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April 10, 2023 - Doug Collins Podcast
57:10
The Reality of Law and Order
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You want to listen to a podcast?
By who?
Georgia GOP Congressman Doug Collins.
How is it?
The greatest thing I have ever heard in my whole life.
I could not believe my ears.
In this house, wherever the rules are disregarded, chaos and mob rule.
It has been said today, where is bravery?
I'll tell you where bravery is found and courage is found.
It's found in this minority who has lived through the last year of nothing but rules being broken, people being put down, questions not being answered, and this majority say, be damned with anything else.
We're going to impeach and do whatever we want to do.
Why?
Because we won an election.
I guarantee you, one day you'll be back in the minority and it ain't gonna be that fun.
All right, new week, new time.
We're out.
Easter's behind us.
Got a lot of things going on.
I wanted to bring on today, and we're going to get to him here in just a minute, Jay Town, former U.S. attorney from Northern Alabama, lifelong prosecutor, great guy.
We're going to have an in-depth conversation.
This is one you're going to want to stick with here in just a few minutes.
Jay and I get deep into the legal arguments, and we're not going at it From a perspective of, you know, here was what was bad, but we are going to break down the Trump indictment.
We're going to break down the Hunter Biden issues.
We're going to talk about how the FBI and how the U.S. Attorney's Office works.
And also we're going to get into how just normal prosecutorial cases work in your everyday life.
And This is one of those that I would encourage you to share with your friends, make it an episode that you listen to, whether you're exercising, driving, wherever.
It's one that can provide some great insight.
When we just talk legal, we take out some of the politics as best we can, and we just talk about where we are in our legal system here in this country.
A lot going on this week.
Jay today, J-Town, we're going to have an episode later this week when we're talking about talking and communicating, what we can learn from Scripture.
We're going to take John chapter 8. There's a verse and a passage in there that I want to deal with because I hear all the time people who talk about not being heard.
They talk about not being able to communicate.
We're going to talk about that a little bit later this week.
And then, of course, also we've got Friday's Finest.
Don't want to miss it when James and I get together on Friday.
But today, episode with J-Town coming up in just a minute.
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One of the things I want to talk about, Jay, is we talk about U.S. Attorney's Office in many different ways, and it seems like to me over the last, as someone who served on his Ranking Member Judiciary Committee, and we had to deal with this a lot, that the position...
And I'm not going to say it's not always been political, but J.D., do you see it becoming more political in, say, the last 20 years?
Well, I sure hope not.
I mean, I think that one of the problems that I, maybe it's not even a problem, but, you know, your direction as a United States attorney comes from the Deputy Attorney General and the Attorney General of the United States.
And so the priorities of your prosecution, I mean, you're still going to do dope and guns and bad guy stuff, terrorism.
That's never not a priority of any administration.
But you do tend to get into, okay, we need more white-collar prosecutions.
We need more public corruption prosecutions.
And if you have a more aggressive appointee at main justice, whether it's on the fifth or fourth floors or whether it is the individual, the assistant attorney general in charge of public corruption, let's say, Then if they're aggressive, they're going to start pushing cases out to the districts.
And there are 94 districts, 93 United States attorneys in the country.
And it does sort of start to feel like, okay, more politicians are being prosecuted or more bankers and businessmen.
And so you do get a feel that, okay, suddenly there's targets on the backs of executives or politicians.
But really what it is, is you just have more aggression, I think, coming out of main justice for certain priorities beyond those sort of normal three of guns, dope, terrorism, things like that.
Now, we have gotten into some issues when the White House Counsel's Office sort of is providing information to the Department of Justice about threats and threat bans.
And I think the most obvious example of that is the memorandum that was coordinated through the White House Counsel's Office and the National Teachers Union about parents at school board meetings and domestic terrorism and threats to teachers and You know, and I mean, look, I don't know Merrick Garland.
Everybody that I know that knows him says good things about him, but it feels like he was duped into believing the facts that were in the memo that eventually went over to Merrick Garland.
And he submits a memo in turn, and he's gotten a great deal of criticism for that.
And so that's been sort of problematic when there are sort of these knee-jerk priorities that suddenly arise.
But honestly, I was a Trump U.S. attorney, and I can tell you there was nothing political about the prosecutions that were brought my way from Maine Justice or the ones that I directed as the boss.
Wow.
Well, and I think it's perception, Jay, and I think that's one of the things.
Sure.
I was ranking, like I said, on Judiciary.
You were in there.
Of course, your first, I guess, Attorney General would have been your own home state, Jeff Sessions, would have been your first Attorney General.
Yeah.
Then came Matt Whitaker after that and, of course, Bill Barr.
I got to know, I knew Sessions from being in Congress.
I mean, we went back and forth, Alabama, Georgia.
Sure.
Didn't know him that well.
Got to know Matt Whitaker and gotten to know Matt Whitaker even better.
He was actually part of my book that I wrote about the impeachment process because I remember when he was still acting Attorney General, he and I had to meet before he had to come to Congress.
And then Bill Barr, we got to have a pretty good relationship.
It all brings their own flavor.
And I think that's the interesting thing.
But it's also...
Very different individuals.
All three of them.
Amazing.
Bill Barr and Jeff Sessions are apples and dump trucks.
They're not even apples and oranges, right?
I mean, they're very different personalities in the way that their leadership style is very different.
Yeah.
And I can imagine working under them because, I mean, sitting there and looking at it...
I mean, when I first sat down with Bill Barr, one of the more interesting stories I ever had was I walked into...
To see Whitaker, Matt Whitaker.
And we went into, and of course, if you've been there, if you've not been there, when you go to the Attorney General's office, there is a reception area, and then there's this big conference room.
And then, depending on the Attorney General, most of them have their office on the corner.
My understanding was, in the history and all goes, that Robert Kennedy had his office in that big conference room.
That was his office.
He liked the fireplace.
It is.
The fireplace and everything.
Huge place.
But what was funny is I walked in that room and Whitaker's there.
He's a big boy, by the way.
He's a big man.
He's a tight end at the University of Iowa.
Oh my God.
I wrote about it.
I was afraid the chair was going to crack.
I mean, he's leaning back on it like this.
I'm like, oh my God, this is going to be wild.
But on the wall, I mean...
Was the picture of Bill Barr.
I mean, because he had been a previous attorney general and everything.
And just to sit and talk to Bill Barr was like a cross between talking to your dad, an attorney, and the school principal.
It was like...
You weren't sure what you were going to get from it, but it was always going to be good.
You just nailed it.
Yeah.
Well, if it was 10 a.m.
or 2 p.m., there was sort of a different flavor of the bill you were getting, right?
And look, all three are very different.
Jeff Sessions had a sort of soft Southern style to him.
Matt Whitaker is a good friend of mine.
I was actually with him last week, and he was interim.
He was acting for a few months and did his level best.
Yes, he did.
But General Barr, you know, Bill was, you know, look, he came in at a sort of very awkward time to come in as the Attorney General.
You have these investigations into the President of the United States, the Mueller investigation being the most prominent.
And then, you know, you fast forward, I think, maybe less than a year, and then COVID hits, and then you have that summer of unrest.
You have the Derek Chauvin, George Floyd.
You know, we used to sort of quip that, you know, the sleepy little Department of Justice, you know, nothing ever going on.
It was...
And I'll say this, Doug.
It's important that when you're out in the field as a United States attorney and you're running an office of 150 people, you've got 60 assistant U.S. attorneys.
As a U.S. attorney, you're in charge of all the prosecutorial investigative agencies, so the FBI, DEA, ATF, Secret Service Marshals, and HSI. And when you have the chaos in Washington, D.C., Might as well be half a block down the road when you have that type of chaos.
It does impact all of the 93 U.S. attorneys and the 94 U.S. attorneys' offices.
What we learned from the Mueller investigation is you would take an FBI agent, let's say, into a grand jury 10 years ago, and there might be two questions, right?
And they were good questions.
And then you do that in 2019. And now there's 30 questions, and most of them are really not legitimate questions about the case.
They're about bias, or they're about, well, how'd you even find out about this bad guy, right?
I mean, what was the process that allowed you to learn about that, right?
So, you know, the Fourth Amendment stuff, or if it was a FISA, if it was some sort of material support case of a foreign terrorist organization.
And so you started getting all these sort of, I mean, you know, you still get through the grand jury, but then you wonder about the 12 jurors.
Are they trusting law enforcement as much?
Are they trusting the investigation and that the 4th, 5th, and 6th Amendments have all been sustainable or upheld throughout the process?
They had, but the chaos in Washington certainly, and I know we're going to talk about the Trump indictment, but the whittling away at the trust and confidence in our justice system, in our investigatory process, right or wrong, Some of it's legitimate, but I think it should be directed at the individuals rather than the entire agency.
But it does have an impact on our cases, has an impact on our trials, and maybe for some U.S. attorneys it even had an impact on the cases they decided not to bring.
I said, and Jay, let's talk about this for just a second.
Before we get into some of the bigger headlines and everything, and we'll talk about the Trump indictment, because I want people to understand, and you and I met actually through an interview we did with Greta Van Sesteren on the record and had a great time doing it.
It was fun.
And we have a lot of mutual friends.
It's actually a small world out there.
It is.
It is pretty cool in knowing that.
But, you know, one of the things that people, as an attorney as well, and looking at this, they...
I believe, and I'm going to take a little detour here.
I think TV and opinion Have affected our legal community more than we're willing to talk about.
We believe now that law and order, that you have a case, solve a case within an hour, that the CSIs of the world are great to watch on TV, but now you as a, I mean, for prosecutors, you know, they're expected to bring in, you know, the 3D hieroglyphic, you know, model to show you exactly.
That just doesn't exist.
And I can remember being in court and listening to the opening statements of my prosecutor friends, or even if I made it and say, look, You know, folks, this isn't CSI. We're not going to have, you know, this.
This is the evidence.
We're going to present the evidence.
I mean, is it just the short attention span or does that affect how we now view some of these bigger cases in which, you know, I mean, I know you've heard as well as I have.
Well, Trump's going to jail next week.
No, he's not.
Even if he, I mean, we're a year away from a trial if it ever happens at all.
Yeah, Trump's not going to prison at all.
And there's a lot of reasons for that.
But even if he's convicted, that's not a thing.
Yeah, no, you know, the CSI effect is what we call it.
You sort of aptly described it.
And, you know, I live in a district.
So just...
I was a marine judge advocate for 12 years.
I was a state prosecutor in Alabama for 13, and then the U.S. attorney during the Trump administration, and now I'm vice president general counsel of Gray Analytics, which is a government contractor, cyber mostly, here in Huntsville, Alabama.
In Huntsville, you have All of these PhDs and all these electrical and software engineers, right?
And part of the definition of beyond a reasonable doubt is there's not a mathematical certainty.
That's not in the definition.
It's just that something that you would rely on in your life as being true.
But engineers, There's very little that they rely on in their life that is not a mathematical certainty.
And so there is that sort of...
But you know what?
You have to know your jury pool.
You have to know your jurors.
You certainly can't have sort of an equation that is going to get them to guilty.
But you do have to lay out cases sort of systematically instead of just hope, throw everything against the wall, maybe out of sequence and hope that they're going to...
I prosecuted in my career over 10,000 defendants.
I don't even know how many jury trials, but it's somewhere between 50 and 200. A lot of those cases were homicides.
You do have to know your jurors, but there is an attention span.
These criminal trials that last 10 weeks, how do they end?
Not very well, typically.
You know, because people's attention spans are like, hey, you know, it shouldn't take 10 weeks to prove that bad guy killed good guy.
Right.
And it should take maybe two.
And so you're right on the money with, you know, sort of the American Vanira, if you will, being a little bit more complicated to prove cases to.
But also, you know, any more...
Find me someone in a U.S. attorney's office, anywhere in the country, or even a district attorney's office that has had more than 10 jury trials, that is under the age of 50. Yeah.
It's hard to get a jury trial anymore.
Part of that is because our sentencing guidelines in most states, you know, a lot of them are, you know, if you are going to go to prison, it's not for very long, but if you're tried, you'll go for much longer.
Right.
A lot of these cases are probationary sentences, so you're going to stay out, so you might as well just plead guilty.
And DA's offices and U.S. Attorney's offices, they're overwhelmed with investigations.
So to take two, three, five weeks out to try a case and get 10 weeks behind because you've got to prep for the trial, you've got to weigh those resources and equities when you're considering plea arrangements.
Yeah, I mean, look, I have a lot of buddies who, you know, U.S. attorneys who went to Congress, I mean, Radcliffe, Gowdy, Marino, I mean, all of them good friends.
And I've always sort of joked about the prosecutor and the white hat syndrome.
And, you know, we're the white hats, everything we do.
And I've done small-town prosecuting, but also been a lot of defense work.
And it's balanced.
And I think that's what most people don't realize, because...
It's a balance between there needs to be good prosecutorial ethics, good prosecutorial conduct, there needs to be good prosecutors who are prosecuting cases as they should, defense attorneys who are doing their job, and that is holding the law up, being accountable, doing that.
And a whole system works when that happens.
But you just brought up an interesting point.
And in the legal community, it's basically called the trial penalty.
And I believe, though, this is one of the things that could actually be hurting us.
In our overall judicial system.
And you may disagree being a prosecutor.
I get it.
But we just saw it in this...
I think we see it a little bit more now in this Manhattan case with Bragg.
Bragg took three incidences and made 34 federal...
I mean, 34 felony indictments on it.
Basically, three instances, that's it.
Most of us out there, that's stacking.
Most of us out there, it's just, they're doing it to a normal defendant like you and I and say, wow, 34, 140 years in jail.
Okay, I'll agree to something else.
Just get that off the table.
This trial penalty though, do you think there's ever a way we could get rid of the trial penalty in the sense of saying, let's go to trial I gave you an offer of 15 months if you pled, but okay, I feel like my case is good enough.
If you win, if I win, I'll still give you the 15 months.
Or is there...
Why is it that we develop this a little bit?
I'm giving a defense perspective, I grant you that.
Yeah, yeah.
I mean, look, if you're going to, I mean, I kind of had a 15-minute rule when I was a state prosecutor where, like, your guy knew what he, he knows what he did.
Here's all of the discovery in the case.
If I put 15 more minutes of work into this case, the deal's going to get worse.
But it was fair because, look, I'm giving you as good of a deal as you're going to get, short of an acquittal if you just whip me at trial.
Never happened before, but you might be the first one.
Go with God.
To me, the cooperation from the defendant and the defense counsel is very important to our system.
And one of the tough jobs people don't realize about defense lawyers is that Their control of their client and explaining the law, explaining the consequences of their refusal to accept responsibility for the crime that they committed, that is a very important part of the process because it is advocating for their client,
maybe not in the way that they're advocating for their innocence, But let's all remember that 95% of all the cases that come before a trial court, those individuals plead guilty.
There's not a stronger proof in our system than a plea of guilty.
And so the deals that those individuals get, that's the advocacy for the client.
And if the client wants to go to trial, that's their right, 100%, I understand it, and put the state or the government to its proofs.
But if you're not going to cooperate, if you're not going to accept responsibility, and I think you called it a trial penalty, I've heard it referred to as a trial tax, but I think what maybe is more aptly described as You have made me prove your guilt, which is your constitutional right, but at the same time you have refused to accept responsibility for your behavior.
A jury of your peers has found you guilty.
Now you are guilty.
During the trial you still refused.
To accept your responsibility.
And so we're going to have to punish that.
Otherwise, there would be absolutely no inducement for individuals to accept their culpability for their criminal misconduct.
Does that make sense, Doug?
It does, but I'm going to push back just a little bit because I agree with you on problems.
And look, I've had to counsel my clients and say, look, you know...
You're an idiot, okay?
You know, I'm looking at the case.
I mean, and I did more misdemeanor.
There's probably a nicer way to say that, Doug, but okay, it's fair.
It's direct, right?
We'll talk about funny clients in a minute.
But no, I mean, you look at yourself, okay, you know, and I had this one case that just broke my heart.
A younger person, theft by possession.
She got mad in a break room, stole somebody's phone, felt bad about it, then tried to give it away.
And, you know, it's like...
I mean, you're just being dumb.
You're being a kid.
And I had the prosecutor, you know, wouldn't work with me on it and say, look, there's no history here.
Anyway, it worked out.
The college question, though, is what I have seen a little bit of, and I know others across the country have, and maybe it wasn't prevalent in your office, and I'm sure, you know, as we go on.
But I don't mind the cases in which the DA says, okay, I've got everything I need to win this case.
If I don't win it, it's a freak jury or whatever.
The ones that I think are concerning in the legal community are is where you got it, but you don't got it.
Okay?
You're close, so the charges are added in.
And I think that's when it comes up.
And look, everybody has the right to go to the prosecutor and the defense attorney.
Let's go to trial with it.
But I think that's when, like this Alvin Bragg situation, the other situations, when you're adding in charges to induce a bad case to plead.
And I think that's the question that I think that some in the defense community would say the trial penalty exists.
I can't, in good conscience, tell my client, You're going to face 60 years.
Here you go with this.
It is a weak case, but there's a possibility we're going to lose this.
They're offering you 18 months probation.
You're saying guilty, which is not a proof because you didn't do it, but the evidence was in such a way presented.
I think that's some of the problem that we're seeing.
And people just feel like the justice, they don't see that side of it that often.
No, and I think that's a good point.
I mean, prosecutors should never just stack charges in the hopes that somebody will just plead to one or one will stick.
You know, my experience, remember, I was a line assistant district attorney before I got appointed by the president to be the U.S. attorney.
Right, exactly.
I wasn't the politician.
I wasn't the elected DA. I was in court four days a week for 13 years.
When I became the U.S. Attorney, they said, hey, do you want to sit in on a trial with one of the AUSAs?
And I'm like, no.
Absolutely not.
Yeah, I got nothing to prove in a courtroom anymore.
But my experience, honestly, was you'd see...
And remember, at the state level, the charges typically come to you.
Right, exactly.
You don't do what Bragg normally does, and you just run a grand jury like the feds do, and the charges come out after the indictment.
And so the cops bring, you know, 10 theft and burglary charges to you.
You know, my experience was, look...
If your guy pleads to two of them, here's what he's going to get per the guidelines.
Sentencing guidelines make some of this easy.
If he's convicted of all 10, and here's the discovery on all 10 to show you that I can prove it, here's what the sentencing guidelines are, and there's obviously a disparate sort of gap between those two.
My experience was I would knock a number of those felonies out rather than stack them so that I could at least get one plea and get my victory.
That's what Jim Comey referred to as the chicken shit club.
I know this is a PG podcast.
Of which I put him as the actual president of that club, but I have a different perspective on that.
Oh, 100%.
Yeah.
But he did sort of coin the phrase, famously anyway, and, you know, my cases are so tight, nobody dare go to trial against me.
Well, you're not bringing tough cases then.
That's kind of the...
Or you're not bringing a case where the sentencing range is life without parole or death.
Yeah.
Right?
You're not getting a plea.
In that case, nine times out of ten.
And at least my experience was, if you killed a police officer, if you killed a child, if you killed two or more people, you're just going to have to whip me in court because the state of Alabama, in my case, has empowered me to seek the death penalty.
And that's the punishment I think befits your client.
And that kind of makes things easier.
Yeah.
Everybody knows the score on day one.
And then you just kind of go through the motions practice and then the trial and know that they're going to put you to your proofs because they really don't have anywhere to go.
And most of the time, the defense lawyer, as you know, is just trying to save the life of the defendant and get a life or a life without parole sentence instead of the death penalty.
I went back to law school later in life, and I pastored for a number of years.
I was in the Marines.
I actually started in the Navy for three years.
Then my officer, basic, in the Navy.
Came back into the Air Force 22 years ago, 21 years ago.
Still in.
But I have...
I had a chance to go JAG. I just stayed as a chaplain, which is what I prefer to do.
But the issue is when I first went back, I was in a circuit up here in which, again, I was already a member of the Georgia legislature at times.
So it was interesting.
So I enjoyed learning a lot quickly.
I wish in some ways in history it worked out differently.
I could have done a lot more.
But I was put on a murder case and talking about this same issue that you just talked about.
Four guys in a card.
One does a, you know, sort of a gang shooting, a thug over the top shooting.
The guy that we were assigned, and I had the privilege of having a longtime defense attorney who's now deceased, And he and I got assigned the case.
It was my first murder case.
And the problem we both had, and he was, again, I was more nervous about it, but he had been through many of them.
But the problem was, is our DA just blanketly charged everybody in the car with You know, felony murder.
And everybody in the car was going to get the death penalty, you know, is what he was, you know, flossing around.
I'm sitting here saying, and the guy was wearing one and said, no, they're not.
There's no way this is going to go.
Our client had nothing to do.
Nothing to do with it, yeah.
But it's felony murder, right?
I mean, that's the way the statues are written.
And when you have good advocates like you defending those clients, not the shooter, not the guy that handed them the gun.
Yeah.
Right.
Just a guy who was there.
It's like, look, we'll cooperate.
We'll testify.
We'll do whatever.
But you're going to have to cut us either a much different type of charge or let us, you know, cut us loose altogether at the end.
You know, and look, any prosecutor worth their salt should know exactly what you knew at that moment was this guy wasn't culpable, but he could be a great witness for us.
Oh, yeah.
Yeah.
He was there.
It was.
It ended up, and it was all done as it got.
And I ended up...
This goes to what we're going to talk about here in a second, and that is this time frame between cases.
It just doesn't happen overnight.
I ended up having to get off the case because I was elected to Congress, and it finished up multiple years later.
Sure.
It takes a long time.
And that goes back to the whole setup of...
You know, in politicization, you brought up Jim Comey.
I had to deal with also the Obama administration before you were appointed to the U.S. Attorney's Office.
I had to deal with the Obama administration under their attorney generals and in the FBI. I won't be very clear here.
My father was a Georgia State Trooper, 31 years.
I've been in law enforcement all my life.
I always sort of joked, I fought the law, the law won every time.
I mean, it was never an issue.
I got nothing respect for our law enforcement, our FBI agents, and everything else.
But Jay, and I know you were in it a little bit differently.
I will have to say, though, because of personal experience in dealing with The Comey era of the FBI inside the Department of Justice will go down.
I believe historically is one of the worst.
I mean, up there with some of the other stuff the FBI went through that has just really hurt the cause of law and order in this country.
And I know as a U.S. attorney, when you were in your office, you didn't do the D.C. You had to just sort of work with it.
But how has that affected good work that our local U.S.A. attorneys are doing, our FBI agents are doing, our local police?
How can we begin to gain this back?
Because I frankly believe Comey, Strzok, Page, McCabe, all these guys did irreparable harm, especially at the FISA court that nobody talks about anymore.
Yeah, and you're naming a bunch of people who are no longer in law enforcement for a reason, right?
And that's kind of where I wish the media, and you're doing a good job of it right now, but I do wish that when politicians or the media or even the former president yesterday...
When they're talking about agencies in law enforcement, that if you have a problem with what Peter Strzok did, talk about Special Agent Peter Strzok.
Don't talk about all 38,000 members of the FBI and the good word.
They kept us safe last night and they'll keep us safe.
You know, the call to defund the Department of Justice or the FBI that was made yesterday by former President Trump or Matt Gaetz, Lauren Bobert, Marjorie Taylor Greene, the call to defund the police by, you know, a dozen people on the left.
That's chapter one in the book of bad ideas.
Period.
End of story.
There's nothing left to say about it.
If you don't like the people, if you don't like Derek Chauvin, which I don't, you don't, you know what you do?
You fire them, and then you prosecute them.
And then the feds prosecute them again.
That's how that works.
But you don't say everybody at the Minneapolis Police Department is a bad guy and a racist and a murderer.
That's ridiculous.
And so I do think, though, that the leadership...
Comey liked the tension.
You know, when he had mid-year review, which was the Hillary Clinton email scandal, and then he had Crossfire Hurricane, which was all things Trump and Russia, right?
He sat in on those meetings.
It wasn't like he just had rogue folks doing stuff and he didn't have any sort of situational awareness about it.
He's being briefed about it regularly.
And so I don't feel like he didn't sort of bring a lot of this on himself.
And, you know, Tuesday when Trump was arraigned, I guess, you know, today's a good day.
Why is that, Jim Comey?
Do you believe in the rule of law?
Do you believe that he's presumed innocent?
What's good about it?
Did you read the indictment?
He's a former Deputy Attorney General of the United States.
He's an accomplished prosecutor.
This indictment, and I know we want to talk about it, but what garbage this is.
Look, notice pleadings are important.
You inform defendants what they are charged with.
I've been at the highest levels of the prosecution business, and I still don't know what the former president of the United States is charged with.
I still have no idea what crime he committed.
And this brings up something, and for the legal folks out there, this is why I have this podcast.
We keep it very informal, but I do want to dig a little bit deeper.
I agree, and I've said this actually on the podcast and some of the interviews.
After reading this and notice pleadings and everything else, I believe that as it currently stands, at least in Georgia, at least probably in Alabama as well, there is a case to be made on pretrial motion that the indictment itself is insufficient on its face.
Yeah, it fails to plead a charge with which the defendant can defend himself.
That's the point of the notice pleadings, right?
You tell me what I'm charged with so I can exercise my Fifth and Sixth Amendment rights as a defendant to defend myself, right?
Right.
Well, if you just put a bunch of words down on paper 34 times in succession, wow, must have done something bad.
But you don't even tell me what crime I've committed other than I've falsified business records, but I had to commit another crime, or I think in this case it's to conceal the commission of another crime.
Well, what is it?
What was the other crime?
Well, we're going to tell you later.
We don't have to.
So the historic, unprecedented prosecution of the former president of the United States has never happened in the history of this country.
And you're going to do the bare bones?
I mean, even folks on the left, the legal pundits, most of them have never been in front of a jury, but I went to law school, so I'm important.
These people were even like, where's the beef?
This is not what I was expecting today.
This is nothing.
Van Jones is a smart guy.
Yeah, he is.
He was saying on CNN that, you know, if you're going to throw a rock to kill Goliath, this is a pebble.
And it's not even much of a pebble.
This is embarrassing.
And so when you're getting that from CNN, when you're getting that from MSNBC and Van Jones and others, you know, Alvin Bragg probably woke up on Tuesday thinking an awful lot of himself.
And he probably went to bed Tuesday night thinking, man, what have I done here?
Well, he made a comment, and as a prosecutor, I'm going to read, and the one that was repeated 34 times in this thing was the public law, penal law in New York of 175.10.
And here's what it says.
It said, a person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, which we go back to.
But here's the difference.
When his intent is to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.
And if it's falsified misregnance, it's a felony first degree.
You just brought this up.
I brought it up in my question.
He made the comment and said, I didn't add it because the law doesn't require me to.
That is one of the worst legal takes, in my opinion, even from a first-year criminal law student.
The law itself says that what you've done, it says you're doing it in cahoots, so to speak, the old Southern term here, with this other crime.
And he doesn't name it.
I mean, I don't even, again...
It shouldn't surprise us, Doug.
No, not at all.
It shouldn't surprise.
Alvin Bragg might be the Manhattan District Attorney, but he's not a prosecutor.
He's just not a professional prosecutor.
No prosecutor worth his salt or her salt would bring an indictment like this.
No.
One, you wouldn't have 34 counts.
You pointed that out earlier correctly.
You might have three.
You might just have one.
Right.
But you wouldn't have 34 counts.
Remember, it's really...
You know, here's what's interesting, too, about the 34 counts.
So there's a voucher.
There's an invoice, a voucher, and a check.
Now, for some reason, the very first payment generated two vouchers.
That's how you get to 34 charges.
There were 11 payments, 11 vouchers, and 12 vouchers and 11 invoices.
Here's the thing.
Trump was charged with the 11 invoices.
That's Michael Cohen sending a bill to the Trump Organization and the Trump Trust, right?
So Trump was charged with Cohen sending him a bill.
How ridiculous is that?
There's no conspiracy charged here, right?
There's no sort of money laundering charge here.
This is just, you know, a business record violation.
I mean, look, There's, the defenses, there's a lot of, you mentioned motions prior to trial.
There are a lot of those motions that need to, first needs to be a bill of particulars.
Tell me what law I violated.
What's that?
That's a 15 to 35 days, depending.
That's right.
And then there needs to be motions to dismiss.
There needs to be preemption motions.
If any of these charges have to relate with a federal elections violation, then that's going to go to federal court and be litigated whether or not the state of New York can actually assert a crime outside of the state of New York to turn 175-10 from a misdemeanor to a felony.
Because if it's a misdemeanor, that statute of limitations is run in all 34 counts.
Have to be dismissed.
And so that'll be...
Look, this case is not going to trial before the Republican primaries are over.
Oh, easily.
It's just not.
I just don't see...
I just see it being drug out by both sides and fairly by both sides.
But the other thing that I have a problem with is...
You know, the emoluments clause, we heard a lot about that as Trump was entering office, right?
Because he owns all these properties and, you know, is he going to direct people to go stay at the Trump Hotel in Washington, D.C. instead of staying at the Marriott?
Okay.
Well, so he puts all of his assets into a trust, right?
That he doesn't control.
Now, he signs the checks out of it because no billionaire is going to allow somebody else and give them general pall of attorney to write checks out of their billion-dollar checking account.
But you tell me.
Maybe I just don't understand definitions.
We are in a strange world of definitions now where girls are boys, boys are girls, mothers are birthing people.
Inflation is, I guess, nine quarters of consecutive downward spiral.
I don't know that maybe all the definitions haven't changed.
But a business record to me is not when you have a personal check written from a personal account out of a personal trust.
And remember, a person is guilty of falsifying a business record.
So to even start with the underlying premise that any of these checks or these invoices or these vouchers were business records to begin with.
Is just sort of ridiculous.
And then to even get into whether it was a secondary crime committed or not.
SDNY has said it's not.
DOJ has said it's not.
The Federal Elections Commission said it was not a crime.
But Alvin Bragg, in all of his experience as a prosecutor, You know, he has come to the conclusion that he's going to nail the former president of the United States because Cohen and David Pecker sort of silenced some stories that, you know, would have been embarrassing to the Trump organization, to the Trump family.
And yeah, they would have heard his campaign.
But one thing that, you know, in your days in politics, Trump, the day of the election, There was not a single poll that had him ahead.
He was two or three points behind in all of them or more.
Twelve days before the election, he was 12 points behind Hillary Clinton.
There was a 95% chance, according to a lot of the pundits out there, I'm sorry, the pollsters, 95% chance that Hillary Clinton was going to get to 270 electoral votes.
So Trump was worried about his brand.
I don't know that...
I mean, he's a confident man, but I mean, there's at least some reason to think that he was not going to win on Election Day.
Read the books.
Yeah.
But he did.
Read the books.
I mean, everybody sort of thought he got surprised by that.
I mean, it was...
Right.
And if you don't believe it, look at the two months after that in trying to put together, you know, the cabinet and everything else.
I mean, it was an interesting thing.
Well, and I mention all that because when that polling was being done and Trump was getting crushed, that's about the time these payments were taking place to Stormy Daniels, to Karen McDougal.
I'm not sure when the doorman payment was made.
I think that was early on in 2016. Whenever it was, that was a non-story even.
Again, if it was to benefit anything other than his campaign, then it's not a crime.
And if it's a maybe, maybe not, It ain't beyond a reasonable doubt.
And these are sort of the things that I don't know if Alvin Bragg...
I don't know if he was bullied into bringing this case or shamed into it because of the book that came out saying what a wimp he was or what.
I don't know what it is.
It sure seemed like he was dared to bring this case, though.
And I think he's going to...
I don't know if he'll regret it or not.
I don't know if he has the moral compass for regret, but I think that he's going to certainly be defeated here.
He has no negative incentive here.
It reminds me of a prosecutor I knew one time who said that Basically, the statement was made, he would take every possible DUI to trial.
If he lost, he lost.
If he won, it was fine.
He just wasn't going to be accused of letting a DUI case go.
And I'm like, okay, that's the definition of prosecutorial misconduct.
But, okay, I get what you're saying.
And look, he has no incentive not to.
I mean, he has no recall incentive.
There's no, I mean, he's not going to lose an election except to another Democrat who would have to answer the same question.
I do have an interesting one here for you.
And if you choose not to answer this, I get it, okay?
Because I struggle with it a little bit.
This is such a weak case, but yet such a farcical.
It sets the stage.
Everybody talks about it.
There are other cases out there, without commenting on the validity or anything else, in grand juries, which, by the way, have shown themselves to be truer pictures of what a true grand jury system looks like with not a lot of information coming out of them, held close to the vest, Georgia, Washington, everywhere else.
I heard this the other day and I just sort of, you know, okay, maybe.
But do you think there was any possibility that Bragg wanted to get out first or there was some discussion that do this now to take maybe some of the attention away from the other two cases that are three cases, whatever you want to call it?
I mean, people are so jaded now about the justice system that they believe this whole thing is a conspiracy among some.
And there's others that believe it's completely right.
Yeah.
Yeah, I mean, I don't believe.
I choose not to believe, and I have no reason to believe it.
But I choose not to believe that Fannie Willis and Jack Smith and Alvin Bragg had a conversation about who's going first.
Or who should go first, who should go last.
And so I choose to believe that.
I know this about Jack Smith.
He did not.
I'm not saying I know it because he told me he didn't talk to Alvin Bragg.
I'm saying that he's not that kind of guy.
I don't know Fannie Willis.
But let's hope that didn't come up.
Because, you know, you've made a good point, Doug, about, you know, how certain things that have happened in law enforcement have deteriorated our sort of trust and confidence in the system.
And that people do believe.
My own mother, you know, I'll go on television and defend the FBI. You know, Chris Ray's a friend of mine.
And she'll send me just a nasty text.
My mom, right?
She's like, you shouldn't do that.
You know, there's people in there that are bad.
Mom, no, there's 38,000 great people that work there.
The ones that you don't like are gone, and they're gone for a good reason.
But what Alvin Bragg has done here, and I think maybe this is even the broader point, Is there are equities that prosecutors have to consider outside of just guilt, right?
So some of it is resources, right?
Am I really going to bring every single case here?
Am I going to bring 34 counts when I can just bring one and maybe wrap this thing up with a plea?
Not going to do that with the former president, but let's say with John Doe.
But prosecutorial discretion is very important.
And the populace must have trust and confidence in our justice system.
And by bringing flimsy prosecutions against, in this case, the former President of the United States, political enemy of the left, political opponent of the sitting President of the United States...
Bragg has jeopardized that trust, that confidence in all of the other cases that the Manhattan District Attorney's Office is bringing.
And not only Manhattan DA, but cases around the country, right?
Was this person targeted or was misconduct uncovered and then this person prosecuted?
When I was growing up, when I was coming up in the ranks of prosecutors, that wasn't a question, right?
A predicated offense had occurred, and I found the bad guy.
You can thank me now, right?
I've put him in prison, the bad guy.
I didn't find what I thought was a bad guy and then wrap a case around him, and that's what this feels like in Manhattan.
And one other thing, and you know this as a member of Congress, as a ranking member of the Judiciary Committee in the House, we lecture the world when governments jail their political enemies, right?
The authoritarian regimes, the dictatorships, we lecture the world about how wrong that is.
We can no longer trumpet the virtues of democracy around the world in the same way, at least, to the same extent in those situations, because there is at least the perception that we now do that in the United States, too.
And that is something that Alvin Bragg has done.
Yeah, that is true.
Look, I got to know Chris Ray when he was appointed.
I'll be frank.
I know I don't dislike him personally.
I've been very frustrated, apart from public stuff, on some of the things that I've seen done.
I think he may have been put in a no-win situation.
I don't think he helped himself in that regard with some of the stuff I had to deal with in that regard.
But I think it's just...
But it goes back to something that was a rot that was at the top that are no longer there and now making sure that it doesn't happen again.
And I completely agree with you on that.
You know, again, one of the things...
I do have a quick...
We're wrapping up here, but you're going to be back on...
We're going to do this again because I want to get into...
There's so many things that law enforcement can do right, and I think it gets blamed, and I want to take that away, but also enhance what we did.
Classic case here, and this one I frankly don't understand, okay?
As much as there is going after, you know, Trump and we're seeing the document, I'm not even going to get into the documents and Biden and Trump, but there is one case that you hear all the time, and I think it's the one that is the hardest to understand why a case, as you said, has been presented It's happened.
It's factual.
You see it.
But nobody is prosecuting it.
And that is, of all of the Hunter Biden stuff, every bit of it, I'll throw away every piece except for one.
And that is the falsifying the record on the gun application.
That is a felony.
It is easy.
It's done.
Why in God's name has nobody prosecuted that case?
So, you're talking about it's an 18 U.S.C. 922G case, right?
When you go to buy a gun, you fill out a standard form and there's several things that you have to say are not true.
You're not a legal immigrant.
You're not a felon.
You've never been convicted of domestic violence.
And you're not an addict, right?
And he filled out that form.
It's, I think, clear to at least folks that maybe he has had a drug problem a time or two in his life, and maybe at the time that he was filling out this form.
Well, look, I'm trying to be sort of the level guy here.
But also he's convicted.
Also his issue here.
Right.
He has a conviction.
And so David Weiss, who's the prosecutor in Delaware, U.S. attorney in Delaware, who stayed on to continue on with the Hunter Biden stuff.
I like David.
And he came in with me.
He was appointed by President Trump after I came on board.
And I don't know what is taking so long.
The only thing that I can think It's one of two things.
It's either being slowed down by Washington, let's hope that's not the case, or this case has sort of metastasized into a much broader case involving Ukraine, Russia, China, Foreign Corrupt Practices Act, things like that.
And those investigations are very complicated.
If this is just a tax case as well, there's the tax avoidance cases, right?
Maine justice tax is one of the slowest sort of units inside of Maine justice, but we're three, four years down the line here.
I mean, there's no reason for a simple tax evasion case to take this long either.
I'm sure it's very uncomfortable for everybody involved to investigate the city president's son.
And Rob Herr, who's now the Special Counsel.
I served with Rob.
He was the U.S. Attorney in Maryland.
And he's now investigating the President of the United States for the possession of documents marked classified.
And so it's a, you know, I wish everybody, if I had a wish, if I had one wish, I'd probably come up with something else.
If I had two wishes, I'd use one for me, and then here's what I would use for the country.
Everybody gets pardoned.
Let's all move on.
Because this is driving down the...
I mean, really, our divide is doing this in this country.
And let's talk about issues.
Let's talk about immigration.
Let's talk about the census.
Let's talk about China and precursors and fentanyl and the Mexican cartels and how the Mexican government's really a third world government.
Let's talk about economics and the economy and how we're going to move inflation down and unemployment down.
But we can't talk about that because we spend all of our breath, all of our oxygen is sucked out of the room by Mar-a-Lago, by Alvin Bragg, by Hillary Clinton still, right?
All the comparisons yesterday to her $113,000 fine that she paid to the FEC for paying for the Steele dossier.
I'd like to just move on from all of it so we can talk about real issues that are going to affect my 12-year-old daughter when she's out in the workforce.
Yeah, who was it the other day?
Maybe it's Geraldo Rivera said the best thing that Biden can do right now is pardon Trump.
Problem is, it's a state case.
He can't do that, but that just shows you Geraldo.
Right, but if he could...
But again, if I had a wish, if I could be genie for a second...
Right, exactly.
But here we are.
But I think one thing, and I agree with you, a lot of this is just like...
And having lived it, breathed it, immersed in it, probably have two years off of my life over the last five years, six years with some of this investigation, it does go to the fact that...
The one thing, though, I would say, though, in the Delaware case, It would be interesting enough for me.
Go ahead and charge that code on the gun application.
And then if you want to add charges later, add the charges later.
But by holding it out completely, you've got everybody at the Waffle House sitting here saying, two-tier system of justice, this ain't right.
And I love them because I'm sitting there saying, it is hard to understand.
I get the behind the scenes.
I get the bigger case.
But to the average person out there who sees...
What goes on with friends, family, and everybody else, they don't get it.
And the longer it takes, and I mentioned again prosecutorial discretion being one of those equities that a prosecutor always has to consider.
The longer it takes, the more that that trust and confidence is being chipped away at And that is something that David and the Department of Justice are going to have to continue to balance because I do agree with you.
I cannot come up with a great explanation why we are where we are, and it does give that perception without more information coming to light as to why.
Well, here's what we're doing, and this is why it's taking so long, right?
Which is difficult to do when you're talking about grand jury information.
But if you were to do that, it would at least explain it and tamp down.
Because in that void, in the absence of leadership, people are going to just look for anything to cling to.
And it might be a conspiracy theory that has nothing to do with the truth.
But that's the thing that's going to take hold in that void.
So I do think avoiding that is important.
And they're not doing a great job of that at the moment.
I agree.
Folks, this has been a great conversation, Jay.
This has been great.
I want to get you back on.
We're going to talk about some more stuff because I think going into prosecutorial discretion, whether it be gun, you listed a whole lot of things there that I'd love to talk to you about, about how we do it.
One of the biggest ones, gun issues, which has been going on right now with ATF, with the regulations, but also the lack of prosecution.
For gun-related offenses.
I was so sick of Lori Lightfoot in Chicago to keep screaming about straw purchases in Chicago, and yet there was, I think, literally 11 cases over the last four years actually prosecuted under that.
So it's just crazy.
Jake, great job.
Glad to have you on the podcast.
It's going to be, like I said, looking forward to having you on again.
Looking forward to being with you on TV. As well.
Have a great day.
And folks, this is the Doug Collins Podcast.
If you have any questions for Jay or myself, please go to the DougCollinsPodcast.com.
Hit that email button and let us know because next time we'll have Jay on, we'll answer some of those questions as well.
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