The Libertarian Podcast: Indictment Or Incitement? Another Trump Conundrum | Richard Epstein | Hoover Institution

>> Tom Church: This is the Libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined by the Libertarian professor Richard Epstein. Richard is the Peter and Kiersten Bedford senior fellow here at the Hoover Institution. He's also the Laurence A Tisch Professor of Law at NYU, and a senior lecturer at the University of Chicago.

And as we are recording this on Wednesday morning, former President Trump has not yet been indicted. But it certainly looks like it's gonna happen soon, perhaps today, with or within the next few days. If you aren't up on the news, you may find yourself asking for which case, because there are, of course, multiple cases in which he is facing potential charges.

Now, the case in question is surrounding the falsification of business records related to hush money payments to stormy Daniels, an adult film star who reportedly had an affair with Trump. Now, Manhattan District Attorney Alvin Bragg appears to be finishing up the grand jury today, which could then vote on an indictment and be announced when it is unsealed by a judge.

Now, an indictment, Richard, brings many, many questions. And I'll start with simply why now, will the charges stick, and what happens next?

>> Richard Epstein: Well, I mean, I'm not a real seer on this, but the first question we have to ask is whether or not he's actually going to go through with this particular indictment.

This is ultimately a very big political judgment that he has to make, given the fact that normal rules of prosecutorial discretion seem to be out the window in this case. But his Democratic Party people say the last thing we want to do now is to have a very weak set of charges brought against Trump so that he can go parade about the corruption of the legal system and the democratic origins behind all of that in an effort to bolster his reelection campaign.

It's been reported that Mr Trump would love to be shown in shackles and in handcuffs being led on a perp walk into some police office and so forth, because he thinks that that too would help him. Well, if he thinks it's gonna help him and the democratic pros think it's gonna help him, we don't know whether this thing is gonna go through.

The headlines all seem to say that the indictment looms, and it suggests that our friend Bragg is impervious to these kinds of influences. There's also the further complication that the Republicans in the House of Representatives have cashiered him. They say, here's a man who is going to spend thousands of dollars in resources after Donald Trump in a fruitless case while the entire city of New York has experienced a high rate of increase in crime, because Bragg won't put the resources on the street to address common criminals, robbers, and so forth.

So that the index crimes in New York City are up by about 25% in the last couple of years, how does that play out? Nobody could really say as to whether it is. So I'm gonna say, I think it's likely that it's gonna be indictment. Can they make the charges stick?

Well, the problem in criminal cases, not whether somebody is going to be charged, but what is the charge going to be? And you mentioned falsification of business records, which is, of course, a serious kind of offense, but it usually carries a fairly short statute of limitation. And it's something which for the most part, does not have very heavy sanction.

And so if they're trying to get on this period, they're gonna be a lot of statutes of limitations question, given the fact that all these events occurred seven years ago, right, 2016 and so forth, or earlier. And so there's the constant discussion as to whether or not Bragg will be forced to say, aha, these illicit business concealed papers were really campaign contributions that Donald Trump made from his campaign funds in illegal fashion.

The campaign contribution was to get Miss Daniels to shut up. He didn't do that for personal reasons, embarrassment with his marriage. He did it with respect to political stuff. Cases like that have never won thus far, and it's not clear that they can win. It's also clear that the federal government declined to bring that kind of case again because of the extreme difficulty in showing that there's some kind of real business campaign expenditures made in these particular so called Hushpunny payments.

Well, I think he's gonna lose. If you listen to most of the commentators on both sides of the political aisle, they think he's going to, Trump is going to win and that Bragg is going to lose. I'll stick with that particular prediction. If it goes forward, I think it's going to be at least one or two surprises along the way.

And it may well be that the indictment will be brought and then dropped for some particular reason, which it's impossible to figure out at this time.

>> Tom Church: All right, more follow up questions for you, Richard. Right now, let's see. It's March 2023. The republican primary will probably kick off in force this fall.

So I wanna know, say this indictment happens, Trump then, I think looks like is in arrangements to just self surrender next week. I need timetables on. How long does an actual case take? Will that be resolved anytime within the next month, two months by this fall. Other questions for you.

Are there legal consequences for others that we'll look at? I mean, one of the reimbursement checks to Cohen reportedly was signed by his son, which doesn't seem like he would get off maybe scot free for that as well. And then I guess I'll also note for you, Richard, that we have a precedent kind of, for presidential candidate paying hush money in the form of John Edwards, former senator, who, you know, had had a child out of wedlock.

And actually, the charges were dropped after a jury deadlocked on most of them. So a lot to ask you about there.

>> Richard Epstein: Yeah, well, and all of this is kind of not quite tangential, but it's not quite strictly relevant. Start with the first question. It's impossible at this particular stage to figure out exactly how long it will take for this trial because both sides have the capacity to either push very hard for an early date or to try to slow walk the thing and keep it going as long as they possibly can.

And until you know whether or not Trump is going to say, well, I'd like an extra 30 days, you're on it to prepare for trial, you can't figure out whether or not this thing is going to be finished before the primary system starts in earnest. I guess this fall is about the time that it will start, and the primaries themselves will take place early next year.

Can't say, one way or another, and he's gonna try to make his own calculations on that, and the Democrats will do the same thing. It's pretty clear to me that bragg will be subject to enormous pressures one way or another depending upon what the public perception is on these cases.

So we can't say whether it's going to happen this or that way. Then you mentioned about the situation with John Edwards and so forth. That was not the kind of case that we have here. There was a child out of wedlock. One of the things that's striking about this case is Trump denied that he had any liaison or affair with this woman anyhow.

And so this is going to be the kind of thing in which you're going to have to ask the question, did the affair actually happen or not? Because what's gonna happen is Trump is gonna go there, deny that he was involved in anything like this, and he says that this was really an exercise in extortion by Stormy Daniels and that what you really ought to do is address your criminal forces against her.

We have all these go betweens, right, I forget the name of his thoroughly corrupt lawyer who's constantly testifying and has been himself indicted for and convicted for perjury. So, I mean, the witness framework is very, very weak. I think in the end, the case will surely fail and everything will turn on collateral damages.

There are other cases that are pending, of course, and you know what's going to be done. I mean, it turns out Merrick Garland appointed this guy, Jack Smith, who's something of a predator guy when it comes to going after these cases in hot pursuit. It's been completely quiet on that particular front.

We don't know exactly what the charges are going to be. There are rumblings coming out of Georgia about the same situation on the effort to influence a recount in an illicit fashion. With respect to the Georgia election, we don't know about that. What's happened is it's giving Trump all of the publicity at this particular point in time.

And what this does is it snuffs the air out from all of the potential rivals who can't possibly gin up any kind of event going forward that's gonna rival this for pure theater. So in the end, much as I am opposed to Trump as a potential nominee, I think that all of this stuff actually, by giving him free publicity and injecting a novel element in the claim, actually helps him.

The old shticks that he used to play and so forth, calling people names and things like that, I think, have become completely brain dead. Nobody wants to pay any attention to them. And so what his campaign needs is a dash of novelty. And our good friends on the democratic side may or may not be prepared to supply him with that particular element.

But I think, in effect, we will have to see there's also a risk to trump that some very bad information will come out, even if it's not about criminality, that may influence his popularity with his own party. There are complicated facts that it seems like people like Ron DeSantis are not completely surefooted when it comes to dealing with matters of foreign affairs and national relations.

He's a governor, after all, and he has to be coming ready for the new environment. So I think at this point, there's a lot of volatility in the political stuff on the republican side. On the democratic side, well, Joe Biden says he wants to run, and the majority of the Democrats in this country don't want him to run.

Will political power prevail over the common will? Nobody can really say so. So I think it's going to be an interesting season for lots of people to watch, and legal pundits are going to have a fine time on this.

>> Tom Church: Richard, I'd like to ask you about the rule of law argument surrounding whether to charge someone in former President Trump's position for crimes.

I mean, this case looks a lot different than the Georgia voter suppression case or voter fraud case or the classified materials case that the feds are working on and building. And I mentioned the rule of law because, like you mentioned, and former President Trump wants his supporters to look at this and get charged and perhaps get acquitted or have the whole thing dropped, to be able to say, the system is rigged, it's unfair.

That attitude has become, it feels much more prevalent in the last five, I would say ten years, maybe even just five years or so by people on the right, perhaps even on the left, for other reasons. And for that reason, don't trust usual institutions, the media, anyone elected, or the legal system.

Isn't there an argument to be made that there should be consequences in order to, I guess, try and convince more people that no matter how powerful or connected you are, if you do illegal things, you face the consequences?

>> Richard Epstein: Well, I'm certainly in favor of that, that there's no person above the law.

But at the same time, we start talking about the rule of law, we also have to talk about the indisputable issue of prosecutorial discretion. And try as you may, there is no way, when you start dealing with prosecutors, that there is a rule which requires them to prosecute certain kinds of cases or prohibits them from prosecuting certain kinds of cases.

Bragg himself does not sound like a man who's talking about the rule of law when he's running for office as the Manhattan DA. What he says is, I'm proud to say that I've tried to indict Trump thousands of times. This sounds like a guy who's a politically ambitious fellow, not by some solvent.

If you're talking about the rule of law, that doesn't tell you that you should ignore the difficulties associated with your case, the questions of proof, the allocation of resources and so forth. The way in which Bragg is portraying himself is, though he's almost impelled to do this thing because of a higher duty to the nation.

And that's absolutely crazy. There is no breach of any kind of duty on prosecutorial discretion if he decides not to prosecute this case. And so to some extent, it has to be regarded as an act of political will. And, you know, the other feature about this, of course, is this would be one thing if it turned out that you had a republican prosecutor going after a republican president.

But I think it's pretty clear that Alvin Bragg is a partisan democrat down to his very toenails and so forth. And so what happens is you see the political opposition and immediately the cynics will start coming and saying, hey, Chicago politics has moved to New York City and so forth.

And I don't think he can hide behind all of that when it's coming forward. I think he's gonna have to explain why his case is strong. What is striking about the way in which this thing has gone forward thus far is he simply says, you know, I'm just an independent investigator.

I follow the facts to where they lead and only come up with judgment that are fully supported by anything. But there has been no effort whatsoever to make any kind of public defense of the case that he purports to bring. Perhaps that's appropriate given the fact the thing is now before a grand jury.

But what's interesting about it, there are many people who are not bound by the duties of the office that face Mister Bragg. And I haven't seen anybody come up with a statement which says, I think this is a really strong prosecution for the following reason. I think what happens is the Republicans are openly contemptuous, the Democrats are trying to run and hide from talking about these kinds of issues.

Bragg is way out there on his own, and the rule of law does not say that you have to bring reckless and foolish prosecutions. And I think what he should do is back off, even at this late hour.

>> Tom Church: All right, let's end going back to both Georgia and the federal case in regard to classified documents.

I'll note that there's a recent report that the prosecutors in the special counsel's office believe they have evidence that Trump, and I'll quote, knowingly and deliberately misled his attorneys about his possession of classified documents. Which to me doesn't sound terribly far fetched considering his attorneys signed documents saying, we've given everything.

And then later, after the raid more show up. The Georgia voter fraud case is still, well, I say voter fraud, the voter intimidation case with Raffensperger is still going on. And again, grand jury is happening. Again, I'm just looking for consequences of any variety. If anything were to stick, what would it look like?

I mean, that seems less like prosecutorial discretion there.

>> Richard Epstein: Well, what happens is you put the guy in jail and he tries to run a presidential campaign, it's not without precedent.

>> Tom Church: Not without precedent, yeah.

>> Richard Epstein: Yeah, Eugene Debs ran for president on the socialist ticket back in 1920 and actually got a fair number of votes, even though he had been incarcerated years before by the justice system department, right?

So, I mean, there's stranger things that started to happen. My own view about this is I think that in each of these particular cases, there are grounds to believe that there's some form of irregularity, that it might amount to criminal conduct. But nothing here is an open and shut case.

I have become something of a political coward on all of these things, and I think that unless it's a really manifest and strong case, you just steer clear of trying to use the criminal system as a way to influence the way in presidential elections are going to run.

The dangers of this particular situation is it can go both ways and very quickly. So it's not as though Joe Biden doesn't have his own legal difficulties with his son Hunter and so forth. The guy just seems to be an absolute attraction bin for all sorts of troubles and irregularities.

He talks about the big guy. So the Republicans got the presidency in 2024, and in 2025, Joe Biden for all the kinds of things that he's done, or do we want to, in fact, do it even before then in some state ploy like they have? With respect to Alvin Bragg, I think the risks are just too dangerous for the entire political system.

I will note by way of passing that one of the reasons why the Israeli system is so complicated today with its endless political battle, is that Netanyahu is also under indictment, and the indictment has made it impossible for him to form coalition with centrist parties. So over and over again, what's happening is the weaponization, to use everybody's favorite word, seems to be increasing.

There's an arms race and there's no treaty, and this is not a situation where you could point to one party and ignore the other. They're both having certain kinds of difficulties associated with their particular operation. I tend to think that the older rules, which said, we managed to run this country tolerably well for well over 200 years without having criminal indictments, infect the presidential election system.

And I'm in favor of that situation going forward, absent some very, very bad and serious kinds of situations. And the Stormy Daniels case strikes me against that standard as being frivolous, both in terms of its substance, even if true, and also because of the many difficulties of proving that the whole thing turns out to be true.

So I hope that we don't have to have another show on this topic, but I kind of suspect that once one party breaks the implicit norms against these kinds of cases, the other will be tempted to do the other the same thing. And so we'll be back on this sometimes in the next year or so.

Such is life.

>> Tom Church: You've been listening to the Libertarian Podcast with Richard Epstein. If you'd like to learn more, make sure to read Richard's column, the Libertarian, which we publish on definingideas.hoover.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.

>> Speaker 3: 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.