A Conversation on the Right: The Current State of Presidential Power

 

[Music]

 

Emily Manning:  Hi, 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, "A Conversation on the Right: The Current State of Presidential Power." 

 

      We're joined today by John G. Malcolm, Vice President for the Institute for Constitutional Government, and Director of the Meese Center for Legal & Judicial Studies, and Senior Legal Fellow at The Heritage Foundation; and also, Professor John C. Yoo, Emanuel S. Heller Professor of Law at the University of California at Berkeley; Nonresident 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 the 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, 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 Yoo:  Well, Emily, thanks for that kind introduction. And I also want to thank Dean Reuter, who came to us with the idea of reviving the "Presidential Power" podcast that John and I had been doing in, I think, the two years of the -- of the last two years of the Trump administration, where we covered an impeachment, covered all kinds of investigations, the Mueller investigation. And then I remember in 2020, John and I said, "Eh. We'll never have to talk about these kinds of things again. Let us just close up shop and finish the podcast series."

 

      But, yet every time we try to get out, they pull us back in. But I have to say we've improved with our host, Emily, who's replacing Dean on this one -- a much more charming host than Dean ever was. So we're going to try, I think, to maintain the same basic format that John and I used three years ago, which was not to have opening statements but rather to have a conversation about the latest issues involving presidential power and then turn it over to all of you for maybe the last 20 minutes for questions and discussion. So very much looking forward to this, and we think it'll be the beginning of a series of podcasts that will continue through this year and probably next year.

 

      So why don't we start with what's on everybody's mind, which is the series of indictments of former President Trump, including the one most recently issued by the grand jury in Washington, D.C., which is an indictment of President Trump for allegedly seeking to overturn the results of the 2020 election?

 

      But the remarkable thing is that this is not the first time in history that a president—former president—has been indicted with a federal crime because President Trump already broke that barrier earlier when he was indicted by the same Special Counsel, Jack Smith, for refusing to turn over classified documents and then allegedly obstructing an effort to get them back, an effort by federal investigators to find out what had happened at Mar-a-Lago with these documents.

 

      You might have thought that was the first time a former president had ever been indicted, but no, President Trump had broken that barrier too because months before that, he was indicted, not by a federal grand jury but by the district attorney in Manhattan, for allegedly lying and covering up the business records that recorded an effort, allegedly, to funnel a payoff, or hush money, to Stormy Daniels during the -- of the 2016 presidential election.

 

      So the first thing, John: What do you think about this buzz? It's like a swarm of bees around President Trump, all of these investigations. I didn't even mention the ones that still may be yet to come.

 

      John is from the Atlanta, Georgia legal community originally, and allegedly the D.A. in the county in Atlanta is thinking of—by press reports—indicting President Trump for trying to interfere with the choice of the presidential electors in 2020 in Georgia. We've got other investigations going on in other states.

 

      So, John, what do you think about all of these really unprecedented investigations and indictments of a former president who is also—as are we all very well aware—running for president and right now is the leading candidate, by the polls, in the Republican primary?

 

John Malcolm:  Yeah, look, this is all dizzying, to put it mildly. I don't think there's any question, by the way, that he is going to get indicted in Atlanta. Fani Willis, the Fulton County district attorney, has pretty much promised that. And my understanding, from people I know who are still in Atlanta, is they have barricades up all around the courthouse. And they have invited people to testify, including the former lieutenant governor, before the grand jury in the next -- within the next week. So that's coming. And it's rumored that she will indict him and others under Georgia's RICO statute. Georgia has a very, very broad RICO statute, Racketeer Influenced and Corrupt Organizations, that are far broader than the federal RICO statute.

 

      But this is all unprecedented. And it's tough to talk about the indictments as a whole other than the fact, of course, that not only is Donald Trump leading at the moment in polls for the Republican nomination, but he's basically breaking even, or in some polls even slightly ahead of Joe Biden in a head-to-head matchup. And this, also, thrown into the mix is you have the Hunter Biden plea deal—sweetheart plea deal—that collapsed under very strange circumstances, and whistleblowers coming forward, talking about interference with that investigation, people alleging pay-to-play schemes involving Joe Biden, our current president. So it's dizzying.

 

      You have to look at these indictments, I think, separately. They raise all kinds of different issues. So I'll quickly go through them, I guess.

 

      You have the one from Alvin Bragg in New York, which I think is correctly seen as really, really weak. I mean, Alvin Bragg is a so-called progressive prosecutor. He's famous for taking felonies and reducing them down to misdemeanors. And here, at most, he's taking misdemeanors and is ramping them up to felonies.

 

      He's got this 34-count indictment for falsifying business records for the Trump organization. He basically gets 17 invoices from Michael Cohen, Donald Trump's alleged fixer, for legal services. And then the other 17 ledger entries about payments made on those invoices, and the whole theory behind this is that these payments weren't for legal services. They were hush money to pay off Stormy Daniels and Karen McDougal: Stormy Daniels, a porn actress; Karen McDougal, a former Playboy Playmate. They both claim that they had affairs with President Trump in 2006. And then, all of a sudden, when he was running for president, they decided, "Well, now might be a good time to tell my story." And payments were made to prevent them from doing that with nondisclosure agreements signed.

 

      And, normally, these are misdemeanors with a two-year statute of limitations. By the way, all of these ledger entries were in 2017. But the theory behind ramping them up to felonies is that they were designed to conceal another crime. In this case, if these were really illegal campaign finance violations, it strikes me as being astonishingly weak, but we'll see what happens with that. I mean, there are 34 felony charges. You've got to take a felony charge seriously. You have them tried in New York, where he's not terribly popular. About the only place he's less popular is Washington, D.C., which is where the third indictment is from, but we'll see.

 

      The Mar-a-Lago charge, that's more discreet, and when that indictment came out, it was a speaking indictment. There were a lot of facts that weren't well-known. These were all for activities that took place after he was president. He's going to have defenses if he can assert. He's, at various times, said that all of these classified documents, he had actually declassified them before he left office. He's also said that he was entitled to keep all of these records under the Presidential Records Act and that this is really a documents dispute with the National Archivist. We'll see how those all play out.

     

      The last indictment is the one that most people will care about because classified documents is too esoteric for a lot of people, but everybody remembers about the aftermath of the November election leading up to the events of January 6th with the certification of that vote. And everyone will remember what happened on January 6th, so this is a four-count indictment by Jack Smith. I think it is very aggressive.

 

      There aren't a lot of new facts in this indictment that weren't covered at length by the very much one-sided January 6th Select Committee in the House of Representatives. There are little tidbits, like notes that were taken by Mike Pence, a little bit about the timing of the so-called "fake electors" signing their certifications, and lawsuits that were filed in New Mexico. But for the most part, these facts have been out there for a long time.

 

      I was very surprised by -- well, one, the indictment actually begins by saying—and this is a quote—"The defendant had a right, like every American, to speak publicly about the election and even to claim falsely that there had been outcome determinative to fraud during the election that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular votes in states or filing lawsuits challenging ballots in his procedures." I think that's exactly correct. Every American should recognize that. And I thought that most of the rest of the indictment undercut that very consequential paragraph at the very beginning.

 

      It's all premised not only on the fact that Donald Trump's claims that the election was stolen were wrong but that he knew that they were wrong at the time. And there's no question that there were a lot of people around him who were telling him that they were wrong. But I don't think there's any doubt that there were a lot of people around him at the time who were telling him that he was right. I know some of those people, and they still believe this to this day. And this is a fraud charge. It's not enough to say, "Oh, well, he should have known that this was wrong." They've got to prove that it was wrong. And he has a First Amendment right to question the outcome of the election.

 

      He has, as president, the ability to deal with the Justice Department and to deal with Mike Pence as vice president. The suggestion that his talking to people at the Justice Department or talking to Mike Pence about what he was going to do under the Electoral Counts Act—that that's all part of an illegal scheme—I think that's all pretty -- pretty dangerous.

 

      And the last charge is a civil rights violation under the Ku Klux Klan Act of 1871 for a violation of rights because he was trying to, supposedly, disenfranchise all of the people who voted for Biden. Well, my God, that's a very, very broad interpretation. I mean, anybody who questions the outcome of an election or the procedures that we used in that election could conceivably, under this theory, be charged with a civil rights violation. And history is replete with people who have contested elections.

 

      I mean, so for instance, when Bush won, there were -- in 2000, there were people urging Bush electors to cast their votes for Gore. And in 2016, there were people urging Trump electors to cast their vote for Hillary Clinton. Were those people all committing civil rights violations? I don't think so. There's a lot more I could talk about in terms of the electors and the advice from attorneys, all of which is wrapped up in this and I think treads on very, very dangerous ground.

 

      I guess the only thing I will add before I stop for the moment is that Jack Smith, he's a very aggressive prosecutor, and he has, in the past, taken a very aggressive approach to how he interprets and enforces laws. And he has not always succeeded. I mean, his conviction of Governor Bob McDonnell in Virginia, a very aggressive attempt under the honest services fraud statute to convict him. It was turned -- overturned by the Supreme Court unanimously. And so, I think that this is the case that everybody is going to pay attention to, and I think it's a dangerous indictment, frankly.

 

Prof. John Yoo:  Let me respond on two points and then follow up.

 

      I think we can put aside the Bragg indictment for now and talk, really, about January 6 and Mar-a-Lago. To me, they're almost mirror opposites of each other, John. I think the Mar-a-Lago case, if you look at what federal prosecutors are supposed to consider when they bring charges, I think the most important factor is, "Does this advance the public interest?" All right? You put together other things: importance, harm, deterrence, and so on, but the most important thing is just the public interest.

 

      It seems to me on the Mar-a-Lago case, the facts are really strong for the government. The law is really strong for the government. President Trump is going to claim, "I declassified the documents," although there's no record of it. He says he thought it, or he gave an order: "Anything I take to Mar-a-Lago is automatically declassified." But there's no record that he gave such an order.

 

      There are some conservatives who say, "That's impossible for a president who is a classification authority—because all classification power stems from the president constitutionally—can actually be guilty of holding a declassified document illegally because just by deciding in his mind it's declassified, it's declassified. I'm not so sure he's going to win on that, but that's a novel, interesting claim. And it's actually much, I think, more difficult than people might think. But I don't think the public interest is really that far advanced by going after a foreign president -- a former president for keeping classified documents in his boxes of hoarded materials about his life that he's been keeping for decades.

 

 

      I think January 6th is the reverse. January 6th is the most important of cases. And this is a case that's about an effort to stop the peaceful transfer of power in our country. I can't think of a criminal trial that would be more important in the history of the country. The only case I can think of that's on a par to this is the Aaron Burr treason trial. And even that one is—I don't think—as serious as this one. But I think that's the last time we've really had a criminal -- federal criminal trial that had these kinds of constitutional and presidential issues at stake.

 

      But—and I agree with you, John—the problem is it doesn't have that watertight on the facts and law that you see in Mar-a-Lago. And I don't even know -- and here's what I'd throw out there is I'm not even sure whether the Court will get to the First Amendment arguments because it seems to me, for the federal courts, the easiest way—and I think correct way to handle this—is to say, "Do any of these criminal statutes that the Court -- I'm sorry, that the indictment rests upon, do any of those actually, fairly read, include the conduct that President Trump engaged in in the months leading up to and on January 6th?

 

      So let's take the fraud statute. Well, this is the common statute that's used to go after people who defraud the government out of money or property, like a defense contractor or Medicaid/Medicare provider. There's no money or property that President Trump was trying to steal here. According to the Special Counsel, President Trump was trying to defraud the United States, I guess, by tricking it into thinking that the election had come out one way when, in fact, it had come out the other way. And I would point here to a series of Supreme Court cases that have been coming out—just two—just a few months ago --

 

John Malcolm:  Right.

 

Prof. John Yoo:  -- which, oddly, are not mentioned by the Special Counsel which involve Andrew Cuomo's aides, who seem to "help along" property developers for the right payments to the right people. And now this is the wire fraud statute that the Court limited in this case. One's called Percoco. I think the other one's called Ciminelli.

 

John Malcolm:  Yeah, Ciminelli.

 

Prof. John Yoo:  Yeah, Ciminelli. Is that right, Ciminelli? And in those cases, the Court said, "We don't see traditional fraud because we don't see any theft of traditional property rights. And the Court's caution -- and this starts in this McDonnell case that you mentioned, John, and runs through all the way to Percoco and Ciminelli. The Court's been saying, "We don't want the federal criminal law statutes to be stretched to invade the political world. All right? And so, in addition to the -- so McDonnells in the beginning, Percoco, Ciminelli just this term, and in between, you have the case about Chris Christie. We can't get rid of that guy either. Right? Chris Christie's --

 

John Malcolm:  Bridgegate.

 

Prof. John Yoo:  -- days, remember? Bridgegate, right?

 

John Malcolm:  Yes.

 

Prof. John Yoo:  So they're prosecuted. And the Court there struck down those prosecutions and again reminded, "Don't use" -- "Prosecutors, don't use the federal criminal laws to try to police political activity, no matter how nefarious and dirty and hard-balled that politics are." And I could easily see them saying the same thing here. "Why are you using the fraud statute to go after a guy who was—although he might believe outrageous things—was making arguments on the envelope, still was trying to persuade people? He didn't actually seize power with the military. He was trying to persuade people to use their constitutional, legal powers to vote for him rather than for Joe Biden.

 

      I think the obstruction statute has a similar flavor. Actually, I think the obstruction charge in the Mar-a-Lago case is much stronger because they have videos now of people moving boxes in and out with classified material out of the storage room. You have, apparently, it seems like the guy who's in charge of the cameras is going to testify that Trump's aides told him to destroy the evidence, and so on. That's obstruction.

 

      What's the obstruction on January 6? I totally could see obstruction on the part of the rioters. The rioters tried to actually stop a proceeding of Congress from going forward. But I don't see those facts linking Trump to the rioters. And without those facts, then what's the legal claim that Trump committed obstruction? He didn't actually himself try to stop the proceedings of the counting of the votes. He did try to get alternate slates of electors picked. He did try to get Pence to change his mind. But it's interesting. He was still, in an odd way, respecting the process set out in the Constitution. He didn't try to go outside of it and try to say, "Oh, Congress, you have to stop meeting," or "You have to stop the vote itself." He didn't order that. And so, he tried to persuade other people to do it. I think that's a hard obstruction case to make out.

 

      And then on the last point, John, you made, I think, on the Ku Klux Klan Act. I think it's interesting. There is a Supreme Court case called Anderson. Chief—sorry—Justice Marshall writing, where Justice Marshall said, "Ballot box stuffing could constitute a violation because by ballot box stuffing you have diluted the vote of real voters and so taken away their constitutional right to vote." I'm not sure whether the Roberts court would go along with that broad a theory of the Ku Klux Klan Act.

 

      But again, maybe the Court doesn't even have to get to the First Amendment question because it could say, "Does the Ku Klux Klan Act really include a person who didn't actually stuff the ballots?" If anything, he's upset that other people stuffed the ballot box. And he just tried to use the Constitution to try to override the popular vote by saying, "State legislatures, take your power back and vote the electors," or, hence, "Reject or suspend the Electoral Count Act of the electoral count."

 

      Again, so I'm not -- I recognize that this is what Trump's lawyers are out there in public saying, "Oh, it's free speech. The whole thing is free speech." I'm not sure that's true either. But their better argument might be, "These statutes are just actually to be read narrowly, and it's not clear any of them have ever covered activity like this. How can the courts allow prosecutors to start policing politics using the criminal law?"

 

John Malcolm:  Look, I think that's -- I think that is -- that is right. He did not direct Mike Pence what to do. He's entitled to talk to him and say, "This is what you ought to do. We have these really smart lawyers, former law school deans. Supreme Court clerk is telling you you can do this."

 

Prof. John Yoo:  I didn't know Rudy Giuliani clerked at the Supreme Court. I didn't know Rudy -- where is this Guiliani School of Law?

 

John Malcolm:  I know. By the way, he was a former associate Attorney General and U.S. attorney, but yeah.

 

Prof. John Yoo:  Yeah.

 

John Malcolm:  He was the person I was just alluding to. And talking to states and saying, "There were irregularities in your states. And you ought to really be looking at that." He's entitled to do that, petition for redress of grievances. He's allowed to have lawyers represent him in all of this. It's really up to the state legislatures, at the end of the day, to choose who the electors are.

 

      There have been instances in which dual slates of electors have been submitted. In fact, in the Rutherford Hayes/Samuel Tilden election in 1876, four states submitted dual slates of electors. And in Hawaii, in the 1960 election, they held the election. The original count had Nixon as the winner. The governor certified the slate for Nixon. And then there was the recount. And it was ongoing on the day that the electors met. And so, a fake set of Kennedy electors showed up and cast their votes, and they sent that in to Congress as well. And then the recount came out that Kennedy had, in fact, won, and so the governor pulled back the original certification and certified the Kennedy electors. And, in fact, it was Richard Nixon on the floor of Congress who opened up and counted those four Hawaiian votes for Kennedy.

 

      Patsy Mink, the congresswoman from Hawaii, she suggested that Al Gore submit a dual slate of electors in Florida in 2000. He didn't. But no one ever suggested that these people were committing crimes, so that the attorneys who told them, "Look. We need to have these things in case we end up prevailing; that, if we don't do this, there won't be a remedy that the president can take even if he wins as a matter of law or persuades the legislatures that there was enough fraud going on in the states that they should change the results." And it is up to the state legislatures, ultimately, to pick who those electors are. So I think that this is a dangerous path to head down.

 

      And these electors -- these are -- it's not just Donald Trump and his First Amendment rights and presidential authorities, which are very much in play. But attorneys are giving legal advice. Now, it may be suborning perjury, changing documents. That's clear fraud. But offering aggressive, but plausible, interpretations of law and challenging those laws -- the application of those laws in court, that's what attorneys do all the time. That's zealously representing their clients. That's what they should be doing. And this will have a real chilling effect, not just in terms of legal advice that's given, but also on the most important issues in our country, which are elections.

 

      And these so-called "fake electors," these are party activists. They weren't hiding what they were doing. They weren't -- they were saying, "Here we are. We're signing on as electors in case these legal suits end up in Trump's favor, in case the state legislature decides that there was enough fraud to overturn things. And then, all of a sudden, party activists, who are, by the way, also relying on the advice of counsel, are now unindicted co-conspirators. And, quite frankly, I think that some of them may end up being indicted co-conspirators in the Georgia case that's going to be indicted in a couple of weeks. This is dangerous stuff.

 

      And I -- in terms of whether it's worth it or not, you can even throw in the Mar-a-Lago investigation. I mean, look, I think that getting back the classified documents was important, clearly. Donald Trump was not intending on releasing these documents to the Russians or the Chinese, or the North Koreans. You could argue, "Look, it was important to get these documents back, and he should have turned these documents over." But having gotten them back—they're now back in the possession of the U.S. government—is it really worth -- I don't want to say, "Is the juice worth the squeeze?" I don't want to say—as the administrator at Stanford did—but is it really worth putting the country through this? I know. I think that a lot of people will say, "No. It's not."

 

Prof. John Yoo:  Yeah. One point and then a question.

 

      So I agree. In fact, when I read the indictment, I was disappointed not to see insurrection charged or sedition --

 

John Malcolm:  Correct.

 

Prof. John Yoo:  -- because if you look at those statutes, they don't just say it's a criminal violation to try to actually overthrow the government with armed force. There's also -- it's also illegal to try to prevent the execution of the laws. And if you listen to what Jack Smith said when he spoke publicly when the indictment was released, you'd think he was indicting President Trump for the attack on the Capitol.

 

John Malcolm:  That's right.

 

Prof. John Yoo:  Yeah. And you don't see that kind of claim. Instead, you see this secondary. Well, it reads like a white-collar criminal prosecution, not something of the momentousness of, "Here's someone who actually tried to stop peaceful transfer of power." And so, I wonder, one, why Smith doesn't charge this.

 

      And then the second point I'll make—and it's a question, also—is the way you described it, John: Here's a president who's relying on legal counsel, who has all kinds of advisors, who ‑‑ excuse me—who are telling him, "Oh, yes. The election was stolen." Or at least you could say there's uncertainty in the popular vote in several states. Although I don't know what you think about the facts, I find that actually hard to believe, actually, given ‑‑ even then, but actually more so based on what we know now. But this is why I think you hear people saying it really depends on Trump's state of mind. And that's what most of the indictment is about. You read the indictment; most of the indictment is about all the people who told Trump that he had lost. I'm not sure why the state of mind—President Trump's state of mind—should matter that much.

 

      And so, here's a question for you, old friend, old criminal division friend: Do you really need to have definitive proof of what Trump thought? Or does all he need to do -- does all Jack Smith need to do is say, "Oh, no reasonable person would have thought the election was stolen because Attorney General Barr told you you lost? And the White House Counsel, Pat Cipollone, told you ‑‑ Cipollone told you you lost. And everybody told you you'd lost. Your campaign adviser ‑‑ your campaign manager told you you lost. Isn't it unreasonable, then, for Trump to rely on these other people who ‑‑ like Rudy Giuliani, for example, for telling you otherwise? Why does that matter?

 

John Malcolm:  So a couple of things. One—just getting back to what happened at the Capitol—I was also very surprised. I thought that there were going to be communications between Trump and -- or at least people close to him with the head of the Proud Boys and Oath Keepers. And there was none of that. And, in fact, Jack Smith suggests that Trump was, of course, responsible for all of that. He says he "directed them" to the Capitol. That's the phrase he used in the indictment. But what he doesn't say in the indictment is—regardless of what you think about Donald Trump—that he said, "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard." That "peacefully," that's not in the indictment. And I think there's no question that if those people had gone to the Capitol and stayed outside the Capitol and just used bullhorns and shouted, we wouldn't be here with any of that.

 

      With respect to this is a fraud scheme, and so I think that his state of mind is important if you're going to march down this road at all. Although, as I read before, the indictment says that the defendant has the right to speak publicly about the election and even to claim falsely that there had been outcome determinative of fraud, so even if he did know that this was all wrong, he would have the right to contest the election and to put people through their paces to show that it was freely and fairly conducted. And you know that there were people around him who were telling him that the election had been stolen. And you know that they still believe it because you've got people putting out movies like 2000 Mules by Dinesh D'Souza saying that this was all a question of procedures being abused. And 18 attorneys general filed a claim saying that executive branch officials and judges had unilaterally changed the election procedures that had been adopted by the state legislatures and that that cast the election in doubt.

 

      So I -- yes, the indictment says about a million times that he claimed "falsely." And so, I think that, if nothing else, that indictment has put the president's state of mind at issue. And even if he says, "Well, okay, maybe I did lose." And, of course, there did end up being -- he left on January 20th. I don't think there's any question that Donald Trump, in his heart of hearts, believed—perhaps totally unreasonably—that he had won that election and that it had been stolen. And this, again, is a fraud claim. "Should have known"—"Gee, you really should have known," that's a negligence standard. That's a recklessness standard. These are specific intent crimes that require knowingly and intentionally committing them.

 

Prof. John Yoo:  It's interesting because, when you look back now, we stopped doing these podcasts three years ago. You look back at three years, and it's almost—this is what occurred to me—it's almost as if Trump was acting like a litigator in a dispute resolution. But there's no court he's appearing in. The forum is counting the electoral votes and Congress. And we're more than accustomed to lawyers taking positions that they suspect are going to lose. Lawyers may make ridiculous arguments to try to explain the facts away. There's nothing -- we would never say there's anything wrong with someone making an appeal to overturn a case or to try to get around a case where you would think all the precedents says, "Your client's going to lose."

 

John Malcolm:  Right.

 

Prof. John Yoo:  That's why I'm not even sure whether one has to show Trump's state of mind to say, "What's wrong with a" -- in an area where there's no cases. There's no Supreme Court --

 

John Malcolm:  Right.

 

Prof. John Yoo:   -- cases about any of this. There's no precedence. The only precedent, really, is the—as you pointed out, John—is the 1876 election and then the Electoral Count Act, which has a lot of unclarities and holes in it, which is why Congress amended it last year.

 

John Malcolm:  Correct.

 

Prof. John Yoo:  But if you're operating in an environment like that, then how -- it's hard to prove, "Oh, you are taking arguments that are just outside the realm of all possibility because there's no hard and fast law on what the Twelfth Amendment meant." That's subject to the law of interpretation. At least, that's my view. And it's -- why can't you say -- why can't Trump be in a position of a litigator saying, "I want to see what the -- how far this goes with my claim even if I think" --

 

John Malcolm:  John Eastman, for instance -- yeah. I'm sorry. Go ahead.

 

Prof. John Yoo:  Go ahead. No, no, no. I --

 

John Malcolm:  Well, John Eastman, for instance, you could -- again, you can say you thought his advice was wrong. There would be bad consequences as a result of his -- but he has not been shy about defending his advice. He's written long articles saying exactly what he said in his memos, and what his thinking was, and what the precedent was. And for his troubles, he's had judges release all of his communications under a crime-fraud exception. He's now listed as an unindicted co-conspirator in an indictment, and he is the subject of disbarment proceedings in California. This is again what --

 

Prof. John Yoo:  Which I have to disclose I'm being called as a witness for --

 

John Malcolm:  Fair enough. And the other thing that --

 

Prof. John Yoo:  -- having written a law review article about this stuff.

 

John Malcolm:  The other thing I guess I would say is that—whereas I do not agree with President Trump that every conversation he has is a perfect conversation—anytime he says anything, people immediately assume the worst. And I will give an example which has been stuck in my craw. And this pertains to Georgia.

 

      So there was this recording of a conversation that Donald Trump and others had with Brad Raffensperger, the Secretary of State in Georgia, and everybody who has reported on this has said that Donald Trump was directing Raffensperger to find him: "You, Raffensperger, have to find me the requisite number of votes to overturn the results in election."

 

      But if you actually read that transcript, it's very equivocal what he was saying. He was sitting there and saying, "Look, I lost by this amount. I filed these lawsuits. We,"—his legal team is on the line with him—"We need to find these number of votes, and then we win." Which could just as easily be saying, "This is my legal burden with my legal team, and we are aware of that. I'm not asking you to do anything other than conduct an investigation. We are the ones that need to find the requisite number of votes here." But nobody reports it that way at all. And I bet you that that conversation and that part of that conversation is going to feature prominently in the forthcoming indictment out of Georgia.

 

Prof. John Yoo:  Well, that was the last [inaudible 00:36:21] we have. This is shocking, but we only have three minutes left before we open up to questions, and there are a good number of questions. And we'll get to all of them.

 

      But, looking at the future, John, let's have a definitive prediction. You predicted at the top of the show that Trump will, in fact, be indicted by the D.A. And what's the name of the county down there? Fulton County?

 

John Malcolm:  Fulton County. Fani Willis is the district attorney.

 

Prof. John Yoo:  Fulton County. Fani Willis, the D.A. And yet, you just said—if I heard you correctly—that you think Donald Trump will have a very strong defense against the indictment because the conversation that this is all built on, it sounds like, is a conversation between Trump and Brad Raffensperger, the Secretary of State. And when you put the quotes in the larger context, is it really -- what's the state law violation there, criminal violation that occurred?

 

John Malcolm:  Well, we'll have to see what else she has. She may be in there talking about the fact that he tried -- he talked to the then U.S. attorney Bjay Pak about questioning the election. Rudy Giuliani was down testifying before the Georgia House -- to the Georgia Senate about his findings. So I don't know exactly everything that's going to be in there, but everybody talks about that conversation with Raffensperger. And we do not have to guess about what was said because it was recorded. And I just think that it has been slanted in every article that I have seen, except for the one that I wrote, as assuming the most nefarious intent on Donald Trump's behalf. And I'm not -- I really don't think that I'm stretching to say there is an equally plausible interpretation that is not nefarious.

 

Prof. John Yoo:  Yes. And as the Court has cautioned us, there's various rules, like the rule of lenity, which argues against novel interpretations of the criminal law where defendants have no idea what the clear line is between legal and illegal.

 

John Malcolm:  Right.

 

Prof. John Yoo:   So two points before we return it back to Emily, who's going to provide the questions. I hope we can provide some answers because it is a Q&A.

 

      Two things is we will try to answer all the questions, but we are going to have another podcast on the Hunter Biden and Joe Biden now, perhaps -- and Joe Biden investigation and what the Justice Department should be doing. We were going to do -- try to do both today, but we realized we got to do another podcast maybe next week or the week after about that, but we will try to address. I'm sure people have questions about, "What about the unequal administration of justice?" and points like that. And so, I think we will try not to get too deeply into the facts of Hunter Biden. That's going to be in our next podcast.

 

      So, Emily, take it away.

 

Emily Manning:  Well, thank you both for this very insightful discussion.

 

      And we'll now turn to audience questions. If you have a question, please enter it into the Q&A function at the bottom of your screen, and we will do our best to get to those questions.

 

      So taking a look at our first question from our attendee, Adam. He asks, "With the election coming up next year, how does Trump's campaign help or hurt him throughout this process?"

 

John Malcolm:  Well, every time there's been an indictment, he's raised a lot of money. And he, even after this latest indictment, said something like, "I just need one more indictment to seal in the election," even though he knows he's about to be indicted in Georgia. I don't know how it's going to -- look at it this way. Anybody else other than Donald Trump, this would have been probably fatal. And former President Trump certainly seems to defy gravity in that regard, and a lot of it has to do with how the public perceives this. And although John just said we're not going to talk about it, we'll talk about it in the future indictment. Playing into that is a widespread reception that there are -- there is a two-tier justice system. And there is just a mistrust of all of the investigations that have taken place about Donald Trump. And so, we'll see how that all plays out.

 

Prof. John Yoo:  I have a -- let me take a broader scope on that is we should ask also, "What does this do to the presidency? So I would have thought, when it came to ex-presidents, we generally leave them alone, even though they can be very, very bad people, like Richard Nixon, for example. We didn't even prosecute Jefferson Davis after the Civil War. And there's certainly probably presidents who've been worthy of criminal investigation after who we've pretty much -- we left alone Bill Clinton pretty much. I was going to say there was a president -- oh, gosh, I guess President Harding, who did us the service of dying in office because he almost certainly would have been prosecuted.

 

John Malcolm:  The Teapot Dome scandal.

 

Prof. John Yoo:  Yeah. Yeah. And so, that's how I tend to think of most of these lawsuits as—and most of these criminal prosecutions as—"Yes. We should generally leave presidents alone because it's going to create a bad incentive for future presidents to be too cautious, maybe, in how they treat the office. And what are they going to do during crises?"

 

      The only one I would say is an exception to that is January 6, because if it -- but part of that is because—and this is how it ties into this question—is because in that case, the sitting president, you could say, should have been impeached maybe for being dilatory in calling out the military or extra forces to try to protect the Capitol, for not really faithfully enforcing the law. But the problem was because he was also a candidate for office while he was president on January 6th. And so, this is what's remarkable about all these criminal prosecutions is we can, on the one side, analyze them as "What is the effect on sitting presidents in the future and how they're going to cause presidents to be worried now about 'Am I going to be prosecuted for this someday?'"

     

      But then the other weird—and it might be different—set of incentives these prosecutions bring is for someone who's running to become president. I can't help but think that all these prosecutions guarantee that Trump will stick it out in the campaign now because you've got three prosecutions now. John says there's going to be a fourth. I agree with him. He knows Atlanta better than I do, thank God. I don't want to know Atlanta that much. But if you're going to have all these prosecutions going, there might be five in the end—six, some people say. How's Trump going to get out of all this? By winning the presidency. All right?

 

      If he wins the presidency, he could pardon himself. He could order the prosecution stopped if none of them have come to completion. And he could claim, "Well, I'm not -- while I am in the office of the presidency, I can't be subject to state suit, or at -- because they're designed to interfere with my ability to perform the office. Let's delay them until after I leave office." So it has a strange incentive, I think, of making Trump even gamble harder to win because it provides him the one clear legal out.

 

John Malcolm:  I think that's all true. I would just add one other thing, which is that, particularly with respect to this latest indictment, if he runs and he loses, but he is then acquitted of these charges, I think people will be apoplectic about how this was a blatant attempt to interfere with the election.

 

Prof. John Yoo:  Or suppose the Supreme Court voids any convictions on appeal. That could be years later. Yeah.

 

John Malcolm:  That's right.

 

Emily Manning:  Well, taking the next question from an anonymous attendee --

 

Prof. John Yoo:  Anonymous? We don't -- no, no, no, no, no, no. We don't do anonymous. No. Come on.

 

John Malcolm:  Out the [inaudible 00:44:11].

 

Prof. John Yoo:  Yeah. Come on. Stand up. This is -- come on. You're not Publius. This is not "The Federalist Papers." Come on.

 

Emily Manning:  Well, we'll take -- we'll take this one.

 

Prof. John Yoo:  Yeah. I'm just kidding.

 

Emily Manning:  All right. So this attendee asks, "On the insurrection and sedition claims, are the facts currently disclosed sufficient to support those claims? Or is there more needed, such as clear direction from the president to storm the Capitol?"

 

Prof. John Yoo:  Let me take that one since John started first on the other one.

 

      I agree with John. I don't see the facts we were all expecting to see, which was some kind of communications -- some kind of communication between President Trump and the people that attacked the Capitol in some -- through some intermediaries or however.

 

      I've always -- I've always thought that what the Special Counsel was going to bore into was the -- like Rudy Giuliani or Steve Bannon, these people who are allegedly running this war room at the Willard InterContinental Hotel, and that you would see some kind of emails from Trump to them or phone calls, and then something going from them to these organized groups that were within the January -- within the larger mass of people who showed up on January 6th to attack the Capitol.

 

      I think, without that, you don't really have the grounds for the Insurrection Act and Sedition Act charges -- I mean, seditious conspiracy charges. Although I don't know. I mean, the claim that -- if it's true, if Smith really wants to claim that President Trump really directed the attack somehow, or that all of what he was doing was an illegal fraud, then he really is trying to stop the proper execution of the laws. He is trying to prevent the execution of the Twelfth Amendment and the Electoral College and Article II, and the Electoral Count Act. That is one of the grounds for prosecuting people under these statutes.

 

      So I think right now I don't see it factually, but then I think it's harder to say he should have brought the prosecution in the first place.

 

John Malcolm:  I think you could say that about anybody who contests an election. You could have said that about the Kerry people, who were urging him to file a lawsuit because they claimed that voting machines had flipped the election in Ohio. You could prosecute Hillary Clinton. I mean, you could prosecute Hillary Clinton for all kinds of things but for saying that Trump was an illegitimate -- an illegitimate president. I mean, if you march down that road -- I mean, if you were really saying, "Okay. Storm the barricades and attack people," and you're directing that; that's a different thing. But from -- yes. You're trying to overturn the results of an election because you think that the results were wrong, either factually or legally.

 

Emily Manning:   Looking at the next audience question, Don asks, "Is your interpretation of John Eastman's legal advice that it was arguing for a colorable interpretation of the law or at least an extension of existing law? Or was his legal advice wildly implausible?

 

John Malcolm:  You want to take that?

 

Prof. John Yoo:  Sure. So I --

 

John Malcolm:  So I don't have to.

 

Prof. John Yoo:  Yeah. I have to disclose again I'm going to -- although they're on a pause right now. But John Eastman is a subject of disciplinary hearings at the -- with the California Bar right now. Although I saw from The Post that he's asked for them to be suspended until after the Special Counsel --

 

John Malcolm:  Yeah.

 

Prof. John Yoo:  -- investigation because he's an unindicted co-conspirator. I think that's a reasonable request given that since he's an unindicted co-conspirator, he should take the Fifth now in anything in that State Bar proceeding and have the State Bar proceedings -- or put him in that position seems unfair, but who knows what the State Bar will do, which is ultimately under the supervision of the California Supreme Court.

 

      So it seems to me that there's some aspects of John's interpretation that I disagree with. But most of my disagreement was based on the facts. I just don't see the facts of this sort of widespread fraud in the election that would have justified going to the lengths that he was advising about the vice president's role in opening the ballots: whether the vice president could pause the count and send them back to the states for sort of -- I don't know, sort of like a reaffirmation or something or an audit of the election.

 

      So I wrote a lengthy law review article in the Case Western Law Review. And I looked at all of the scholars who had written about the Twelfth Amendment before Trump. And there aren't that many. But actually, I would say majority of those scholars thought that, actually, the vice president does have some kind of substantive role beyond just opening an envelope and saying, "Georgia, 11 electoral votes for so-and-so." And so, my article argued that if there are two sets of electoral votes from Georgia, well, then the vice president has to decide at that point one or the other is legitimate. Or suppose the ballot is not in the proper form, which has happened in our history in the past, then the vice president has to decide whether to count it. Is it really from Georgia? Is it really their electoral votes?

     

      I don't see, really, the grounds for a pause in sending the electoral votes back. But, again, my main disagreement is I just don't think the facts justified any of that, and that actually, this was a fairly -- this was a fairly straightforward election to be run through the Electoral College. Something like what I thought might happen was that Pennsylvania, for example, might be so close it would be like Florida 2000, that Pennsylvania or some other battleground state could be so embroiled in litigation because it's not clear, really, who won or there was a fight within the state. That's, I think, when you might actually see the vice president's power triggered. Or something like, as John mentioned, 1876. But I didn't really see it in 2020.

 

John Malcolm:  I guess what I would say is that, one, the indictment refers to Vice President Pence's role as purely ceremonial. And, ultimately, of course, John didn't persuade—or neither him, nor former President Trump—persuade Vice President Pence to do anything differently than what he did on January the 6th.

 

      In terms of defending or refuting what John did, rather than attempting to do it, I would refer everybody -- The Claremont Review of Books did a very, very extensive point-counterpoint. I forget who the person was who was criticizing --

 

Prof. John Yoo:  Joe Bessette, who's a professor of presidential studies at Claremont.

 

John Malcolm:  And he goes through saying why he thinks that the advice that John gave was really terrible. And John goes through, in great length, defending, clarifying, what advice he gave, and defending that advice. And I -- it may, at the end of the day, be wrong. It was ultimately unavailing, but implausible and criminal? I don't think so.

 

Prof. John Yoo:  I actually think this is another flaw in the indictment is if Jack Smith's indictment depends on agreeing that the vice president's role is ceremonial, then I think the indictment could just lose straight on that on just a difference of law because they're having -- you said the 1796 and 1800 elections it appears that the vice president is decided substantively. Yeah.

 

John Malcolm:  If this case actually goes to trial, I think that there is going to be a parade of people who were talking to the president, communicating with the president, who will defend the legal advice that they gave and also will tell, yes, they really believed that the election had been stolen. They were telling this to the president, and they will defend why they either thought it at the time or still think that the election was stolen. And I think the president's going to have the right -- or the former president's going to have the right to have those witnesses go to his state of mind.

 

Emily Manning:  So along those same lines, does Congress have a vote on the vice president's decisions regarding counting electoral votes?

 

Prof. John Yoo:  This is interesting, so yeah, Congress claims to have that right in the Electoral Count Act, but it still requires you to go back and figure out what the original meaning was because suppose the founders thought, "Well, under the Twelfth Amendment, the vice president makes that decision. It's not reviewable." Then Congress can't seize it in the electoral count. In fact, that would be unconstitutional. You could see where it's sort of grasping towards a system where the Twelfth Amendment's unclear, so maybe the best thing is to have agreement between the vice president and Congress just for sort of constitutional legitimacy reasons to reject an electoral vote.

 

      But I will say one thing that the founders really did not want to happen is for Congress to pick the president. They designed the Electoral College, and they basically allowed the choice of president to be in the states and rejected specifically proposals to vest the selection of the president in Congress. And even when it's -- no one gets a majority of the Electoral College, and it goes to the House. The candidates are chosen from by the House voting in state delegations, so again, reaffirming that it's the states that are really picking the president and not the -- certainly not 51 percent of the population as a whole and definitely not Congress.

 

      So think about it. If Congress really had this, the sole power to pick and choose among electoral votes, that would actually give Congress the power to pick the president. And I think it makes more sense from the founders -- this structural view that it be the vice president because the vice president is not under the control of Congress, would not be representing 51 percent of the national population or a majority of the members of the House. I mean, the vice president is the president of the Senate, actually, the head of the body that's there to represent the states.

 

John Malcolm:  Right. I have nothing to add to that.

 

Emily Manning:  So we have time for one final question that we will take from Tom. "Considering the political nature of the prosecutions against President Trump, can President Trump make an abuse of process claim against any of the prosecutors in any of his cases?"

 

Prof. John Yoo:  Let John have that one.

 

John Malcolm:  Besides calling him deranged on Truth Social.

 

Prof. John Yoo:  If you come after me, I'm coming after you.

 

John Malcolm:  Now, look, he's going to make -- file a lot of motions. He will certainly -- he will certainly move to change the venue in D.C., where Donald Trump got five percent of the vote in the 2020 election. He has already said—although his attorneys are backpedaling a little bit on this—he's going to try to get Tanya Chutkan, the judge who's assigned to the case, recused. I thought he was going to try to get Juan Merchan, the judge who's assigned to the case in New York, recused, but so far, he hasn't done that.

 

      I mean, he can certainly argue selective prosecution. He can point to the failure to charge people like Hillary Clinton for various perfidies that she engaged in. It's a -- that's a tough -- that's a tough argument to -- it's an easy argument to make. It's a tough one to prevail on.

 

Prof. John Yoo:  He can't actually sue the prosecutors. That sort of sounded like the implication of the question that prosecutors have absolute immunity. That's not the way it works.

 

      But I actually -- I think this actually shows the quandary that Trump lawyers are in. I don't think this is a quandary for Trump. But the lawyers, their quandary is they have to do what's best for Trump as a defendant in a federal criminal trial in the courtroom. But everything you do in there obviously has huge political consequences. And I would think, to Trump, those political consequences are, in some ways, more important than what happens inside the courtroom. And so, all those things that John mentioned, I expect Trump would, yeah, also make all those motions. I would be surprised if any of them had a chance of prevailing, like switching the venue out of D.C. because there's too many Democrats there? Like --

 

John Malcolm:  No, no. It would be because --

 

Prof. John Yoo:  -- getting the judge recused? I mean, it seems --

 

John Malcolm:  Well, it would be --

 

Prof. John Yoo:  This is going to antagonize them, the judge.

 

John Malcolm:  Yeah. You move venue not because there are too many Democrats. You would move venue because the events happened in D.C. and there was so much publicity about it that you couldn't begin to find 12 jurors—forgetting their political affiliations—who hadn't already formed a strong view one way or the other about whether he was guilty or not.

 

      And with respect to trying to get Tanya Chutkan -- change of judges, I agree. It's a -- it'll be tough to do, but the way you would do that is she did, for instance, rule at a case in which she turned over a bunch of documents from the White House to the House Select Committee. And in that very lengthy opinion, she said some rather derogatory things about former President Trump, saying, "You're a president." "You're a former president." "You're not even president anymore." "Presidents are not kings."

 

      When she's sentenced, she's been a very tough sentencer on some of the January 6 defendants. She has made allusions to the fact that "You may say you were duped by the people who you -- invited you to come to Washington. That's probably true, but nonetheless, they're not indicted, and you are."

 

      So you could argue that she has definitely formed an opinion about Donald Trump and, as a result, her impartiality could be questioned. That would be the basis for a motion to recuse, but it's tough getting those granted.

 

Emily Manning:  All right. Well, 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 @fedsoc to stay up to date with announcements and upcoming webinars.

 

 

      Thank you once more for tuning in, and we are adjourned.