Conservatives Talk Presidential Power: An Update on Investigations, Indictments, and Disqualification

[Music]

 

Prof. John C. Yoo: Welcome, everybody, to another installment of our Federalist Society podcast on presidential power and the Executive. I’m joined here by my co-host John Malcolm from the Heritage Foundation. John, how are you today?

 

John G. Malcolm:  I’m doing great. It’s always a fun time in Washington but maybe not so much for Jim Jordan.

 

Prof. John C. Yoo:  And listeners of the podcast may not know, but actually there was a person-to-person meeting of the two Johns out in San Francisco last week. John was out here, and we had a wonderful lunch at a French restaurant usually inhabited by Willie Brown. And I thought maybe we would see Willie Brown in the wild, and so I took John there. But no such luck. But I hope the food was good enough it made up for Willie Brown’s absence.

 

John G. Malcolm:  It was great.

 

Prof. John C. Yoo:  Good, good. So we’ve got a full agenda for today’s podcast, but of course we will leave the last 15 to 20 minutes for questions and comments from the audience. I thought we’d be remiss, before we get to the meat of the topic which we’re going to cover today such as the district judge’s gag order on President Trump and his defense team in the ongoing January 6 trial in Washington, D.C. -- we’re also going to talk about the efforts to disqualify President Trump under Section 3 of the Fourteenth Amendment. We’re going to discuss the latest in the New York City fraud and criminal trials. We might get to Hunter Biden.

 

But before that, we’ve got a lot of current events I thought worth commenting in discussion, which is the war in Hamas with Israel and then also Republican efforts to try to pick a speaker, which foundered again today. So first, John, of course the actual Hamas terrorist attacks on Israel don’t really fall within the Executive power part of our podcast, although I think President Biden is putting on full display why the Framers concentrated the foreign policy and national security powers of the United States in a president so that a president could exercise leadership and act quickly. And so far, I think President Biden, who I think is just flying back from a quick trip to Israel today, has been quite stalwart in his defense of Israel.

 

But it’s also causing a lot of debate, heated discussion, thankfully no kinds of conflict. But in the law schools, in the legal profession, we’ve got stories, for example, of law firms rescinding offers of employment to students who either have leadership positions or who have signed letters that have supported Hamas. Some of these statements and letters have gone quite far. For example, one student at NYU, I believe, had their offer rescinded by Winston & Strawn for saying something along the lines of I entirely blame Israel for the terrorist attacks that took place about a week and a half ago.

 

We also have my colleague, Steven Solomon at Berkley, writing an op-ed in the Wall Street Journal calling on firms not to hire students who are anti-Semitic as evidence by support of the Hamas attacks. Even you had at least one judge who said they will not hire as a clerk any student who signs the letters. We also have a lot of pressure on universities and law schools now to come out in favor of Israel, or at least more harshly condemning the attacks by Hamas, particularly at Penn Law School -- not Penn Law School, the University of Pennsylvania.

 

You’ve had wealthy donors demand that alumni stop giving to the university, and you’ve had someone, I think one or two major donors at Harvard University pull out or at least suggest that they want to see the university take a stronger stand, including Larry Summers, the former president at Harvard. So John, what are your thoughts on all this? Is this actually going too far and intruding on free speech rights of law students?

 

John G. Malcolm:  Well, first of all, in terms of Biden in his Commander in Chief authority, he was over in Israel now. But Iran is making noises about actually joining in the fight against Israel, and Biden has said if Iran joins in the fight, we might too. So we might see a robust use of his Commander in Chief authority. Hopefully, we won’t, but we will see about that.

 

Look, you have your free speech rights if you’re a U.S. citizen to say what you want. But that doesn’t mean that there aren’t consequences for what you say. I suppose I would have the right to say some racist screed or homophobic screed. And if Heritage decided as a result of that that they wanted me gone, I don’t have tenure rights like you do which give me -- might give you a certain degree of latitude in terms of what it is that you can say or do. But actions have consequences, and so if you want to sign onto a letter or you want to make a statement like that, someone can sit there and say bully for you. But you’re not going to work here.

 

Prof. John C. Yoo:  I have to say I wonder whether our Democratic friends, who have been quite hostile to the President’s Commander in Chief power in matters of war, are going to demand that Congress get to vote on the large supplies -- not just resupply but deploying military forces. Two aircraft carrier groups and Marines have been sent to the region right offshore Israel, eastern Mediterranean. Threats by the President -- or not threats, warnings to Iran and Hezbollah not to get involved. I assume that comes backed up with the threat of military force.

 

Our usual progressive friends could demand that Congress have the right to declare war before President Biden actually uses force or even threatens the use of force in the Middle East against Iran, Syria, terrorist groups or not. I bet not, and I wonder how they reconcile this inconsistency on the Constitution with the past positions they took under President Trump or President Bush.

 

John G. Malcolm:  Actually, at the moment, it might be difficult to [inaudible 00:06:57] because there is no Speaker of the House, unless Patrick McHenry is given additional authority to consider bills. And there’s already been talk about giving him that in order to pass emergency bills providing aid to Israel. As a real politique matter, since I think everybody with the exception of Alexandria Ocasio-Cortez and Ilhan Omar, Rashida Tlaib, just about everybody else is supporting Israel. My guess is that if it went to Congress looking for support that the President would get it. But whether he’s going to do it or not remains to be seen. Hopefully, it won’t come to that.

 

Prof. John C. Yoo:  Yeah. In fact, President Biden himself when he was a senator was a strong proponent of the war powers resolution. I wonder if now that he sits in a different place in government, he’s going to maintain his consistency on his constitutional views and invite Congress to pass an authorization to use military force which is funny because --

 

John G. Malcolm:  I wouldn’t bet on that.

 

Prof. John C. Yoo:  Yeah. I wouldn’t bet on it either, which is funny because when you and I were in the Executive Branch, we worked for a president who did not think Congress had to declare war. But he went and asked for authorizations anyway, even though he didn’t think it was constitutionally necessary. Well, John, you just mentioned what’s been going on in the House. And also today, just now this morning or I guess here this morning, there in Washington this afternoon, Jim Jordan lost his second vote to be Speaker.

 

What the hell is going on there, John? Are we going to have to see Donald Trump become Speaker or Newt Gingrich? I’ve heard people say bring Newt back. Can you explain what is going on here? Maybe does it really matter? Who cares who the Speaker is exactly? Does it really make a big difference?

 

John G. Malcolm:  Well, I think it does matter in terms of whether you’re going to be -- how much you’re going to be negotiating with Hakeem Jefferies and the Democrats. I don’t know where this is all going to end. Kevin McCarthy was outed. It only takes one person to file a motion to vacate the chair. That ended up being successful because the Democrats sided with the seven Republicans who wanted to oust him. And they’re having a devil’s own time getting a new speaker.

 

I don’t know whether Jim Jordan is going to try to change minds. He went down in terms of the second vote. So the first time around, he failed to get 20 Republicans to vote for him. With the second vote, he failed to get 22. There were a couple who switched over to Jim Jordan, but there were more who switched away from Jim Jordan with respect to the second vote. So they’re going to caucus now and try to regroup. And lord alone knows what will happen. Of course, the clock is ticking in terms of the continuing resolution running out. So November 15, we’ll have another potential government shutdown.

 

Prof. John C. Yoo:  Does this all work to President Biden and the administration’s advantage the more it looks like the Republicans in the House cannot get their act together, cannot run the House effectively? Does this actually enhance -- on the subject of this podcast enhance the President’s power vis a vis the House, vis a vis the Congress as a whole?

 

 

John G. Malcolm:  Yeah, it could. I don’t tend to gaze with the political view into my crystal ball. But certainly when the Republicans appear to be having dysfunctionality, it detracts from other things that are going wrong with the administration, makes the public think, well, maybe we shouldn’t turn power over to these guys since they can’t quite get their act in order. But we’ll say, look, if they end up picking somebody who is a strong conservative and articulates positions well, then they can turn that around. But at the moment, I would say these are not good days for Republicans.

 

Prof. John C. Yoo:  I think it also makes it -- actually, although from a partisanship level, I’m sure Democrats are enjoying this, I think it also makes the job for the Biden administration harder. It intersects, for example, with what the last topic we were talking about, President Biden’s ability to exercise leadership in the Middle East. But he’s going to have to come back to Congress because of the power of the purse to get more funds and supplies authorized for Israel. He also wants to come back to Congress to get renewed funding for Ukraine. If the House is in disorder, how’s it going to be able to be a good partner to the Executive Branch in foreign policy?

 

John G. Malcolm:  Well, my guess is they come together on Israel and Ukraine. I kind of doubt it, but we’ll see.

 

Prof. John C. Yoo:  Okay. Well, let’s turn away from immediate events and return back to some of the topics we’d actually planned on discussing before today. And so the first one is the gag order that was issued by the district judge, Judge Chutkan, in Washington, D.C., on the January 6 criminal case that’s been brought by Special Counsel Jack Smith against Donald Trump. Judge Chutkan, for example, said -- it was interesting. She said not only is President Trump not allowed to criticize or attack the judge, the court staff, the prosecutor, and the prosecutor’s staff, but he’s also not allowed to say things about the witnesses. So I think the most striking thing is that she said that President Trump certainly can -- it’s not clear exactly what the line is. President Trump, I think is allowed, for example, to criticize Mike Pence. But he’s not allowed to criticize Mike Pence in terms of his involvement on the events of January 6 --

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  -- in terms of what he would testify to in court. President Trump, of course, and his lawyers are saying they’re going to appeal this as a violation of his free speech rights. So John, what do you think of her order? Does it go too far? Is it consistent with a court’s management of a trial itself? Or does it actually violate the free speech rights of the president, former president?

 

John G. Malcolm:  Yeah. I think it did go too far. Look, she points out in her order that you’re entitled to have a fair trial, an orderly trial, without witness intimidation. And so it can entrench on First Amendment rights. But when she said that things like a robust voir dire, jury sequestration, limiting instructions wouldn’t suffice here, I’m a little skeptical.

 

John Lauro, Donald Trump’s attorney, said not only are you entrenching on his First Amendment rights, but really you’re doing the Biden administration’s work by preventing him from effectively campaigning for president. She’s made it very, very clear that that March 4 trial date is not going to move under any circumstances. He has a pending motion to dismiss the case, claiming absolute immunity because these actions were taken while he was president. And he’s promised he’s going to file other motions. She’s made it pretty clear that she’s not going to look very favorably on those and this is going to go to trial.

 

Yeah. This was an incredibly broad order, so you can’t criticize Jack Smith. Donald Trump has referred to his as deranged Jack Smith and a liar. You can’t say anything about the court personnel. You can’t say anything about anybody on the prosecution team. All you can do is say that in your opinion this is a political prosecution.

 

And she did say he could assert his innocence. He can say the prosecution is politically motivated. He can’t criticize -- she said he can criticize the campaign platforms or policies of his current political rivals, including Mike Pence. So if Mike Pence says something about Israel or Ukraine, he can say about that. But don’t mention January 6 and Mike Pence in the same breath.

 

She’s saying this led to witness intimidation and death threats. There was somebody who was arrested for apparently calling her courtroom chambers and making death threats against the judge because she was assigned to this case. But look, the judge and the court personnel, they’re big people. These prosecutors know what they’re up against when they are doing -- Donald Trump is certainly using very harsh rhetoric.

 

He hasn’t called on anybody to be physically injured or hurt. The judge, I think, stretched when she said, well, Mark Milley may be one of the witnesses in this trial, and he of course -- Donald Trump wrote a post saying that Mark Milley, some of the statements he made or some of the actions that he took were treasonous and that in another time and place treason is treated with the death penalty. But somehow thinking that what Donald Trump is doing is, again, inciting people to go out and kill the witnesses is I think a step too far. And I think that she could have managed things while giving more room for robust speech by Donald Trump, who is after all running to regain the Oval Office.

 

Prof. John C. Yoo:  I think there’s two different kinds of free speech rights, and I’m surprised that judges think they have the right to control the speech of anyone involved with a trial outside the courtroom. I think judges have almost complete authority about how the court works inside the courtroom and what people are allowed to say or not say in terms of managing the court proceedings. But I do not see why a judge has any authority under the free speech clause to control what people say outside the courtroom. So it seems almost ridiculous.

 

You could have Donald Trump standing next to Jim Jordan. They could say exactly the same thing. Mike Pence is a traitor. He should not have allowed the electoral vote count to go forward on January 6. He should have stopped the vote count and allowed the count to go back to state legislatures. So Donald Trump could say that, and she has the authority to throw him in jail for defying a court order. Jim Jordan could stand right next to him and say the exact same words, and that’s okay it seems. So the person whose rights are actually under threat, the criminal defendant --

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  -- has less free speech rights to speak in the public forum about what’s going on in his or her trial? I think that’s a profound misunderstanding of this free speech clause. I actually think Trump has grounds to go up on appeal.

 

Now, I know there’s a Supreme Court case which might suggest that judges do have this right, some kind of right to control speech by defendants and their lawyers outside the courtroom. But the examples you gave, John, are cases where I think what the -- are cases where the speech is actually conduct. These are cases where if you’re threatening a juror, you could -- right, we don’t even consider that speech. If you’re intimidating a witness --

 

John G. Malcolm:  You could charge for that.

 

Prof. John C. Yoo:  Yeah. That’s just normal speech that’s really part of criminal conduct. I could see where a court could say you can’t engage in speech like that. But the law would already allow restriction on that.

 

John G. Malcolm:  Yeah, I’ll --

 

Prof. John C. Yoo:  It’s the commenting and attacking witnesses and what they say. Could Johnnie Cochran not go outside the O.J. Simpson trial and say I think Mark Fuhrman’s a racist, and we’re going to show it in court? I don’t see how the judicial power should be construed to go that far. One other point is I think there --

 

John G. Malcolm:  [CROSSTALK 00:18:55].

 

Prof. John C. Yoo:  Go ahead, John.

 

John G. Malcolm:  Just adding quickly, there’s certainly not shortage of articles blasting Donald Trump for everything related to the allegations in this indictment. And he does have to be able to effectively represent himself. And after all, Mike Pence, who is still running for president, is up there in debates and sitting there and saying I stood by the Constitution on January 6. And what Donald Trump asked me to do is wrong. And effectively now, Donald Trump has been preventing from responding to that, at least until this trial is over with.

 

Prof. John C. Yoo:  I think there’s a second type of free speech right which I think Judge Chutkan unfortunately is paying very little attention to, which is the electoral campaign. The court’s order will undeniably interfere with President Trump’s ability to run for president --

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  -- which he is in fact by quite a large margin the leading candidate to win the nomination of one of the two major political parties and according to the polls you read is either tied or ahead of the incumbent president. Again, how can the judge say I’m just going ahead -- basically, she said something like I’m just going to go ahead with the criminal trial. I’m not really paying attention to the political campaign.

 

Well, that also is interfering with his free speech rights -- Donald Trump’s free speech rights to engage in core political speech. I’m not saying that just because someone runs for office they have a right to all of a sudden start shooting people and not be held subject to the criminal justice system. But I think in a case like this, a district judge should exercise her discretion to be more conscious, be more respectful of the First Amendment rights involved in the political process.

 

Now, on the other hand, she might be playing as a matter of political strategy right into Trump’s hands because she’s only providing him more ammunition for his claim that he’s being persecuted by the judicial system and the law enforcement system and that law enforcement system, of course, ultimately works for the person he’s running against for president in 2024.

 

John G. Malcolm:  Yeah. If probably think if I had been Jack Smith, I don’t think I would’ve even bothered asking to gag him with respect to saying anything about him or the other prosecutors in the case. So what if Donald Trump calls him deranged? He should’ve expected that. And the fact that he can’t, for instance, go forward and say, well, this prosecutor has demonstrated a political bias before an overreaching -- look what he did to former Virginia governor Bob McDonnell and how the Supreme Court slapped him down. All of that now is off limits according to this gag order, and I do think it’s perfectly fair for Donald Trump to comment on that.

 

Prof. John C. Yoo:  Yeah. Good. Well, let’s move on to yet another Trump and the constitutional and presidential power issue, which is ongoing efforts to try to disqualify President Trump under the Fourteenth Amendment, Section 3, which calls for the disqualification from federal office for officers of the United States, member of the state Executive and Legislative Branches, people who have engaged in insurrection or given aid and comfort to people who have engaged in insurrection. I think this has been bubbling along. We didn’t get a chance really to explore it in detail, I think, in our last episode. You have the Supreme Court denying cert about a week and a half ago in a case where the lower -- by sort of a frivolous litigant who said they were going to run for president against Trump. No one had ever heard of this fellow. His case was denied on standing grounds in the lower courts. The Supreme Court didn’t make comment in denying cert in this fellow’s case. But there are more serious cases going forward in places like Colorado and Minnesota.

 

So John, you’ve taken a look at this. I have as well. I wrote a little something about it a few weeks ago. But what’s your sense of the latest on this litigation, and what’s your view on how this is going to turn out?

 

John G. Malcolm:  So actually I think there are three of these cases, but in Michigan there’s also one pending there. And I also learned recently that there was a court -- well, I knew that Madison Cawthorn -- there’s an effort to keep Madison Cawthorn off of the ballot in North Carolina. He lost his primary fight, so that case was moot out on this basis. Same thing with Marjorie Taylor Greene in Georgia, but a state court didn’t rule on whether that section could apply to her. It said as a factual matter she hadn’t done anything to incite an insurrection, so that case ended. But I did --

 

Prof. John C. Yoo:  Which I’m sure was a great disappointment to her.

 

John G. Malcolm:  There was a case --

 

Prof. John C. Yoo:  She tries so hard, and no one respects her efforts at insurrection. Go ahead.

 

John G. Malcolm:  There was a case in New Mexico in which they threw out of office a county commissioner who had been elected on this basis. Now, he had actually gone into the Capitol on January 6, but they had no problem actually finding -- the judge had no problem after a trial finding that this was in fact an insurrection and that it did disqualify him from office. So even though he was a sitting office holder, he was removed.

 

So the only thing that’s happened in these cases at the moment is that in Colorado the judge, whose name is Sarah Wallace, has denied a motion to dismiss the case that’s pending against him there but for a very limited reason which is that -- Donald Trump’s raised several different reasons why this case has been thrown out and has even said that not only does it not apply to him but that a court can’t even make this decision, that it has to be Congress that has to pass legislation implementing that. One of the motions to dismiss he filed under Colorado’s anti-SLAPP statute. That’s the strategic lawsuits against public participation. Basically, it’s designed to throw out frivolous lawsuits that entrench on First Amendment rights. And so he sued to dismiss on those grounds.

 

She denied that motion but for a very limited reason, which is that there was a public benefits exemption under the anti-SLAPP statute in which you have to assume that the plaintiff’s claim is meritorious. And then you ask if the plaintiff’s claim was meritorious, would there be a significant public benefit that would override any First Amendment concerns. And she said in this case I have to assume that he participated in insurrection. I have to assume that it would be disqualifying. I have to assume that as a court I could make that judgment. All I have to decide is if all of those things were true, would this be a public benefit.

 

And she said yes, because you would be keeping somebody who is constitutionally disqualified from holding office off of the ballot. She said and I’m only ruling on that. I’m not ruling on any of the other pending motions. But this case is scheduled to go to trial on October 30. Election officials in Colorado had said you have to rule on this thing by early January because we’ve got to print out ballots for the Republican primary in early March. And she has promised that she’s going to issue a ruling.

 

So I think these cases -- I don’t know exactly what’s happening with the one in Minnesota or in Michigan, but I think these cases are on a fast track. The secretary of state in Colorado has said I’m going to take a hands-off approach to this. I’ll do whatever you tell me to do, judge, but in my opinion, he participated in insurrection. And this ought to be disqualifying. But I’m not going to remove him from the ballot unless you tell me I need to.

 

So these issues, they’re on a fast track. And if one of these comes out against Trump, who is by the way an intervenor in this case so he has some rights to be heard, then this is going to go on a fast track to the Supreme Court. And if he is kept off the ballot, I suspect that whether they want to take it or not -- and I bet they won’t want to take it -- they’ll have to take it.

 

Prof. John C. Yoo:  I know you didn’t discuss the merits, John. I can’t resist going right to the constitutional text.

 

John G. Malcolm:  Yeah. There’s a lot to say about that but go ahead.

 

Prof. John C. Yoo:  I have many copies of the Constitution hanging around. For some reason I don’t have my Heritage copy. I’m sorry, John. I for some reason have my Hillsdale copy on me right now.

 

John G. Malcolm:  That’s pretty good.

 

Prof. John C. Yoo:  And so if you took a look at the actual text of Section 3 of the Fourteen Amendment -- and it says, “No person shall be a senator or representative of in Congress or elector of president and vice president or hold any office civil or military under the United States or any state who previously took an oath” and then goes on to say “to uphold the Constitution as a member of Congress or an officer of the United States or a member of any state legislature or Executive or Judicial or the Legislature.” So the one thing which I think resolves this pretty cleanly on the text is that this does not mention the president either as someone who is covered by the provision in terms of their past actions engaging in insurrection or as an officer not allowed to hold, if in fact you did engage in insurrection. And I think that’s important because I don’t think that the president is an officer of the United States.

 

There’s a number of places in the Constitution that distinguish between officers of the United States and the president. And I don’t think it’s even that hard because if you look at the text of Section 3 itself, it says people who are covered by this are electors for president and vice president, which means that if you just took out “elector,” you just had left president or vice president in there, it would obviously cover the presidency. So the Founders -- not the Founders, the ratifiers of the Fourteenth Amendment, it wasn’t like they forgot to use the word “president” or “vice president” because they specifically say you can’t be an elector for president or vice president if you’ve engaged in insurrection.

 

John G. Malcolm:  Yeah. No. Look, I --

 

Prof. John C. Yoo:  One last thing, there’s a Supreme Court case helpfully on this called Franklin v. Massachusetts. There’s other precedents that say unless it’s really clear that the president is to be included, you don’t infer the president as being an officer of the United States. And so why should we go out of our way to try to read the president into a section of the Constitution where the text doesn’t include him?

 

John G. Malcolm:  Yeah. Yes. And there’s a lot of arguments to be made. One is that this wasn’t an insurrection. Two, if it was an insurrection, Trump didn’t participate in the insurrection. He was impeached for that reason and then acquitted by the Senate. Then, there’s the argument you just made. Josh Blackman and Seth Tillman and Michael Mukasey have said that officers of the United States are appointed positions and not elected positions, and therefore it doesn’t apply to the president. Steve Calabresi originally came out and said that he thought that Section 3 did apply but after considering that argument has now changed his mind.

 

And there’s another argument to be made that the second sentence of Section 3 which says “but Congress may by a vote of two-thirds of each house remove such disability” -- they did pass two amnesty provisions shortly after the Civil War that purported to eliminate this disability. Now, Will Baude and Michael Stokes Paulsen argue that that just essentially granted amnesty to everybody who participated in the Civil War but that the disqualification provision still has a future looking possibility, that those acts didn’t apply. But there’s an argument to be made that effectively this section of the Fourteenth Amendment has been rendered null and void.

 

Prof. John C. Yoo:  Or at the very least it’s non-self-executing. I think this is the most interesting part of the Baude and Paulsen argument is whether if you read it that last sentence about Congress removing the disability -- whether it assumes that someone starts out under the just text of the amendment without any implementation by Congress or a judicial finding -- you are an insurrectionist. You did hold public office and that then you have to do something. Congress has to do something, or the judiciary has to do something to remove the presumption, the finding of the Fourteenth Amendment that you’re barred from federal office. I tend to think, however -- even if this officer of the United States versus presidency distinction doesn’t hold, I still think this implementation question is difficult. I don’t see -- I think the arguments are in favor of this section being non-self-executing, which is a topic I’ve studied quite a bit in my academic work on treaties. And there’s a case by Chief Justice Chase medially around this time of the ratification of the Fourteenth Amendment where he also thinks that the section is non-self-executing.

 

John G. Malcolm:  Yeah. The Griffin’s case. He was a circuit justice.

 

Prof. John C. Yoo:  Yeah. Riding circuit. Yes. And so I think it’s a -- I don’t know about you, John. I would prefer that the people through the electoral process make their decision about whether President Trump was an insurrectionist rather than having judges do it without any kind of guidance because if you don’t have a statute, you don’t have a definition of insurrection. You don’t have a definition of involvement enough to -- aid or comfort or enough involvement to be a participant in insurrection. As you were mentioning, John, you don’t really have a finding from Congress. If anything, the Senate acquitted President Trump.

 

John G. Malcolm:  Right. Boy, if you think our politics are messy now, just look what starts happening when secretaries of state and court registrars start removing Trump from the ballot.

 

Prof. John C. Yoo:  That’s true. So let’s turn to yet another front in the legal campaign involving President Trump, which was about a week and a half ago we had the remarkable spectacle of President Trump appearing in a civil fraud trial brought against him by the attorney general of New York. This case, I think, was kind of under the radar. Most people weren’t discussing it.

 

This, for example, is not the New York criminal case brought by Alvin Bragg. In fact, Alvin Bragg apparently had turned down bringing a prosecution on these grounds. Alvin Bragg’s about bookkeeping shenanigans in order to cover up hush money payments. This is not the Florida -- I’m sorry, the Georgia lawsuit claiming gigantic RICO enterprise operated by President Trump to try to reverse the outcome of the elections. This is not involved with the two federal special counsel investigations.

 

This is a case where the claim is that President Trump, his family, and his business inflated the values of their assets, particularly real estate, in order to defraud -- it’s not exactly clear who is being defrauded. But the claim is that the state of New York’s attorney general can bring a lawsuit on behalf of the people of the state that Trump engaged in fraud. And putting aside the substance of that for just one moment, you had the remarkable spectacle of President Trump showing up in person for three days of this ongoing trial not saying anything in the courtroom and then stepping out of the courtroom and then lambasting the attorney general, the judge who he said ought to be disbarred, I believe -- the attorney general who he claimed was out to get him, and of course going off on basically everyone involved in this case.

 

John, what do you think about this civil fraud case? Do you think it has grounds to go on? The judge, for example, has already found that Trump wildly exaggerated his assets. For example, I think President Trump claimed that the size of his personal apartment in Trump Tower was something like ten times larger than it really was or something.

 

John G. Malcolm:  Only three. Only three times larger.

 

Prof. John C. Yoo:  So an outrageous size. But go ahead, John. What do you think of this case?

 

John G. Malcolm:  Yeah. So here I think you really can make the claim that Letitia James, New York’s attorney general, is out to get him because when she was running for election, she said she was going to out to get him. Same thing with Alvin Bragg. And by the way, this same judge, Arthur Engoron, has also imposed a gag order against Donald Trump. But it was far more limited after Donald Trump said something about the judge’s law clerk, claiming that he had an improper relationship with Senator Chuck Schumer.

 

It is not going well for Donald Trump. I think he’s back, by the way, in the courtroom. He wanted to appear for Michael Cohen’s testimony. Michael Cohen was supposed to testify this week, but he’s had a medical issue. So he’s probably not going to testify until next week. But Trump, I think, showed back up for the trial yesterday.

 

So her claim is that he has dramatically inflated his assets and personal worth to the tune of about $3.6 billion and that he did it in order to get very favorable terms on bank loans and insurance. Now, here no one ended up -- they may have been, quote/unquote, defrauded in that they’re going to say they would not have issued these favorable terms, wouldn’t have issued this insurance on these terms had they seen his true worth. But they never ended up losing any money.

 

All these insurance policies the premiums were paid. No claims were made. All of the bank loans were paid off. The banks were made whole. But the attorney general is relying on a New York Law that says if you engage in basically a longstanding practice of very, very shady business practices, she can go against you.

 

And the judge has already ruled on the guts of the case by claiming that he had inflated his assets and engaged in fraud. I think he said it could be by up to $2.2 billion, so a little bit less than Letitia James had alleged. But the trial is going on now. She’s seeking $250 million in damages and seeking to bar President Trump, also his sons and other people connected with the Trump organization, from doing business in New York. And he ordered that the businesses be taken over by a special master or an independent monitor who’s a retired judge.

 

But that part of his order has been put on hold by a court of appeals. But obviously, this really does imperil the Trump organization and its many, many holdings in New York City. So he is taking this extremely seriously.

 

Prof. John C. Yoo:  I have to say after looking at the particulars of the case I think Trump has already lost. Many of the arguments you raised, I think, John, are ones of prosecutorial discretion or areas that the courts, I think, are reluctant to get involved with. You’re quite right. The attorney general as well as the DA in New York City said they were going to go after Trump. I don’t know whether the courts would, though, say we’re allowed to interfere with the prosecution because of this. Gosh, I think it’s almost inevitable things like that will happen once you make the decision to start electing your prosecutors, which I don’t think is the greatest idea in the world.

 

Looking at Judge Engoron’s findings before the trial even started where he found on summary judgment on a lot of the issues that the prosecution was bringing, it did look like President Trump inflated the values of his assets. The thing that’s interesting is many people say well, if nobody on the other side lost any money, how can you bring suit? New York has -- and this puts I think Federalist Society members or people who are sympathetic to federalism in a hard spot because commercial fraud is generally in the hands of states.

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  New York State wants to have a broad law allowing the attorney general to bring suit on behalf of the state and not have to prove individual loss on part of a defrauded party, that’s up to New York State. It kind of actually reminds me of the way the SEC came up with the fraud on the market theory. In fact, if you look at why -- I think I read in some of the papers the New York attorney general and the New York courts have already upheld her argument in the past about this statute. And it’s very similar to the fraud on the market theory for insider trading, for example, at the federal level where the courts have said, oh, the New York attorney general or the state of New York has an interest in making sure there’s truthfulness in the marketplace.

 

Now, on the other hand, I think this is going to be terrible for New York because if you’re a wealthy corporation or businessman or businesswoman, why do you want to do business in New York City anymore after this when you could do business in Florida as Trump has done if you have these attorney generals and DAs who are going to go after your business because they don’t like your politics?

 

John G. Malcolm:  Yeah. And it is -- well, also the trial so far, I get the impression hasn’t gone terribly well. Two of the other defendants are the former CFO Allen Weisselberg who spent five months in prison and the comptroller whose name is Jeffrey McConney. And both of them have already testified that yes, Trump inflated these assets. And at least one insurer has come out and said, well, if we’d known the true value of his assets, we would not have issued this insurance.

 

But the trial’s supposed to go until December. I don’t know what it is they’re going to be doing until December, and I suspect Donald Trump and his sons and others will testify. And there have been some realtors, for instance, down in Florida who had said they thought that the valuations that Trump gave on, among other things, Mar-a-Lago and the Doral Golf Resort were perfectly reasonable. If anything, they were undervalued. And those were among the things where Judge Engoron said that they had dramatically inflated their value.

 

Prof. John C. Yoo:  I would also add, again, it reminds me in a way on the gag order, though -- and I think this is why President Trump shows up because he doesn’t have to show up. It’s a civil fraud trial. He doesn’t actually have to be physically present. It’s still not clear whether he’ll be a witness.

 

But I think this all works to his advantage politically. I think he’s already lost on the merits based on Judge Engoron’s summary judgment decision, but he somehow has turned this to his political advantage. It makes voters more sympathetic, again, to his claim that he is being singled out for legal action because of his political standing. They’re playing into his hands in a way. I don’t see why -- again, all these judges and courts could all -- they could all have these proceedings after the election. And by doing it before the election, it is hard to disagree that they are interfering with the 2024 elections.

 

John G. Malcolm:  Yeah. I remember after the third indictment before the Atlanta indictment came down, although everyone knew the Atlanta indictment was imminent, Donald Trump said something like, well, this is great. If I get indicted one more time, that’ll ensure that I win the White House. And he certainly has turned this to his advantage.

 

Prof. John C. Yoo:  Well, John and I have many more issues to discuss, which means we’re going to have to have another episode because we’ve now got to the 15 minutes we’re reserving for audience questions. So Emily, why don’t you manage the Q&A queue which seems to already have a fair number of questions, and why don’t you decide which ones to ask and read them out? And John and I’ll try to get to them --

 

John G. Malcolm:  We didn’t even get to the Georgia trial which is actually starting next week, but maybe we’ll get a question about it.

 

Prof. John C. Yoo:  Yeah. Maybe we should -- well, maybe what we’ll do is have an episode after we see the first week of proceedings. Yeah. Emily, go ahead.

 

Emily Manning:  Well, thank you both for this insightful discussion. 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’ll now go to the first question asked by a member of our audience. President Biden announced today that the United States is providing $100 million in humanitarian assistance for the Palestinian people in Gaza and the West Bank. Can you discuss President Biden’s authority to send $100 million to Palestine without congressional approval?

 

Prof. John C. Yoo:  Well, I don’t have in front of me the exact statute, but there are a variety of these statutes which give the president -- slush fund is too strong a word but give him the authority to send money to countries that are experiencing extraordinary events, catastrophes. Usually, the president has to issue some kind of declaration of some kind of emergency or great national interest at stake. The thing is that there often isn’t a lot of money in these accounts, and that’s why everyone assumes that President Biden is going to have to go back to Congress in the very near future to get these funds replenished.

 

Also, presidents have some authority to reprogram money, they call it, move money from one account to another during periods of national emergency or periods of some kind of national security threat or foreign policy interest being threatened abroad. So I’m certain that that’s what President Biden has done. He’s going to issue an Executive Order that says that the fighting between Israel and Hamas poses a national security interest for the United States. And so under that authority he’s going to be able to access these kinds of funds. But I think they’re going to run out awfully fast.

 

John G. Malcolm:  Yeah. All of that is usually done, as you say, pursuant to some statute. There are a lot of statutes that allow presidents to just declare emergencies and move money around. So he’s not doing it pursuant to any specific appropriation, but I’m sure that there’s some statute out there that he’s relying upon. And we’ll see which one he cites.

 

Emily Manning:  The next member of our audience is asking if the D.C. gag order applies to Trump’s campaign, such as television commercials as well as his oral statements and tweets.

 

John G. Malcolm:  Well, PACs are not supposed to be coordinating with campaigns, so I suppose that his surrogates can say stuff and his PAC can say stuff. They can say deranged Jack Smith or that Vice President Pence was a traitor. I suppose they can say that, but heaven help Donald Trump if they end up finding out that he was in fact directing them in terms of what it is that they said and how they said it.

 

Prof. John C. Yoo:  But I think this also shows how the gag order goes too far in terms of the First Amendment. Suppose Donald Trump and Sean Hannity stand together. And Trump nudges Hannity and says, go on, go on, what we talked about, and then Hannity goes off on the judge and says all the things that Trump’s not allowed to say. She can’t exercise jurisdiction over people who aren’t appearing in her courtroom. She can’t sanction Sean Hannity in any way. It just shows how I think she’s gone way too far trying to control political activity outside the courtroom.

 

John G. Malcolm:  I just have visions that that’s what he’s going to do.

 

Prof. John C. Yoo:  Yeah. No, what he could do is he could have an interview with Sean Hannity on Fox News and Sean Hannity could say all this stuff. And then Trump could if he was clever say --

 

John G. Malcolm:  Who said it? I didn’t. That’s right.

 

Prof. John C. Yoo:  Yeah. You might think that. I could not possibly comment to quote from House of Cards, the greatest political miniseries in the history of television.

 

Emily Manning:  So going back to the recent Baude-Paulsen paper on the Fourteen, 3 issue do you view their argument as a sufficient originalist argument?

 

Prof. John C. Yoo:  John, do you want to go, or do you want me to?

 

John G. Malcolm:  Well, look, it’s a fascinating article. You should read it, and then you should read Josh Blackman and Seth Tillman’s rejoinder to that. And I think there have been other articles that have been written since then. The fact of the matter is that there was not a huge amount of thought given to this. It was done in the immediate post-Civil War in which you had people showing up in Congress saying choose me, choose me who had been Confederate generals and colonels. You had Alexander Stephens, the former vice president of the Confederacy was there. And they wanted to make sure that unless and until the winning side congressman had granted them amnesty that they weren’t able to serve in any form or fashion.

 

I think Section 3 before these latest doings was only invoked something like three times, and it was all against former Confederates who had served. You had this very complicating factor which is that shortly after this section came into being there was this case that John referred to, the Griffin’s case, in which Chief Justice Chase was the circuit justice and decided it. And that case, by the way, the facts of it were you had a guy who had been convicted of murder in state court, and the judge had been a judge during the time of the Confederacy and been involved in upholding the Confederate constitution and all of that stuff. And his argument was that the judge couldn’t sentence him.

 

The judge couldn’t have a trial. The judge couldn’t do anything because he was disqualified under Section 3 of the Fourteenth Amendment. And Chase, in his opinion, said, well, whatever Section 3 of the Fourteenth Amendment means, it certainly can’t mean that.

 

And there’s just not a lot out there. So a lot of what Will Baude and Michael Stokes Paulsen do, some of it’s originalist; some of it’s just a textual analysis of the language that is used in which they try to make the argument from a linguistic standpoint that this is self-executing. It’s hard to determine what the original public meaning of all this was because there wasn’t a lot out there, not a lot of discussion about this. Do you have a different take, John?

 

Prof. John C. Yoo:  No, I think it’s a wonderful article. I really enjoyed reading it. I have a lot of respect for Will and Michael. And I would say 50 percent of the article is correct, that there is this clause. It doesn’t apply just to the Civil War and Reconstruction. It applies to future insurrections.

 

The 50 percent I think is not persuasive on an originalist basis on this question is is the president included either as someone who participated in an insurrection or a class of office that you cannot hold if you participated in an insurrection. And so I think that’s one issue. The non-self-execution question I don’t think that they persuaded me, at least, on originalist grounds, particularly when you have Chief Justice Chase, as John said, issuing an opinion pretty contemporaneously with the amendment itself. And Chase was someone intimately involved with the Reconstruction Republicans and was a member of Lincoln’s cabinet, one of the great abolitionist leaders of his time.

 

And then I think one thing they assume in the article, at least it’s not originalist at all. It’s just that they assume Trump engaged in an insurrection. They believe January 6 was an insurrection. They believe it’s obvious that Trump participated in it enough to fall within the terms of the amendment. And I think that’s actually highly contested. But nevertheless, I really enjoyed the article. I think everybody should take a look at it because it is a provocative piece of originalist scholarship.

 

Emily Manning:  So Hunter Biden is currently facing gun charges and a tax investigation, and he may be faced with a third set of charges, his decision not to register as a foreign agent while working with companies in Ukraine and China. Senator Bob Menendez was recently charged for conspiring to act as a foreign agent. Are there parallels to the Hunter Biden investigation, and does this show political bias? Or do the facts of these two cases clearly diverge from one another?

 

John G. Malcolm:  I have no idea why David Weiss has not charged Hunter Biden with either -- the only thing pending against him at the moment is this gun charge. He has not charged tax evasion or willful failure to file. He has not charged FARA charges. The statute of limitations clock is ticking on those.

 

Again, I think it was a mistake to appoint him as a special counsel. I think that it was clear that he was trying to tank the case and offer a sweetheart deal to Hunter Biden. I don’t know what’s going on behind the scenes, but it’s inconceivable to me that here he was representing all of these interests in Kazakhstan and Russia and Ukraine and China clearly engaging in policies that were designed to influence the United States, lobbying on their behalf behind the scenes.

 

It strikes me that he wasn’t just appearing on some talk show and saying what he thinks about Ukraine or what he thinks about Russia. He was doing this on behalf of special interests that were connected to the governments of those countries. I think the FARA violation seemed fairly cut and dry, and DOJ, maybe they figured, okay, if we indict Senator Bob Menendez, we’re going after a Democrat. We won’t have to bother with Hunter Biden. I don’t know why these charges haven’t been filed. I think it’s shameful that they haven’t been.

 

Prof. John C. Yoo:  As originally an inhabitant of Philadelphia, I have to say there’s an exception for New Jersey in all things. Yeah. This is the rule of law, but we have to have an exception for the craziness and corruption of New Jersey. But actually I think in this case -- and this is interesting, actually, whether a sitting member of the Senate can be prosecuted for a FARA violation. I don’t think that’s ever happened before. But that just points out how much easier the case against Hunter Biden is.

 

Hunter Biden’s receiving according to whistleblowers maybe up to $20 million from foreign governments, foreign corporations, and their interests. What are they paying him for? What else are they paying -- he’s not an expert in oil and gas law. That’s for sure. He’s being asked to influence the government, and that’s basically -- those are the terms of the Foreign Agent Registration Act. Are you in the employ or being paid by a foreign government or a foreign corporation involved with a foreign government in order to influence American public policy making?

 

Now, I do think that the other shocking thing about this as John points out is that how is it that David Weiss before he was special counsel was allegedly conducting investigation into Hunter Biden and didn’t find any of this and yet it’s easily found by House Oversight Committee, which has far less power at its disposal to get witnesses and documentary evidence than a U.S. attorney? And the House found it like that. So I do agree with John. It does show I think, again, that the Justice Department was dragging its heels with the Hunter Biden investigation and really wasn’t planning to prosecute him for any of this.

 

John G. Malcolm:  So the one thing I --

 

Prof. John C. Yoo:  The actual case I would compare this to is not really Menendez. I think it was the Michael Flynn prosecution and then the Manafort prosecutions where that’s when you started seeing this statute really exhumed and started to be used against political figures in a way that it really hadn’t before. But if you’re going to go after Michael Flynn and you’re going to go after Paul Manafort, how does Hunter Biden get a pass?

 

John G. Malcolm:  Yeah. So Manafort got convicted on many charges, including FARA charges. There was also a Trump fundraiser named Brudy or something—I forget his name—who was also convicted on FARA charges. Michael Flynn, they got him to plead to making false statements, but allegedly they threatened both him and his son with FARA violations for lobbying on behalf of Turkey.

 

The only thing that’s sort of new about this, that’s an interesting twist, is that Jim Comer in the House Oversight Committee, they’re now going to Rob Hur, the special counsel who’s investigating Joe Biden for his unlawful retention of classified documents, and saying, you really need to turn over these documents to us because we need to see whether these documents pertained to the countries where Hunter Biden was doing business, trying to tie Joe Biden from his time as VP to Hunter. We’ll see how that all plays out, but I don’t know why Hunter Biden hasn’t been charged with FARA violations. It makes no sense to me.

 

Prof. John C. Yoo:  Emily, maybe we have time for one more question.

 

Emily Manning:  One more question. So a member of our audience is asking what, if anything, would stand in the way of Trump appealing the gag order to the D.C. Circuit or asking the Supreme Court for cert?

 

Prof. John C. Yoo:  I don’t think there’s really anything that stands in the way, and I think as we were discussing I think he has some legitimate grounds for claiming his free speech rights are being infringed. He hasn’t been that successful in the D.C. Circuit so far. For example, he has made claims of executive privilege and attorney client privilege against the January 6 congressional committee. And he lost pretty resoundingly there and lost at the Supreme Court as well.

 

But I think here his claims are actually stronger and certainly to the extent they apply to, say, President Trump can’t discuss Mike Pence’s involvement in January 6 at a Republican primary debate, for example. I think he has very strong First Amendment grounds. And just one last point is even though this is a divided Supreme Court, even though the lower courts are divided, they do seem to agree on free speech issues. That’s one area where liberals and conservatives both have come together. And so maybe Trump’s prospects for free speech claim against this gag order would be stronger than they have been in these other cases he’s lost in this venue.

 

John G. Malcolm:  I think that’s right with the exception of religious speech like the 303 Creative case. That still divides the Supreme Court. But on stuff like this there’s nothing to prevent him. The clock’s running. March 4 is around the corner, and he’s involved in an awful lot of cases. But yeah, I suspect he will appeal and appeal it immediately, and we’ll see what they do.

 

Emily Manning:  So 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.

 

John G. Malcolm:  Bye.

 

Prof. John C. Yoo:  Thanks everybody. Bye.