate. And so he had no major defects on this. And people who thought character matter voted against Trump to the one. I think the Biden character is very much more in compromise today. And I don't think that ratio would stand up.
In fact, I think in a strange way. Uh, Donald Trump has done a little bit to rehabilitate character. His statements, for example, in his effort to get minority voters who are Hispanic or black and whatever it is on these things has actually paid some fruit. And so I think he's less likely to treat him as a demonized racist as you did four or eight years ago.
And so I think that matters. [00:08:00] If you then start looking at policy. Uh, anybody who had some modest expectations for Biden as being a centrist president now realizes that these are essentially delusional and they'll be strongly against them. On Trump, there are many things where he shares Biden preferences on populism and so forth on certain issues.
But on so many issues, there's the absolute opposite between the two of them that I think that there's enough daylight that There that I think Trump will win those people. And I think that given the fact that the personal differences between the two on styles and credibility have shrunk and the policy differences have gotten larger, I think that works in favor of Trump in the election.
So I still think he's more likely to win than not. I think it's still more likely that I will vote for him than not. Um, I kind of almost hesitate to say that, uh, but there's nothing that Biden has done in the last six months or so, which has done anything to improve him in my stature. I think he has been an unmitigated bad disaster on every policy [00:09:00] issue from C to signing C inside the United States and everywhere overseas.
And I think other people are going to have that kind of conclusion as well. So it's, it's, it's obviously. I think in some sense, it's a potential huge loss. I don't see it as being a big loss now, unless something else comes out about this, which puts it in a much darker light than it is today. So there is my potential prediction on this thing.
I think when you start to look at the way in which this happens, this verdict is all too predictable, came all too easy. It came in what was clearly a stack courtroom in a stack borough with a very partial and biased judge that people will discount all of this in a fairly sharp way. Level. Uh, the anti Trump people.
Um, no matter what the verdict was, they would be out there screaming in order to denounce him to his life. I don't expect the New York Times to have a pang of guilt when it comes to talk about this particular situation. I would expect the Wall Street Journal, which is already angry about this particular case [00:10:00] would be even more so now that it turns out you've got this uniform, um, conviction.
So my prediction is, uh, incremental changes, not dramatic changes. And the question is, what about these other election? Well, you know, going on, Mar del Lago just seems to be caught in basically a landlocked situation. Nothing is starting to move. Uh, the Fannie Willis thing is that's kind of kind of on this hold either because she's subject to attack on appeal.
And I think, in fact, the appeal challenge on the grounds of appearance of bias is a pretty good kind of effort to get them out of there. Yeah. There are these other cases in DC on January 6th with the other prosecutions and so forth. Everything else, I think the strongest case in some way is the question about the January 6th events, but the way in which they've been pleaded sort of gets the insurrection out of the case.
And so I don't see those as being major threats to anything at this time, no matter where you're doing it. But remember this, In a [00:11:00] federalist system, the prosecution gets to choose the forum. In all cases except Mar a Lago. And that shows you the one case that he's making no headway in, that is Smith, is there, he's got a Republican judge in a hostile territory.
In Atlanta, things are rather different. And in DC, they're rather different. And in New York, they're very, very different. So we will just have to wait. But my hope is that Trump will be smart enough to keep his denunciations of the outcome down to, you know, One or two a day, hyperbole, one or two a
Tom Church: day.
Richard Epstein: Well, I mean, I, you know, look, I'm a mind if this were me and I had been subject to those kinds of charges on the grounds that I tried to reach some election in the NYU Senate, right, you know, not a big thing, whatever. I would be utterly appalled. I think I would be beside myself. My poor wife would have to get out of the room because I would start screaming at the top of my lungs about what I regard as a [00:12:00] hatchet job.
And I still feel that way, that it was a very, very bad thing for them to have done. Um, and, uh, therefore, I think others will agree with this and the sort of general tide, which seems to be me oozing slowly more pro Trump. I don't see that changing. Unless somebody can persuade the very skeptical public that what looks to be a completely rigged trial is in fact the just one.
And I don't see that being made, at least until the verdict. And then after the verdict, there's also the problem. Suppose the judge comes down and says, Every count. Well, there's 34 counts. I'm giving three years to count. Well, you can just stay in jail for 104 times three and we'll figure out what that number works out to be in some time.
It's 312 years and in the 313th years we'll figure it out. Uh, it's I think it's crazy. And so the sentencing will put Martian into it. If he really goes on the high end, I think that also improves the chances after the fact of getting him knocked out on the theory of [00:13:00] bias. But all of this is very, very difficult.
Post trial motions take an enormous time to go. And then you have to ask the question, where are they going to go? Well, first, they'll go up inside the New York state system. And that system is all blue. All the way through, as we know, because we saw what happened with Mr and Warren in his case on the financial issues with respect to Trump, which I also regarded, then the question is, can you get the federal court?
Well, going in the second circuit on average is not going to help you. Can you get to the top nine? Where's 63 the other way around? I think there have been enough kinds of irregularities here. that claims of due process violations in the form of bias and suspect, um, uh, rulings along the way mean that you get a shot at having the Supreme Court look at this thing from top to bottom.
And if they do, Toby could be nine, nothing. And the prediction that I would make just speaking off the top of my head is if you [00:14:00] recall the election that they had on the insurrection charges, right? Oh, what Jonathan Mitchell was able to do is to find the one thing on which everybody could agree about.
Namely the fact that the states cannot go off on their own without congressional authorization and won the case on that so they didn't have to face the insurrection or other issues. And in this particular case, uh, the recusal motions are exactly the kind of thing. They can say you should have recused themselves and then they don't have to go into the question as to how many counts should be based upon this situation and so forth or the credibility And I do think that that's a very likely result.
That they will let him off on the John Roberts principles that these nine guys should not determine the outcome of an election. And if they shouldn't do it, then one lonely prosecutor and one very dubious judge in New York should not be able to collude with it. Turns out 12 rather dubious jurors in order to do it.
Put a knockout blow. This is a national election [00:15:00] you're trying, and we knew if the popular vote was based on Manhattan, it would be 88 to 12 or something like that. But if we're done nationwide, it would be rather close. Can the one city essentially upset a national election? To which I think the answer is going to be No, they cannot do that.
They have to do is they have to start this over. So I think there is a fairly good chance that if the appellate courts don't do it within the state system, Supreme Court will. And I think the appeals if we're starting already on July 11th for the first of them, right, which is what seven weeks away.
Right, six weeks away. Uh, you will not get this thing done before the election. And then if he's in office, my wife asked me the question, how can you serve as president if he's locked up? Well, there is. Yeah. So it's a fair question, right? Right. There was the famous Eugene Debs case where he ran from jail until he was pardoned by Harding after he lost, obviously.
In this [00:16:00] case, I think the supremacy clause is he has to take care. That the laws be faithfully executed. He's not formally disqualified from being a president. So all state laws that interfere with that execution have to be put aside, which means that he's let out of jail until the end of his term at the very least.
And I think that's probably the right result in this particular case. You cannot believe that, uh, The courts of one corrupt New York district, and I do regard this is corrupt. It's sufficient to determine the outcome for an entire nation. Um, you talk about saving democracy right from the various threats to it.
Threat number one is a combination of one Marshawn. And it turns out Alvin Bragg and his various prosecutors. Uh, and I think that's also reflected in the general polls, Tom. My guess is Tump does not lose on the threat to democracy issue or the way in which the Biden people would hope. Because there's so many things that have gone on in the Biden administration that [00:17:00] essentially raise eyebrows.
Nobody thinks that he or the Democrats are really good on those kinds of issues. They're the ones who chased after Flynn. They're the ones who put the Mueller report and all the rest of that stuff in there. Uh, it turns out they have a history of rather shady dealings from start to finish. And I keep asking people and I'll ask you the question, name me not a stupid statement that Donald Trump made.
I can see, I could find many, we could find a few of those. Yeah. Yeah. I think we could find a lot of them, but tell me an illicit prosecution that he brought against a political opponent.
Tom Church: Well, Richard, there was that first impeachment.
Richard Epstein: No, that he brought against somebody else. I'm not going, he was, I mean, the first impeachment, you know, basically trying to suborn government by exercising his discretion on matters of foreign affair, uh, with a foreign diplomat of president where has maximum authority in front of several hundred people.
That's an impeachment case. Right. Right. No, it's crazy. I mean, the whole thing was crazy on the first one. Malice before all. I can't [00:18:00] think of a single case in which he's done this. And as you know, just to put my plug in, um, I essentially have joined forces with several people in the military, uh, to attack Joe Biden on the grounds that he unceremoniously dumped people off of all the military advisory boards in a completely illegal fashion.
And I do believe that. I have to tell you, I got the stoniest reception imaginable, um, in the D. C. circuit when I argued the case on May 10th. Uh, but having gone through that hearing, I become more convinced that since they never asked a single question of the other side, that all the gaping holes in their case have to be addressed.
And so I regard that as a very serious situation in which Biden is getting away with bloodshed. Blue murder in front of a court in the District of Columbia circuit, which seems to be all too inclined not to even question what's going on in his particular case. So I mean, that's the kind of thing most people don't know about.
And I don't think they [00:19:00] really care that much about it. But it's something that I care about a because of the integrity of the system. And also because it has to understand. Is these advisory boards have been part of the American landscape since the 1950s. They've been extensively regulated in a perfectly sensible fashion since the 1970s, nobody, but nobody's ever done anything remotely like Biden's done in this case, including Donald Trump.
And now what's happening is the way it looks, the government is saying, Hey, nothing special about what we did. And my guess is that, uh, it's going to be something of a surprise if the court of appeals disagrees with him. But I think these things really do matter. I mean, on matters of procedural stuff, one's very, very upset about this.
You want some other things, I think it's utterly indefensible that you see people like Senator Whitehouse, his name is a chilling reminder of what could possibly happen, you know, essentially going forward and trying to force a disqualification Um, I think this entire effort on the part of [00:20:00] the Congress to oversee with various strategies what's going on in the judicial system is a real affront to separation of powers.
And I think it has to be resisted. So when I look at all the things that are going on, most of the really ugly things that I see are taken by the Biden administration. And I hope that that is something that the rest of the public will understand. Trump has the world's worst mouth. Um, but if you try and figure out, well, did he fire anybody from any board because they had been appointed by his predecessor in office?
The answer to that question is no. Biden goes around off with their head as his dominant mode, and he does so for reasons which flatly contradict what the statutory mandates are. These boards are supposed to be independent. Each member is supposed to make his or her own judgment as to what's going on.
And when his secretaries start to talk about what's going on, they say, well, we got rid of this guy because he doesn't share our own values. Well, the point is you want an independent advisory board, not to share his values and want them to have their own value. [00:21:00] He wants to get a set of personal advisors, like his trust secretary.
They should agree with him, of course, but that's not what this is. So going on like this and watching the way this thing has started to play out. Uh, there are so many abuses of power in the Biden administration, just to mention another. These long term executive orders on major substantive position, um, trying to dictate energy policy to 2035, uh, a disastrous proposal, but more importantly, if you wish to basically put major substantive things in place that are going to take effect after your term, in my view, you must get legislation to do it.
The president does not have that unilateral power and it's a complete catastrophe. He puts this in place and everybody who has to make a decision will say, I know this is gone. If Trump gets elected in 20 in 24 and I know that it will last four more years of Biden stays into place. So now you have to hedge your bets.
Hedging your bets is very expensive because it means developing an alternative contingency plan. [00:22:00] And I don't see any way that people could responsibly do that. So I regard this whole administration as one massive fiasco. And I don't know if other people do. Um, one of the things about it is there are many people who agree with me.
By non substantive issues that I do not, but on these issues, the using the right kind of form and so forth, the so called rule of law issues, you'd hope there'd be more consensus that a president cannot unilaterally upset structures that have been put into place and have worked basically very, very well for 70 years on the grounds that he doesn't like their current membership.
And so there.
Tom Church: And so there, I mean, Richard, at the end of the day, what we're going to need to do is look at what the polls show us following this, well, following one, the guilty verdicts, and two, following the, uh, the conviction on, or the conviction hearings on July 11th. Let me read you something, um, again, some polls saying, hey, the, the, the people who were for Trump aren't going to change.
Independents and Republicans, many have said, um, they're unwilling to vote for a convicted [00:23:00] felon. There was a NPR Marist poll. today? Yes, today. Um, 67 percent said no difference when asked if Donald Trump was found guilty. Are you? No difference. Um, more likely to vote for him? 15%. Less likely to vote for him?
17%. And again, you need to weight those, of course, by where are they actually going to vote in the first place? Did they vote for him last time? Are they changing their votes? We're just going to have to see. I mean, the real, I think most of the public is going to see this and consider it at the debate at the end of June, because if you're the Biden administration, you are bringing this up.
And so the real question is what does Donald Trump say aside from, as he said, when he came out of the courtroom, it's a rigged trial, it's a corrupt judge. We didn't do anything wrong. I mean, is there anything else to say?
Richard Epstein: Well, I think what you're saying is extremely important. If it turns out that you start to see that nothing has moved, it is quite possible that the judge, in order to preserve his own hide, will go light on the [00:24:00] sentencing, thinking that it will only enrage people further.
Richard,
Tom Church: there's, there's just no way he gets a, a jail sentence for this. Like you said, the, the judge, Justice Roberts, you know, um, rule here, don't interfere too much. I mean, if he were given six months probation, there you go. Does that, is that, is that more reasonable to you?
Richard Epstein: Well, the problem is, is he have to report back to his officer in jail when he's a president of the United States.
I
Tom Church: think he'll know where he is and what he's doing. So, yeah, but I mean, but no,
Richard Epstein: no, the point is, if you don't report, then it's a parole violation. We could throw you in jail, right? The answer is the same issue I mentioned before the supremacy. Uh, you can put whatever song and dance you want before, but can you really?
So for example, there's always this very awkward problem of what do you do in the transition between the time of the election and the time that you take office two and a half months later. And I think the right answer is you, the parole officer cannot say, you know, you're supposed to be here. And when you're scheduling a meeting overseas to deal with the [00:25:00] prime minister of great Britain, I don't think you can do that.
Um, but it's the gray areas there because it's not presidential, but I think it's close enough to presidential. And I think that every person in the world knows that before you become president, you have to make forward commitments and that those cannot be impeded by probation officers or whatever it is.
Say, well, you have to appear at nine o'clock at John Jay courtroom on September 18th or on December 33rd or whatever, um, there's no jump on, on December 10th or whatever it is. I don't think they can do that. And who knows what this man is about. But I mean, let me put it this way. What you're saying in effect is they will find him guilty of a crime that could get him into jail for what's 120 years, and they'll punish him with six months of probation.
Tom Church: I mean, let's say that he could go shorter, and be done with it, right?
Richard Epstein: Well, they can do that, or they can say a suspended sentence, or he can throw the boom. That's the problem. I think if he does throw the [00:26:00] boom, there'll be a fierce overreaction. And I think people will say, you just cannot let this madman, because that's what they will call them then, uh, determine the outcome of an election by throwing a guy in jail in the middle of a political campaign.
And I do think the Supreme Court would interfere under those circumstances. So, um, I think in the end, um, we've said all along this trial to the general public outside of Manhattan is a slight positive for Trump. And I think that's not going to change. And the numbers that you read are basically, I do the same kind of polling, but I do it in a different way.
I start listening and I say to myself, does this move me one way or another? And if it moves me a little bit to the right way, say, uh, Trump's going to get something moves my sentiment the middle to the left. So I basically do an internal psychological examination. And I'm very confident that it parallels the rest of the world with nothing to justify.
But remember, I gave you my predictions that would have [00:27:00] relatively little effect right before you read the numbers. Yep. And maybe you can find something between 15 and 17 percent that counts as daylight. I don't think you can. So I'm going to stick with my predictions under this particular situation that it's a sordid scheme and that what it will do if I had to pick an offend is the anti Trump people will become more anti Trump.
But the pro Trump people become more pro Trump and then the middle will be somewhat undecided, but we'll break about evenly. So you have a more polarized country than you have before by bringing a trial that never should have brought at all.
Tom Church: And on that happy note, let's finish up with the Libertarian podcast with Richard Epstein.
As always, you can learn more if you head over to Richard's column, The Libertarian, where I imagine he might be writing on this very topic next week. We host that column at hoover. org on defining ideas. If you found this conversation thought provoking, please share it with your friends and rate the show on Apple Podcasts or wherever you're tuning in so that others can find it.[00:28:00]
For Richard Epstein, I'm Tom Church. We'll talk to you next time.
VO: 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 podcast or watch our videos, please visit hoover.org.
