Conservatives Talk Presidential Power: A Look into the Latest Trials, Testimonies, and Plea Deals

 

Emily Manning:  Hello everyone. And welcome to this Federalist Society virtual event. My name is Emily Manning, and I'm an Associate Director of Practice Groups with The Federalist Society. Today, we're excited to host a discussion titled "Conservatives Talk Presidential Power: A Look into the Latest Trials, Testimonies and Plea Deals."

 

We're joined today by John G. Malcolm, Vice President for the Institute for Constitutional Government, and Director of the Meese Center for Legal and Judicial Studies, and Senior Legal Fellow at the Heritage Foundation; and Professor John C. Yoo, Emmanuel S. Heller Professor of Law at the University of California at Berkeley, non-resident Senior Fellow at the American Enterprise Institute, and Visiting Fellow at the Hoover Institution.

 

If you'd like to learn more about today's speakers, their full bios can be viewed on our website, FedSoc.org. After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into Q&A function at the bottom of your Zoom window, and we will do our best to answer as many as we can. Finally, I'll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. With that, thank you for joining us today. And, gentlemen, the floor is yours.

 

Prof. John C. Yoo:  Thanks, Emily. And thanks to The Federalist Society.  I'm sure Emily and Dean Reuter and the whole staff are still recovering from the great national symposium about a week and a half ago. I hope many of the listeners were there. But if they weren't, they probably saw a figure who looked like a Civil War reenactor mobbed, mobbed by the youth, mobbed by young people every time he stepped foot into that long corridor in the Mayflower Hotel. And that is my co-host, John Malcom. Hi John. How are you? And how's your voice?

 

John G. Malcolm:  I'm getting over a cold, but I'm getting there. And, actually, because you say this, somebody did come up to me at the convention and say, "I'm a Civil War reenactor too." 

 

Prof. John C. Yoo:  My career in humor has now been fully satisfied. I have no need to make any more jokes again in the future. John, did you have a good time at the symposium, by the way? You were there. I saw you a lot. And the Heritage Meese Center staff were out there in full force.

 

John G. Malcolm:  Yeah. It was great, as always. The highlight, I think, has to have been Bari Weiss's speech for the Barbara Olson lecture. If any of the listeners have not heard it, I actually wrote an article about it yesterday with my colleague, Cully Simpson. But you can just go to the Fedsoc website. There's no substitute for watching it. It was an inspiring speech. And I haven't heard a standing ovation like that for an Olson lecture since the very first Olson lecture, which was delivered by Ted two months after the tragic events of 9/11 that took the life of Barbara. Barry Weiss's speech was one of the best speeches I've ever heard.

 

Prof. John C. Yoo:  Yeah. It was electrifying. I agree. I was at the very first one that Ted gave, and Bari's was an incredible speech. So, we both recommend people listen to it. And I don't know if it's really within the jurisdiction of our podcast, but maybe we'll talk in the future about the various free speech issues that are plaguing our campus right now about protests and criticism going on about the Gaza-Hamas War. That was certainly something she discussed at length.

 

      Well, let's start on the many, many issues. Every time we take a two-week break in between episodes, the issues keep piling up. So, for today, we're going to talk about President Trump, the claim that President Trump should be disqualified, under the Fourteenth Amendment, from running for president. We've had several important decisions, I think, the leading one from Colorado. We've had the case in the Georgia prosecution that John knows so well, since he used to be an assistant U.S. attorney there. We've had several guilty pleas now in the state Georgia RICO prosecution against President Trump and many figures in the Trump campaign.

 

We'll talk a little bit about the Supreme Court code of ethics. We'll bring you up to date on the latest in the subpoenas that have been issuing in the Hunter Biden case and congressional investigations there. And then, we'll finish up, if we have time, with the latest in the various cases going on with President Trump and, in particular, the New York fraud trial being brought by the attorney general of New York State against President Trump and the Trump organization about over-valuation of their assets, and, perhaps, the hush-money trial being brought by the district attorney in Manhattan. 

 

So, John, did you have a chance to take a look at the Fourteenth Amendment Section 3 opinions? We've had, I think, three now. Minnesota, Colorado, and, most recently, Michigan, have all rejected the efforts to remove President Trump from the ballot on the claim, under the Fourteenth Amendment, that he engaged in an insurrection and is, therefore, barred from holding office again.

 

John G. Malcolm:  Yeah. Well, there was a great debate, actually, at the FedSoc convention on this too, between Will Baude — who wrote, with Michael Stokes Paulsen, an article that sort of raised this issue for the first time — and Judge Michael McConnell, who took the contrary view. So, yeah, there have been three decisions so far. And President Trump has run the table thus far, a little bit surprisingly. The ones in Minnesota and Michigan, they were very, very short opinions. And they basically said this case is not ripe, that Section 3 says that somebody who violates that provision cannot hold office — it doesn't say that they can't be on a ballot to be elected — that it's premature, at this point, to decide this issue, ducked the issue for another day.

 

      The judge in Michigan added an additional reason. He said, look, there's this last sentence in Section 3 that gives Congress the ability to waive this disqualification if two-thirds of Congress decide to waive it. And if you kept him off of the ballot, you would deprive Congress of this opportunity to invoke this provision, if, indeed, it's applicable in the first place. The one that was surprising was the opinion in Colorado from Judge Sarah Wallace. I think everybody was expecting President Trump to lose that case. She wrote a 101-page order. The first 95 pages of it, she blisters Donald Trump.

 

To use a Donald Trump phrase, "she said things that weren't very nice," and basically said that it was an insurrection, that he engaged in it, that he incited that insurrection, that he has a long connection with violent white supremacist groups, all of whom showed up at the ellipse on January 6. She does all of this for 95 pages, and then, at the very end, says "Well, but I still have to decide whether a president of the United States was in office because it's only officers of the United States who are disqualified.

 

And she, on pages 99 and 100 of her order, she cites five different constitutional provisions — the Appointments Clause, the Impeachment Clause, the Commissions Clause, the Oath and Affirmation Clause, and the oath that the president takes under Article VI — and says, "Well, when you take all of these things together, I've decided that, even though I think he's terrible and horrible and all of these awful things, that the provision doesn't apply to him." So, 101-page opinion, 95 of which excoriate him, basically a page and a half of the opinion saying, "Forget everything I said before. This doesn't apply to him."

 

Both sides, I am quite confident, are going to appeal. The challengers are going to contest her ruling, her ultimate decision, on a very expedited basis. And I'm quite sure that the Trump team is going to also appeal the portions of the order that went against them. They can't afford not to, actually. Because if a higher court, Colorado Supreme Court, overturns that, they don't want to be perceived as having waived all of these other issues.

 

Prof. John C. Yoo:  I have to say, the Colorado case's opinion only, sadly, reaffirms what every law student thinks, which is just skip to the end of the opinion and read the last paragraph to see what really happened. Because, as John says, it's a lengthy opinion, 102 pages, many findings of fact, actually, mostly borrowed from the January 6 Congressional Commission. And, as you say, only at the very end does she, I think, get to the right answer, in my view. And I wrote a piece about this several months ago, with Robert Delahunty. And, actually, Robert Delahunty, I think, appeared --

 

John G. Malcolm:  Testified.

 

Prof. John C. Yoo:  Yeah, appeared as an expert witness in this case saying that this just doesn't apply to the president. And you and I have talked about this before on the podcast, how the text of the Fourteenth Amendment lists every possible officer — state legislative officers, judges, members of Congress, even electors for president — but doesn't use the word "president." So, the judge could have just started with that and then not reached all the other issues. Another interesting thing she finds is — as you say, John, says many bad things about President Trump — but she finds, for those of you out there who are First Amendment aficionados, she finds that the Brandenburg standard has been met, --

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  -- that Donald Trump's statements actually amounted to incitement. I wonder if this might be the first time that a court has found that a federal official, in a speech, has met the Brandenburg standard. This was a serious finding and, again, raises the problem, do we want state judges going around evaluating federal political officials and the consequences of their speeches? The other thing, just --

 

[CROSSTALK]

 

Prof. John C. Yoo:  Go ahead, John.

 

John G. Malcolm:  -- basically said that President Trump speaks in code to his violence orders and that he's used these code words with them enough times that they know that when he says, "I want you to fight," that he's not using it as a rhetorical flourish. He literally means he wants them to fight. And everybody who has made the argument about this is saying, "Well, how can it just be that everybody, other than the president and the vice president are covered by this provision but that they're not? That just makes no sense whatsoever."

 

      In a sense, it does make sense. Because all of these are talking about an insurrection against the government. And the president and the vice president are the heads of the government. So, you wouldn't think that they would be revolting against themselves. I don't think that they envisioned something taking place at that intersection when there's a transfer of power going on. So, it doesn't seem to --

 

Prof. John C. Yoo:  I was actually disappointed in the opinion in the way that it tried to figure out whether this was an insurrection or not.

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  I think that the judge, obviously, set the standard for what's an insurrection fairly low.

 

John G. Malcolm:  Yes, she did.

 

Prof. John C. Yoo:  This is, obviously, nowhere near the Civil War --

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  -- which is clearly what the Fourteenth Amendment was about. One other point I wanted to raise about these cases was the other cases, particularly the Minnesota case which held that -- it's very interesting. Because, in a way — people might remember — this is a resurrection of Justice Scalia's dissent in the California jungle primary case. You may remember that in the jungle primary cases, the State of California said -- for those of you who are free of the State of California, unlike myself, you do not have to suffer these indignities.

 

But, as you may know, in the primary elections in California, the top two winners of the primary, regardless of party, go through to the general. So, if the top two winners are Republicans, then there's not going to be a democrat on the general election ballot. And the court upheld that, of course, in some wishy-washy Kennedy opinion, I'm sure. But Justice Scalia said, "Why does a state get to interfere with how a political party decides to choose its candidate?"

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  That's a free speech function of the political parties. And notice that's what Minnesota held here. Minnesota held, "We're not going to reach this question.” It's not ripe, John says, quite rightly. And the reason it's not ripe is because this is just a primary election where Donald Trump is not yet a candidate for president. And as everyone, I think, rightly, observed, Minnesota is essentially saying, "We could come back to this. You put Donald Trump on the November 2024 ballot in the general election, and then we'll talk."

 

      But notice. I think this is another example where Justice Scalia's dissent got things right. And, in a way, you see it had to be right because of the way that principle he identified actually has to work its way through in other areas of the law. So, I expect that these cases will continue. But I also think — and here, maybe, this is not strictly a matter of doctrinal law — gosh, you've got to think most of these state judges do not want to bar Donald Trump from the ballot. They don't want to be the one responsible for altering the outcome of the election in their states.

 

Why not just let the voters decide? Why not let Donald Trump get to the ballot? And if people think he committed insurrection on January 6, then they can just choose not to vote for him. But why does any, particularly, individual state trial judge want to be the person who decides who wins in Colorado, for example?

 

John G. Malcolm:  And the judge in the Colorado case sort of hinted at that and said "Before I do anything this dramatic, it really has to be crystal clear that this provision applies. And it's not crystal clear." You could tell that she wanted to rule that way but ultimately felt she couldn't.

 

Prof. John C. Yoo:  In any normal year, with any normal president, we would spend, like, two or three hours on these cases. But we have to move quickly because there's been other developments that, themselves, would be worth hours of discussion. And, here, I think we have to call on John. As you all know, I do tease him for being a Civil War reenactor. It's not just the beard, although the beard helps. It's that he was a prosecutor in Atlanta. He knows the legal community down in Atlanta, Georgia where Fani Willis, the D.A., has brought this sprawling Georgia RICO case against President Trump and his reelection campaign and many officials. We've discussed on the podcast before the many problems with this indictment.

 

And the interesting thing is, John, were we wrong? Because now we're starting to see guilty pleas by people like Jenna Ellis, like -- I always think of her as "Kraken woman," but now that I say that, I remember her name is Sidney Powell, who, most famously, said that she was going to release the Kraken when it came to proving claims of fraud in the 2020 election. Both Jenna Ellis and Sidney Powell were lawyers — indicted — the lawyers who worked for the Trump campaign, represented President Trump in his efforts.

 

John G. Malcolm:  And Kenneth Chesebro, too. 

 

Prof. John C. Yoo:  Yeah, after the election.  And then, yeah, exactly, Ken Chesebro, who, in particular, helped develop the idea of appointing separate slates of electors.

 

John G. Malcolm:    Right.

 

Prof. John C. Yoo:  Were we wrong, John?  Because if we were right earlier that this indictment is overbroad, stretches Georgia RICO law, violates the First Amendment, why are these lawyers pleading guilty?

 

John G. Malcolm:  Well, I think the answer to that is that they're being offered real sweetheart deals. And so, you have four people that pled guilty. There's also a guy, an official who dealt with voting machines, Scott Hall. He was the first domino to fall. He pled to five misdemeanors. Sidney Powell pled to six misdemeanors. Ken Chesebro has pled to one felony. Jenna Ellis has pled to one felony. They were facing multiple felony counts, including RICO, which has a potential five-year minimum mandatory penalty. It was going to be months before trial. Chesebro was going to go to trial.

 

Sidney Powell was going to go to trial. That trial would have lasted a while. They would have spent a fortune. But they took these deals they have received. In a sense, they're very strange because Georgia has a first-offender statute. It's unclear to me whether they have, in fact, entered guilty pleas. Because what happens is it operates very much like pre-trial diversion. They're now serving a period of probation. They have to pay a fine. They did videotaped interviews with the Fulton County --

 

Prof. John C. Yoo:  Wait, wait. John, are you saying they have to be diverted to a non-incarceration election program where they have to watch videos about how good our election process is and how not to be violent offenders?  It's like a special drug court?

 

John G. Malcolm:  If they complete their periods of probation without violating them, their record is wiped clean.  So they would not --

 

Prof. John C. Yoo:  So, it is like the drug courts and so on, that have --

 

John G. Malcolm:  Yes, very much like pre-trial diversion. In fact, I'm not even sure if you asked at this point, "Technically, Kenneth Chesebro, are you a convicted felon?" I think the answer to that may be no.  He has --

 

Prof. John C. Yoo:  Well, see now, John, you should join the Hunter Biden defense team, because his problem is he should have gone to Georgia and pled guilty.

 

John G. Malcolm:  So, these people were facing serious jail time, hundreds of thousands of dollars in legal fees. They have gotten a sentence of probation and fairly nominal fines. And if they complete that period of probation, they will have no charges pending and no criminal record. I'm not even sure they could be disbarred, at this point, on the basis of these pleas. So, one thing that I wrote about, in terms of this plea, and I will stand by it, is that I actually think that what was labeled as the so-called "fake elector scheme" is wrong, as a matter of law. And Chesebro was the person who was credited with having concocted this scheme.

 

What he ended up pleading to, though, wasn't so much that as — at the very, very end — he said, "Well, look, even if these claims aren't going to go anywhere, we have to raise them because we can make political hay out of them. And we just need to get this thing punted from January 6 and sent back to the legislature." That was going beyond just coming up with these, having the alternate electors — the "contingent electors," as I call them — showing up and casting their votes for Trump. So, I stand by what I said.

 

But, certainly, for the other people — the five electors who showed up that day, the contingent electors — Ray Smith, the lawyer who represented them, is going to make it tougher for them to prevail on that legal argument now that Chesebro is in the camp with the prosecutors. That plea also saved Fani Willis. She was going to have to try this case and then try it again later on for everybody else. This saved her a trial when Powell and Chesebro, who had demanded their speedy trial rights, decided to fold.

 

Prof. John C. Yoo:  Interesting. So, one is, I think it's interesting that it's attorneys who are pleading guilty. One of the potential defenses would have been you're violating the right of President Trump to receive legal advice if you start prosecuting lawyers. What is it that they did that was criminal? But it's interesting. I have to say. I think Fani Willis has encountered some success with her strategy to indict overbroadly, very basically treating the Trump campaign like an organized crime organization, right?

 

John G. Malcolm:  Precisely.

 

Prof. John C. Yoo:  Organized crime, like the Mafia. Overly charge with this broad RICO claim and then start trying to get the soldiers on the ground to plead guilty, because, as you said, John, when you compare the potential sentences they could have received to what they got, it's incredible. You would be committing malpractice if you were their lawyers and said, "Don't take a deal where you serve no jail time."

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  Although it's odd that the government is punishing people charged with trying to overthrow the government with a misdemeanor and no jail time. But this is the interesting thing. Is it really working? And I'll ask you to, from your experience as a federal prosecutor, as you may have seen, the video testimony that they gave -- not testimonies—I’m wrong—the video --

 

John G. Malcolm:  Their interviews.

 

Prof. John C. Yoo:  Yeah. They're more than proffers, right?  It's part of their obligation as part of their plea agreements to help, right?

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  -- the prosecution. And these were leaked, gosh, I wonder by who? And it doesn't seem like they gave much up, in terms of President Trump's direct involvement, or even, I would say, Rudy Giuliani or John Eastman's direct involvement. And they would be the next level up, in terms of their criminal liability.

 

So, maybe Fani Willis gave these sweetheart deals. But I wonder whether she's really getting anything like what you see in organized crime or drug cartel prosecution where someone will say, "Oh, I received a direct order from the capo to kill this guy." Again, I think, for the listeners out there, to help understand, I always compare this to Godfather II with the testimony of Michael Corleone and then Frankie Pentangeli.

 

And I know, John, being a great lover of these movies, I always forget the guy, the killer on the ground who says, "Yeah, I rubbed this guy out. I rubbed that guy out. Yeah, I was told to handle it." Never says he actually talked to Michael Corleone. So, I wonder whether this is the situation that Fani Willis is in, and that she has testimony from people like Sidney Powell, like Jenna Ellis. But they don't seem to say, "Oh, Donald Trump told me to do A, B, or C that amounts to a crime."

 

John G. Malcolm:  They don't say that, although I'm not sure I think it's a nothing burger. So, first of all, the lawyer who's representing another defendant named Misty Hampton, he has confessed that he was the person who leaked these tapes.

 

Prof. John C. Yoo:  Oh, they have that, then.

 

John G. Malcolm:  Yeah, and the judge has now entered a protective order of Scott McFee, to try to prevent that kind of thing from happening again. You had interesting tidbits. You had Jenna Ellis, for instance, on the tape saying, "I was talking to Dan Scavino," who was the Deputy Chief of Staff, "and I was saying 'Look, I'm really sorry this evidence doesn't appear to be panning out, and we're losing all of these cases.'" And she says, "and his response was, 'Don't worry. It doesn't matter that the evidence isn't panning out. We have no intention of leaving the White House under any circumstances at all.'"

 

And Chesebro, in his videotape, does say that he personally briefed Donald Trump about the "fake elector" strategy in Arizona. And Sidney Powell helps the former president a little bit by saying, "Look, Donald Trump told me several times that he really does believe that this election was stolen." And she says, "I continue to believe that this election was stolen." She does implicate Rudy Giuliani and a guy named Robert Cheeley a little bit more, when it comes to the old Dominion voting machines in Coffee County.

 

      So, the strategy is working that she's picking off these little people who are now going to cooperate. But, at some point, if you offer somebody such an incredible deal, that makes them suspect, in terms of their motivations. You have to find a lot of corroborating evidence to support what it is that they're saying.

 

Prof. John C. Yoo:  You're right, John. But let me add also that none of these guilty pleas really get to the heart of the constitutional issues that we raised earlier, that you and I have discussed.

 

John G. Malcolm:  That's right.

 

Prof. John C. Yoo:  There are serious problems with using a RICO statute against a campaign which, itself, is a First Amendment exercise. And we still have to see that litigated. One other side note, one other update about this to ask you about, John, in Georgia, and it's interesting. Georgia does seem to be getting most of the attention and shaping up, maybe, as the one that's the most threatening to President Trump, in part, I was going to say, because of scheduling issues. It sounds, to me, like the Mar-a-Lago classified documents case is going to get pushed farther and farther back, maybe past the election. But Fani Willis seemed to say in comments that she thought while the trial might start, I think, by the summer, she thought it might go through to 2025.

 

John G. Malcolm:  Right. This could take months. The one that I think is going to go first is the one before Tanya Chutkan here in D.C., Jack Smith's January 6 trial. That's set for March 4. I don't think that's going to move. The Alvin Bragg trial is also set for March. But that's going to slide if the Chutkan case goes first. The classified documents case, which I continue to believe is the most serious one against President Trump, that is set for May.

 

But you are right. Judge Cannon, she hasn't moved it yet. But she suggested that she might. And, yeah, Fani Willis is now asking for an August trial date, and says this is going to take months and will certainly take the rest of 2024 and could go into the beginning of 2025. I think this is all going to be very, very loose. And a lot of it is going to depend on what happens during the trial that I do think will start on March 4, at the District Court here in D.C.

 

Prof. John C. Yoo:  I think the unfortunate thing is if — and I think this, again, is really raised by the Georgia case — these are not wrapped up in plenty of time for the presidential selection contest to go on, and that you have something, as Fani Willis is suggesting, where you have trial proceedings going on during the election.

 

John G. Malcolm:  Amazing.

 

Prof. John C. Yoo:  And I really think this is where prosecutors — who I think should be conscious of the political system and its calendar — really are taking actions that are going to have consequences, direct and immediate consequences on the election. I think some of these prosecutors, either that was their intent, or they've completely misjudged.

 

One other thing about these various prosecutions is we haven't really heard much. As you said, John, the federal prosecutions are not getting as much attention. Fani Willis's is where you do seem to be seeing a lot more progress. But in the classified documents case you have a trial date that's set for May. I think a lot of people think that's got to slip, because there doesn’t seem to be a lot of progress being made in preparing the case for trial.

 

But the one case, as you mentioned, we haven't really heard much about is the January 6 Special Counsel prosecution in Washington being brought by Jack Smith. The only thing we've really had there is litigation at the D.C. Circuit recently about the gag order that was issued by Judge Chutkan. We haven't seen plea bargains. This is an interesting thing. We haven't seen the kind of plea bargains, the kind of advancement along those lines, that we've seen in the Georgia case. We haven't really seen much of anything happening there.

 

John G. Malcolm:  Well, he is the only defendant. And I sincerely doubt he is going to engage in plea bargaining. And, yeah, they had the argument yesterday on the gag order.  The president drew a bad panel that was Patricia Millett and Nina Pillard, both Obama appointees, and Brad -- I forget what the last guy's name is. He's a Biden appointee. A recent --

 

Prof. John C. Yoo:  I think Garcia, maybe.

 

John G. Malcolm:  Garcia. That's it. And you got the impression from the argument that they were going to narrow the scope of the gag order. But they were not completely sympathetic to President Trump's lawyers arguing that this is just election interference and he's preventing him from the campaign. He said, "No, no, no, no, no. They were also witnesses here."

 

Maybe you can say, "deranged Jack Smith," and Jack Smith can take it. Maybe he can criticize Bill Barr, and they're big boys. But there are other witnesses out there. And you don't want to taint the jury pool. So, you got the impression they were going to narrow the gag order. But we'll see what they do.

 

Prof. John C. Yoo:  And if the D.C. Circuit does uphold the gag order or allows significant parts to go forward, you would expect the Trump team to go to the Supreme Court. And I could be wrong, but it seems to me there are actually important issues of first impression for the Court to resolve here on the First Amendment. Because you really do have a federal judge, I think, for the first time — I'm trying to think of an example — but I think for the first time, issuing restrictions on the speech of a presidential candidate.

 

And not just any candidate for the presidency, but the leading candidate in the primary contest of one of the two major parties who is, in fact, at this point, leading in polling against the incumbent president of the other party. I think the district judge here, even if you are on her side, I think you would have to say she made a mistake by issuing, clearly, an order that was too broad, but triggering this whole exercise, which is going to delay, delaying the trial, delaying the prosecution. And also, it's going to produce, I think, a Supreme Court opinion that could well find for President Trump. I don't see how a district judge has the right to affect the political speech of a defendant outside the courtroom.

 

John G. Malcolm:  And you may well be right.

 

Prof. John C. Yoo:  You would think that was what's in the First Amendment. I think the judge can control what's said in the courtroom. And I think there's a case to be made that judges can prohibit speech that really amounts to intimidation, really amounts to some kind of criminal conduct, essentially. But to restrict the political speech of a presidential candidate, I think the judge went too far. So maybe the D.C. Circuit, what it can do is really just limit it to intimidation of witnesses, speech that really amounts to conduct, but really give a broad scope to President Trump's free speech rights.

 

John G. Malcolm:  I'm not so sure that that's going to push the trial date. But I think you're right about that.

 

Prof. John C. Yoo:  Okay. Well, this is incredible, because me and John have a whole lot of issues to discuss. We only have eight minutes left before questions. So, maybe we could move quickly to the latest in the Hunter Biden cases with subpoenas. So, two developments there. One is, the House Oversight Committee, being led by Congressman Comer, has issued new subpoenas for testimony from Hunter Biden and the president's brother, James Biden, and business associates. 

 

And, at the same time, this committee also heard behind closed door testimony from David Weiss, the Special counsel. Of course, when I say "closed door," I just mean that it only took a few hours for it to be leaked to the Washington Post. Anyone who's been in Washington knows "closed door" just means that there was no video that the Washington Post got. They had to read a transcript that was leaked.

 

So, we knew pretty quickly what David Weiss said in that hearing. So, John, what are your thoughts on where this piece of the Hunter Biden investigation is going? Do you think we're getting close to some kind of conclusion, now that you're going to have Hunter Biden, James Biden, other Biden family associates actually called to testify in person before the committee? Do we hear anything? Do we hear anything from David Weiss that gives credence to the idea that there was some kind of conflict of interest or even obstruction?

 

John G. Malcolm:  Oh, I don't think we heard anything from David Weiss. I think he testified before the House Judiciary Committee, by the way. But all he said was, "No, no, no, it was a misunderstanding. I was always in control. I could always get whatever cooperation that I needed, and it was not a problem." He refused to answer lots and lots and lots of questions, citing the ongoing investigation. But he said, "Oh, don't worry. Because when they issue a final report, all questions will be answered.”

 

In the meantime, of course, he still hasn't filed any tax charges. But you're hearing that grand jury subpoenas have been issued, either in D.C. or Los Angeles. So, I don't know exactly where that's going. In terms of the House Oversight Committee, they're being aggressive. I would expect that Hunter Biden and James Biden will appear publicly, and they will take the Fifth, would be my guess. But they're also going after businesses. And they're even looking at Hunter Biden's budding career as an artist. They have issued subpoenas to the --

 

Prof. John C. Yoo:  Watch out, John. I see you've got some very cutting-edge modern art on your wall, your background, right now.

 

John G. Malcolm:  Somehow, I doubt that Hunter Biden would be painting Ed Meese and Ronald Reagan.

 

Prof. John C. Yoo:  Oh, those are those blocks and circles that he's been drawing. They look like Ed and the President.

 

John G. Malcolm:  He's also subpoenaed an art patron and the owner of the gallery where Hunter Biden was selling this stuff. And Hunter Biden, by the way, is also trying to get subpoenas in his criminal trial. He has gone to the judge, and he's asked for a subpoena duces tecum to be issued to get documentary evidence of correspondence between Donald Trump, Bill Barr, Jeff Rosen — who was the deputy AG and then acting AG — and Richard Donoghue, who became the acting deputy attorney general, because he's saying that this was a vindictive and a selective prosecution and they were applying tremendous pressure to get this case forward.

 

      So, the subpoenas are flying all over the place, with respect to this stuff. And with respect to the timing, you're hearing that they are thinking that they may call for an impeachment vote one way or the other, as early as January. But we'll see. They're trying to get all of these subpoenas issued and have people come in in December to offer all of this testimony, and that they are saying that they're getting close to wrapping up their investigation.

 

They have documented some $24 million flowing to Hunter Biden and James Biden and other members of the Biden family, some of that money going to Joe Biden in the form of loans that were then repaid, and some 20 shell companies that were set up. So, they say they're getting close to having a vote. And who knows. We may have another impeachment come January. 

 

Prof. John C. Yoo:  I think you've got to be right that the right strategy for Hunter and James Biden is to take the Fifth. I don't see how. There's going to be public relations consequences for that. But, legally, how could they do anything else but take the Fifth, given that they're under criminal investigation now? Here's an outside-the-box possibility. Often, in these kinds of cases — having done this, myself, in the Senate — there's always the possibility that Congress could grant somebody immunity.

 

I can't see them granting Hunter Biden immunity. But I wonder whether they might grant immunity to one of the others, especially if Congress takes seriously the notion that this is really about impeachment proceedings and not really about trying to drive some kind of outcome in the criminal process. And here's another interesting side. If the members of the House really have a lack of faith in David Weiss as Special Counsel, which I think they should — and just put aside whether you think David Weiss is a good prosecutor or a bad prosecutor — but it makes no sense to appoint someone to solve a conflict of interest. It makes no sense to appoint the person who's there creating the conflict of interest as the special counsel.

 

If they really thought that David Weiss is not going to bring the kind of charges they want, that he really has been slow-walking the prosecution, as they've said, then maybe they should grant immunity to someone and, hopefully — because when you get an immunity grant, then your incentive is to talk about it as much as possible.— maybe they'll hear information that would really give credence, give some kind of support — sorry if I keep using the word "credence" — support to an impeachment, rather than worrying about criminal prosecution. This is what happened in the Iran-Contra investigation, for example.

 

John G. Malcolm:  Well, that's of course, a danger, is that you could face another Oliver North, John Poindexter situation. But those guys testified very, very early in the process before a lot of facts were known. Now, there are a lot of facts that presumably are known: documents, people who have testified. So, you could conceivably grant somebody immunity and still have enough evidence to proceed and prosecute them, just not use their statements against them, but then use what they say, having granted immunity against other people.

 

      So that could happen. I don't think that's likely to happen. But it could happen. And, while we're on the subject, before you get to questions, I know there's other stuff we didn't cover. You're hearing reports that Rob Hur, who is the special counsel looking at Joe Biden's classified document leak, is finishing up his investigation. And it seems as if no charges are going to be filed — under OLC opinions, you couldn't prosecute a sitting president anyway — but, that he is going to have a final report he will present to Merrick Garland. Presumably, that will then be disclosed to the public with, perhaps, some redaction for classified information.

 

Prof. John C. Yoo:  And, before we turn to questions, we didn't address one other subpoena that was going to get sent out but then didn't. And that was to our friend Leonard Leo, co-chairman of the board of The Federalist Society, along with a subpoena to Harlan Crow, a benefactor to many conservative causes, including, I think, The Federalist Society, but also to the American Enterprise Institute, where I've been a scholar for many years. And I think he's a wonderful guy.

 

But the Senate Judiciary Committee was going to issue subpoenas to both of them to learn, according to the committee, facts about how they may have allegedly tried to influence Supreme Court justices — Justice Thomas, for whom I clerked, and Justice Alito — in terms of providing vacations, travel. And the Senate Judiciary Committee appeared poised to issue those subpoenas and then pulled them back at the last second, cancelled the meeting where they were going to be voted on. 

 

It doesn't mean that it's over, because they might still try to vote on them. But Republicans on the committee, it sounded to me, threatened to go to the mat to try to stop the subpoenas, to the point where you wonder how the Senate would even enforce them if Republicans in the Senate stuck together and tried to use every Parliamentary tactic they could to try to prevent some kind of contempt vote on refusal to obey the subpoenas.

 

John G. Malcolm:  Republicans really stymied Dick Durbin. Lindsey Graham said, "Okay, you're about to open Pandora's box and you're going to get a look inside. You're not going to like what you see." They weren't so much trying to stop the subpoenas to Leonard Leo and Harlan Crow, and said as much as they offered 88 amendments. They said, "Okay, fine. You want to issue those subpoenas? Great. We would like to issue subpoenas to Arabella Advisors, Alliance for Justice, Demand Justice, David Rubenstein of the Carlyle Group, ProPublica, lots of organizations affiliated with George Soros, Morris Khan, the Pritzker Foundation, Sonya Sotomayor's staff, because of calling somebody saying, 'Oh, you need to buy more books.'" 

 

They basically were going to say, "You want to go down this road? Here are all the subpoenas that we want." And Dick Durbin, at least for the moment, said, "No mas." And he adjourned the proceeding and said, "Oh, don't worry. I'll be coming back." But it was hardball tactics going on at the Senate Judiciary Committee. And, so far, no subpoenas for Leonard Leo, who's happily ensconced in Maine, I assume, and Harlan Crow, who is ensconced wherever he's ensconced.

 

Prof. John C. Yoo:  Well, Leonard's up in his Maine fortress of solitude, I believe, where, according to the liberals, he's pulling all of the strings and moving all of the levers of the conservative movement. But one interesting thing — and we should really put this off to our next episode — is I think Leonard and Harlan Crow made a very interesting constitutional claim which was that, actually, the Senate had no authority to issue the subpoenas because there was no legislation that they could actually pass — and I think this is a really interesting constitutional argument; I tend to agree with it but it's worth airing out in our next episode — because any kind of ethical issues are for the Supreme Court to resolve, that Congress actually, constitutionally cannot regulate the ethics of the Supreme Court justices.

 

If they want to impeach, that's their remedy. But they can't actually legislate standards for how the justices choose to report their finances or not. And that's obviously a discussion we'll have to put off, because the Supreme Court, this last week, also issued its own ethics rules. And, unfortunately, we've run out of time and don't have a chance to talk about them now. So, Emily, do you want to take charge now with the questions? And we'll go through some of the questions people have asked in the remaining 16 minutes of the podcast.

 

Emily Manning:  That sounds great. Thank you both for this great discussion. And we'll now turn to audience questions. So, if you have a question, please enter it into the Q&A function at the bottom of your screen. And we'll do our best to fit as many as we can into these next 15 minutes. So, we will go to the first question, asked by a member of our audience: "Can you all discuss whether bar proceedings — such as discipline, disbarment, etc. — have been threatened or are assisted by the Powell and Ellis pleas? And what about John Eastman in California?"

 

Prof. John C. Yoo:  Maybe I should start off because I was — just for the interest of full disclosure — I was called as an expert witness in the Eastman disbarment proceedings out here in California. The judge in that proceeding has already signaled that she's going to make a finding against John. I don't think that comes as a surprise. The real action will be when that case gets appealed to the State Supreme Court. Because here in California the bar is considered just a sub-delegee of power of the California Supreme Court itself. So, it's interesting.

 

John's claim is essentially, factually, there was fraud, he still thinks there was fraud in the election, that the legal advice he gave was not outside the bounds of reasonable legal advice. Some of these plea bargains, as John Malcolm mentioned, go beyond legal advice to actions, especially when you're talking about, like, Ken Chesebro, for example, according to the prosecution, didn't just write legal memos saying, "Oh, you could appoint an alternate slate of electors," but went past legal advice. To the extent that's true, we wouldn't see that impinge on the question whether Eastman's legal advice was in the bounds of reasonableness. 

 

      The other thing I was looking for in the videos that were leaked was whether Sidney Powell or Jenna Ellis or Ken Chesebro discussed, at any length, discussions or things they did with John Eastman. I didn't really see that. Maybe I missed it. I didn't have access to the full videos, but I watched the clips. And I didn't see them saying things that amounted to, "Oh, John Eastman and I did A, B, C, D." So, I don't know whether that would also affect the disbarment proceedings. But I think that it's undeniably going to hurt his cause, just in terms of the legal politics of it. Because it will be easier, I think, for a judge out here in California just to say, "Oh, see. They found over in Georgia, the other lawyers involved with Trump, guilty. Those lawyers pled guilty."

 

So, it makes it easier for this judge to say, "See, I don't even have to prove any of that. I don't have to go through that. This is actually a criminal case, criminal court. And I'm just a bar judge. And so, I can just defer to the findings or the pleadings that were made over in the Georgia prosecution." But I don't think it really affects the substantive legal defenses that John is making about the role of the lawyer, the reasonableness of the legal claims that were made. And I expect he's going to really make those at the California Supreme Court, and maybe the U.S. Supreme Court.

 

John G. Malcolm:  So, before all of these indictments were issued — I forget what it was called, but there's a left-wing group that identified, I think it was, like, 65 lawyers who had been involved in some form or capacity, helping the Trump campaign. And they filed ethics complaints trying to take away the bar licenses for all of these people. So, I know people, for instance, who haven't been indicted. They haven't been named as unindicted co-conspirators, who had to go before bar proceedings. So far, they haven't been disbarred. But it took time, energy, emotional toil, and financial resources to do this.

 

It was, to my opinion, lawfare at its worst. And so, Sidney Powell, her bar complaint's proceeding was completed. I forget how it ended. It's up on appeal. But certainly, John Eastman's going on. He's likely to lose. He's not taking it lying down. So, before we were talking about people taking the Fifth. John Eastman went on 60 Minutes. And Jenna Ellis is going to face these issues too. But, yeah, so they're going after people's bar licenses, and going beyond those people who have been charged with crimes.

 

Emily Manning:  We've had a few audience members asking about a potential Trump pardon. If Trump is reelected president, can he pardon himself? And, if so, would you advise him to allow the trials to continue, rather than pardoning himself, in order to set precedent?

 

John G. Malcolm:  My opinion is that he can, for the federal crimes. It's plenary authority. I don't think anybody ever envisioned that a president would be in the position of pardoning himself. But I don't see anything that says that he can't. The only exceptions are they have to be offenses against the United States, so federal crimes. And it says he can't pardon himself with respect to impeachment. So, I do think that he could pardon himself.

 

I suspect that, if he were elected and took the oath of office, he would pardon himself immediately for those federal crimes. With respect to the state crimes, I do not believe that he can, although I know that there are other people like Mark Levin, for instance, of Landmark Legal and radio podcast fame, who may try to make an argument that he can. I do think, though, that a state can't prevent a president from serving. Clearly, a president could not serve sitting in a state prison cell. The Secret Service wouldn't be able to protect him. And he certainly couldn't run the affairs of government.

 

So, my belief is that he would be released from state prison, if that's where he was languishing. He would go serve his term in office, and then maybe go back and complete the term. But I do think that he could pardon himself — I realize that that's controversial — but not with respect to the state offenses. What do you think, John?

 

Prof. John C. Yoo:  I love to pull out the text of the Constitution. I always try to figure out who gave me this one. Because some of the ones I get, some of my friends have extra words in them that I don't believe were in the original. That's not true of the Heritage Foundation version, I'm sure, that you hand out. This is a Hillsdale copy, so any misquotations are the fault of Hillsdale. But John's quite right. The text only has three exceptions to pardons. And it says you can only pardon for offenses against the United States, and excepting cases of impeachment.

 

So that means that President Trump cannot pardon for the Georgia prosecutions because they're state. He can't pardon for the New York civil cases going on, because that's civil, not criminal. And he can't pardon the Alvin Bragg investigation, which we really haven't talked about that much. So, the text, otherwise, places no limit on a president's ability to pardon, including himself. Certainly, presidents have issued pardons to previous presidents because President Ford pardoned Richard Nixon for crimes which could have amounted to felonies, and certainly were impeachable.

 

John G. Malcolm:  Without an admission of guilt and before trial.

 

Prof. John C. Yoo:  Exactly, yeah, that's true. The Supreme Court has said you can issue the pardons before. You don't have to wait until after. Here's another interesting tip — I did write a little bit about this in my book about Trump and the Constitution — is there's actually a discussion about this in The Federalist Papers, interestingly. Because the anti-federalists claimed that what would happen -- this expresses their worry about what would happen, under the Constitution. They said, "What would happen if --?” Alexander Hamilton defended the pardon power as, perhaps, necessary to allow for the rapid breakup of conspiracies against the government.

 

And he said, "Oh, well, you could issue pardons to encourage cooperation so that it would allow you to unravel an effort to overthrow the government. And so, then, the anti-federalists said, "Yeah, but what if the president is part of this plot?" And Hamilton could have said, "Oh, well, the pardon power doesn't allow a president to pardon himself, and certainly not for things like insurrection." If you read that Federalist Paper closely, Hamilton never says that. In fact, it's kind of interesting. Hamilton starts to address the claim, and then he leaves it and doesn't respond, which means, in my mind, that he also saw that the Constitution did allow for the president to pardon himself.

 

Emily Manning:  All right. The next member of our audience is asking if Trump's legal team has made a motion for a mistrial in the New York civil case. And, if so, does it have any chance of success?

 

John G. Malcolm:  He has made a motion for mistrial, and it was denied. So, where they are now is that they are presenting their defense. So, they kicked off their defense with Donald Trump Jr. testifying, saying that his father was a genius and a visionary when it came to real estate transactions. They're now calling a bunch of real estate appraisers who were saying that the valuations of the assets that were included in the financial statements were within the bounds of reasonable for the way appraisals are done.

 

They are predicting that there will be a rebuttal case that will kick off at some point, and that the trial will end sometime immediately before Christmas. I don't think there's any doubt as to what the outcome is going to be. Judge Engoron has more than tipped his hand with respect to that. It's really a question of how high a penalty he's going to impose. Letitia James, I think, is asking for somewhere between 250 million and 300 million. And perhaps even more important than that — staggering to think about, when you think about that amount of money — is yanking all of his business licenses and his ability to conduct any business in New York.

 

Prof. John C. Yoo:  I don't see how you could get a mistrial, in particular, to the findings the judge made before these proceedings. Because, if you remember, the judge here issued a summary judgment decision before any of these witnesses appeared, basically on the papers, finding that fraud had already occurred. I think the unfortunate thing is that President Trump and his lawyers have, I think, clearly decided to use this forum as a platform for the political campaign. And that's harming their legal case. Making the kinds of accusations and motions they've been making, I think, distracts from some of the things that John mentioned are serious legal issues.

 

      For example, this incredible remedy, a $250 million fine, essentially putting the Trump Organization out of business in the state of New York, as a punishment for an alleged fraud in which the other contracting party made money, had their mortgages repaid, and made no complaint of fraud themselves. There is also this important legal issue. I don't think it's a winner. But there is an important legal issue about can a state pursue people for fraud when it's very hard to show anybody was harmed. It's kind of like a fraud on the market.

 

If you look at the opinions -- I took a quick look at the opinions in the claim New York makes, not in this case, but in the earlier precedents. Somehow, the state has a right to make sure that the marketplace operates honestly and effectively. And so, if you have people who are engaging in deceptive business practices and fraud, even if everyone they contracted with is satisfied and felt everything was okay, that the state can still punish for fraud. I think that's an interesting legal argument. It's not constitutional. It's one of common law, I guess, and statutory criminal law. The problem is, I think, that by engaging in this use of the trial as a political forum, it's really distracting. And it's really obscuring the way they could possibly make progress on the legal issues in the case.

 

Emily Manning:  We have time for one final question. An audience member is asking if you can elaborate on the election consequences that may result from Trump trials taking place during the political proceedings in 2024. Would this constitute election interference?

 

John G. Malcolm:  John?

 

Prof. John C. Yoo:  Well, if you remember, as we were just going through the many proceedings, and all the different changing dates, it seems inevitable that there are going to be trial proceedings during the primary general convention and final election seasons. I don't see how you're going to avoid it. And I don't see any kind of -- I would think of it as a kind of statesmanship decision by prosecution judges to say, "I'm going to hold off. Let the people decide through the ballot box," and then pick it up. Pick up the proceedings after the election.

 

I think that would be the most sensible thing, if you're talking about these proceedings going on right smack dab in the middle of Super Tuesday — which is the start date of one of the trails — or smack dab during the nominating conventions, or, really, smack dab during the November election. Now, election interference itself, I don't think this would amount to some kind of election interference, like a crime. I think you could say it's election interference in a sort of political sense or rhetorical use of the term. I don't think there's any crime being committed by these prosecutors and judges by holding and scheduling the proceedings the way they have.

 

John G. Malcolm:  Yeah, I agree with all that. I don't think there's any question that this is interfering with the election. And it's certainly proving to be a distraction for all of the other people who are trying to get the republican nomination over Donald Trump. The former president is making great hay out of the fact that he claims he's being persecuted by all of these people and that it's not just him, but that it's all of his supporters whom the government is actually going after by exercising this two-tiered system of justice.

 

So, he's making this a campaign issue. But there's no question this is all unprecedented. And it's happening during the election. Perhaps the most prudent thing would have been for these courts to say, "Okay, all of the evidence is in. The grand jury indictments have been returned. There's no statute of limitations problem. We're going to put all of this on hold until after the election." But they have obviously opted not to do that.

 

 

Emily Manning:  On behalf of The Federalist Society, thank you both for joining us for this great discussion today. And we look forward to the next episode in the series. Thank you, also, to our audience, for joining us. We greatly appreciate your participation. Check out our website, FedSoc.org or follow us on all major social media platforms at FedSoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in. And we are adjourned.