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Aug. 13, 2024 - Ron Paul Liberty Report
28:08
Flashback -- Jonathan Turley: The Trump Indictments and the First Amendment

Jonathan Turley will be back at this year's Ron Paul Institute Conference in Dulles, VA on August 31st! Get your tickets here: https://www.eventbrite.com/e/liberty-platform-tickets-913244618237

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Time Text
Indictments And Recounts 00:14:57
We are grateful now to have with us someone who has a very busy schedule.
If you turn on TV, you'll see him on all the time.
And so we're all the more grateful for him making a little bit of time for us today to try to explain what the heck is going on with our judicial system.
Please welcome Professor Jonathan Turley.
Thank you very much.
Thank you so much.
Thank you all very much for having me.
I want to apologize about the glitch this morning.
I had a friend who passed away a few days ago and we had sent a note saying that I didn't think I could guarantee I could show up today, so we thought that it had been canceled and I got a call from Daniel McAdam saying, where are you?
And I've never stood up Ron Paul yet, and I don't intend to start now.
My relationship with Ron Paul goes back to when he was a member of Congress and would hold luncheons to bring together members to get them to think about ideas and perspectives that were outside of their bandwidth.
And...
And it was a very incredible lunch and series, quite frankly.
And I think these conferences really carry on his legacy.
It's not that the speakers agree with each other.
I think we have very significant disagreements, but we value Ron Paul bringing together voices that are not often heard and allow us to discuss these types of issues.
But my purpose is actually much more mundane.
I am being asked to talk about what is the situation with all of the Trump indictments.
And, you know, the fact is, you know, if indictments were like frequent flyers, he really should have gotten the fourth one for free.
But you don't.
You don't get those for free.
They're very, very costly.
And part of the objection that I have made to this pylon is that some of these indictments raise serious constitutional questions, questions that could produce, I think, a damaging precedent for the country.
That is not meant to suggest that I have not been critical of President Trump.
I have been.
I was critical of his January speech while he was giving it.
I was doing the coverage.
I also disagreed with his arguments about voting fraud.
Now, at the same time, by the way, I was amazed how my counterparts in other networks the day after the election announced there was no voter fraud.
So I couldn't understand how you could make that decision.
I've covered elections for CBS, NBC, Hiron, Fox, and BBC.
Every presidential election has involved challenges.
And most of those challenges have been unsupported.
They can result in sanctions, but they have not resulted in criminal charges.
And we have to have a frank discussion about these indictments.
Now, they run the spectrum of strength, quite frankly.
And I'll start with the strongest one.
I think Mer-a-Lago is a serious indictment.
The evidence there is getting stronger.
You just had a critical witness that changed his testimony.
I've said before that was ever filed that the president is his team better think seriously about that documents case because it is a serious threat.
Now, if he's elected, he can pardon himself.
He can give a self-pardon or a Republican elected can do it.
But everything I say about the other three indictments, I just wanted to start out by saying the Mar-a-Lago indictment is the real thing in terms of a threat and it should not be downplayed.
The other three indictments I'm now going to be highly critical of.
The worst one is, of course, the New York indictment by Elvin Bragg.
And that indictment has been ridiculed even by some people on the left.
You have a prosecutor who ran for office on the pledge to indict Donald Trump for something.
Just, that's it, just for something, whether it was ripping a label off a mattress or endangered species violations, it didn't matter.
He was promising to bag Donald Trump.
And to do that, he essentially did what I've called bootstrapping.
He took what is essentially a federal, alleged federal offense involving campaign financing and bootstrapped it through a state claim.
And this also allowed him to get around the statute of limitations.
It is a pathetically weak indictment in my view.
But the problem with the state indictments are twofold for Trump.
One is you can't pardon himself out of a state conviction.
But second, the way that trial courts work is they have a preference for things to go to verdict before you can raise threshold issues.
And I know for most thinking human beings, that seems pretty bizarre, because it means that if you're arguing that there's a threshold barrier to bringing me to court, you sometimes have to wait through an entire trial where they tap you out financially, and in this case, have a trial during a campaign, before you can get a full review on appeal.
We don't know if the Court of Appeals and the Supreme Court is going to follow that common trajectory, because this is anything but the normal case.
But for the Bragg case, I think that it's an anemic case, and I'd be surprised if it withstood review.
That brings us to the other state case.
Well, first of all, if we go in order, you have the first Fed indictment, which is in D.C.
And obviously, Smith wanted to be in D.C.
The chances of finding a Trump voter in a D.C. jury pool is about the same as finding a snow leopard.
And so it's obviously a great jury pool for Smith, but it's not complaining about the weather.
That first indictment, I should say, raises many of the questions that I have with the Georgia indictment.
And both of them concern January 6th.
And once again, as someone who was a critic of Trump's speech and disagreed with him on this whole certification theory from the beginning, he obviously didn't listen to people like me.
He listened to other lawyers.
But that's not a crime.
Lots of people don't listen to me.
My wife doesn't listen to me.
But there's a lot of, you know, he listened to a group of attorneys that had, in my view, flawed theories as to the federal law and Vice President Pence's authority, and also about some of what was going on in the like the Georgia attempted recount.
Being wrong doesn't mean it's a crime.
And so when I've raised these free speech issues, I've been really pummeled by other academics saying, my God, there's no free speech implications in any of this.
Well, obviously there is.
You know, the question in constitutional law is not often what you do as much as how you do it.
There has to be some price that's too great to bagging Donald Trump.
I mean, at some point, we have to reach that point.
It's like the Farside cartoon where they showed this nuclear wasteland that was still smoking, and this guy, there's one guy that remained, and he was jumping up and down saying, We won, we won.
At some point, the cost is too great.
And one of the things that you look at from a constitutional perspective, and certainly what I look at in these indictments, is what's the limiting principle?
How do we distinguish between something that is a baseless or unsupported challenge to an election and something that's a crime?
You know, Representative Raskin in 2016 and his colleagues tried to stop the certification of Donald Trump on no evidence at all.
They did that when there were violent riots happening in Washington, D.C. Does that mean that they were seditionists or that they committed these same crimes?
Hillary Clinton said that the election was stolen from her and continued to call Donald Trump illegitimate.
Before 2016, Democrats used this very same law to try to break certificate to block certification.
Which of those are crimes?
And how do you distinguish them?
Those are questions that apparently you're not allowed to ask if the name Trump appears anywhere in that analysis.
Well, hopefully judges will ask that question because I don't know what the answer is.
And I'm talking as someone who is critical of Donald Trump.
So when you have the Georgia and the second federal indictment, I think there are substantial threshold questions.
I do not think that Judge Shutkin is going to wait for an appeal.
I think that she intends to take that thing to trial.
And she is putting it right before Super Tuesday.
And once again, I don't get it.
I mean, I agree with her, and I agree with her that the two dates put forward by Smith and by the Trump campaign were ridiculous.
I mean, Smith, Smith, there's like 12 million documents.
And he wanted to have this like yesterday.
And then Trump was saying 2026.
I was like, really, why not 2033 or 44?
I mean, where the hell did you get that number?
But she was correct.
She said neither of these dates make any sense.
And I thought, okay, that's really good.
But then she shoehorned this thing before Super Tuesday and right before the New York trial.
Why?
Why would you need to do that?
And by the way, some of these cases, like Georgia, she could have brought this case two years ago.
She clearly waited to drop this thing right before the election.
It was manipulating the schedule.
So these challenges are going to have to be heard.
We may see some new precedent, I'm not too sure, as these Court of Appeals grapple with this question of when they can give a full review on these issues.
I'm going to deal with Georgia for one more second.
I've gotten a lot of heat.
I was attacked by the Washington Post.
I know it's breathtaking at the thought of it.
But I was attacked by the Washington Post because I suggested that the call which led to the Georgia investigation might not be criminal.
The famous call with Raffensberger.
And Philip Buppet at the Washington Post said, you know, Chirley, when we first issued our story, said that the call was breathtaking for Trump to ask to tell them to find 11,000 votes.
What he didn't mention is that the Washington Post report was wrong.
And that when we got the transcript a couple hours later, I sent out a tweet saying, you know what, this does not seem like what you said it said.
Indeed, this sounds like a criminal defense.
Because, and I admit, I tend to look at things from a free speech or criminal defense standpoint.
But when I saw that transcript, I couldn't even understand how the Post could have taken that and treated it as demonstrably criminal.
People, reasonable people can disagree.
But what I said, and I've still said recently, which led to the attacks, is that Trump has a valid argument here.
This was a settlement call.
They were heading into litigation.
He was trying to get another recount or continued investigation.
And in making his case for that, he said, all I need is roughly 11,000 votes.
What he was saying is that in the whole state of Georgia, all I need is to find those and it flips the outcome of the election.
So you should go ahead and do it.
I don't need to find a huge number.
Now, we can disagree about, I still think 11,000 is a big number because the recount had already been done.
If you look at past recounts, it was extremely unlikely that that number would be found again.
But it was a settlement call and he was trying to say, I don't need many votes.
Once again, I disagreed with him on that call, but some people agreed with him.
The argument in the media, which I still can't fathom, is that was just telling them to basically find the votes, that is to just invent the votes, to just say that he made the vote difference.
But that's contradicted in the call, and it's contradicted in the second call, where Trump is clearly saying, you should go out.
If you look, you'll find these votes.
He's telling them, go find these votes.
Does that make him right?
No.
But it doesn't make it a crime to say, I want one more recount.
But everyone went absolutely crazy to suggest that he actually wanted a recount, that this was a settlement negotiation.
Then Raffensberger just testified.
What was the first thing Raffensberger said about the call?
Well, that was a settlement negotiation.
We were talking about a recount.
Well, yeah, I mean, that's obvious.
Now, does that mean that the underlying claims are valid?
No.
But it means that that call is not strong evidence of a crime, the one that led to the start of the indictment.
Federal Cases Await 00:02:20
So then these indictments are going to have to go to a jury very likely at some point.
Will they happen before the election?
I don't know.
I mean, 12 million documents?
Defense counsel has to look at them.
You don't have to study them for hours, but you have an ethical obligation to look at them.
If you do the math, it's pretty hard to imagine how a defense team is going to get through that number of documents in that time.
But also, you're not counting in challenges.
And I can also tell you, on the documents case, those are classified documents.
I've been lead counsel in national security cases, and I've also been the only cleared counsel in national security cases.
They move at a glacial pace.
It is like invading Russia in winter.
It does not go as planned.
And if you can get the trial on the documents case with that number of classified documents, well, okay.
But that would be the fastest turnaround I've ever seen in a classified case.
So whether you have these trials or not, we'll see.
So how do you play this out then before we get to the last point?
I know I've got limited time.
A couple of things could happen.
He could be convicted in the federal cases.
In that case, he could pardon himself if he's elected again, or the Republicans can pardon him.
They can do so even if the trial hasn't been held yet.
You could do a proactive pardon.
You can do a preemptive pardon.
So even if Smith can't get a trial or both trials before the election, he would never see a jury in the case if there was a self-pardon or if another Republican did it.
On the state stuff, you can't pardon out of that.
In Georgia, even the governor doesn't have pardon authority, although I'm not quite sure Kemp would be eager to exercise it.
But it gets a little bit dicey at that point.
If the judge sentences the president to jail, let's say before the election, let's say after the election, because this is going to take a while, he would then have presidential functions to fulfill.
Courts And Convictions 00:08:45
We've never had dealt with it.
So federal judges may in fact step in and say, we've got to work something out.
You know, you can't have the President of the United States in stir when he's supposed to be doing these types of presidential functions.
You've got Secret Service.
We've never dealt with it.
So a federal court's going to have to deal with it.
At the same time, the merits are going to have to be looked at.
It could be years before that's ever resolved.
In fact, it could last until he's out of office.
So there's a lot of runway between now and then.
So I wouldn't necessarily, I know people, if you look at the reaction to the Trump mugshot, it's clear that this is the thrill from people about the mugshot is almost indecent.
I mean, I expect that Pornhub's going to make a separate category for Trump mugshots as a fetish.
But I don't know if they're going to be seeing that Trump in a jumpsuit anytime soon because of all the things that have to be done.
I want to deal with one last issue, which is perhaps to me the most troubling of all.
And that is the 14th Amendment argument that has now gone into vogue that suggests that Trump can be prevented from appearing on the ballot in various states.
I've rejected that theory for years before Trump was ever accused or even on the radar.
It was sort of a parlor game that law professors would sometimes engage in.
You know, how far does the 14th Amendment go?
The argument by a number of academics, including some very serious minds and people I respect, so there's good faith arguments on both sides.
I haven't tried to hide my view.
I personally don't think it's a close question.
I think it is crazy.
But it gives me pause to see these serious academics that have put forward, two of them put forward a very long University of Pennsylvania law review.
Read it and was even more convinced they were wrong.
But it is an issue that will have to go to the Supreme Court.
It's based on this idea of the 14th Amendment has this clause that says that you can be barred from office if you engage in insurrection or rebellion or give aid and comfort to those that do.
And the argument is that Trump doesn't even have to be convicted and Congress doesn't even have to take any steps for him to be immediately barred from all ballots.
Now, I've written about this a lot and all I can do is just give you a few of the reasons why I think that this is truly loony.
And one is the 14th Amendment's provision was written after an actual rebellion.
It was written after the Civil War.
Hundreds of thousands of people were killed.
A separate nation was created with its own army and foreign policy.
It was a rebellion.
And the Congress was not happy when Stevens, the vice president of the Confederacy, showed up right after the Civil War to retake his oath of Congress to resume as a member of Congress.
And they were understandably a little bit upset because they're like, wow, you're about to take the same oath you just violated.
Hundreds of thousands of people are dead.
Why should we trust you now?
So they wrote this provision.
That was the context.
But the language involves rebellion and insurrection.
Now, this is where I've also gotten some heat.
And someone should tell me if I'm going over because I don't want to throw, I've already disrupted you enough.
As Henry VIII said to Anne Boleyn, fear not, I will not keep you long.
But the insurrection, the language of the 14th Amendment refers to insurrection or rebellion.
Now this is where people get very upset.
And I'm just going to say it.
January 6th was not an insurrection.
It was many things.
And that is as someone who condemned January 6th.
January 6th was a desecration of our constitutional system.
It was outrageous.
It made me sick to watch that happen because I love that building.
And I love our Constitution.
And that was wrong.
And Trump should have spoken earlier.
That was wrong, too.
He should have spoken earlier.
But what it was is what most polls are showing.
Most Americans, when polled, said it was a riot.
It was a protest that became a riot.
And I was doing the coverage.
We were watching it in real time.
One of the things I said in coverage is I've never seen the Congress so thinly defended in such a large protest.
I said that on the air.
I still don't understand you.
I mean, we were shooting it, and there were like bike racks with a couple of, some of the points had bike racks with a couple of Capitol police officers there.
And they were overwhelmed.
And there were people that went there with violence on their mind.
There's no question about that.
There were some very radical people in there, but most weren't.
Hundreds of people have been charged.
Only a relative handful, maybe a dozen or so, have been charged with seditious conspiracy.
And by the way, seditious conspiracy is a crime that includes intentionally disrupting an official proceeding.
It is not what people think it is.
It's an extremely broad crime.
And I have a book coming out next year on free speech.
And one of the things I argue is that we need to eliminate the crime of sedition.
And it's been a, you know, sedition has a horrible record, and we got it from the English, and it has been abused in England, it's been abused in the United States.
I do think those people warranted charges, but seditious conspiracy, in my view, is a very flawed crime.
So getting back to then the 14th Amendment, you have a former president who's not only not been charged with insurrection or rebellion, he hasn't even been charged with incitement.
If you recall, right after the riot, the D.C. Attorney General said, I'm investigating Donald Trump for criminal charges for incitement.
And I wrote a column and said, good luck with that, because there is a case called Brandenburg.
Brandenburg says that you can't indict someone for so-called violent speech unless it is imminent, unless it meets these very narrow criteria.
I said, this thing doesn't come close to the Brandenburg thing.
And in the speech, he says, I hope you go peacefully to the hill.
He says, go and protest on the hill.
That doesn't even come close to satisfying Brandenburg.
And so you have Racine, who was one of the most anti-Trump figures among prosecutors, and he just suddenly went quiet.
Why?
Because he knew we couldn't charge him with incitement because it would be immediately struck down.
It would be immediately rejected by the courts.
So he's never been charged with incitement, let alone insurrection, rebellion.
So according to these academics, a court could simply take someone who's never been charged, let alone convicted, with incitement, and say that they were engaged or helping people in a rebellion or insurrection and bar voters from voting for them.
That's a dangerous theory.
And so what I can say is what we need here are people of good faith who are willing to put away their hatred for Donald Trump or their love for Donald Trump and start to think about the implications for our country.
So I'll end with this, you know, because Woody Allen once said, you know, I wish I could end with a positive point, I just don't have one.
And he says, I wonder if you would just accept two negatives instead.
And so I'm going to give you two negatives to make a positive.
The first negative is that the Constitution doesn't change with our emotions and it still stands in the way of these theories.
The Constitution's Resilience 00:02:04
You know, whatever you may say about the United States Constitution, and I know people don't read the Constitution when they come up to me and say, God, I just love reading the Constitution.
Then I know they've never read the Constitution.
I mean, I'm a Madisonian scholar.
The U.S. Constitution was written by a geek.
If you want to read a beautiful Constitution, read one of the French Constitutions, because they had a lot of practice because they failed so often.
Madison wrote that Constitution to survive.
It's the all-terrain vehicle of Constitution that survived.
It's the most successful Constitution in the history of the world.
And it won't allow it.
In the end, it won't allow it.
And then, second, nor will the courts.
You know, what people say about January 6th borders on constitutional defamation.
Our system worked.
You know, Biden was certified.
The courts did guarantee that.
It worked.
Didn't resolve our divisions, probably won't for a long time.
But it worked because it's our system.
And there's something in all of us, no matter where I go, that down deep believes in that constitution more than they do all of the passions and divisions of our time in this age of rage.
What we don't want to admit is that rage is addictive.
We like it.
It allows us to do and say things we wouldn't normally do.
But down deep in our DNA, We know that we have a system that's greater than all of these individual parts.
And it will withstand it, and this republic will withstand it, despite our best efforts.
We have every reason to believe in that constitution, because it's a covenant between each other, that as things get bad, we have to trust each other, and it'll prevail.
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