Jed Rubenfeld a Legal System that Encourages Political Subversion of the Law | The TRUTH Podcast #51
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Arguably the single defining issue of the 2024 presidential election is not one that anybody anticipated a year ago.
And it isn't one that has ever been the major issue of a race until this year's election.
The first time in American history that lawfare and the politicization of the justice system is the singular most important issue facing voters.
And here's why.
You have a former president of the United States and the current frontrunner, presumptive nominee for the Republican Party.
That is the subject of not one, but four ongoing prosecutions.
And one prosecution that has at least in its first trial before appeal reached a conviction that could land the 45th and likely winner of the 47th slot for president of the United States in jail ahead of the election.
That's why.
Now, this is a president who actually delivered criminal justice reform himself, in part recognizing some of the failures of that criminal justice system as applied to other citizens.
But this time, in a full circle, it's been applied to him.
This isn't about Donald Trump.
It's about every citizen in the United States of America.
Because if they can do it to Donald Trump, They can do it to you.
Breaking down that first case is worth it, because many people, even many of my center-left friends, many friends who are disengaged from politics, don't really understand what the case is about.
All they understand is that one of the two major candidates for US president is, as MSNBC will remind you, a convicted felon.
But when you dive into the details of the case, whether you're Democrat or Republican, It's appalling that quite literally that former president was convicted of a crime that a majority of the jurors were told they did not even have to agree on what the underlying federal felony really was that served as the basis for a state conviction.
We're going to talk about that in detail in today's episode.
But just take the backdrop facts as we know them.
You have a judge whose daughter was a Democratic partisan operative that was fundraising for the Democratic Party, using Trump's New York trial as a basis for fundraising while her own father was presiding over that trial.
You have a prosecutor in that case who ran for political office on the promise of going after one man, Donald Trump, without specifying exactly what crime he'd go after him for.
And when he did go after Donald Trump, he went after him for a crime that, according to state law, was outside of the statute of limitations and was also a crime that was at most a misdemeanor.
Unless it was also charged with an underlying nexus to what was a federal crime of alleged campaign finance violations, the best sort of underlying upcharge to a felony basis they could come up with.
And yet that alone was one was based on flawed premises of its own right, where if Donald Trump had actually used campaign funds rather than personal funds to make a personal hush money payment, that's what they'd be going after him for instead.
They were going to get him going or they were going to get him coming.
This raises deep issues for the future of our country.
Are we going to become some kind of banana republic, third world nation, where the party in power uses prosecutorial force against its political opponents in the middle of an election?
If this is the first time it's happened now, well, mark my words, this won't be the last time we set a dangerous precedent for, frankly, both sides to be able to use this kind of prosecutorial power against their political opponents.
Are we going to use novel legal theories in the process, ones that have never been used against ordinary criminal defendants to do it?
Is this the path we're headed down?
Are we destined for that fate?
Or is there a way out of it?
And I think the best way out of it, first of all, is to understand the essence of what's actually happening here.
Not through the lens of partisan drivel.
Not through the lens of canned political speeches.
You'll get plenty of that in a lot of places on cable television or elsewhere.
But through actual analysis of the law.
Forget who the defendant is.
It could be Joe Biden.
It could be Donald Trump.
It could be an ordinary American on a given day.
What's the actual law at issue here?
What are the actual facts at issue here?
How can we be certain this is an actual politicized pursuit rather than just the ordinary carriage of justice?
And even if it is a politicized pursuit here and a miscarriage of justice, how certain are we that that miscarriage of justice isn't systemic in America against the backdrop of a criminal code that has proliferated like a cancer in terms of the number of laws, often vague laws, that allow prosecutors to make up the law as they go along?
Is it just Donald Trump they're doing it to?
Or are they doing it to ordinary Americans on the left and on the right on a daily basis?
These are questions that merit thoughtful answers, not just partisan political answers.
And that's why today I've invited an old friend of mine, a brilliant legal mind, former law professor who overlapped with me when I was at Yale Law School.
He's still at Yale Law School today.
Jed Rubenfeld, a man who has thought deeply about the Constitution, about criminal law, and about the Trump cases, not just as they relate to Donald Trump, But as they relate to every American.
That's why I welcome him on the podcast today.
Jed, it's great to see you.
Hey, great to see you too.
Thanks for having me.
So I know you have taken a detailed look at the Trump conviction in New York.
I'd like to start there as a bridge to a deeper conversation about what this means for citizens across the country.
But let's start with the Trump New York conviction.
I want to break this down for us.
I saw a video of you.
I thought it was excellent.
That's what prompted me to have you on this particular podcast where you explained what was really going on in layman's terms.
I'll turn it over to you.
Tell us about what this conviction actually was about in legal terms for the everyday citizen.
Yeah, that's exactly what I try to do in the video that you just mentioned because You know, it's very unusual.
Normally in a criminal case, at the end of the case, if the jury comes to a guilty verdict, you know what they've been found guilty of.
They were charged with robbing a bank on such and such a day, and the jury finds them guilty, and nobody's confused about what they were charged with or what they were found guilty of.
In this case, you can ask 100,000 people, and all but one of them won't be able to tell you what on earth Former President Trump was just found guilty of.
And lawyers, too, are confused about it as well.
So what I've tried to do is just explain what the heck happened in the case.
And here it is in simple terms.
Was Trump charged with unlawfully having an extramarital affair?
No, of course not.
That's not criminal.
Was he charged with paying hush money unlawfully to cover up that affair?
No, because that's not criminal either.
What was he charged with?
Well, here was a charge.
It's a two-step crime.
New York says he falsified business records.
What business records?
Well, it turns out his then lawyer, Michael Cohen, pays $130,000 to Stormy Daniels to hush her up, to get her to sign an NDA so she won't publish her allegations about having had an affair with Trump.
That's 2016. Then 2017, Trump starts reimbursing Cohen in monthly installments, pays him back for that $130,000, and pays him some money on top of that for, you know, his services.
And those payments, those generate, you know, check stubs and bookkeeping entries.
Does it monthly for the year of 2017. That's how you end up with 36 different And if you've heard there are 34 counts in the case, that's how you get to 34 counts.
Now, every one of those bookkeeping entries was listed as payment for legal expenses.
And believe it or not, at the heart of this case, it starts with the claim by the state that That those weren't legal expenses.
Those were hush money campaign expenses.
You were actually paying Stormy Daniels money to help your campaign.
So those aren't legal expenses.
Those are campaign expenses.
So the first claim in the case is that's a false business record.
And if you don't think that's false, there's no case.
So the state says those are clearly false statements and a lot of people...
Have agreed with that and say, yeah, it's a campaign finance expense.
It's a hush money campaign expense.
It's not a legal expense.
Other people on the other side say, what are you talking about?
He's paying his lawyer for doing what lawyers do.
Of course, it's a legal expense.
That's the first issue.
But that's not the sole charge.
It's a two-step crime.
Falsifying business records, which by itself would just be a misdemeanor, And Bragg, the District Attorney, could not charge just the misdemeanor because the statute of limitations had run on the misdemeanor.
So what he does, he says, I'm going to charge with the felony.
Falsifying business records in order to conceal a second crime.
That's a felony.
Statute of limitations had not run.
But what was the second crime?
And that's where things got interesting because the indictment didn't say.
There was not a word in the indictment about what that second crime was.
And, you know, Bragg gave an interview that day when the indictment was unsealed and said, oh, under New York law, I don't have to tell them what the second crime was.
I don't have to say.
So the indictment never said.
Documents filed right after the indictment didn't say.
And, of course, the Trump team asked for a document called a Bill of Particulars saying what was second crime.
And the state would not specify, would not identify and commit itself to a second crime.
The judge, Judge Mershon, in the case specifically held, this is back in February, they don't have to.
He said, I'm looking at New York law, and they don't have to commit in advance to the second crime.
Let's just pause on that for a second.
Does that strike you as, first of all, we could talk about bizarre, but second is, let's talk about the legal foundation for that.
The essence for charging a felony, the defendant isn't actually told what that felony is he's actually being charged for.
What do you make of that?
Great.
Well, so then you get to the question of whether that's constitutional.
Does it raise some constitutional issues?
And it sure does, Vivek.
Under the federal constitution, it's a Sixth Amendment question.
The Sixth Amendment to the United States Constitution guarantees to every accused in every prosecution, state or federal, the right To be told what the charges are against him.
And the Supreme Court has said for a century and a half, he's got to be told specifically what the specific charge is.
And there's a very serious question about whether that indictment satisfied the Constitution.
In fact, it's pretty clear it did not.
The Second Circuit has held that Very explicitly that when a defendant is charged with a crime, a two-step crime of the kind that I described, an offense which turns on the violation of another statute, the indictment has to say what the other statute is.
And that's in a case called United States versus Piro, P-I-R-R-O. And that's, you know, very clear holding from the Second Circuit.
Now, what the state's going to say is, Well, hang on.
We filed a brief with the court back in November, and we said, here are the possible second crimes, and they listed four different theories.
So then the question becomes, well, when they listed four different theories of what the second crime might be in this legal brief, is that sufficient to satisfy the Constitution's requirement of notice?
All by itself, it's not clear that that would be, but there was a deeper problem.
One of those theories, one of the four theories, was that the second crime, the crime that Trump had allegedly concealed by allegedly falsifying the business records, was a violation of a New York election statute.
And guess what?
That's the theory.
That's the second crime that the state eventually Honed in on and said, that is a second crime.
By the end of the trial, they said, that's a second crime.
And the jury was instructed, that's a second crime.
Now, in that crime, that crime says it's a criminal offense to try to influence an election through unlawful means.
So it's another two-step statute.
It says it's criminal to do something perfectly lawful, try to influence an election, if you do something illegal to do it.
And in other words, that theory of the second crime opened up and required a showing of a third crime.
And again, they'd never specified what that third crime was.
They threw out a bunch of theories, and in the end, the instructions to the jury said, you don't even have to decide unanimously on what that third crime, what the unlawful means were.
And that's the way things ended.
Let me just say for your listeners, That the fact that the jury instructions identified for sure with definiteness the second crime, that doesn't cure the Sixth Amendment problem because the Sixth Amendment right is a right to be told in advance of trial, of course, to be told in advance of trial the charges against you.
Because the whole point is to Prepare the defendant to meet his charges so that he can prepare his defense.
You don't cure a Sixth Amendment problem by telling the defendant at the end of the trial what he's charged with.
You've got to satisfy that by telling him before the trial.
And you're saying the jury did come back with a specific second crime that was the unanimous basis?
They were instructed in the jury instructions Very last day, jury instructions, here's a second crime.
The second crime's got to be the New York election law offense.
By the way, you read those- Why was it only the last day?
Because wasn't there some initial instruction where they were given that they didn't have to unanimously agree on what the crime was?
Well, it's so interesting.
You know, people read these instructions and everybody was confused.
And many journalists reported that even the jury instructions didn't tell the jury what the second crime was and left it open and said, you don't have to be unanimous.
Politico reported that.
It was reported all over the place.
And that's because jury instructions are confusing.
And I'm telling you, there is no way that that jury heard, you know, over an hour of jury instructions A lot of people got to see those jury instructions in print and couldn't understand it.
But if you do read the jury instructions in print, and you read them really carefully, and I promise you, I doubt very much the jury understood this, but what happened was, yes, the jury instructions said, here's a second crime.
The second crime, we know what it is now.
It's got to be this New York election law offense.
And the New York Election Law statute says it's a crime to try to influence an election through unlawful means, opening up the necessity of a third crime.
And it was that third crime, the unlawful means, the violation of some other statute, that's where the judge told the jury, hey, you don't have to be unanimous on that.
I'm going to give you a bunch of theories of what that third crime might be, and you don't even have to be unanimous.
Four of you can think one thing, four of you another, no problem.
Whether it was the second crime or the third crime in the chain, though, there was still an ambiguous predicate crime that the jury did not have to unanimously agree on, even in delivering its verdict.
So your point is, yes, that could have never cured the Sixth Amendment problem with the initial indictment in the first place, and that's true.
But it's not like even if that could be in some way cured or mitigated, it's not like that actually happened at the stage of the conviction anyway, because they were instructed that they didn't have to know what a certain part of that underlying predicate crime was, even for the New York election law.
The Trump team, Trump's lawyers, were left having to guess right up to after a year of litigation, having to guess and speculate on the first day of the trial exactly what charges the state was going to try to prove against them.
That's not the way things are supposed to work.
At the very end of the day, the jury was left with a number of theories of what the actual offense might be.
The third, what I've been calling the third crime, the unlawful means of trying to influence an election, which thereby is supposed to generate A New York election law violation, which is then supposed to be the second crime that Trump allegedly concealed.
And if this is confusing to an audience here listening to a well-spoken law professor laid out for you, imagine a jury in, I've been to that courtroom, a stuffy oxygen deprived Manhattan third world chamber after weeks upon weeks of trial with the judge verbally leading you these instructions and sending you into a back room.
Which raises the question of if you are going to go after a former U.S. president for the first time in American history with a criminal conviction in the middle of an election while he's a frontrunner to win that election, should you be using a legal theory or basis or jury instructions that an ordinary citizen has no idea what they mean in the first place?
What's the both legal and moral backdrop for that in this case?
Yeah, I think you're really hitting the nail on the head.
I think it's a very serious problem.
You got a prosecution being brought by an elected district attorney from the Democrat Party, and he's bringing that prosecution against the poll-leading candidate for the other party.
And you got to be so careful when that happens.
You got to make sure it's being done lawfully and constitutionally.
Otherwise, it's just a tremendously dangerous precedent for the country.
If we go down that road and that becomes the norm, this is...
It's a sure road to a constitutional crisis and a corruption of the legal system.
So one question is, should you even be allowed, should the prosecutor be allowed in cases like that to use a novel legal theory of a crime?
And I should tell your listeners, that happens in the criminal legal system not that infrequently.
New theories of how a criminal statute apply, that's not by itself unconstitutional.
But when you use a novel legal theory in this kind of highly charged political environment, I wish there was a doctrine that said you can't do that.
And because it's a former president, you could have a doctrine like that as a matter of presidential immunity, which might especially apply to Trump.
But I'm more worried about the going forward, dangerous president Of local prosecutors going after leading presidential candidates or, you know, just candidates whom they oppose.
You cannot have that in a functioning, healthy legal system.
And then, you know, maybe we need special rules that, look, in this context, you cannot be using a statute in a way it's never been used before because Bragg was, in fact, doing that.
And by the way, you're seeing that in the January 6th prosecutions, too.
What about that?
Yeah.
Well, you know, some of those prosecutions are just trespass and You know, pushing somebody.
And, you know, those are standard, you know, simple crimes to allege and prove if you can prove them.
But the main charge in hundreds of those cases is a violation of this statute 1512, a federal statute.
Which has never before been used to prosecute somebody who did anything other than tamper with documents.
It's a statute that was passed by part of the Sarbanes-Oxley business, and what it says is you can't obstruct an official proceeding by tampering with documents, mutilating documents, hiding documents, altering documents, or otherwise obstructing a proceeding.
And believe it or not, it's that word otherwise that's creating all the problems.
Because the Department of Justice is saying otherwise, that means forget the documents.
It doesn't have to be a documents case at all.
If you're trying to obstruct a proceeding in any way, shape, or form, you're guilty under this statute.
And guess what?
That's a 20-year sentence.
You know, compare that to the insurrection statute, which these people are not being charged under.
That's a 10-year sentence.
Sarbanes-Oxley has a 20-year sentence, and it had never been used before to go after somebody who hadn't tried to obstruct a proceeding through anything other than tampering with documents.
So, novel use.
And, of course, they've charged President Trump with the same thing in his January 6th prosecution.
So you raise an interesting question.
I worry about the implementation of it, to say that in certain categories, like when a prosecutor or a local prosecutor is going after a candidate or a federal candidate, there should be greater constraints on the use of novel legal theories in prosecution.
You could talk about the implementation of that, is that through departmental prosecutorial guidelines, but at least something that codifies a guardrail or a restraint to stop that from happening.
Yeah.
However, that would be a difficult problem to define of what that category really is, because you brought up the January 6th cases.
None of those people are running for, most of those people at least are not running for elected office, and that's not the context for the prosecutions.
So just for a second here, even if these are talking about departmental prosecutorial guidelines, what would be that category where you would at least guide prosecutors to say they shouldn't be going after somebody with a novel legal theory, if what?
What would it be exactly?
Well, you're asking all the right questions, and I don't know if they can be answered.
I'll tell you this.
Departmental guidelines are not the answer.
They're not going to do it.
Why?
Because, you know, if you've got a single Department of Justice, then you can have departmental regulations.
You put them under some, you know, guidelines.
But that's not the problem.
You've got thousands of elected prosecutors in this country.
I'm talking about thousands.
County prosecutors, district attorneys all over the country.
And that's what happened in this Trump hush money case.
You got a Manhattan district attorney coming after the leading candidate from the other party.
And you could have county prosecutors in Texas, Alabama, California, Washington state.
Each one of them could decide to prosecute, find some crime to prosecute the leading candidate from the other party, tie them up in a criminal prosecution, maybe sentence them, get a local jury to sentence them to a couple months in jail.
It's crazy.
So you can't handle this through departmental regulations.
I wish there were a doctrine.
There is no such doctrine.
I wish that we had a doctrine.
You know, you're asking the right questions about it.
How would it work?
How would you define it?
But I got to tell you, there is no such doctrine.
So, you know, I just speculate.
Now I can tell you, though, in the January 6th case, that case is up before the Supreme Court now.
It's a case called Fisher.
They're going to decide at this term.
They're going to decide whether that word otherwise can be expanded to cover this case.
For the January 6th defendants, but they won't get the benefit of any special rule about, you know, novel use of legal theories.
The court will decide whether this particular novel legal theory was simply too expansive.
Just expanded that statute too far, and we're not going to allow it.
And when it comes to prosecuting Trump under that same charge, though, he might get a special rule under a doctrine called presidential immunity, because, you know, he was president when he made the statements and took the action question there.
We don't know what the Supreme Court's going to rule in the presidential immunity case, and we'll just have to see.
So that's one route to go.
It's an interesting discussion to say in certain categories of cases where for the health of a functioning constitutional republic, you want to make sure that political candidates aren't especially vulnerable to the use or abuse of novel legal theories against them.
That's an interesting strand and road to go down.
I'm more interested personally in whether this is also an occasion for us to take a step back and say that, you know what, whether they're doing it to Donald Trump or a political candidate or an ordinary citizen who's not running for office, is this the kind of thing a prosecutor should be doing in the first place?
And is this the kind of thing the law should give prosecutors the latitude to do by being written as broadly as they are?
To be able to use that statute from the Sarbanes-Oxley era and or otherwise A joinder.
To be able to go after somebody for a 20-year prison term, first of all, let's just take a look at the proportionality of what you just laid out.
That document tampering charge allows for a double 20-year-plus conviction versus engaging in what you would think about as insurrection or whatever you want to talk about it, violent crime that could have a 10-year maximum attached to it.
That itself seems backwards.
And yet we have seen a proliferation of the, you'd know better about this than I do on the exact facts, but the proliferation of the criminal code that has allowed for the breadth of these statutes to really be defined by prosecutors who use them.
And it strikes me, and President Trump has said this several times at a high level, he says, they're not going after me, they're going after you, and I'm the only thing standing in their way.
But I think there's a lot of truth to that to say that even if it isn't a political candidate for office or for U.S. president, the use of a statute where even if on appeal numerous judges in the Second Circuit or the U.S. Supreme Court disagree on the nature of the actual crime, should this be the stuff that we ever allow somebody to be thrown in prison over in the first place?
if judges themselves or legal scholars or law professors are left to debate what the actual underlying crime is or whether that actual underlying alleged crime actually falls outside the four corners of a criminal statute. - Yeah, I think you gotta break out two separate issues here. I think you gotta break out two separate issues here.
Should prosecutors be able to charge candidates, form presidents?
Yeah, they should.
I mean, nobody's above the law.
If somebody's committed a serious crime, and you got them dead to rights, and you got the evidence, you got the goods, and you do it lawfully, you do it constitutionally, nobody's above the law.
The problem is, and this is really what you're putting your finger on, Vague laws or the use of laws in new ways.
And that's where you create the issues.
We've got to somehow put a stop to the use of criminal laws in new novel ways, novel legal theories to achieve political ends.
And I'll give you a suggestion for how it might be done if you want to know doctrinally.
I can't answer all the great questions you're asking, but you've probably heard the word lenity.
Yep.
The rule of lenity.
The rule of lenity.
Criminal law doctrine says, you know what?
As a general rule in criminal law, we are going to interpret the terms of a criminal statute narrowly.
As narrowly as possible.
Not broadly, but narrowly.
Guess what?
That's not a constitutional doctrine.
Judges are not required to interpret the terms of a criminal law narrowly, but they are allowed to do it, and that's a traditional common law canon of construction, the rule of lenity, and that's a matter of some discretion.
And a doctrine could develop that said, look, If you've got a context where prosecutors from one party are going after people under circumstances that raise a suspicion that there could be political motivation behind it,
that there could be An attempt to prosecute people because of their political views or because they are your opponents, even though that evidence doesn't rise to the level of proving a selective prosecution claim so that you've got to throw the whole thing out, even if it doesn't rise to the level of retaliating against somebody for their political views,
so you've got to throw the whole case out, maybe it rises high enough to say, look, we're going to have a special rule of lenity here and we are not going to allow any kind of new expansive application of this criminal law.
So my only question is why, if we're talking about an expansion of the rule of lenity, and I'd love to talk about whether there is a constitutional hook for a sympathetic Supreme Court to import this into constitutional doctrine, but why limit that to the instance of politicized prosecutions?
In a certain sense, I guess the case I'm interested in, and I've had a longstanding interest in this, is For the listeners to understand, it is entirely possible for someone to be charged, let's take a discussion and make it a federal crime, with a federal crime, a violation of, it could be drug law, white collar statute, whatever it is.
And it makes its way through the courts and it goes to the Supreme Court on appeal to say that, is this person, is what this person did a violation of the law or not?
Right?
And you see this context come up from time to time.
You have novel, let's say you see it in the business context a lot, for example.
And this is similar to the kind of white-collar context you could call this a white-collar crime for Trump.
Same category.
Where the Supreme Court could come down five to four saying that it is indeed a crime.
And you'd have four Supreme Court justices who would write eloquent dissents.
Could each have four different individuals on the Supreme Court that dissent on whether or not the alleged defendant did actually violated the law.
And because it was four rather than five who came down on that side, that person should still go to prison and would still go to prison.
It strikes me as fundamentally unjust.
And it comes up in the Trump context here, where law professors and judges, and this isn't going to be appealed through the Second Circuit, but if it was, they would probably find a Sixth Amendment violation on the notice grounds alone.
But you could even say it for the predicate crime, not knowing what it is and objecting to the use of that predicate crime.
Where you're throwing somebody in prison where judges and legal scholars themselves disagree on whether or not the alleged act violated a law.
It seems to me that whether or not you're a political victim of persecution or whether you're just an ordinary victim of prosecution, you in that instance should not be going to prison for An act that jurists themselves reasonably could not agree was a violation of the law or not.
What's your perspective on that?
Could that be a doctrine where effectively, this is a contortion, I don't think the law ordinarily works this way, but if you have a dissenting judge on appeal or judges on appeal where the judge themselves disagree on whether or not A particular act violated the law,
that at least in that case, maybe prospectively, the public is on notice that that violates the law, but at least in that case, that person should not actually go to prison over something that a judge, if he was in the same position, would have also agreed the act did not violate the law.
You know, very interesting.
What you're talking about would be an expansion of what is called the void for vagueness doctrine in criminal law.
If a criminal law is too vague, it's unconstitutional, can't be applied.
But it's got to be super vague before that doctrine is triggered.
I'll give you an example.
The problem is laws are always a little vague.
I hate to say it, but everybody in the law knows it's true.
And so they always require interpretation.
An example is antitrust law.
Antitrust law is criminal as well as civil.
You're going to like this one, Vivek.
You could have a theory that big asset managers, by owning lots of different Stock and lots of different competing companies that there's actually an antitrust law violation going on there.
And judges would have to decide that.
And, you know, if it's a new case, you know, you could have a doctor as well, you know, maybe only civil liability, but there can't be criminal liability.
That would be interesting.
But we don't have that doctrine right now.
What we have is a doctrine that Judges interpret criminal laws and their application just the way they do civil laws.
The rule of lenity kicks in and it has just the effect you're saying.
When it applies, it's there for just the reason you're saying.
But so far, it's not been viewed as constitutional.
I'll give you an example.
The RICO statute, very complicated statute.
All of these terms in it, you know, enterprise.
It uses the term enterprise.
And judges had to decide whether a labor union was an enterprise.
And Rudolf Giuliani brought these cases saying labor unions is an enterprise.
And it was a novel use of RICO. And he won cases on that basis and did more to get the mob out of unions in New York City than anybody had ever done before because he came up with a novel use of the RICO statute.
And he was, you know, I think rightly, Celebrate for that.
The RICO statute has a provision.
You'll like this, Vivek.
It has a provision that says the rule of lenity does not apply.
Really?
Wow.
It's in the statute.
Yes.
And the courts have looked at that and said, hey, is that constitutional?
And the courts said, yep.
If Congress wants to get rid of the rule of lenity, that's just a canon of construction.
That's not constitutional.
They can do it.
You could reverse that.
I mean, the court could say, you know what?
We were wrong.
The rule of validity is a constitutional doctrine, and we hereby announce that terms in criminal statutes must be applied narrowly, and we're going to reverse that decision.
But for now— That was a Supreme Court decision.
Well, you know, as I sit here right now, I cannot remember whether it was— Yeah, that's interesting.
But by the way, I think it is.
I think the Supreme Court said, yep, That elimination of the rule of liberty is a constitutional move by Congress.
Now, that actually raises an interesting legal question in its own right, right?
If Congress had to do it, now I have an anaphylactic reaction.
You can hear me sneezing here, not just because of my allergies, but because I'm allergic to what we just heard of Congress's ability to write a law so vague to say that It's a criminal law and we want it to be vague.
We actually recognize that it is so vague that we're going to put in the statute that the rule of lenity from the common law does not apply because it's so obvious that that's the way this statute is going to be abused.
But put that to one side, the fact that Congress had to do it in that case suggests, or could at least argue in favor of, the fact that any other law where they haven't put it in there suggests that the rule of lenity does apply.
What's your take on that?
Not necessarily?
Oh, sure.
No, you could go that way.
And the fact, you can find cases going back 100 years from the Supreme Court that stayed a position very close to the one you're advocating.
The Supreme Court has said 100 years ago, if reasonable men have to speculate about the meaning of a criminal law, the law cannot be applied in the way to punish somebody.
If reasonable people could differ about whether the law, a criminal law, meant X, then you can't put somebody in jail for doing X. So you can find cases that say that.
That is not current doctrine.
It hasn't been a doctrine for a long time.
The void for vagueness doctrine is now more like something like this.
If law-abiding people are not able, under a statute, to To be confident that they're avoiding criminal liability, then a law is too vague and can be struck as void for vagueness.
Like some loitering law that's written in a way you're walking down the street, you don't know whether you're guilty of loitering or not.
The only way you could avoid being liable is to never go out of your home or your apartment.
That kind of law is unconstitutional void for vagueness, but merely having to speculate, the court has abandoned that doctrine decades ago.
To be clear, the approach I'm advocating for, at least for the purpose of this conversation that I'm advocating for, is not even whether reasonable men would have to speculate on it, because reasonable men may not have a great knowledge of the law.
Mm-hmm.
I'm sympathetic to that framing of it, but that's not even what I'm arguing for.
What I'm arguing for is more humble than that.
If jurists, if professionally trained judges themselves have to speculate and go further, let's actually say professionally trained jurists disagree on whether said act violates the law, that just should not be a circumstance where you throw somebody in prison.
It seems fundamentally unjust.
I think every American would agree.
That if judges wearing these robes that have gone through extensive legal education that we charge with interpreting complicated statutes to particular cases, if they themselves, even Supreme Court justices, cannot amongst themselves agree on whether said act violates the law, we have no business throwing somebody in prison over it for the same kind of reason.
That we require the standard of beyond a reasonable doubt on the facts of whether or not somebody committed a crime.
That's the difference between a criminal conviction and a civil conviction standard.
In the criminal context, if you're being thrown in prison, we require you to have found that finding of guilt Beyond reasonable doubt.
And it seems like the same instinct that informs that heightened standard to say before you're thrown in prison, you're found guilty beyond reasonable doubt, should also be beyond the reasonable doubt of jurists, where if there's a dissenting judge who thinks what you did didn't violate the law, not the facts of the case, but on the actual law of it, you shouldn't be thrown in prison.
For the same basic principle that's at issue there.
Do you understand what I'm saying?
Absolutely.
And it's fascinating.
Reminds me of what it's like for me to be a professor and have a brilliant student in class.
But, you know, one thing to think about on that is, you know, criminal laws that are drawn in terms of standards.
And, you know, I know you know what I'm talking about, like negligence or recklessness.
And let's say you completely agree about the facts of what the defendant did.
Somebody's got to decide whether that was reckless conduct.
And a lot can turn on that.
You can go to jail for it.
It becomes a different crime.
You know, reckless homicide versus negligent homicide.
And guess what?
Reasonable people are going to differ on whether certain conduct That amounted to recklessness.
To make your position stick, Vivek, you'd need either to have a different rule in those cases, because I don't think we could have a rule that if one judge dissents, You can't criminalize it.
Somebody's got to decide, and people are often going to differ about that kind of thing.
Maybe you could have a rule at certain standards like that.
Well, can I just pause on that for one second?
You could revert to a civil penalty in that case, right?
So to say that the judge disagrees on whether what you did violates the law or not, but if a jurist Disagrees on appeal, an appellate court judge or higher, disagrees on what you did, violates the law.
Then in that case, the scope of your penalty is at least limited to the same standard we apply for civil penalties on the facts, which is preponderance of the evidence.
Here's a preponderance of understanding of the law, where if a reasonable man, if you use A jurist's disagreement as a proxy for saying that reasonable men have to speculate, then in that case, we're at least back in the civil territory, but you're no longer being put in prison over it.
Doesn't that seem like a doctrine you could just generally apply to say that if after the fact on appeal, a judge disagrees, an appellate court judge or a Supreme Court judge disagrees on what you did actually applied to a criminal violation, Then, in that case, you're looking at most civil penalties rather than criminal.
Is that something that you view as feasible or applicable in that case?
Well, I wouldn't be inclined to support that.
It's really interesting.
But there's another way to handle it.
Normally, a jury decides whether conduct was reckless, negligent.
So it's normally up to a jury to make that call.
Juries don't just decide the facts, they decide the brute facts, but they also apply standards like that, negligence, recklessness.
And if 12 jurors agree that it's reckless, The guy's going to jail for the criminal penalty of whatever it is, whether it's reckless homicide, reckless driving, they'll go to jail.
Now, is it possible that when it comes up on appeal to some judges, some judge will say, you know, I disagree with the jury on that.
I feel that this isn't reckless.
I'm a trained jurist.
I don't think this was reckless, but he's in the minority.
The other judges on the case say, yeah, we think it is.
What you could do there to avoid the...
I don't think you'd want to reverse the conviction.
Maybe you would, but you could solve this problem by saying, Where there's a jury verdict, 12 reasonable people have decided, and then the appellate judges cannot reverse just because, or you don't have to reverse the case just because one judge in the minority thinks he doesn't think it was reckless.
But if you were going to tell me, Vivek, that no, if one judge disagrees with the jury, a minority judge, then you've got to throw out the conviction, I wouldn't want to go that far.
You're talking about on the case of standards, right, of negligence or recklessness.
There are other cases in which whether the scope of the actual activity itself was in violation of the law.
What about in that instance?
Yeah, you could have a different rule for that.
You say, well, let's put aside these standard cases.
If I have to decide what counts, for example, as like an agreement to restrain trade under the antitrust laws, or I have to decide what counts as an enterprise for RICO purposes, you know, your problem is going to be like the first time the statute It gets applied.
Congress writes a statute.
I got to tell you, it's a feature of all laws.
When they're on the books, nobody knows what the heck they mean.
And the reason people can differ about it.
And so the first time you prosecute, folks are going to have a difference of opinion.
And you might have some problems with early prosecutions under new statutes.
Maybe you'd have a different set of rules, Vivek, if you're trying to work out this position for that.
Maybe you'd require Congress or the legislature has to define the terms carefully.
They're just not allowed to write a statute where they don't define the terms.
Maybe you could do something about that.
The first person that's charged, I suppose, on this, especially if there's a disagreement among jurists afterwards, that first person maybe can't go to prison.
Maybe they could pay a civil fine.
But after that, the public's on notice.
For me, I've probably...
I'm probably in a rare minority and being very fired up about this issue, but it strikes me as fundamentally unfair.
What's at the heart of the Trump case here as well is, Would Donald Trump or his attorneys or his general counsel at his firm been left to wonder whether they were doing what they were doing was a crime or not?
I think the answer to that question is yes, just as we're left to wonder today.
And I'm glad this case, for what it's worth for the American people, is getting the level of attention that it is.
But if Donald Trump had to wonder whether or not you're going to charge this as a campaign expense or you're going to charge this as a personal expense to know which one was the crime versus not.
And the irony is, had he gone the other way, there'd be an entire separate legal charge of misuse of campaign funds to make a personal hush money payment.
But if he's in that situation, it seems like, yes, it's especially bad for the future of our country for him as a presidential candidate to be able to deal with prosecution on that basis.
But it is also, at least in part, a...
It's diagnostic of a deeper problem in the criminal law that an ordinary citizen could find himself in that same position too.
And I just have very different attitudes of whether the scope of such punishment is civil, right?
If it's just talking about a financial or monetary penalty.
that we require you to have on the facts is a 50.1% preponderance of evidence standard for the same reason we can apply some level of tolerance for vagueness in the law of whether or not you're left holding the bag versus to say that you're going to have the ultimate restraint on your liberty, which is to be locked up at behest of police force to backstop it.
And in that instance, it feels to me that we should not.
And maybe you said it used to be Supreme Court doctrine.
Maybe I believe it should be too, that if reasonable men have to speculate on what a law means, they shouldn't be going to jail.
Is that something that Congress, I doubt it would ever be a popular enough cause to take up, but in theory, is that something a blanket sort of provision in the criminal code that Congress could adopt is to codify that to say that from hence, from this date certain forward, And criminal laws are going to be interpreted in conjunction with the rule of lenity, basically statutorily codify either the rule of lenity or the reasonable man speculation standard or even using a litmus test of a judicial dissent as a basis to do it.
This seems like the kind of thing Congress could do retroactively to the criminal code in whole.
Yes, it could, but of course only for federal crimes.
Yes.
You would not have the authority to do that for state crimes.
But just so your viewers and listeners are clear, in the Trump hush money prosecution, let's not forget, it wasn't just interpreting a statute.
It was what statute is he being charged under?
What offense, what crime is he being charged with?
The Supreme Court has said for over 150 years, a defendant has a right to know the specific offense with which he's charged.
That's fundamental to our criminal justice system.
We don't want to be living in the world of Kafka's the trial where folks are prosecuted, convicted without ever being told what the specific crime that they're being found guilty of was.
So that's different from this very interesting question of interpretation that you're raising.
Yeah.
And how do we deal with that problem?
Because there's a rabbit hole we went down on dealing with the question of interpretation.
But the broader question, how do we stop this from becoming the ordinary precedent in American politics?
To take this back to the political context where this becomes the new means by which we adjudicate who leads our country.
I'm worried about that, and I know you are too.
Very worried, very worried.
There's another doctrine that comes into play here that folks might be interested in hearing about.
Very difficult to prove.
It hasn't played a huge role.
Maybe it should play a bigger role in that, of course, the doctrine of selective prosecution.
What's that?
You're not constitutionally allowed to go after somebody.
The state District Attorney cannot prosecute somebody where the motivation for the prosecution is to go after them because they're a political opponent, because you don't like their political views, retaliation for their political policies, try to undermine their candidacy.
If that's the motivation for the prosecution, that's just straight up unconstitutional from the get-go.
Forget all this stuff we've been talking about.
Sixth Amendment, interpretation, rule of lenity.
Unconstitutional from the get-go.
And of course, many people feel that's just what Bragg was doing.
Many people feel.
And I'm talking about people on both the left and the right.
They sense that this prosecution would never have been brought if it hadn't been Donald Trump as a defendant and would never have been brought if Donald Trump hadn't been running for president again.
And a lot of people say it's completely clear that this is a politically motivated prosecution.
It should be unconstitutional from the get-go.
The problem is courts have made that claim very hard to prove.
And what they sometimes require is what they call a comparator.
It's like a comp in real estate value, a comparator.
You got to find us a very similar case where somebody did something very much like what they charged you with, but it was somebody on the other side.
Expressing different political views.
And if you can find us that case and they didn't go after those people, then maybe you can state one of these selective prosecution claims, otherwise forget about it.
And I'll give you an example.
Here's a great example.
It came out of the summer 2020, but this is a case just decided by the D.C. Circuit just last year.
So some pro-life protesters had a small protest in D.C., and they chalk up the sidewalk with one of their messages, something like, pre-born lives matter.
And they get arrested and they get charged and convicted of defacement of public property.
Can't chalk up a city sidewalk with your message.
And guess what?
Under, you know, the D.C. District of Columbia ordinance, defacement ordinance, they probably were guilty.
But the defendant said, hey, wait a second.
The folks down, this is summer 2020, down the street, there's a much bigger protest, the Black Lives Matter.
And they're not just chalking up sidewalks, but chalking up the streets and buildings with their message, Black Lives Matter.
And not a single one of them was prosecuted for defacement.
What are you doing?
And the D.C. Circuit, and this just last year, said, now that's a comparative.
And you can prove that.
You have just stated a case for selected prosecution.
And the amazing thing is, but of course, you're almost never going to find that.
That's almost never going to happen.
But there might be a comparative case like that in this Trump hush money prosecution.
Do you know about this?
You probably do.
Yeah, look, I think there are some other cases where you have interesting black and white instances.
I just want to understand this doctrine of- Let me just finish that one point.
Hillary Clinton was found by the Federal Election Commission In 2022, she was found that in that same election, 2016 presidential election, she spent money on the Steele dossier, the famous Steele dossier.
Oh, that's a great point.
I love that.
And they booked in their books, in the books of the Clinton campaign, they booked them as legal expenses.
And the FEC actually determined 2022 Those weren't legal expenses.
Those were campaign expenses.
And you falsely called them legal expenses.
And that's a campaign finance violation.
And the Clinton campaign was made to pay thousands of dollars in fines.
This is an actual determination by the FEC that seems to be a determination that they did exactly what Bragg was accusing Trump of having done.
That campaign was headquartered in New York, and there was no prosecution of them, not of Hillary or anybody associated with the campaign, for falsifying business records to cover up a campaign finance.
So that might be the comparator that could actually serve to prove a selective prosecution in this case.
I guarantee you that'll be exhibit one in the Trump team's appeal on their selective prosecution.
It should be.
It should be.
I think that that's very compelling.
I didn't realize there's an FEC finding that says that Hillary Clinton's recording of the Steele dossier expense Was a legal expense, that that itself was an FEC violation, and yet she wasn't prosecuted for it.
Now, this doctrine of selective prosecution, where is that actually codified, right?
Is that a common law concept?
No.
What it is, is if they're coming after you for your, if you can show that they came after you because of your political opinions or your political activity, it's a First Amendment violation.
So that would be called First Amendment selective prosecution or First Amendment selective enforcement.
And under the Constitution, if we are talking about like what clause, it'd be a First Amendment violation.
And so, you know, state or federal doesn't matter at that point.
That's right.
Yeah.
That's fascinating.
And so the D.C. Circuit case, when did that come out?
Just last year, 2023. This is all relatively recent.
Yeah, it's called Frederick Douglass Foundation, I think, if you want to look it up.
That's very interesting.
And so I think that's also an interesting argument, not just the Sixth Amendment point that you raised before, but also this selective prosecution claim under the First Amendment.
Would they have the opportunity to appeal via federal courts?
I mean, this isn't normally going to go through a state appeal, but you brought up even the Second Circuit as a venue that had previously held the Sixth Amendment violation applies in context of failed notice to the defendant of what their crime actually is.
Given the vagueness around what the underlying crime really was or the third step of the cascade that you talked about earlier, if it still relates to a federal campaign finance, Allegation.
Are they limited to the New York system's Court of Appeals line, or are they actually able to get out and get into federal court for appeals here, too?
Normally, the way it works is they'd have to go through the state appellate courts.
They have to appeal to the appellate division.
Then appeal to New York's highest court, which happens to be called the Court of Appeals, but that's like New York's Supreme Court.
And only then could they appeal to a federal court, namely the United States Supreme Court.
And of course, that would take years.
And the United States Supreme Court would not issue a final ruling, potentially reversing this conviction until years after the election, which is a very serious problem.
You brand somebody a convicted felon, that could You know, change the outcome of the election.
That could affect the election of the next president of the United States.
And we'll never get a federal court to actually rule on these serious constitutional issues until long after the election.
That's, you know, in legal terms, that's irreparable harm.
And that's why I've said that, you know, if I were the lawyer for the Trump team right now, I'd be running to federal court right now, file suit under Section 1983 and say, you know, you've got to pause those proceedings.
In the state criminal courts, and we've got to give a chance for the federal courts to review these serious constitutional objections.
Now it gets harder and harder to do.
You know, once you've got the jury reaching a verdict, it gets harder and harder to claim that a federal court can hear this case.
You have to overcome certain abstention doctrines and other doctrines.
But I think there's actually some good arguments that in these extraordinary circumstances, a federal court should look at this to avoid irreparable harm.
And, you know, that can actually be done fairly quickly.
You move for a TRO, an emergency temporary restraining order.
Whichever way the judge comes out on that, you could appeal to the Second Circuit.
And whichever way the Second Circuit comes out on that, that could go to the Supreme Court.
That could all happen.
On a kind of a fast-track basis, I wish we could get a federal court to hear this because the country kind of needs that.
You can't just have this kind of thing resolved by New York courts deciding the case under New York law.
They should be looking at constitutional law, but so far, as far as I can tell, Judge Merchant hasn't really been doing that.
And could the Supreme Court itself make that determination right away?
Or, you know, ordinarily they would wait to run its way through New York, but they could just take and grant cert now.
Well, it's conceivable.
There are certain emergency doctrines you might try to take advantage of, but no guarantee.
I'll tell you what, though.
If another state sued New York, there's only one court in the country that has jurisdiction, exclusive jurisdiction, over a suit by one state against another, and that happens to be the United States Supreme Court.
They cannot bring their case in a state court, a federal district court.
You can only bring that case to the United States Supreme Court.
A state attorney general In principle, could bring a case against the state of New York right now and say, this is an unconstitutional conviction.
And we know what you're going to do.
It's very likely you're either going to incarcerate or impose probation.
That's very, very likely.
And that's going to hinder Trump from campaigning in our state.
And that gives us an injury.
And that gives us standing.
And we want to litigate whether this conviction was constitutional.
That's a long shot.
I kind of like that a lot, actually.
It's very interesting.
It could be done.
I mean, there are states, the citizens of that state are harmed by their ability to adjudicate who the president of the United States should be, which is the prerogative of voters, by New York stopping them from doing it.
Think if they incarcerated him.
The minute they incarcerate him, he cannot go to federal court anymore, and he's stuck in a jail waiting for the New York courts to decide if they're going to stay the sentence.
You don't know what's going to happen.
But if, God forbid, New York dared to incarcerate the leading presidential candidate from the other party, That would prevent him from campaigning in other states.
And that would clearly, I think, be a First Amendment violation of the citizens in other states if the underlying conviction was unconstitutional, if it was unlawful.
And that would be something that federal courts should adjudicate.
And in theory, a state could bring that case to the Supreme Court as a matter of the Supreme Court's original jurisdiction.
Yes.
It seems like if this was ever made for an instance, this has got to be it.
And the timeliness of it is an opportunity for any state AG out there to step up and actually seize.
I like that point a lot.
The root of the pardon, I think, is an interesting question as well.
This is a point that you and I actually discussed last year while I was running for U.S. president.
I published on this as well at the time, saying that if I were the president, I would pardon Trump for this underlying crime.
Usually that's laughed off the stage because this is a state conviction.
But now that it's played out, we've seen what the alleged underlying predicate crime is that allowed them to upcharge this from a state crime to a felony, to a state felony, effectively relying on federal law as the backstop to do it, even if it's on the third step of the cascade you described. effectively relying on federal law as the backstop to do This should be pardonable.
Now, if the underlying crime was a federal crime that allowed them to charge it as a felony, then if that charge disappears or if that crime disappears because it's been pardoned, the state charges have to disappear as well.
I understand exactly what you're saying, Vivek, but my opinion on that is different.
One problem for you there is that even though it was so hard to understand and you could read the jury instructions and never know, and they didn't specify in advance, ultimately they settled, maybe cleverly, on a state crime.
The New York election law violation, that was the second crime.
And even for the third crime under that, they threw out some state offenses, like state tax laws.
One of the third crimes was failure to pay state taxes.
But it included also federal crimes for what the third crime was.
Another theory was a federal campaign finance violation.
Another theory, however, was a New York law Business records falsification violations.
Believe it or not, it's almost circular.
They were saying that the third crime is going to be a violation of the falsification of business records.
Believe it or not, that's in the case.
So they did it in a way that the jury could have done this with no reliance on federal law at all, and we don't know.
So you don't know, because by the way, the jury was not asking for a special verdict.
But doesn't that strengthen the case for the pardon to say that if there was a federal crime listed in the basis for the jury to actually find a conviction, then the expunging of that potential federal offense allows us to not know whether the jury would have actually convicted, and so the state conviction has to follow along with it.
You think that's a bridge too far?
Well, yeah, I do.
You know, the reason is is in part the following.
So I've talked about how they structured it to be a state law offense, but in part.
But I appreciate the point you're making.
We covered a lot of ground there and I think it's worth going deep into those details because that's really what's at issue here is do you actually believe That this conviction was the product of the normal carriage of justice?
Or do you think that there were specific contortions of the law that were used to reach a political outcome?
And if you believe they can do that to Donald Trump, I think it's a risk for every citizen.
But it's not just something that you understand at a macro 50,000 foot level, but Jed, With the level of legal detail that you took us through as well.
So thank you for joining the podcast today.
I have a feeling we're going to be talking much more, not only about this issue, but about countless legal issues on this podcast in the future as well.
And I'm glad that you gave our listeners a lens into the constitutional doctrines that our founding fathers bequeathed us 250 years ago, and they're relevant exactly for cases and moments like these.