Boxes In The Bathroom: The Trump Indictment Unpacked

>> Tom Church: This is The Libertarian podcast from the Hoover Institution, I'm your host, Tom Church, and The Libertarian is Professor Richard Epstein. Richard is the Peter and Kirsten Bedford Senior Fellow here at the Hoover Institution. He's the Lawrence A Tisch Professor of Law at NYU and is a senior lecturer at the University of Chicago, and Richard, boy boy, today we have a lot to discuss.

Yesterday, former President Trump was arraigned in Florida on 37 criminal charges, including 31 counts for willful retention of national defense information. And six other counts, including obstruction, withholding documents, corruptly concealing documents, scheming to conceal documents, and making false statements to the FBI. And where do we start here?

I think we should go over the facts of the case to set a baseline and then go from there. So, if you've gone through the indictment, it's quite the read. As alleged, as laid out, it starts with the National Archives asking for documents from former President Trump. Former President Trump sending back some documents, in those boxes included classified documents which made national archives refer that to the Justice Department.

That's how we got an investigation, a grand jury asking for more documents in May of last year. At this point, as alleged, the Justice Department contacted Trump, said you need to send any more classified documents. At which point, Trump and his co-conspirator, in this case, co-defendant, I suppose in this case, co-defendant, apologies, his body man.

Trump asked the body man to move boxes so that his attorney, who was coming to look through the boxes, wouldn't know that there were another 67 or 70 or so. The attorney shows up, looks through the documents, looks through the boxes, finds a bunch of classified documents. Sends those back to the FBI, attests through another attorney, even that a search is made, this is everything there.

Apparently, the FBI got surveillance footage of the boxes being moved in the first place. And so, that led to the raid and finding all of these documents. Now, that is the case when it comes to willful retention of these documents and the scheming. They also lay out and print two recordings of Trump showing classified documents to people without security clearances to add on and throw on the espionage charges.

So, that is the case as laid out, are there any viable defenses here for former President Trump?

>> Richard Epstein: They're going to try to raise them, but as I look at this particular indictment, I come to the conclusion that there are really no substantive decisions that he can make to defend the particular behavior in which he has engaged.

Trump is the kind of guy who loves to live dangerously, and if he's not getting close to flattering the law, he feels sort of unhappy about the fact that he's likely to be neglected. In this regard, He's a little bit like Bill Clinton, whose papers were also subject to litigation, in which Clinton, when he sensed danger, was at his best, and when he wasn't in danger, he kind of was bored.

But you start looking at all of this stuff and you say, well now, what are the things that you can do that are wrong? Well, one of them is it's generally not a good idea to lie to the FBI about what it is that you've done and have not done.

Generally, it's not a good idea when you say you're gonna return all the documents to the government and not contest their claim for you to secret out some 70 boxes to move them somewhere else in the hope that they'll be missing. What you have to do, at least at this point, to worry on this part of the charge, is what both Biden and Mike Pence did.

Which is to have somebody who's neutral go through all these documents as fast as you can and get them back into the hands of the government. That may not answer the charge as to whether it was improper for you to take them in the first place, but what it does gives you a huge fact on mitigation.

And facts like that on mitigation after cooperation is achieved, often leaves government officials to say, this is not a big enough deal at this particular point, we'll let it pass. But the moment you start to conceal something which you should have never had in the first place, it sort of amplifies the charge and makes the government even more zealous to go after somebody.

And Trump has put himself into that kind of position, so the obstruction charge is actually within the classical definition of obstruction. You know that the government is coming after you, and you do is you take acts in certain kinds of contexts which make it more difficult for the government agents to discharge their job.

And you could see why it is that it's a non-political offense, and you can see why it is that this is an issue that constantly comes up across all sorts of cases. Because people, when they think they're in danger, will often try to conceal the evidence that would commit them.

So, I don't see any particular way in which he can get out of that. The question about the espionage is a little bit trickier on this situation. What did he reveal, and how dangerous was the fact of revelation? I think the government has gone a bit too far when they said that Trump, with all of his various antics, put the security of the United States into very, very serious danger, I don't think that that's true.

I mean, in order for this to have been the kind of danger, the stuff would have to be things that you could get at easily without having to break down the premises. And that means it's stuff that's gonna be kept online in digital form, in which the hacking of a particular instrument and so forth could let you unload huge amounts of stuff.

That describes to a tee the situation about Hillary Clinton's unauthorized user of a private server to do all of her official district in which to be connected with everybody in government, she could easily have been connected with everybody who wasn't in government, who wanted to take those documents.

And what would happen is it would be very unlikely that somebody who steals the documents from her files is gonna come forward and say, ladies and gentlemen, we'd like you to know that we had the keys to the Hillary Clinton. We stole a lot of documents, congratulations to us, when people steal documents, they keep the fact of theft secret.

And so, under those circumstances, if you can't find any particular case, you sort of go to background probabilities and say, with a poorer system, what's the likelihood that a foreign agent will find a way to get to it? And the answer is extremely high, and so that case is one of real danger.

In this case, he took two documents out and say, hey I'm the big guy, I have them on campus. But it's clear that nobody actually read those documents to do, whether they were relevant in any way, or transmitted them onto any kind of a third party. So, that is a kind of a showboat antic, it's certainly illegal.

And is a perfectly sensible prophylactic rule for saying, we don't care whether or not there's actual harm, we wanna nip in the butt all the kinds of crazy practices that people will engage in. So, we don't have to deal with document leaks of the sort that we've had all two times with the Wiki papers and everything else that starts to come up.

But do I think it was a serious, serious danger? No, if it was the only thing that you had that he showed documents to two guys which they didn't read and didn't transmit, I would not think of that as being appropriate for the espionage camp. What's happening here however is, you see, synergies are starting to take place.

Or what the administration's going to say, given all the other stuff that he does, we can't indulge in favorable premises or assumptions about this to make him look better in his own eyes and in the eyes of the world. So, we're throwing all of those things in, now mind you, even if they lose on that, the stuff which they have on concealment, movement, obstruction of justice, and so forth is still a very, very potent set of stuff that it's gonna be hard for him to do.

I don't regard myself as a full-scale criminal lawyer, but I don't think that's of much of a disadvantage in this point, because we're in such novel territory. I think that everybody who's looked at the indictment says in the most obvious fashion, this is not Alvin Bragg doing his work.

The Bragg indictment was a joke in terms of its legal constitution and so forth, because it didn't have a narrative. It didn't even tell you the statute that was being violated, this is a pretty detailed and kind of excruciating kind of revelation about how certain guy just loves to live dangerously.

And so, the effectiveness of this particular indictment is that it gives a coherent narrative, right, which will play very well before a jury. Now, so I think in effect, if I'm looking at this particular case, and that the issue is simply following from this case forward by standard devices, I don't think there are any defenses.

I could talk about a couple of them that have been raised, but I think it's the political dimension that's much more explosive in terms of what's likely to happen than the legal dimension.

>> Tom Church: Well, let's get on to the political dimension, or even the political discussion that's gonna surround this case.

We have to mention and talk a little bit more about the Hillary Clinton case cuz many people will say we didn't prosecute her, so we shouldn't prosecute Trump. But as you're taking us through this, it seems like Clinton's case was more in line with access to classified materials, maybe mirroring Trump showing someone classified materials, but we can't demonstrate that harm was done.

But the Trump case has these additional scheming to conceal documents, obstruction and the rest of it. So politically, what do you think, is Trump gonna try and make a political argument and hope that saves him in court?

>> Richard Epstein: Well, he may try to make a political argument, but he won't make it in court.

First of all, I want to disagree on the Hillary stuff, when you destroy 32,000 documents saying they were all stuff about Chelsea's wedding and so forth, and nobody else gets a chance to give an independent look at it, that's obstruction of justice, because you're doing it much more difficult.

The other things, for example, she did give stuff to the government, and she didn't give it in its original digital form, what she did is printed it out and gave the documents to them, at least that's what I believed happened. Now, if that's what happened, paper documents are much more difficult to trace and to collate than are digital stuff.

Because you can't run all the online searches that allow you to link disparate documents together by finding common words, common addressees, and things of that particular sort. And when Comey said that she was not responsible, he gave a definition of mens rea, which is not used anywhere in the law.

He said, which was probably false, she had to believe that she was breaking the law when she did that. Well, Trump certainly did that, which is one of the reasons why this case is so extravagant, but that's not the test. You are schooled in this stuff, the day you walk in there, you are presumed to have knowledge of this particular code because it has been told to you, is the condition of the job.

The only question you have to ask is, did Hillary Clinton know that that makeshift server that she had in her own house, was that thing a legal place to do business? And the answer is, of course, she knew that it wasn't, so we've got all the mental state that you need.

I regard her case as much more serious than his case, because if you're trying to figure out what the likely harm is, I think that moving physical papers around inside your own Mar a Lago establishment is offensive and stupid, and makes the government's life more difficult. But I think it's very unlikely to result in any release.

And of course, the same thing I would say about Joe Biden, so long as people don't know what papers are stuffed in his garage, that's not an issue. But if you're officially Secretary of State and still in office, right, remember this is not stuff that she did after she left office, everybody's gonna be trying to break into what you are.

Even your friends are gonna spy on you if it turns out they think that there's something hard. So, I regard that as a case of harm in the sense of potential for risk, as being much more serious than this. And then you start looking at the procedures, she was given advance notice of what the questions could be, she was allowed to bring her attorney in.

Every single kind of irregularity was there, so what's Trump gonna say? He's very good at playing the baby who's been injured, and mauling and yelling, and weeping and all the rest of that stuff. He says, you look at her and you look at me, what are you talking about?

So, what he's going to say out of court is that if she's more guilty than I am, and she gets off, I should get off to. You try to say that in court, that Mr. Jones got off for murder when he had a more powerful case against them than I do, so come prosecute me, it's a dead loser.

 

>> Tom Church: Right, but it's only this level, so that doesn't even apply to Trump's obstruction and lying to the FBI.

>> Richard Epstein: This is not even the national records there.

>> Tom Church: Right, I just want to make clear that we're not talking about the entire case, we're talking about this subset here.

 

>> Richard Epstein: Yeah, but what Trump is going to do is he's not going to break it down into elements for the public at heart. He's not gonna read the endowment or not.

>> Tom Church: No, of course not.

>> Richard Epstein: He's going to say this louse got away with stuff and they're going after me.

And then he's going to sort of say, well, what did the Mueller Commission start to do, and what about the Steele Dossier? And what about these two fake impeachment trials and so forth? He's got a lot of stuff on the comparative dimension in which he was victimized, was treated incorrectly.

And I think that what really happens on the other side is they forget to make the most elementary of distinctions, which is you could desperately want Trump out of office, as I have done since the day he got into office, as you well know, said it publicly on this show.

But it's one thing to say the guy is unfit to be president because of his character and temperament, and it's another thing to say that he committed various kinds of criminal offenses. Now, this time I think he did commit criminal offenses, and so you have to change the rules, but I think the other cases were a situation of vendettas.

And what he will do is he will make sure that the public confuses all the issues and say, this is just the latest chapter in a vendetta that is against me by the liberal establishment, the left wing, or whatever it is. And my sense is he will do very well, because there are two principals at war here when you try to win the rhetoric, right?

One is the one that the Democrats and the government start to do, it says, no person is above the law. To which the answer is, no person named Joe Biden is quite clearly above the law. No person named Hunter Biden is above the law, who are you kidding?

What the Justice Department does, and they don't have to be told to do this by Mr. Biden, is they're slow walking every investigation of a Democrat. And they're basically putting this in the hands of the most competent prosecutor they could find to go after me. So, they're gonna call this a case of selective prosecution, and the Democrats are going to start saying with this noble rule of law stuff that they are simply carrying out God's command, they are hopeless agents.

They have no discretion but to commit this particular guy because of all the terrible things that he's done. And of course, they do have some discretion if they wanted to. Now, there are other things that have to do with the National Records Act that we could start to talk about, but that's all gonna be inside baseball.

The way in which this game is going to play out in the popular press is the Trump people are going to basically talk about the victimization right and the selective prosecution. And every time you get another stuff coming out of Jim Gordon's committee about Hunter Biden and how his investigation has been sidetracked, about how nobody has asked the president to turn over document, it's going to add fuel to that fire.

And it turns out he's been gaining support, my view is, what's happened in this case to get it right, is that there are many more people who were Trump-like who are supporting him, and the people who are anti-Trump are going absolutely hysterical. And so, you're gonna get more anti-Trump people coming out of these antics.

Read the New York Times this morning with Thomas Friedman and Brett Stephens. And they sound almost crazy in the level of intensity that they bring with respect to this case. Not because of the guilt and innocence stuff, but because of this funny question of what's the magnitude of this particular harm relative to other harms that have happened, so there's no sense of balance in terms of the relative question.

And I think, in effect, that's gonna discredit them in the eyes of a very strong Trump supporter. I gather there were a lot of people at his rallies in Miami after he'd gone through the arraignment and so forth. And so, I see the worst of all possible worlds, every time he starts to speak, he will both gain mortal enemies on the one hand, and ardent supporters on the other, and this will lead to a more divisive public situation.

And so, they questioned for the prosecutor, who's a skilled guy, he says, ladies and gentlemen, we're gonna put this jury, and we're gonna put it under lock and key so they can't get anything other than the baseball scores. Because otherwise they're gonna be influenced, and the secret's gonna be if you can basically isolate the jury in that particular fashion by putting them under lock and key.

It seems to me that Trump's gonna have a hard time to win in the courtroom because those people are going to be essentially emulated unless he makes the argument. There's been so much going on about so much of these things for so long, I can't get a jury anywhere in the United States that could be fair to me.

Now, Dade County is a funny place cuz there are a lot of very strong people there. The very powerful governor who has said, whatever I think about Mister Trump's managing peccadilloes, I'm not really in favor of this particular prosecution. I don't even know whether he's getting a good or a bad jury, because I think the jury is likely to be the same fractured state as the general public mood, and jury selection is obviously going to be key.

So, what we have is a bunch of uncertainties about this, which will increase the viewership on all major networks, but will make the country a more dangerous and less stable political environment than it previously was. There is a part of me, it's only a part of me, and I don't know whether it's the bigger part, which is I'm just so sorry that this thing has taken place at all.

Trump is a terrible human being for the way in which he behaved, but the prosecution only takes a bad situation and makes it worse, which is I think what the position at the Wall Street Journal took on an editorial this morning. They savage Trump, and rightly so, made him his own worst enemy and weren't sure that you should prosecute the guy who committed these absolutely stupid and inexcusable errors of judgment, just bonehead plays from start to finish.

 

>> Tom Church: A few more questions for you, Richard, I'd like to go a bit long today on this.

>> Richard Epstein: I wonder why, I wonder.

>> Tom Church: I wonder why, there's a lot to talk about, right? Small issue, not a lot of coverage I'm seeing on, is on his codefendant, his body man, last name Nada.

I mean, if nothing happens to Trump or I don't know, this doesn't go through, do you think he is going to prison no matter what? I mean, he seems like he's in quite a hard place.

>> Richard Epstein: Well, I generally do not like whole conspiracy camps to be against the underlings who are service.

I mean, let me give you the most obvious defense, the president told me he wanted me to move the box from one place to another, he says, but I didn't know they contained classified information. And so, I'm not a coconspirator cuz I don't have the requisite mens rea.

And then the answer could be, wait a second, for God's sake that can't possibly be true. You've been talking to this guy day in and day out, so you knew exactly what was going on, stop with all this bunk. Well, at that point, you start getting factual disputes, testimony, and all sorts of things.

They could have named him as a coconspirator and not indicted him, it's a single count, my guess is what they're trying to get him, is we'll give you break in the sense, or maybe let you off, but what you have to do is to tell us everything you know about Mister Trump.

So, that you can intensify and strengthen the loose parts of whatever it is that we have in these papers. And the way in which you defend these things is you gave a very long introduction about the sequence of events. What you do when you're a defense lawyer is you become a splitter instead of a lumper, which means that you take any chain of custody issues, and you go by second by second, trying to figure out where there's a chink or a break in the situation.

What the plaintiffs always do is they lump things together so as to make it appear this guy helped Trump conceal his particular document, as opposed to saying on January 1st, he picked this box up and put it in that room. And this is a constant style, all the case, always whether it's tort or criminal law, who wants the synoptic view, and who wants to take it step by step.

And so, that's the way the defense is gonna try to work on this. Whether there's anything there when you do it, I don't know because one of the risks of this particular defense is you find 52 links and every one of them is solid. Then it turns out that oddly enough, the defendant, by going through all this stuff, link after link after link, makes the plaintiff's case more credible because they haven't been able to break it in any given area.

So, it's always a very tough question to know how hard you go on somebody, to put it to you another way, since I've never done a cross examination in my life, so I speak with complete confidence on this subject. Well, but it does, is you try and destroy somebody in cross examination, and they answer every one of your questions, you're worse off than if you never cross examine them at all.

You can see why, right? At the beginning, it's all friendly stuff, and the prosecutor, the first guy who's doing it, leading him through, it's a friendly situation. Then the cross comes, and this is designed to destroy you. So, if you're a juror, you're gonna listen much more closely to cross examination with this conflict than watch some drone on in happy harmony at the opening argument.

And so, if you destroy somebody, they're destroyed, but if they withstand all that kind of stuff, what's happened is they survived an ordeal by fire, and on all likelihood, they will be better off than if they had never been cross examined. So, all these guys who spend their time doing this, they may not theorize it in exactly the same way I do, but their instincts are so heavily toned that even if they can't articulate the grand principles under which they operate, they tend to conform to those particular principles because they're so good at their job.

It's a classic case where you do something a thousand times in a row, whether you know what you're doing or not, eventually you become very good at it, or you get bounced out of the profession. So, if you manage to last through 500 trials, you're a good trial lawyer, and I think that's one of the things that's gonna be there.

There are a lot of uncertainties going up and down the line on this, and so you could see what the trial strategy are. Smith wants to sequent to these juries, put them out there in a dark room, and only talk about these cases. And Trump is gonna desperately try to bring it into the popular view and to say, you wanna go after me, what about Hunter?

And he's got a point there, they sidetracked the Hunter by new examination. This thing will never get out under this current administration, and I think everybody kind of knows that. And so, the argument is that Biden is sitting back there, he's not telling his attorney general what to do cause the guy already knows what to do.

He appoints an ace prosecutor and he's hounding my man. And he can say that anytime and every time he wants to the general public. And that's gonna, in the few, obviously influence perhaps the way in which people put on the jury are gonna think about this case. So, there are a lot of wheels within wheels that can take place, we've never been in this situation before.

And now we'll see whether as a Nazi nation, if we grit our teeth, we could get through this, and whether we could get through it before the election, again, who's the trial judge, and what the pace is, and how much brady discovery you have to give under these things.

It's gonna be very heavily contested.

>> Tom Church: I wanna ask about that, that last part, just a few more questions for you Richard, cuz I'm looking at the indictment at the end. It suggests this case will take 21 days for the parties to try, it's fascinating to read a precise estimate there.

Do you think we're going to have this case argued in court before the election next year? And do you think it matters that Eileen Cannon was appointed by Trump and had her earlier special master case, overturned and taken away, well, overturned, taken away.

>> Richard Epstein: Well look, I mean they said 21 days to try.

 

>> Tom Church: Yeah, so how long does it take to get there?

>> Richard Epstein: But they didn't tell you, now, how long is it for trial preparation? How long is it for free trial motions of one kind or another? One pretrial motion which may or may not be brought is, does the prosecution said Miss Cannon is hopelessly compromised, not because she was a Trump appointee, there are many Trump appointees who are quite independent.

If you recall, when the Supreme Court had to face most of his election charges, there were many people who said, Amy Barrett, she can't possibly sit on this case, she was just appointed by the guy, right? And she rightly turned all that stuff down, and Trump did not have a lot of success, in fact, some people thought he should have had more success than he did.

But the Supreme Court just didn't want to take it, particularly on things having to do with the Pennsylvania recount and stuff like that. And so, I don't think that's gonna be the issue, but I do think in effect, that it's a much more serious issue because I think she clearly blew it on the question of whether or not she was entitled to prescreen the evidence before it was turned over to the prosecutors.

The correct procedure I think, in all these cases is the prosecutor gets what it wants to see, and then you could bring a motion to suppress if you think that the stuff that they want to put forward is not admissible, and then you have to explain why it is that you are making that particular claim.

The general rule in evidence is whatever is probative and relative and not precedential is admissible. And various kinds of defenses have to be made for particular causes as to why it is that there's some statute which precludes, for example, the use of certain kinds of evidence in certain kinds of cases, or an unreasonable search and seizure kind of argument.

And that's the correct criminal procedure, well, she didn't follow it. So, they're gonna say, well there's smoke, there's fire, she's gonna do the same thing again. Then, of course, they didn't talk about the appeals, right? Those things take afterward, so I mean, if what happens is they find a guilty verdict, she then takes say, three weeks to figure out what to do on the sentencing stage of the crime.

Decides to impose a sanction, he decides to file notice of appeal on both liability and on sentencing and all the rest of that stuff, that could easily take several months to hear, even if you try to put it through a really fast ragtime, you can do it. You remember Bush v Gore?

What they did is they had this set of issues, and they managed to give each side 24 hours to write a brief, or maybe it was 48, and they got it done. Nobody who looked at the brief and said, my God, this is just scandalous work. And so, they got this thing done, I guess it was on December 5th, 2000, just before the delegates were supposed to meet to cast the electoral votes in some particular fashion, they pushed it.

And my guess is there'll be extremely strong pressures to put this, it's possible for example, that they might even eliminate the intermediate court, and go straight to the Supreme Court. Don't ask me how that's gonna happen, I won't have a confident way to say it. But I mean, when you start having exceptions there, there is a general sort of tort or principle of law, which is circumstances of necessity often justify a suspension of the standard rules of property rights, and the standard rules of civil procedure, right?

So, for example, one obvious such rule is everybody in a particular case is biased in some sense because there is a common issue applied to all of them. And so, does that mean that nobody could try the case? No, the rule is, normally if we could get rid of one person and put somebody else on to avoid the bias issue, it's fine.

But if there's a necessity that this person sits, then this person sits. And it was Chief Justice Rehnquist who was extremely emphatic about the importance of that rule so that he could maintain a quorum in these various kinds of cases, and what do you do? Well, you ask people to disclose what it is that they have going on, if they think about it, or you just tell them look, take an extra deep before breath before you decide this case, because everything is gonna be under a patina suspicion of one kind or another.

So, we want you to do extra stuff, does it work? I think the answer is, for most justices, it's yes. If there were Justice Trump on the court, I don't think you would assume that he would be able to take that stance given the way he's behaved in politics.

But most judges, I think, are basically judicial. And so, the position that is taken by Rehnquist is, I think, for the most part, the correct position. And I'm not aware of anybody who's ever decided that the bias principle cannot be overwritten by the necessity problem.

>> Tom Church: Last one, Richard, and you're gonna love this one.

I need you to make a prediction, will former President Trump get convicted? If convicted, would he go to prison, for how long? Or do you think re-bargain, do you think it gets dismissed? Do you think President Biden shows up and says, you know what, I'm gonna be forward, I'm gonna pardon him, and we're gonna not have this issue anymore?

 

>> Richard Epstein: Well, what you've done is put me in the worst possible slot by giving six different probabilities, I have to guess which of them is bad. I don't think that there's gonna be any negotiated peace between the president and so forth. I don't think that Garland is gonna get involved in this case in a direct way.

I believe he has constant supervisory determinations over Jack Smith. But if you then start looking at who appointed this guy, well, it was obviously Garland. Has he written an indictment which you would say means that he flunks the brag test? No, he hasn't done that, and so the smart move for Garland is to stay out of this case, the smart move is for Biden to stay out of this case.

And so, I think that settlement on any terms is highly unlikely, then the rest of it is gonna determine on the extent to which you could cord this off from the rest of it. And here, my guess is that the Trump stuff will have a lot of effect in sort of popular sentiment.

But if the administration plays it right, they will simply not try to answer any of those issues and will try to get this before a sequestered jury on with relatively limited access to the world. And if I were a jury sitting on this stuff, we haven't talked about all the issues, The Presidential Records Act and so forth.

I think wholly without regard to any of that stuff, there's enough here to convict him, I don't think it's gonna last for 50 years. But the guy is 77 years old at this particular point in time. And so, I think to say that a criminal sentence for Donald Trump is possible, and then it gets really hairy because you remember who Eugene Debs was.

 

>> Tom Church: I do, ran for president from jail.

>> Richard Epstein: From jail.

>> Tom Church: I don't know whether in the 1920s, the socialist, right?

>> Richard Epstein: Yes, he was a socialist, fire brand, and so forth. And essentially, it was Woodrow Wilson who put him behind bars, right? And it was Warren Harding, the most underrated president in the United States, who on the advice of his rather dubious attorney general, Harry Dougherty, pardoned him, right?

And there's always this naughty issue about which I wrote many years ago, could Trump pardon himself? And the answer to that problem is probably yes, but it's fraught with political difficulties. But now, you really wanna do this, Mr. president, you have to meet with the foreign minister of the following country.

We'll arrange somewhere in your jail cell where you can start to do that, right?

>> Richard Epstein: I mean, you have to go overseas in order to attend some kind of a meeting or a funeral, whatever. You can't run the presidency of the United States in jail, and so you would want him to be pardoned.

You would want, if he won the election, you'd want Biden to pardon him because they gave their best shot. Then, in effect, can you impeach him, right?

>> Tom Church: Right.

>> Richard Epstein: Well, these were not acts done while he was president, is that gonna be relevant? I mean, if you remember, we had these long debates about what impeachment was about.

And then you look at the statute, and I'm just gonna mention briefly, the House has sole power of impeachment. Now, what can you impeach people for, right? And there's this large debate, it is not restricted only to cases of high crimes and misdemeanor. That's in the sanction section, not in the prosecution section.

And so, if you convict the president, he can be removed from office and no further. But if he is convicted of something, they don't have to remove him from office, but you still have to have a trial before the senate, right? And the senate is essentially judge and jury in this case, and there's no appeal to the Supreme Court whatsoever.

So, that it's a completely self-contained process, who knows what's going to happen? And we do know that there are strong cases for saying maladministration is a ground for removing somebody from the president's office, but it has to be of a pretty deep variety. Basically, it would have to be at the very least, it's a subversion of public trust of one kind or another or dealing with respect to foreign governments.

So, if you take something like the Joe Biden case and assume all the allegations are true on how much money he and his family received from the Ukrainians in order to, shall we say, grease the skids. Those allegations were true, they were done while he was vice president under a previous administration, would they be impeachable now?

Or could you only impeach him for stuff he's done while in office? And then could you argue that concealment is that, one of the things about this, the constitution does a very fine job in setting out, in very brief terms, the first and second alternatives for every single problem that you face.

But when you get really complicated cases, the circumstances are so unforeseen, and that there's going to have to be a lot of fast dancing in order to figure out where you go. Because all the questions of when you committed various kinds of acts is something which is not covered in any of the areas.

And so, if you recall, when they tried to impeach Trump the second time, the Chief Justice refused to preside. He says, I preside over impeachment trials of the president of the United States, and Mr. Trump is not president of the United States. And then that got into other problems, who should preside then?

Well, as the president pro tem of the senate, so you now get a bunch of Democrats, right, presiding over the senate in an impeachment of a Republican, Kamala Harris. It all becomes very, very troublesome and so forth, and so my view is, I do think he will be convicted if this thing is allowed to go its full course, I think it's more likely than it will.

I think, in a sense, that Smith knows what the right strategy is, which is to put the blinkers on this particular thing and hone down on his particular narrative. I have not seen anything by way of a substance defense, including various arguments about the Presidential Records Act. Which is relevant to a case which depends upon obstruction of justice in many cases, concealment, lying to the FBI, and so forth.

Even if you own the papers, you're not allowed to do any of that stuff. And so, I think that the argument that somehow or other he owns the papers is going to be a non-event as this trial ultimately comes to its final conclusion.

>> Tom Church: You've been listening to the libertarian podcast with Richard Epstein.

As always, you can learn more if you read Richard's column, the Libertarian, which we publish@definingideasover.org. 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. For Richard Epstein, I'm Tom Church, we'll talk to you next time.

 

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