Fake Electors, Real Consequences: Trump's Newest Indictment

>> Tom Church: Welcome to the libertarian podcast from the Hoover Institution. Today we're discussing the most recent indictment of Donald Trump, covering his actions leading up to January 6 and his attempt to retain the presidency. I'm your host, Tom Church. And as always, I'm joined by the libertarian professor Richard Epstein.

Richard is the Peter and Kirsten Bedford senior fellow here at the Hoover Institution. He is the Lawrence A Tisch professor of law at NYU and is a senior lecturer at the University of Chicago. And Richard, at this point, you are also an expert at commenting on former President Trump's indictment cases.

Because we have the third indictment to talk about.

>> Richard Epstein: I've had a lot of practice on all this stuff, and I think what you could say, it looks like a geometric progression. The first of these indictments by Bragg is better forgotten and removed. It was a reach in an extravagance and foolishness.

The second indictment on obstruction with respect to the papers, is in fact, probably a valid cause of action. And the defense that you're going to hate as well. He may have showed documents to somebody, but they didn't read them, and he never let anything get out of the room.

And those are mitigation defenses, but they're not absolute defenses. There's the comparison to Hillary Clinton. Stuff was probably stolen lifetime because she had this makeshift server and was given a lot of very kind leeway, which should not have happened. But my guess is a conviction on that count is probably justified having looked at the evidence.

This one, this is the grand slam home run. And there's a fourth one, which I regard as less consequential, but nonetheless backing up this one. But this particular case, when you start reading this thing, it looks like an all American horror show about Donald Trump. And you go through the narrative and you say to yourself, this is a prosecutor who knows how to write a complaint.

The first thing you note about this complaint is it's very lean and thin on the law. They have a couple of paragraphs at the beginning, one of them having to do with defrauding of honest services. And usually that requires that you take something tangible from somebody by swindle, so they give it to you voluntarily, having been deceived.

And the word voluntarily is put into quotes. But that's not what this case is about. This case is about subordinating an election and trying to steal something. And it goes in two ways. It's the endless joy boning of Donald Trump with respect to anybody and everybody in conspiracy with the five people who were listed by number, all of whom have been identified in the New Yorker.

So it's not as though you're talking about great mysteries on this. And then there's the very specific scheme to try to get a fake slate of electors out there so that you could go back to your state legislature and say, appoint these people. There is, by the way, some very disturbing law on this.

Let me just mention it to you, because it's not mentioned here. What it says, in effect, is that the legislature shall select essentially the electors by whatever matter it wants. And there's always been a silent and absolutely ironclad provision which says you pick two schemes of electors when the election comes out.

The legislature appoints that one which has got the majority of votes. Well, in this particular case, they're gonna argue, well, if you could make it as you determined, you could just change the rules of the game after the election has been won and decide that this Erzatz slate of seven people or whatever is the one that ought to be prevailed.

If you look at the text, I mean, it's not at all clear that this is illegal. If you look at the context in the history, it's clear that if you adopt that particular position, it's the end of democracy as we know it. And so like everything else here, you got a fairly specific provision, and its enforcement depends upon comedy and shared understandings about the silent, implicit premises that it raises.

And in this particular case, there's no doubt about it. And in fact, the Trump people are alleged, and I can't prove this, to have said to people, we won't use your names on the electors unless we secure some kind of legal victory in court prior to that time.

And then they went ahead and they used those things to begin with. I mean, that itself is such a kind of a monstrous idea to put forward against this kind of history that I can't think of anything offhand that would excuse that. And then, of course, there's the second half.

Donald Trump, jawbone, right? And, you know, one is tempted, at least at times, to say, well, the man is known occasionally to engage in certain hyperbole. Everybody will discount what he's going to say. So it's not nearly as harmful as it sounds. The problem about this is it's just much too specific in terms of what's being stated.

And even if you put aside character assassination of people like Jack Smith, who will ignore it, the famous discussion with the secretary of state in Georgia wasn't just find me the votes which could be read. There are a lot of votes missing in Atlanta. And I want you to go back and find those votes so as to get the true count.

But then he says, and if you don't get this, then I think you're gonna be subject to criminal charges for dereliction of duty. Well, all of a sudden, what seems to be a request now becomes a threat, and the threat probably becomes something that's actionable. And Donald Trump's ability to have hyperbole means that virtually everything he says when it's put in context, doesn't seem better.

It seems worse than it otherwise was. And so what he has to do is to try to dig himself out of a very deep hole with a very small little spade in his pinky hand is to figure out how it is he can kind of come back on this stuff.

Frankly, I could tell you, and probably should talk about this, how I would mount the Trump defense. But I'm telling you, how I would mount the Trump failed defense is probably a better description of what I'm going to say.

>> Tom Church: Well, let's actually start with the one I think that maybe has the most chance to be able to defend.

It's the first count. This is defraud the United States. It's related to making false statements. And there's been a lot of commentary here on maybe this wasn't, this one isn't so strong because it's actually a First Amendment issue. Jack Smith actually even concedes in here, Donald Trump was, it's well within his rights to protest, to say out loud these things, but then they go and spend, I don't remember, 20 pages or so expressing.

Here are all the ways he was told over and over and over by his own staff, by friendly state election officials that these things are not true. And yet he continued to continue to repeat them. So how do you make that?

>> Richard Epstein: The problem with the honest services claim is, what's the service?

What's he trying to get out of this? He's trying to get himself re-elected to the presidency of the United States. It's not as though he's trying to con people into giving them various kinds of monies, contracts or privileges in some sort. And so they may have to fight on all of that.

I regard it as a detail that this is a suspect count because there's no proof that you have received tangible benefits. That comes when you're dealing with other counts. And so all of the case law, which cuts back on the honor services claims and starting from some of the Enron and similar disputes, is not gonna play much of a role here.

And my guess is, if I were the prosecutor, I would just hone in on the two things I mentioned, the fraudulent jawboning of the general nature that you had there which is so repetitive and so forth that he has to be literally blind or deaf or some combination of the two if he doesn't realize how the winds are going against him.

And the other one is setting up the fake set of electors. And I think, in effect, these are very, very difficult charges for him to get rid of. And so I can tell you what I would do if I were trying to defend against this. But I'm not telling you this because I think it's the road for success.

I'm talking. I'm telling you, I think what Trump has got to do is to not, I don't think he has a defense of innocence. I think he has a defense of mitigation of damages, which in the end won't amount to very much. But the first thing you wanna start with, what were the conditions of the election that took place in 2020?

And there was a huge amount of uncertainty that went on. COVID does not fit very much into this environment, right? But as we all know, everybody made changes in the election rules at every conceivable level to take into account the inability of people to get to the polls, the need to have various places where you could drop off ballots and stuff like that.

And one could make a very credible claim that these things are open invitations for fraud because the chain of custody is not fully established as these things go from one place to another. And somebody can say, look, we know that in a typical situation, if you send out home ballots, 10% of them are going to be returned because the person has died.

They move somewhere else. They just don't pick it up. And somebody could gather those ballots and mark them off. And maybe somebody could prove, and there have been allegations of this sort. I don't defend them saying, look, there are many ballots that came in which were essentially marked only at the presidential level, which suggests that they could be fake, or that 100% of the ballots from a very pro Biden district came in for Biden, which is absolutely, virtually, almost a negligible possibility of happening if in fact even 4% of the voters are pro Trump.

Because you got 100 draws from the urn, and 96 of them are for the Democrat. 96.96 to the hundredth power is a very small number, and so you just can't make it. Now, you could do things like that, but you have to pick your jurisdiction. You have to find some way to do it.

And what you can do is to sort of make this claim with this wild house right stuff, saying, well, the machines themselves were corrupted. Can he do this? Well, he's over 32 in the courts. So people say, okay, Epstein, we know that you're a basically somewhat doubtful about the election.

Let's assume I am. My view is what you do is you get Mr McCarthy to convent the special committee to review this stuff to see how you reform voting practices. You don't try to tie the reversal of decision on very thin grounds. So what's going on there? What you say is, I think they're concerned, and then if you raise them in that context, it may have some prophylactic effect on future elections and the way they go.

But they didn't do that. But there is that kind of uncertainty. And Trump can say it was all of that that drove him. The problem is he never made all of these arguments in their correct form early on. So he's now trying to do an ex-post rationalization. My view is he may be able to get something out of it.

The second thing he could do is he could look some of the decisions, and they were wrong. It's the most famous one, the Jones Day decision, where they challenged the Pennsylvania decision to extend the deadline beyond what the legislature status did on the basis of some genuine position about the right to have free and fair election.

That's just pure craziness as far as I'm concerned. They shouldn't have extended the time, but you still have to prove causation or prove that is it, outcome determinative is the phrase that they use. And it's very hard to know whether you can do that. So it's a little bit difficult in that particular way.

And it's also, the question is, that gets you one, but what about all these other cases? And it's just very, very difficult. So you have to basically go through each of the 32 cases that you lost and try to extract some nugget of things that you should have won.

And then when you do it, as far as I'm concerned, well, that means you have a right to holler, go to court. But by the time you get to the convening in December, the state conventions in early January, what's going on? All this stuff is water under the bridge.

And I just don't think that it's gonna sway anybody. So my own view about this is that he will try to raise these things. He will try to argue that he actually believed all this stuff at some level. And my guess is he may well do it. But is that evidence of the fact that he's a deranged mind?

Or is it evidence of the fact that he has an unparalleled sophistication in the understanding of human affairs and human motivation? And I think if you were to put it to a fair mind group, and let's say had 1,000 people on it, the vote would be 999 to 1, and that one might be Trump himself.

I just can't see what the line is in this particular case that he's going to be able to do to defend himself. Disqualifying individual witnesses won't do very much, even if you can do it, because they're going to be a whole line of people lining up in one way or another to say that he was as terrible as he was.

I'm just thinking about myself. My position on Trump is I might have voted him for president certainly in 2020 before all this happened. But what happens is that I don't think he had the character, and I raised my lonely voice to ask him to resign. If you remember when, in January or February of 2017, he was less than a month in office.

And by the way, I want to claim credit on this. I thought that Pence was always a straight up shooting guy, notwithstanding the fact that one of the things that many Democrats did was to try to paint him with the Trump brush, right?

>> Tom Church: Right.

>> Richard Epstein: And that was one of the great scandals of all times.

He's never been like that. This is a man who's had governor experience. He's been in the Congress. He was chained by Mitch Daniels. He stood up under really great pressure because it's quite clear that this was not one passing remark by Trump saying, gee, isn't it nice for you to blow up this election?

He was pushing him all the time. And Pence just did not budge. So, I mean, he's the hero of this story, right? It's not Nancy Pelosi. And I think he did exactly the right thing at exactly the right time. And I think that basically all the Democrats who started to call him some kind of a weasel should write him a formal note of apology saying they misjudged his character, which they certainly did.

And I think he's presidential material. It's very clear that, you know, Ron DeSantis is in this terrible position. He has to take on the Trump sort of mantra, his go for his people, but he can't attack the pension. A president who I think is basically standing with his own group is probably, if anything, stronger now that the third indictment has come down than it was beforehand.

And he's just an impossible position unless you, as my favorite political advisor, can tell what Mr DeSantis can do to keep alliance with some of the Trump policies and manage to separate himself from the man. And I just don't know how to do that.

>> Tom Church: I don't think there's anything there, Richard, right?

I mean, so long as Trump is there, they're not gonna leave him for DeSantis.

>> Richard Epstein: Yeah.

>> Tom Church: I will say, Richard, Pence did say on your note, you know, I mean, he held up on January 6 to incredible pressure. And when this indictment dropped. He did release a statement saying it seems clear from this indictment that Donald Trump should not be president again is not presidential material.

So, I mean, it's an astonishing thing for a former vice president to come out and say that.

>> Richard Epstein: My reaction is thank God he said it. My other reaction, he's a little bit more than six years too late. It's one of these strange things. I mean, I've used, particularly with Troy Sennach, the phrase all the time of Trump a la carte.

Remember that phrase?

>> Tom Church: I do.

>> Richard Epstein: And so what you do is you get a Trump policy and it could be anywhere on the scale from one to ten. And then when you decide where that one goes you get the next one coming down and it could be from one to ten.

And there's no relationship on the score that you give for proposal number one to the score that you wanna give on proposal number two. And in many cases, he's right. In some cases, his worst moves were sounding like Hillary Clinton on the China paid packs and things like that.

So, I mean, and then when he tries to browbeat these various states to open up plants and so forth, the Lordstown plant, remember that big episode, the plant that he touted as being put into place just went bankrupt again. I mean, so he's basically a guy who's kinda got this populist mentality that matches very badly with his free market instincts.

And so you never know when you have a given thing which one is going to start to come out. With the Democrats, they're always gonna make the wrong choice. But with Trump, he'll make the wrong choice 50 or 60% of the time. And then occasionally he will see through things that the Democrats miss.

He was right on the climate stuff in Paris. He was right on not doing business with the Iranian. I think those two things, when the Biden changed them, were major miscalculations in foreign affairs. And so you gotta give the guy credit. He was the only guy who figured out how to break the impasse in the Middle east.

We hope it doesn't coming down with the Abraham Accords. The deal which says you renounce all permanent claims to the West Bank and we'll get you some recognition deals with Arab nations, including, at the end of the day, maybe Saudi Arabia was a great diplomatic triumph, and it's now being trashed by the Democrats.

And Biden, of course, is absolutely terrible on his Arab-Israeli relationships and so forth. But, I mean, so Trump sits there and you see real high points and real disasters. And now how do you evaluate a president? Well, you have to put weights to each of these things and you have to put numerical coefficients, and people are gonna come up with very different sums.

That's why when you want to collapse policy alternatives into choices over candidates, you've got 15 different issues on which you could give 15 different ratings. And the only thing that you have at the line at the end is yes or no or maybe abstain, right? And so it is a perpetual mathematical certainty that people who have agreement on each of the individual issues can easily differ on their final judgments depending upon the weight that they give to certain things and how they calculate it.

So the extreme version is the one issue voter, right? I only care about gun control. Well, you could figure that guy out, but then you get 15 other guys who treat that as anywhere between 8th and 14th on their list, and you can't quite figure out how it is that the whole thing's gonna come to bear.

And so, I mean, I hope Trump withdraws from this or gets, you know, gets convicted. This I do not regard as a vendetta. I regard the Bragg case a vendetta and so forth. And I think he would do a great service if he simply said, I'm gonna hold my case in a band.

So these other cases can go forward, rather than trying to push on something which will get Trump some sympathy and probably an acquittal.

>> Tom Church: Well, Richard, I want to finish with some rapid fire questions. There's still a lot to talk about, but just see if I can't get a short answer from you here.

First, I do want to go back to this conspiracy to send in fake electors in order to, I guess, cause questions about the veracity of the electoral count in certain states so that Pence could disqualify them and then make Trump the winner. Is this one where even if he thinks it were legal, right.

There are some things where it's against the law, and even if you think it's not against the law, it's against the law. Is this a count where doesn't matter what a state of mind was, it's still an illegal action. And so he's gonna get in trouble.

>> Richard Epstein: Look, I think the argument that he's going to make is I have John Eastman's interpretation of the 12th Amendment, which says that opening ballots in front of somebody else is not a ministerial act.

And I believe that that was true and so forth. But that does not justify, as far as I can see, an effort to try and send a fake ballot into somebody else to get the legislature to change its particular tomb. If there were in fact two independent counts that had taken place quite in department from any particular controversy, and both of these people wanna be seated, then you have a genuine dispute.

But this is not that kind of a case. So I think, in effect, that legal defense is irrelevant to him. It would be relevant to what you think about Eastman and his prospects of success, but I don't think he's got a leg to stand on that one. In fact, I mean, it's so horrifying because just ask the question, if Joe Biden did it, could anybody else do it?

And the answer is, you always can. As I mentioned to you at the beginning, this notion that you set the rules of the game before the election and not afterwards, it is not dictated by the selection clauses in article two on the executive, but has been dictated by an absolute uniform set of practices, and those practices have to be respected.

That's why there is a strong sense in which this is not a written constitution. It's not that you don't have written stuff there. But the point I'm talking about is when can the legislature make up its mind is not resolved by that text. But then you get 250 years of, 20 years of normal practice on this stuff.

That has to be decisive, right?

>> Tom Church: How about this? The co-conspirators are mentioned throughout. Like you mentioned, it was very obvious to pick out who almost all of them were. They're not running for president right now. They don't have that political cover. What's the likelihood that some or all of them end up behind bars?

>> Richard Epstein: I can't say that. I mean, the first thing is, is he going to indict?

>> Tom Church: Okay.

>> Richard Epstein: And I think what's really going on here is a standard strategy which says, I'm going to talk to these guys, and if you start giving me some juicy tidbits, I will negotiate some kind of a plea with you, which may or may not include jail time.

But the parameters of this stuff, given the case that he seems to have out and the level of detail and the numerosity of the conversations that he's reporting to, is, it's very unlikely that a deal will mean essentially you walk unless you get David Weiss back from the Hunter Biden situation to take this over.

I think, in effect, what they're negotiating for is reductions in the severity of sentences. And that suggests that some of them will, in fact, probably turn, some of them will probably go to jail, but they will get less severe sentences if they cooperate than if they do not.

But my guess is that the reason he put them in there in forms which makes it so easy to identify them, is there going to be some anguish conversations at a private level with each of these five individuals to see the way in which it goes? And look, Smith is no fool.

He's done this much more than I have. What you say is, as you do in all antitrust cases, the first guy who comes to the gate gets the best deal. The guy who comes fifth gets nothing at all, right? And so what you're trying to do is to create a race that people will start to turn quickly, and you may get five people making simultaneous offers, at which point you're probably going to have to discount a little bit what each of them get.

But if I was Smith and if I were the prosecutor, and if I felt as strongly as he did and as strongly as the american people seem to feel, at least much of them on this issue. There would not be a huge amount to give that would come from anything other than a complete abject acknowledgement of guilt coupled with some kind of reduction in sentence.

I mean, it's a very hard position to start to be in. Look, they did this in an amateurish way in trying to figure out who's the third guy you're going to get with the presidential papers in Mar-a-Lago, right? And they find somebody else who moved the boxes. Well, now, just ask yourself the question.

Is some lowly lowlifer who moves these poor boxes in response to the request of the president, is that the kind of witnesses, just like senior advisors to a president who have been constantly with him for periods of weeks or perhaps even months, trying to part this campaign? And you know that these are much bigger fish than they have in the other cakes.

And so as far as I can see, I mean, my view is that if I were the Biden administration or who's ever running this show, this would be exhibit a. And you would want to slow down on both the other kinds of prosecutions. This is the one you want to come first.

And look, there's another point which I think is very true. It's intolerable to see how a man who's gonna be what, he's now 76 years old, right? Born 1946, no, 77, right, how we can manage to defend four major lawsuits and try to become president of the United States, it's just not possible.

He would do an immense public service. We would just renounce the particular offer. There are many people who says he likes talking about being president. He likes running for president, he likes insulting people. It's not so clear, he actually likes doing the administrative work of being a president.

But I think his fear is that the moment he decides to pull out of the campaign, he's goinnabe unprotected. There'll be no reluctance to go after him, and he's likely to get a stronger sentence than he would have if he sort of soldiered through. Where people might be somewhat uneasy about the fact that this man could a, go to jail and be elected president on the same day.

Remember, he's not running against some kind of strong stud. He's running against a thoroughly weak, totally incompetent, completely suspect man himself. And so there are different kinds of offenses and different kinds of problems with them. But you see, you know what the last vote was? It was 43, 43, undecided, right?

That's not a vote of confidence for anybody. Cuz my guess is if you actually had a situation where either of them were put up against a serious candidate from the other party, they would both be whomped. And my view is they both should withdraw from this situation in the interest of the republic.

This is the source of some genuine anxiety and so forth. And so here's a question to leave the audience with. Donald Trump now announces that he's not going to run for president and he's going to withdraw from political life. Do you say, let's just forget about these offenses, because the greater harm to avoid is more important and treat of it as kind of a pardon?

Or do you say, now that this guy is there, we really have to make an example of him because he's been so thoroughly corrupt? I don't know what people are gonna start to say. My guess is they'll slip. Now, there's an old maxim. Parents love each other, they love their children.

When they have a nice child, they fight to figure out who gets to take the kid to the ballgame or to the music lesson. But when you have a bad child, the question is, do you discipline them by spanking them, sending them to their room, sending them off to military school?

It's always the case of dealing with crazy, inadequate people like Trump, and that basically makes honest people despair of coming to some form of a unified solution.

>> Tom Church: You've been listening to the Libertarian Podcast with Richard Epstein. As always, you can learn more if you head over to Richard's column, The Libertarian, which we publish on definingideas@hoover.org.

If you found this conversation thought provoking or informative, please share it with your friends and rate the show on Apple Podcasts or wherever you're tuning in. For Richard Epstein, I'm Tom Church, we'll talk to you next time.

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