LIVE: The Trump Indictments: Is the Justice System Rigged? — A Heritage Foundation Event

But everybody knows that this is being done for political purposes, each of the indictments, especially the federal ones. We can talk about the Georgian ones, too, in New York. But the reason why you have these principles, the reason why the department has outlined them in writing for every AUSA and every federal prosecutor to consider is because of these considerations of perception, of the American people, of the justice system. Who is going to be targeted for prosecution? Who is going to be subject to investigations and why? And if we get to a point in this country, which I think we've already passed, as to where you think, because of the way you believe, the things you believe and the things that you do that are in the political realm, in what Americans have always viewed as protected activity, that you can be prosecuted and you can be investigated by the FBI, we're in a really dangerous place. Because it's not just about Donald Trump. Donald Trump is the perfect example of selective, weaponized prosecution, and we all see it. But it's because of the perceptions that it sets for the entire country. So if you are a person who has conservative beliefs and you see these prosecutions, you see these indictments, you see Garland's memo on school boards, you see all of these other factors lining up, your faith and your confidence in the federal government is shot. It is not there anymore. And that is very destabilizing. And people don't sit back and think about that. When you're Jack Smith, you're Merrick Garland, and you're thinking about bringing these charges, you have to also consider the stability of the country. This is not some small factor. This is something that you actually have to think about. Because when the people, when the governed, lose trust in their representatives, in their federal government, it's a really dangerous place, and it can lead to really bad things and dangerous things, and we don't need to be there as a country. Now I think each of these indictments and each of these charges that we see against President Trump are legally flawed for many, many reasons. But I want to highlight the Mar-a-Lago one in particular, because one of these things of missing the forest for the trees that's present in that case, that a lot of folks need to take a step back and think about, is how is it, so assuming, you hear a lot of arguments, and you see a lot of arguments on social media and other commentators have rightly pointed out that under the Presidential Records Act, the president gets to decide which records are his and which ones aren't. Okay, great. I agree with that principle of statutory interpretation. I agree that that is actually the case, and courts have held as much. But that's missing the forest for the trees, because where is the delegated power to Congress in the Constitution to be able to tell the president of the United States which papers are his and which ones aren't? So somewhere in the Constitution, if you buy the argument that the Presidential Records Act is even constitutional, where in the Constitution does it say, oh, and by the way, we also get to decide which papers the president has are his and which ones are not? But that's what the Presidential Records Act does. And I think for that reason, any interpretation or application of the Presidential Records Act that says that, oh, Donald Trump didn't have authorized possession of these papers, of these records, so therefore he can be prosecuted for mishandling them, is faulty. It's unconstitutional. You can't do it. That's not the way that it works. And in fact, if someone wants some remedy, well, the remedy then is a political remedy. The remedy is either impeachment or just not supporting the person in the next election. The notion that you can bring a political prosecution against the president of the United States for deciding which papers are his and which records are his, that he took when he was the president of the United States with him rightly, I mean, that's his decision. That is his choice. Congress doesn't get to make that decision for him. And so for that reason especially, I think that case has a lot of problems of its own. There's other flaws and other statutory issues, other constitutional considerations that issue with some of the other cases as well. But I think that one was worth highlighting. And it just goes to show, when you're the prosecutor, when you're Jack Smith and you're analyzing the available evidence and you're looking at the potential charges and you're trying to weigh what to do, what not to do, all of these things would be considerations that would weigh against prosecuting, even assuming you had the best possible case ever. And I don't think that they do. But these are all factors that weigh against prosecuting because you are going to erode the public's trust in the competency, in the impartiality of the federal government. And that is a very dangerous place for us to be in. Gene, I wanted to make one comment on you bringing the manual, the prosecutor's bible. I thought that was great. But you missed the half that also shows and makes your point incredibly well. And that is the part of the manual that dictates what kind of charges you bring when you do have sufficient evidence. And when you look at those in the context of what they're doing with Donald Trump and the decision making they've done with Hunter Biden and the Biden family, for those of us that worked and operated under the manual, it is outrageous. It's outrageous. Two sitting attorneys general, Attorney General Holder, Attorney General Ashcroft, have the memos or the rulemaking that dictate in the Hunter Biden case. That's why I argued, like Gene, that they are going against their very own policies with respect to Hunter Biden and the Biden investigation of all of the potential conspiracy involved with the Biden family. And they're violating multiple sections. And so for those of us that have been on the inside and under the tent and we see it, it's an additional level of offensiveness to watch them try to wrangle and manipulate the media and everyone else to justify the decisions that they made. Hunter Biden would be serving the rest of his life in prison. There is no question in my mind if they applied the rulemaking that they passed or that they issued under both attorneys general. So I've got a couple of questions that I want to ask, and then in short order, I really want to open it up so that most of the time is taken up with questions from the audience and also our virtual attendees. The one thing I would say ahead of time is that someday you may be asked to give a speech at Heritage, but today is not that day. So if you have a question, keep it short and make a statement that ends in a question mark. And the question cannot be, here's my speech. Do you agree with that? All right. But let me start out with asking a couple of questions. And I actually want to take a step back from Donald Trump about other aspects of these charges that have troubled me, and I want to get your reaction. So the first, you have Fannie Willis in Georgia who has brought a case under the Georgia equivalent of the Racketeering and Influence Corrupt Organizations Act. And she has essentially labeled a presidential campaign as a RICO enterprise. She has also indicted, and Jack Smith has several people in this category as unindicted co-conspirators, attorneys at law who were making legal arguments in court, or at least urging in the case of, say, John Eastman, you know, an interpretation of the Electoral Counts Act. And I'm wondering whether you see a real chilling effect, not only in terms of election challenges, but attorneys zealously representing their clients and making arguments which ultimately did not prevail, you know, but in court on behalf of their clients. Well, I'll jump in. I'm sure the others have something to say on this. When we group together the Jack Smith January 6th indictment and the Fannie Willis RICO indictment in Georgia, fundamentally I think there's a real problem with these indictments in that they are attempting to criminalize statements made, positions taken, advocacy that for the most part are protected by the First Amendment, protected both as expressions of speech, free speech, but also efforts to petition government for redress of grievances, which is also protected as a core right in the First Amendment. The Trump campaign was endeavoring to urge state legislators and state officials to take another look at the campaign results, the election results in their states. And you might think that the legal advice given was not well considered. You might think that there was no significant hope of getting relief. But that's not to say that the president and the president's campaign didn't have a right to raise these issues and urge legislators and state officials to act in response to these grievances. And if you look at the Jack Smith complaint on January 6th, I mean, I don't know about you, but I was waiting to see, first of all, if he would bring such an indictment. But I was waiting to see if the indictment would purport to lay out evidence that President Trump was actually behind the riots at the Capitol and the breach of the Capitol, and that there was some connection there in terms of organizing and making that all happen. But there's none of that in the indictment. The indictment is just based on what we already knew, all the publicly available statements, evidence that the January 6th committee had raised. And it's all framed as a conspiracy to defraud and a conspiracy to obstruct the government, the electoral count. But nothing new there. And it's all based on statements, opinions, positions taken. And as you say, John, the advice and assistance of lawyers, but also of subordinate officials in the executive branch, the Justice Department officials who the president supervises, and the vice president whom the president supervises in the conduct of their official duties, and the president trying to urge them to do things in a certain way. And so you're getting into the president's ability to supervise, you're getting into First Amendment protected rights. And the notion in the Georgia case that a presidential election and the campaign apparatus of the election could be a criminal enterprise, I mean, that really, you would have to really meet a high threshold before that would be an appropriate use of a RICO statute. And again, that indictment is all based on just the public record of statements and phone calls and cajoling and urging and taking positions. And the notion that the president had no basis to believe any of these things and knew that they were all fantasy, how are you going to prove that in court? How are you going to have evidence of that? So these seem to me to be hollow vessels, and I think that just underscores the notion that these indictments should not have been brought in a proper exercise of prosecutorial judgment and prudence, particularly in the midst of an election campaign. And it raises the question of is that in fact why they were brought, as Gene said, to actually to interfere with and affect the outcome of an election, which the justice system should never be used to do per the manual that U.S. attorneys live by. The only thing I would add, you talk about the chilling effect. Those of you that have been in law school, what are you taught about the validity of making an argument you know is contrary to what the law is? Can you do it? Can you walk into court and can you make an argument against, you know, a legal position that you know is wrong? And the answer is yes, and we're supposed to if we think the law is wrong. We are supposed to walk into court and say this is what the law is, that the law is wrong, and here's what the law should be. And then the court gets to decide, and then you get to appeal, and the Supreme Court might ultimately make that decision. What you have here is the prosecution using a statute that has no business being used to go after a campaign, an individual, and his lawyers to then amount, round them up into a conspiracy and make allegations that their legal arguments, their interpretation of facts are so outrageous as to be criminal. Think about that. So outrageous as to be criminal. When we are taught, we should be pushing the limits of our factual and legal arguments in order to test the validity of the law. This isn't changing documents or bribing witnesses or suborning perjury or anything like that. Let me ask about one other aspect of this that has been on my mind. So you have the two federal indictments by Jack Smith, but you also have these state indictments by Alvin Bragg and Fannie Willis. So you have locally elected officials in overwhelmingly Democratic areas, Fulton County, Georgia, and in Manhattan, bringing these indictments. In a sense, you could make the argument that from their perspective, regardless of the outcome, they've already won. I mean, you know, Fannie Willis, who is up for reelection in a year, will now get no challenge at all, because what she's done is overwhelmingly popular among her constituents. Alvin Bragg is one of these, they refer to them as progressive prosecutors, we call them rogue prosecutors. But he was catching a tremendous amount of flack for doing things like, you know, ridiculous cash bail policies, not prosecuting misdemeanors, downgrading serious felonies into misdemeanors. None of that talk is going on anymore. The participants have quieted down considerably, because he's now brought this indictment, ironically ramping up misdemeanors to felonies, against somebody, you know, this indictment is very popular among his constituents. There are roughly 2,500 elected DAs around the country. Is there not a danger that in the future some DA in a red jurisdiction, you know, conservative jurisdiction is going to try to find a hook for a former Democratic president or official and say, well, you know, sauce for the goose is sauce for the gander, think I'll indict that person? Is there an added danger at the fact that these prosecutions are being brought by elected officials? I think yes. Plain and simple, yes. People will get tired of seeing a double standard. And somebody, somewhere, with that number of prosecutors across the country will say enough is enough, and what's good for the goose is good for the gander, as you say. And they will bring those things. Now mind you, I think both of these prosecutions, particularly the one in Fulton County is constitutionally deficient for a lot of reasons relating to the state prosecution of federal officials for actions taken while they were federal officials. There's all kinds of other issues with that case, but that's another consideration that should have been taken into account by one of these local DAs. But as you say, with Fannie Willis, this is something that she dreamed of doing. This is, for her, it's a goldmine for her political future. And so she wants to pursue this. And meanwhile, her constituents are suffering, suffering in Fulton County with the number of uninvestigated, unprosecuted crimes, serious crimes, a lot of folks don't feel good, they don't feel safe to even walk on the streets in portions of Fulton County in the daytime, never mind the nighttime, daytime. She has failed in her primary responsibility as a prosecutor to protect her community. Because every prosecutor, this is another point that goes to kind of, why are we doing this? Whether it's federal or whether it's state, why do you prosecute an offense? Well it's because it's going to achieve some, you know, it's going to achieve justice, it's going to protect your community, all these other things. Okay, great. But in the meantime, while Fannie Willis is going after and devoting substantial resources from her office towards this prosecution, and Jack Smith is going off and the Department of Justice is committing substantial resources to the prosecution of Donald Trump, nationwide and in Fulton County and elsewhere, we have this crime epidemic. Violent crime is on the rise. There are real problems in this country, and you just plain and simple only have so many hours in any given day, as any official in any office anywhere. And you have to make decisions about what you're going to go after and what you're not going to go after. Every minute that she's going after Donald Trump, every minute that Jack Smith is spending going after Donald Trump, now setting aside the fact that he's a special prosecutor, setting that aside, the rest of the country sees that the rest of the country is suffering from a crime epidemic. And every ounce of energy that you spend on going after one of these political prosecutions is an ounce of energy that you're not devoting to solving the rape, solving the homicide, preventing gangs from flooding the streets of your community, from stopping crime, like shoplifting crimes. We have real problems in this country. We have real rule of law deficiencies. And so to that end, I think that that is absolutely, there are major constitutional problems with the state prosecutions. There are major constitutional problems with the federal prosecutions. But as a principle of prosecution, although they're not bound by it at the state level, of course, these are factors that are common sense and that were once widely accepted by attorneys general, state prosecutors, district attorneys, whomever, as to reasons why you wouldn't go after somebody for an alleged offense. Okay. We have a few minutes left, so let's open it up to some questions. Let's start right down here. Thank you. It's interesting to me when you charge a judgment against somebody who is a Justice Department official, writes a memo, his bosses negate that memo, it never gets out of the building, but Fannie decides to make it a felony and then bump it up to RICO status. Because what it tells me, and I ask this question, is that the new standard that we're going to start charging people inside the Justice Department for making those decisions and never leave the building? And then the second question, is the next administration going to go look back at all this stuff and charge those people for that? It's a good question. I would say, this is how I would respond. We're seeing the use of the criminal's law in a way that we have not seen, at least in my lifetime. And they, as John pointed out, they've already won in terms of what they wanted out of it, these prosecutors. And so I think we will see more of it. I hear the argument, many saying, we'll fight fire with fire. That's the only way to do this, is we've got to prosecute many others. I think Jim Comey, I have not agreed with Jim Comey probably 99% of the time. But one of the things I agreed with was when he refused to prosecute Hillary Clinton. And everybody gets outraged at that, but I believe it was a measure of restraint at a time that we needed to have such restraint and that the country could understand and get behind a Department of Justice that was restraining power. That restraint is gone. And you will start to see more of them. And if Donald Trump's in the office, is in the White House, do you have any doubt he's going to be pushing on the Department of Justice to take a closer look at all the political enemies? This may be the new normal for us. And it is not a good normal. Sure. Let's get to Tim Wilson. Gerald Chandler here. In the Fulton County case, Fannie Willis, do any of the 19 defendants have any possibility of all getting compensation for all the expense and trouble they've had? I'll answer that. I think the answer to that is probably not. There is one of those defendants, by the way, who has now entered a guilty plea. I don't know whether you saw that. It was related to the specific allegation about hacking into voting systems in Coffey County. And this went from a massive RICO indictment with God knows how many counts. He's pleading guilty to five misdemeanors with a probated sentence. But I don't know what statutory remedies there will be for people who are prosecuted. But the odds that they're getting their money back are, I would say, is slim. And this is going to be going on for a while. I mean, the first two of these cases involving Ken Chesebrough and Sidney Powell goes to trial October 23rd. So this is going to, if this all proceeds, unless there are just a raft of guilty pleas, and I don't personally see that happening, there are going to be multiple trials. And each one of these trials is going to take at least a month, if not two months, of selecting a jury and a very large number of witnesses. So this will be going on for months, and it could be a little bit like Groundhog Day. It goes again and again and again. Other questions? Yeah, back here. J.P. Hogan. Trying to keep this simple. I've written about this for a while. I even live-tweeted some of the House Judiciary stuff. But what would be the definition of deep state? And if you have to define that also, how would, does the Department of Justice and the FBI have to have an official psychological profile on Trump, and would they have to show that? If you have the profile, and it doesn't fit with how Biden ran his campaign saying Trump is this, where would the official documents say, this is who Trump is, like a psych profile? But the deep state, if you have to explain the deep state, I think you have to show that there's a rigging, but I'll try to keep it at that. I'm not sure I understand the question, but take a shot at it. What I would say is that, I don't know that I could put a definition on the deep state, but what I would say is that anyone who doubts that it's real hasn't served in government recently because it is real, and it's present. And one of the things that we see, and it's not just in government, though, it's people in government who are influenced by the people outside of government as well, and this relates to the D.C. prosecution. It relates to a lot of things, because one of the inherent flaws with the D.C. prosecution is this notion that Donald Trump knew, Donald Trump knew that he had lost. He knew he had lost, and yet he still persisted with this because he was intending to defraud. Well, this whole prosecution, I think we have to take a step back and realize that what Jack Smith is alleging is that there is absolute truth that he knows that the deep state knows. The election was the cleanest and safest ever, and there was no doubt that he completely lost. And so, because the deep state then, in this case Jack Smith, possesses that truth, any dissent, any questioning of that, any open dialogue is criminalized, it's penalized. And that's a very dangerous place for us to be. I think a lot of the folks in this room would acknowledge, if you're a person of faith, that there is absolute truth out there. But when it comes to investigating individual crimes and it comes to the outcome of an election, there's always questions about what happens in an election. There's always questions about the vote counts and, you know, what gets counted and what doesn't get counted. And so I think that as it pertains to the deep state, this prosecution is perhaps an example of this new kind of way of thinking, especially amongst many on the left, that they are the only holders of truth. They are the only people who have the truth, who know the truth. And therefore, if you deny their truth, you need to be censored. We've seen that and we talked a little bit about that earlier today, too. You need to be censored, shut down, dismissed from society, and according to Hillary Clinton, I guess after last night, formally deprogrammed or reprogrammed. So it's a real problem. We as a society once valued the open exchange of ideas and questioning things and asking questions and having honest and open debate, and we're not there anymore. So is it rigged? Is the Justice Department, you know, is the justice system rigged? That case and all the problems outlined and all the ones, we could spend hours talking about that case and every single case. It's in my opinion more likely that he gets convicted, he gets taken forthwith in the courtroom by this judge. He is immediately put in prison and he's running for re-election and appealing his conviction while incarcerated. I think that is highly likely in the D.C. case. That's a distinct possibility. Yeah. Let's go over here, Hans, and then we have maybe time for one more after that. Hans von Spakowsky, look, a lot of the discussions of this, people seem to concentrate on the political appointees, thinking they're behind the political abuse of the prosecution and FBI system. But look, I spent four years at justice and the partisanship reaches deep down into the career ranks. I saw that. You can see it in other agencies. A new president coming in who wants to actually do something about this and fire, fire folks. Is there any way to do that without ending the Merit Service Protection System that keeps you from getting rid of these bad folks? A bit off topic, but go ahead if anybody wants to opine on this. I saw this firsthand. Obama let me stay in as U.S. attorney in order to finish the last prosecution I was doing, which was the kidnapper of Elizabeth Smart. But as soon as my role was done in that, I was shocked at the civil servants in the Department of Justice who were pushing and manipulating to make sure I got out of office as quickly as possible. And it was my first sort of awareness that it does. The politics goes very, very deep into main justice. And I don't know how you root that out except for a type of attorney general who sees it, recognizes it, and wants to get rid of it. We had a question here. My last question is to hopefully close this out with a sense of humor. And that is that I believe that political cartoonists will make a good living in 2024. But I wanted to ask you, is there a leasing agreement when you move into the White House that says you can't take the silverware or certain documents and certain other things? I think we might have time for one more question. We had one right here. Thanks for all being here today. My name is Aaron Watt, a local law student here at the DMV. And when it comes to the solution, it seems like the two obvious options are to either apply an equal standard, having seen the one that's been applied now, or to try and go back to old Department of Justice norms. Both of those seem kind of fraught with problems. What are your thoughts on solutions? Well, I think the traditional norms and standards are the answer and have to be reaffirmed. Unfortunately, it looks like we're in for a period of some white water, and we may be long from that return to norms. And just like I threw out the example of the independent counsel statute, the abuses of that statute, going too far in one direction, it didn't get fixed, that is, sunsetted and eliminated until both sides of the aisle had their oxen gored. And it's possible we may be in for a period like that. And then when both sides see the destructive nature of this breakdown in norms, there'll be a consensus for moving back. It's kind of a bleak prospect, but I'm not sure there's another alternative. Without their oxen being gored, they don't come back. The left has already decided that they will weaponize the criminal law. They see Donald Trump as a disruptor and a threat to the established order. And so you see the established order reacting like an immune system against this frightful disruptor. And that includes the entrenched career ranks, as Hans pointed out, within the department, within the whole government, really. Yeah. I mean, look, Heritage at its 50th anniversary gala had Tucker Carlson, and he took the stage. And he was giving a tremendous speech, and he was talking about this moment in time. And he put it best, and I keep repeating it to people every time I have a chance because he's absolutely right. If you think at this moment in time in history that we can have a reasoned debate and we can just sit down and both sides basically propose ideas, and whoever's idea is best, it's like the old debate clubs in high school or college, and then the winner prevails, that's not the moment in time that we're in. And so I think that there's going to have to be some course correction that will occur. How that plays out, I guess we'll see. But until there is pain inflicted in both directions, it's hard to see the other side unilaterally disarming itself. Now that it knows that it can use those weapons, and now that it has, it has muscle memory, it's going to do that unless it realizes that there are consequences for that when they're not in power. Well, so we certainly didn't end on a humorous note, but we ended on a profound note. With that, please join me in thanking our panelists.