what's your reaction when you hear news that the former president of the United States has been indicted this is the so-called January 6 indictment he's been indicted for acts while he was in office it's a pretty unprecedented moment what's your reaction when you hear that news when you when you first read the indictment I I think the first reaction anybody's first reaction and and also the same reaction as a a former prosecutor is that it is unprecedented I mean we are traveling in un uncharted waters so you can use all of the experience you have and Impressions that you have but it's obvious that there will be surprises along the way no one really knows how this is going to unfold when it's going to unfold and uh what conclusion um there will be when it's all over and I think anybody who thinks they can safely predict that is dreaming and when you read through the case and you see the the you know three conspiracies that are alleged in that indictment do they see seem unusual to you or unexpected or or sort of what you would have expected from from the special prosecutor I think the most notable initial reaction based upon just the charges themselves is that they did not travel down the road of insurrection which I think was the invitation that was out there both by the committee in in Congress uh I think there was a a public perception and expectation that that would be the the road that the special counsel would would travel and that didn't happen so that that was my first reaction the the the charges that were actually brought I don't think are hugely surprising um but it was a significant walkway at least in my judgment from what had been uh contemplated um and I think I mean I don't know I haven't spoken to members of the committee directly but I think that was I think that was the invitation frankly that the committee gave to um a referral uh for prosecutors to determine whether or not to bring charges and the the timing of it this the the indictment comes as he's a candidate for president you know before he secured the nomination I mean it really is an unprecedented moment this Confluence of politics and and criminal law I mean what do you make of that well that's an unavoidable collision with the political process um I mean you know at this point it's not really appropriate for me to talk any longer about whether or not I think this was a wise exercise of prosecutorial discretion which I don't I think the country is going to Ru the the day that we travel down this road but you know from the perspective of where we go from here that's not a useful conversation any longer I mean the only way to tame the poor exercise of prosecutorial discretion is for Donald Trump's lawyers and for a jury ultimately uh if not a judge to decide that um you know the case doesn't have Merit that's ultimately the only way that prosecutors um are given the brushback pitch so to speak uh meaning that um if there's a judgment made about whether there was um untour exercise of prosecutorial discretion uh it's up to either a judge or a jury uh to make that determination I mean there's nothing you can do at this point now that the prosecutor has brought charges if you're Donald Trump and his lawyer other than beat them but you did think it wasn't a proper use of prosecutorial discretion why well I think it lands us right in the middle of uh a presidential campaign it it is unavoidably going to be tainted um with the appearance of politics at play um obviously that's the card that that Donald Trump would will play I I understand that there are people in this country have mixed views about whether or not um that should be or shouldn't be and there's obviously a huge public sentiment in the view that no person should be above the law and it shouldn't necessarily matter um that there's interference with the political process you know 70 million people who voted for Donald Trump I think might well differ with that he's likely to be the nominee of his party and he's going to find himself at least as currently scheduled with trials that uh could well take place before the election I have my doubts about that as well we can talk about about some of the reasons why in connection with this case that the current trial date is not likely to hold but in any event I mean it's a rather extraordinary thing when you think about it uh to be in the middle of a campaign season um to be you know in oround super Tuesday uh of of 2024 and you're going to have a major presidential candidate who's expected to be and will be required to be in court facing trial for the better part of you know give your best estimate of what how long this trial will take two weeks 3 weeks four weeks 6 weeks um that interferes with the political process um there are those in this country that don't think that's a problem um there are those in this country I think probably evenly divided who do think that's a major problem and that uh that it necessarily interferes with um the exercise of the right to vote for the candidate of your choice if the candidate of your choice is in the dock facing trial on on felony charges in the middle of a of a campaign cycle the point that you're making there is not about whether the the it's a good case or not because the the rule of law people as you say would say oh uh you know if he sees a crime you know he should charge it no matter what the calendar is no matter what the political but but you think that that there are other considerations than whether Teck Smith concludes I think there was a crime here right and I mean that's the the exercise of of prosecutorial discretion I mean should this case have been brought um in 2023 knowing that that's exactly what was going to happen and you were going to dump not only this case but the other three cases right in the the middle of a an election cycle um you know there are obviously countervailing arguments including statute of limitations and other things and I think everybody seems to understand the possibility at least that if Donald Trump is elected president this case goes away I mean he has The Authority if he's the new president to direct the Attorney General of the United States to dismiss the charges at whatever stage the case is at that point it may be pending sentencing it may not have yet gone to trial it may be on appeal um but I think there's one thing I can guarantee for sure there's not too many things I can guarantee for sure but one of the things I can guarantee for sure is that this case in whatever form it's in will not be final by November of 2024 that much I am sure of and if that's so and if that's so what that means is that U if he is the new president um and has been elected he can dispose of it and that I mean my view of that is that you people always ask the question well are you saying that he can pardon himself doesn't require that he pardon himself he has the full uh power under the Constitution with all the executive power um to dismiss the charges and there's not anything anybody can do about it no judge can do anything about that that's the end of it he just pulls the plug on the charges I mean in a way you're saying that that the final say is not going to be the jury or the judge it's going to be the American people in the in the election assuming he gets the nomination well that's the way I would like to view it I I understand also that you know that's there's not a unanimous view on that I I tend to rely on where you go to sort of first principles Abraham Lincoln uh patient confidence in the ultimate Justice of the people that resides with the voters um that that's where I think this belongs I mean if he's no longer the president and he's not a candidate for office and this is over have at it prosecute him you know U that that's what we mean by you know no person is above the law but you know for example right now the former president has a motion pending before the uh the district court in the District of Columbia claiming um that he is uh immune from Criminal process with regard to the charges which involve His official acts as president of the United States there's case law from the Nixon era that say that this extends to the Outer Perimeter of His official responsibilities I mean it seems to me that's a pretty substantial motion it may not have Merit in the view of the government uh and also you know more importantly the judge but that immunity defense I can tell you is one of those very few and rare issues like double jeopardy that is an appealable order even while a case is ongoing meaning before it is concluded I mean in the criminal uh process generally speaking defendants don't have appellant rights until there's a conviction and a sentencing and the case then goes up on appeal to challenge all possible errors that occurred from the indictment on forward um immunity and double jeopardy and those kinds of defenses where the defendant would actually suffer uh harm if there wasn't an appeal since the whole point of immunity is that you're not subject to indictment prosecution and trial that is an issue that will necessarily no matter what the outcome will will be um appealed to the um United States court of appeals for the DC circuit and it won't end there it's likely also whatever the decision in that Court um that a petition for cersi RI will be filed um again even if the president loses my guess is that he will file a petition and that is going to take time so I guess that what was my sort of my back-ended way of saying if anybody thinks this case is actually going to go on the current trial schedule I think that's unrealistic to think that's the case now is it possible that all those proceedings could be expedited and make their way through the district court to the court of appeals to the United States Supreme Court and the and allow for a trial prior to November of 2024 that's certainly possible but I I don't think that the current trial date is likely to hold for that reason what did you think of the committee I mean obviously it didn't have members appointed by Kevin McCarthy and it has unusual hearings it uses video testimony for the first time his Prime Time hearing from some of the top Trump officials you know Bill bar senior campaign advisors when you watched the hearing or or read about it was the reaction you had to how it was run to to what they were doing obviously it was not I I I don't think really by any large stretch can you characterize it as bipartisan so it it strikes me and this is I guess a consequence of of bigger issues about the evenly divided country that we're in and extreme partisanship and you know all the rest and the political process I I think the the Wonder and the genius of what happened during the Watergate era is that the reason that Richard Nixon ultimately left office and faced prosecution is because it was a bipartisan effort um to essentially U showcas Cas for him and the American people um that uh that they had had enough and that the conduct wasn't going to be tolerated and that there was a political judgment made but that political judgment in addition to the legal judgments was one that was you know in in the best sense bipartisan and with regard to the prosecutorial judgments that that were made nonpartisan I I think we've reached a point in this country where we seem to think that every problem out there is one that a federal prosecutor or a state and local prosecutor uh should resolve with criminal charges I don't happen to be one of them um and I think that you know if you're if you pin your hopes on on that I I think you're going to be at the end of this process sorely disappointed but having said that you know we are where we are they were duly constituted um I I don't particularly think that it was a a special effort on anybody's part uh to make it bipartisan which would have lended itself to more public credibility but you know that's what happened I guess that's the environment that we're in and I guess you know those on the other side would say well yeah but that's the best that we could do so you know get over it live with it okay get over it you know live with it but that doesn't change the fact that I think at the outset it undermines I think bipartisan um you know Universal AC acceptance uh of their judgments and then once a referral is made you know I think that's viewed in the political context as being a political Act unavoidably based upon how the um the special committee was constituted let me ask you one last question about the January six committee which is maybe as a as a lawyer as somebody who's had to make Arguments for a jury I mean when you watch it the power of seeing you know Bill bar um come up on video and the way they use video clips the way they use testimony what did you think of the the case that they were making and the way that they were making the case well I I think I think um first of all uh yes that is testimony under oath but understand I think importantly and it's important for Americans to remember this you know none of that testimony was given under cross-examination so you're getting a one-sided view um from the perspective of political actors in the political process asking questions and having a witness respond under oath I think you should assume therefore that that testimony may not look exactly the same when it is under oath in a criminal case um without the cameras in the courtroom under cross-examination of President Trump's lawyers that that will have a very different look and feel about it I I don't know you know in terms of an evaluation of that evidence by a jury how that will be different but it like the point is it will be different that's maybe good segue then into talking about some of these points because that's what we don't have right we have what the the committee presented we have what the indictment is we don't know yet what the the defense will present you know for some of these moments for some of these right these pieces of evidence it'll be both the president's defense if he chooses to put one on obviously under the Constitution doesn't have to advance a defense and he doesn't have to take the stand in his own defense if he doesn't want to um but you know part of the defense also not just is the defense defense case to the extent he presents one but the defense case is also in the course of every criminal trial not you know most people don't see these things but you present a case by by virtue of of of of your cross-examination the defense cross-examination of the government's Witnesses so let's just take some of these moments of evidence that there end up in the indictment and and are in the January 6 committee I mean they start the story they say you know election night Trump had been told by his senior advisers that it was too early to claim you know Victory um there hasn't yet been clear evidence you know there's not the specific allegations of a fraud at that point Rudy Giuliani is you know allegedly by some of the accounts is is intoxicated it's encouraging him to to declare Victory and and the case that they're making is well this shows this goes to a state of mind this shows that that everything that followed later was was the president sort of manipulating this falsely claiming that he'd won the election because he was claiming he won the election even before he had had the evidence of it I mean how do you evaluate a moment like that as a piece of evidence in the in the case against the former president context Al Gore thought he won the election too so what I mean I you know I I guess I my my reaction to that is I I'm wondering I I understand it makes a nice a nice sound bite and to have you know videotape uh a presentation with regard to any and all of that and the evidence about you know Rudy giuliani's intoxication and all the stuff that I guess you know people love to chase down my first reaction to that is okay so a candidate thought he won the election what else is new uh you know I I just I I I don't find I you got to be careful about trying to you know turn that into um Criminal Intent and understand what flies for persuasive testimony before a congressional uh committee uh without the benefit of cross-examination and without the requirment that a jury after all this is the thing I you you have to keep coming back to in terms of resolution of criminal charges against the defendant in which he is subjected to the possible penalty of going to prison our system requires that a jury of 12 unanimously meaning all of them all 12 of them find the defendant guilty Beyond A Reasonable Doubt so if the evidence doesn't stack up to a a finding that the president did something with regard to intent about um the election results uh that is an element of the offense that a jury can actually find persuasively unanimously Beyond A Reasonable Doubt then it's really not worth a whole lot again you know as as juries are instructed all the time it's nice that the the indictment contains all of these allegations that's what they are ladies and gentlemen they're allegations on a piece of paper they're not worth you know Jack doodo okay they're not worth anything until you and less and until you decide that they're sufficient Beyond A Reasonable Doubt to prove all the elements of of the charge that the government has brought so you know that when I see when I hear that that's sort of the mode that I'm thinking both as a a former prosecutor and also as a as a defense lawyer at at at a criminal trial I mean and aside from the Constitutional ises on the isues I mean is this the hardest thing for the prosecutors to prove to win over jury on which is the State of Mind of the intent of the president for these actions yes as I think anybody will tell you in in White Collar cases you know unlike other cases drug cases and some other things where you know intent is almost in some sense once you prove the acts it's almost self-evident in every case like like the like this one um in these areas um intent is the is the whole ball game the jury is making an evaluation of that um that's the most difficult thing to prove not impossible but it is the most difficult thing to prove so as the case goes on um well you know the indictment of January 6 I mean what they say is is after election day um very senior campaign officials tell the president who he these are people who he chose that they can't find the fraud that they can't find you know the allegations that there's nothing there he is hearing from Rudy Giuliani and some others claims and and you know the way it's portrayed is is there's one um Bill Bart you know refers to the clown car uh group and and and then there's the other group which is called team normal and that part of where the conspiracy really starts is is an intentional decision to reject the advice of of the more sober group of his advisers I mean when you look at a moment like that how do you evaluate that evidence I think part of me always thinks that you you're not any better able um to prove that there was no fraud in the election as I am able to prove there was fraud in the election um and and if a president came back in response to however many advisers came forward to say we haven't found it you know what what would be so I don't know what the evidence will be at trial but suppose the president's reaction was well you haven't looked hard enough um you say you haven't found any um but you know I mean one of the difficulties about election I guess is somewhat of a side issue but election cases are always very difficult the difficulties are the election takes place in November and all of these activities are are a leadup to when everybody seems to understand that sort of the point of no return When the election results are certified in the in the Congress in in January um you know that doesn't leave a whole lot of time right you're talking about two months um you know Finding evidence of fraud is not such a a simple thing and then of course the you have the added texture that you have to find evidence that would be sufficient to change the outcome of the election um you know I think most people law election lawyers know it's one thing to talk about a handful of votes maybe you know something less than um a few hundred it's another thing to start you know talking about changing um and and and determining that the results of the election would change as a result of finding fraud that would be thousands of votes so um you know I think there's all there's all of those elements you know in that but remember president Trump's also a candidate and it's not would be not unsurprising for a candidate to have a reaction about look this is very very close U I don't believe that these results are are accurate and I'm determined to find proof that I'm right and you know I I I I guess the question is how far can you this is what I think a jury is going to have to evaluate as a matter of intent how far can you go in that um I understand you know maybe a jury will be able to easily dismiss certain people who were giving the president advice that the jury determines are not credible and that you know president Trump should have dismissed them but you know again it will be a reflection on the jury to take a reflection on Donald Trump's intent about you know what was it appropriate and and allowing for look in a criminal case that an defendant could still be wrong and could still be mistaken um and could even be exercising a serious error in judgment without actually falling into the Trap of being criminally uh iable and responsible for that conduct I mean I I understand those are all sort of gradations of degree and I think those are very hard calls and I think you know what you're going to see is I think those kinds of issues will be explored uh in a different context at a criminal trial through cross-examination that you have not yet seen before with regard to the experience of going through uh the January 6 committee I mean is it enough for him to to believe it in his heart of S I mean because just to give another example Bill bar the Attorney General of the United States has had the FBI has talked to us attorneys he has the entire apparatus of the doj he's announced he's going to investigate these claims he comes to the president he says we have looked into them the FBI has looked into them I have talked to the US attorneys you know there was not substantial fraud that would that would have changed the outcome of the election the other side he has he has Sydney Powell who I gather he has uh you know some testimony said he feels is like out there it might might be a little bit bit crazy I mean if he believes If he if he really believes her because he doesn't want to admit that he won and whether that's a psych I mean is that enough of a defense yeah I don't I don't think so in the extreme but I think to put it turn it around in another way I don't think I think the president would be well within its prerogative if the Attorney General says I don't find anything and the answer is no I don't think the president has to accept that like just with regard to anything else that the president receives the Secretary of Def defense says you know we should attack that doesn't mean that the president of the United States who ultimately is responsible for making that call goes out and attacks he he receives advice from all different quarters some of that advice is awful some of that advice is good there's a mixture of things um you get all kinds of advice you know part of the of being in the job is being able to separate out the advice that's nonsense from the advice that you actually have to listen to but ultimately it's it's the president's call again this is why we're in sort of a you know Never Never Land here um this is not your ordinary criminal defendant right your ordinary criminal defendants not the president of the United States entrusted with all of this executive power to make judgments about what he thinks is an appropriate course of action um we only entrust two people in the country um but through an election uh with that kind of power the president or you know as an alternative the Vice President should the president become incapacitated or um you know for whatever reason can't serve in office those are the only two people in our system that were elected by all the people of the United States nobody else that's it so you know when you put a president on trial um it it's going to come with all of those things built into the equation he doesn't have to agree with the attorney general maybe a lot of other people in the United States are bound by what the Attorney General says the president is not but is there a limit to the reasonable I think that's the right question and I don't have a clear answer for that I don't know the answer to that I do think that there is a limit to that I I don't know how far that extends I think that's going to be a very difficult question for the jury to struggle with and I think even in the first instance I think that's going to be a very difficult question for the district judge to struggle with in jury instru that are given to the jury to help them evaluate how to deal with that just what you're talking about just that kind of evidence I think there's got to be room my own view the American people will make their own judgment about whether I'm right or wrong about this I think there has to be a pretty wide birth for the president to have the ability to be wrong but it is not unlimited and where exactly that line Falls I I don't really know I I don't think anybody really knows we've never traveled this road before but the bar might be higher than it would be say a CEO in a white caller case where where an expert had told him something and and he says well I don't believe you know smoking is harmful or whatever you think that the president is do more uh leeway and I understand the counterargument the first thing someone's going to say in response to that well what you're saying then Mr Ray is that the president is above the law no that's not what I'm saying the president's not above of the law but the unique aspects of his office and the powers that He commands on consent and the will of the American people count for something and it means that you treat presidents differently than you would treat anybody else and if people say well that's not right and that's not fair and that's not consistent with the rule of law and that's not consistent with the principle that no person is above the law I guess my response is I mean I hate to say it but you know get over it okay that's just life that's the way it is that's our system the president has enormous power get over it okay and he's got to be able consistent with the duties of his office to be able to to operate generally speaking without a whole lot of constraints now he is constrained like we all are by the law but the law is applied to him you know it it can't be so honorous that the president's response to his attorney general or somebody providing him advice like like no Mr President there's no fraud it can't be well jeez I guess I must have to accept that at face value and just stand down that that can't be the answer now as to how far that extends out I grant you that it is not unlimited you know how far that goes I think is something again for a judge in the first instance through jury instructions and a jury to decide I mean and is it clear that all of this you mentioned that the what the the defense has filed is it clear that all of this is somehow part of the president's job or that that he do that deference as as the president when you know the prosecutors are saying this is outside of his I assume they're going to say this is outside of his realm as president he's trying to overturn an election and that's not part of the oath well I think they're going to try to make it you know entirely personal president Trump is acting the way he's acting not really as a as a president of the United States but entirely as Donald Trump the person who was after the prize which is reelection and will'll do anything legal or illegal in order to obtain it and I think you know a fair approach to this and I imagine one that the defense will present is take Donald Trump out of this suppose that there was a disputed election and suppose it was a member of his own party I mean you know whether Mike Pence or somebody else who was running for president and it was a disputed election and Donald Trump's the president of the United States you don't think he would have the authority and the discretion to wait into the election results to challenge them where he thought thought appropriate even if it was to the benefit of his candidate but not him not not Donald Trump himself you know the president has those Powers so how are you going to separate out that those the the pre the the perquisites of uh of the president as president you know as opposed to the president as Donald Trump the candidate for office for president and I think those are going to be things you have to tease out I I don't think it's true as the as the government May well present that this is just about Donald Trump as Donald Trump the individual not the president who is is is trying to capture the office of of President of the United States through illegal means the president has Authority and he would have that Authority even if he weren't the person who was the candidate to investigate and to look into election results even if they you know even if there's a self-interest there meaning that the candidate of his choice as the one of the candidates just not him so one other issue right so the beginning of this conspiracy as the government alleges it is actually who he's choosing as a lawyer right is to to choose Rudy Giuliani who is a co-conspirator according to to the indictment who is a C- defended in the Georgia case for the president and there's a number of lawyers who are involved in this along the way for part of the Criminal Case to be this decision to uh choose these lawyers to have them part of of the case as as listed as co-conspirators how do you analyze that as part of this the case against the president that that he took these lawyers he used them as part of a criminal conspiracy that he was leading is I think basically what the allegation is I suppose my first reaction well is it is it any surprise that the president would choose lawyers that um are are consistent with his view of things I I mean I I mean people make decisions about lawyers all the time it's not surprising that um the views of the lawyers often adopt the views of the client not always and you know lawyers have independent obligations to uh to play it straight and obviously not do anything that's you know contrary to the code of professional conduct and um the constraints of of the criminal law just like any other American um but on the other hand you know what what what what is um a reality of of the case that has been brought not necessarily by Jack Smith but you know Rudy Giuliani is a is a defendant in another criminal case so um the the fact is that um you know absent some kind of a decision to Grant Rudy Giuliani immunity you're not likely to hear from Rudy Giuliani as a witness at trial uh to defend either himself or to defend the president's conduct because he's likely to take the Fifth Amendment and the government is not likely to Grant him immunity which means that he is essentially precluded from being a witness so you're not going to hear from him and I think the same is true with regard to Sydney pal right you know if called as a witness what what would she do she'd have to take the Fifth Amendment absent a grant of immunity by the government and only the government can grant immunity she's not going to be a witness at trial because of of of the Fifth Amendment the jury is never going to of course know anything about any of that those witnesses will simply not be part of the government's case the statements the Pres the former president has made since you know he went on Meet the Press in September and was asked about this specific thing like why did you choose these lawyers over others and he's pushed sort of in a back and forth and he says you know basically I made up my mind you know on Election night and if you weren't with me you know you were a rhino or you were not somebody that that was to be trusted you those those statements from from him since going to be damaging I think they might uh be admissible the government may choose to offer them I I I think that's a decidedly dicey proposition I again I you know the president making a self-interested decision to choose certain lawyers I mean everybody picks in an Administration is is an exercise of a political judgment and and in in the president's self-interest I I don't I mean I I just think that's a extraordinarily naive view about things to think that that's going to be evidence of Criminal Intent I mean look maybe I'm wrong but I I just I don't find that to be overly persuasive I think you're going to have to prove you know on the merits that no reasonable person given these sets of choices would have accepted that advice even if it was offered as legal advice and I think that's an uphill climb I I think that's a difficult thing for the government to have to face I don't think that's a controversial view on my part it and again I'm not saying it can't be done and it's not something that the government can't overcome I just think it's difficult and so the the formal advice of council defense that says that Giuliani Eastman whoever else was telling him that these things were legal um do you think that that could be a successful defense for uh for the former president or is it a difficult one if they can't testify and they're not going to testify it I have just sort of thought through that I think that's yeah I mean I think you that's the issue that we're sort of pressing here is exactly how would he present that def defense you know in some sense the the the government has already had an impact in that regard by charging or naming or characterizing these lawyers as either indicted or unindicted co-conspirators um I I I don't imagine there could be a circumstance where any of those lawyers you know with the with their with the benefit of their own Council would voluntarily take the stand and testify as a a witness either for the defense or prosecution knowing what the potential ramifications could be I mean I think anybody in that circumstance would be well advised to take the Fifth Amendment and would follow that advice and that essentially takes those Witnesses off the table I mean defendants have argued in any number of cases that that grants an unfair Advantage uh for to the government because it can be seen as a tactical decision and I'm sure that you know that was something that the the prosecutors thought about but yeah under those circumstances I think it makes it difficult for the the president to present a an advice of uh Council defense at least in the usual sense one of the things that's very powerful if you read the January 6 report is they have a table and they say this is what the president was told this is what he said publicly and they go through all of the experts who say one thing and then the President says um says something else and it appears on his face to be a pretty powerful piece of evidence that he was told and that that he believed something else I mean maybe this is the question I ask before but but I mean is there if it was another defendant and they might be able to say he lived in his own reality this is something you hear about um the former president Trump that he's he's almost divorced from reality but he's also the president of the United States I mean can they make that argument that you know he was living in his own reality inside his own mind you can make that argument but if you do make that argument that comes with some risk too to the defense and that is it invites uh and the court would likely give a conscious avoidance instruction otherwise known as sort of a response to the ostrich defense well I don't I didn't accept any of that and I chose basically to stick my head in the sand and therefore the government you can't prove that I had Criminal Intent and the instruction that would be given conscious avoidance is that it it is not a defense for the defendant to essentially consciously avoid knowing or having criminal knowledge by essentially shutting out all information that comes in and disregarding it um you know ultimately it's for you to the jury to decide if the if a defendant did that that that could be itself evidence of Criminal Intent and so that's why I say it comes with some risk if if the defense travels down that road it is going to be met and and and likely uh will result in uh the district court giving a conscious avoidance instruction to the jury which again is a what what people in the trade refer to is an intent uh to avoid the intent defeater um you know you can't stick your head in the sand and and avoid ever having Criminal Intent if you do that that itself is evidence of the fact that you were avoiding what you knew to be the result which was uh a Criminal Intent in other words it's the same thing and that instruction is a very pro-government and very damaging um to a defense instruction but if if if if if the president's lawyers travel down that road and invite such a uh consideration of of of such a defense it will be met with an instruction that will counter it and that's the instruction The District Court would likely give and it's a pretty I have seen it in practice on on both sides it's a pretty powerful instruction yeah I mean and all of these defenses have to be weighed the fact they're happening in election year too you know yes so you it's hard to say the president is you know disconnected from reality right right and you know all those things again all that's fair game all the president's statements are are are fair game what which ones the the proc ution decides to introduce um you know those are big tactical uh decisions and and then how uh the the defense reacts to that and what if any evidence they put on um to counteract that um you know each move and each counter move uh has a certain effect in a trial and it also comes with with with various risks some of which you know you make decisions not to step into certain things because if you know you do um just like we discussed in the conscious avoidance area you know be careful what you ask for you might get it you travel down that road you're going to get this instruction so those are the kinds of things that will play out in a trial the First Amendment the indictment goes out of its way to say the the you know former president has rights under the first amendment can go to the courts can claim you know can can say whatever they want uh whatever he wants but then says in the indictment the defendants knowingly false statements were Ral to his criminal plans to defeat the government function to obstruct the certification you know how how strong is the argument for the defense it's not not a crime to lie well I I think it's huge for the this is a this is a central area of the president's defense he does have First Amendment rights and particularly as president and trying to turn words into criminal conduct is a very slippery Road for the prosecution under the First Amendment and in the event of a conviction I can guarantee you this this will be01 in the brief on appeal um this is a major issue um and it is in um as as the judge that I used to clerk for was fond of saying the first amendment is the first amendment for a reason that's why it's first okay um this one's a big one uh and I think you should you know watch for that I think it it should be big for a jury um it'll be interesting to see how the district court navigates around that through jury instructions about sort of what crosses over the line into criminal conduct my reaction when I read it in the indictment was okay that's nice that's a little too clever by half this is a you know this is a a major issue they have tried to draft around it understanding that is going to be a major defense and it's both a major defense at trial but even more importantly it's a major defense on appeal even in the event of a conviction this is one area where an appell Court could toss a conviction notwithstanding the fact that a jury found him guilty and that's a separate defense from the from whether you can prove intent or not correct even if you could prove intent there is a Zone under the First Amendment um that you know criminal uh Authority cannot enter and you know we have the exceptions about you know you can't scream fire in a theater um but you know the question is given what the president said uh and again it was a rather remember it was a rather one-sided approach significantly the committee of course played videotape about what the president was encouraging people to do and then left out the piece that said now you know I want you to go to the hill and be peaceful you know they didn't find that to be particularly persuasive and didn't think that those words really amounted in their judgment as as as a defeat to what it is he the president was asking or inviting people to do but I can tell you what that that will certainly be something that the defense will feature prominently at at trial and even again even in the event of um jury instructions that you know go to the jury and a jury finds that they they can find intent Beyond a reasonable doubt that still may run up against um the First Amendment and is an issue that I think will be uh I my I imagine that one will be litigated for some time on appeal again Uncharted Territory one of parts of the conspiracy the alleged conspiracy is pressure on local officials somebody like Rusty Bowers the speaker of Arizona gets a phone call from the president from Rudy juliani and they say we want you to convene a committee to justify you know as Bowers tells the story to justify convening the legislature to send its own electors or to invalidate the electors that were um that were in the process of being sent um from Arizona and and they say this is this is part of the conspiracy to obstruct the results of the election to deny the votes of of you know of Voters the rights of Voters um how do you analyze a moment like that I think this one's hard for me yeah I I I find this one difficult I've thought a great amount about this and I've also thought about it in the context of my own experience you know when a president asks something or somebody within the you know cloaked in the powers of the uh of the administration I mean I was I was thinking about this in connection with the FBI Files investigation and the travel office that in part involved conduct by Hillary Clinton on behalf of the administration to ask certain people to do things without a a direction to actually do them when a president or with cloaked with the authority of the president asks it's not like what any other American citizen you know can do there's an enormous amount of power behind that and getting into the question of when somebody asks you to do something is that an order how is that received should should you know Hillary Clinton or anybody else be criminally accountable for how somebody receives that different than you know anybody else I struggled greatly with those questions in connection with the Whitewater investigation and in this context you know obviously a little different um I you know I don't know where that lands exactly on the one hand I guess I take great comfort in the fact that all of these officials elected or appointed or otherwise take an oath to support and defend the Constitution of the United States if the president asks you to do something it's not asking you necessarily and shouldn't be viewed necessarily as an invitation to violate your oath to do something that you shouldn't be doing and I think about that in this context as well as the context of President Trump asking Mike Pence to do something you know it wasn't an order to do something it was you know this is what I want you to do or you know if and if you don't do it you know you're you're uh you know you're really not you're not you're a rhino and you're not you're not being loyal to this Administration can that in that context with regard to a president can that be deemed to be evidence of a criminal conspiracy and and and of Criminal Intent I'm not so sure about that you know I I think the the the ask doesn't necessarily assume that what you're that that assume the result you're asking it's almost implicit just like the government wants you to assume that in that ask you're asking somebody to engage in criminal conduct you know I I I think there's a fair argument to be made and I am assuming you're going to see it or hear about it at trial I'm making an ask of you and I'm asking you consistent with your oath in the office that you that you're in whether you can see your way to find 13,000 votes that I I don't consider that that statement um alone and I understand the government's going to try to provide context but that statement alone to me is not sufficient to prove uh guilty knowledge or guilty intent Beyond a reasonable doubt it just isn't and I guess one of the questions is who interprets what the oath is I mean Rusty Bower says literally says according to his testimony you are asking me to violate my oath and I will not do that and they go back to him repeatedly you know after that point right and but you know ultimately who's the guardian o o of the oath it's the person who is on the receiving end of that um you know of that uh invitation it's not a a direction it's not a you know I guess you can consider it maybe a command because it comes with the the power and authority of the president of the United States but ultimately we're all constitutional actors at least those who were appointed uh or elected to office and the only person who can keep their oath is the person who takes the oath um I I don't know that again asking somebody um to violate their oath is really going to be equivalent to without more and I'm not saying that they can't attempt to show more but I think in context if if that's all you have I don't find that to be sufficient I mean I've seen this defense suggested for the former president that that you're as a citizen you're allowed to petition your government and that's what he's doing but there's also this other defense which is he's the president of the United States and and if he believes he's you know securing the election that that's part of his job I mean do have to choose between those those two you know is he a private petitioner or is he the president of the United States calling Rusty Bowers well I I think this is difficult for the prosecution because I I think you know the prosecution doesn't have to exclude every potential wild hypothesis of of innocence and we'll even get an instruction to that effect but on the other hand you know the prosecution just can't present itself as this is Donald Trump exclusively acting in Donald Trump's interests I mean I know there's a sort of a great public sentiment behind in in in the public domain now uh that you know everything that Donald Trump does is all about Donald Trump and I think that's what you're going to likely hear from the government's presentation of this evidence but you know as I said suggested to you earlier um think about this in the context of it's not Donald Trump suppose it were another candidate for the presidency Donald Trump for example had served two terms and he's still the president and there's another candidate for office and it's a close election and the president has power and authority to go into Geor Georgia and and question the results you don't think he has the power to do that of course he has the power to do that absolutely now he can't engage in criminal conduct but to suggest that he doesn't have the power to inquire and press and press pretty hard again I think is is a ridiculous notion of course he has that power and juliani's um alleged statement to Bowers we've got lots of theories we just don't have any evidence the president is not on the phone call at that point but juliani is a considered a cocen speak can that be used against uh the president sure I mean statements of of of co-conspirators and furtherance of the conspiracy um are an exception to the hearsay rule doesn't require that um you know Rudy Giuliani be there and subject to to cross-examination those those statements um um you know can come in in the government's case as an exception to the hearsay Rule and they will be offered as such and there's a prima fascist showing that typically has to be made that the government is presented evidence from which a jury could rationally conclude that a conspiracy existence existed and that those statements were made in furtherance of the conspiracy so yes that I mean that's the drill that's why you know conspiracy charges are considered you know within the uh the the prosecutors uh What's the phrase um um it it I I can't remember what the phrase is but it it's meant to suggest that Pro ccors choose conspiracy charges for precisely that reason it allows them to get into evidence a lot of other a lot of evidence that would otherwise be excluded in November in December because like somebody like Rusty Bowers you know after after he's identified in tweets from the president people show up at his house militia people with guns there specific threats um at that same time in December 1st Gabriel Sterling in Georgia has a press conference that sort of goes viral where where he says you know Mr President you've got to stop the lies somebody's going to get hurt somebody's going to get killed and the the president retweets that clip of video um to say Georgia's elections or or a scam I mean it how is it possible to use something like that to say he's on notice for the fact that his words can can cause violence that that he's on notice for you know what his supporters might do sure um but you know on the other hand again evaluated in context there's all kinds of things that a president says given the fact that it what he says and and and what he does is captured and transmitted all over the country the president's not accountable for you know every single thing that that that happens and is a consequence of what it is he says it's not like you know any other you know ordinary situation or ordinary American um so I guess the answer your question is sure can that be introduced how persuasive will it be I think that's you know yet to be determined and how and how accountable you know is he for that again I think that also is for the same reason yet to be determined I don't think I don't think it's an open I guess my point is I don't think it's an open and shut question I don't think you can just draw a straight line and say well you know look he here they they told him and and and and and still he you know he persisted and look what happened yeah a lot of these people who he has phone calls with who he tweets against threats come in people show up at their house you know other things um it'd be pretty hard to draw a line between what these third parties are doing and what the president's saying well right and I you know again I I still think there's room I I've even said so publicly you know with regard to the whatever it was two and a half or three hour delay um you know with regard to January 6 and the and the riot and and and and the activities that took place at the capital frankly I found found that that that delay was was reprehensible and and a serious error and judgment on on the president's part I think you can have all of those criticism I mean Bill bar went even further to say that it was a betrayal of the president's office a statement I don't happen to agree with but even assuming that's so you know all of those things don't add up to and that means that the president um invited all of that and is criminally accountable for all that you know happened thereafter I I I think that is still a huge leap and I would suggest to you and to your viewers and should be a huge leap you know presidents and and and others should again have a wide birth uh to engage in conduct e even conduct that is reprehensible um that is that is um you know unfortunate um that is possibly even a betrayal of their oath uh which again would be subject to impeachment uh but is not necessar neily uh you know criminal and should result in a in a prosecution and a conviction uh that warrants a sentence of imprisonment I mean that's what we're talking I think people too easily forget about that um we have gotten we have grown used to in this country again for there to be a prosecutorial solution to every problem and I mean that's a notion that I reject I don't think that that's consistent with um the founders or or the way our constitutional structure is supposed to function and again I think if you travel down this road you're going to be sorely disappointed in the results that is not how best to hold people accountable again the the best way to hold people accountable is through the exercise of the right to vote that's the patient confidence that Lincoln is referring to in the ultimate Justice of the people I think this is unfortunate because it interferes with that accountability and the operation of of of of of of of an assessment of responsibility um in the political process and I think once we sort of cross over into that um you know land we're in A Brave New World and I'm not sure that's a world we really want to be in I don't think that this is healthy for the country in the Long View it it may address the issues in the short term about you know president Trump and what is to become of him and what's going to happen to him in this election but I I overall don't think this is good for the country I mean I take your point I I think the other side would say the alleged crime here is is to interfere with that vote right within what what Abraham Lincoln was saying was was the ultimate check and that's why it's so serious I hear that and you know I I guess in the in the broad context though I sort of Might my two respons is about the best solution to a lot of problems including the current environment we're in where we can't even elect a speaker of the house is if you want to solve a lot of these problems including election interference and all the rest the best Sol and and also from the president's perspective allegations of fraud what's the best solution to all those problems elect a congress where it's clear who the majority is not within four or eight votes if you don't like um these kinds of activities with regard to individual states and close elections what's the solution to that elect a candidate you know not necessarily in a landslide but at least convincingly enough that it doesn't make any difference you know in an election in which there's a clear Victor does it make any difference whether or not there was fraud in Georgia answer no I mean that's the fastest practical solution to this problem so you mentioned the raffensberger phone call and when we have talked to people you know they they point to that as as one of the biggest pieces of evidence because you can hear the president you can hear him dismiss the evidence that that rensberger and his lawyer are offering rensberger says that he Trump mentions potential criminal charges which rensberger interprets as a threat to him and of course there's the famous quote that you you mentioned 11,780 votes do you do you find that evidence to be as damning as some of the people we've we've talked to well you know understand that I'm not the Arbiter of this and it's ultimately for a a fair-minded jury to make a call that look I can see the argument on both sides I I do think that it has been from the outset incredibly overstated in my own judgment you know take my word for it you know don't take my word for it that's fine I I don't find finding votes to be the equivalent of find me votes whether legally or illegally to be the same thing I mean I I just think it it's one of those statements that you'd make to say look you know this is a close it's another way of saying this is a close election there's only 11,000 plus votes that separate us there's got to be evidence of fraud out there sufficient to to to recapture that many number of votes I will just tell you parenthetically 11,000 votes even in a closely contested election in order to be able to discount discount that amount that number of votes is very hard to do what's the best evidence of that the the bush Gore election in in 2000 you know 11,000 votes is is still a lot of votes you're not going to be able to disqualify that number of votes out there in order to change the result in the election even if you could prove fraud it's that's just very difficult to imagine and certainly difficult to imagine that you could do it within the space of two months you know that you're going to capture that amount of evidence to be able to persuade somebody that they should throw out you know close to 12,000 votes right so I I I think that that's unrealistic but I I don't find that statement to be the equivalent of asking somebody to do something illegal and the statement about you know this could be a crime you guys could be in in trouble here well that that comes with it sort of an implicit threat right but that to me is another way of saying I'm I'm asking you to press forward and if you don't there are consequences and so I'm really laying it on thick and so you know the prosecution's presentation of that is that in effect Donald Trump was asking this person with the application of of direct pressure uh to to violate their oath and again my response to that is is that's why you take an oath but when the heat turns up you you will not violate your oath that's in fact um you know what Mike Pence faced is the fact that Donald Trump asked him to do that is is that criminal um again I think you got to be really careful there I I don't think that's something you want to make criminal or at least you know on its own the the mere ask to say you know I want you to not certify the results and you know Mike Pence's response to that was well I got legal advice I consulted with my lawyers and I determined that I did not have that Authority consistent with the law and my oath to the Constitution of the United States and that's what he should have done one of the most confusing but seems like a central part of it is is the alleged conspiracy to organize fraudulent electors and the indictment says that they have memos that say you know these are not just backup electors that they're that they want to use them to go to Congress on January 6 to invalidate um what the prosecution calls you know legitimate electors is that scheme a crime I again I not to put too fine a point on it the jury's still out on that you know I I don't think there's any in and of itself there's nothing wrong with having a slate of electors um you know electors aren't really electors until you have a a legitimate basis to put them forward um I I guess that's going to where the rubber meets the road in the prosecution's case you put a you know a slate of electors together and you really didn't have a legitimate basis to put them forward therefore they're they sham electors and I think um you know we have instances in our history where in in close elections in in in particular uh States even at the presidential level where you know candidates have uh have moved forward with with alternate um slates I think including the election in 1960 with John Kennedy and and Richard Nixon so I I mean again I think this is an area where be careful about trying to suggest that that act alone is sufficient to uh draw a conclusion that that was uh you know criminal conduct and criminal mischief I I don't really think um that should be the case and I think there's you obviously good reason why why why it shouldn't be the case but if they can prove you know the internal memo say this is really to create a pretext for January 6 you know they claim they say that there's evidence that they're misleading those people who are signing those documents yeah I mean I tell them that it's only a backup when it's not that's not what the plan is the theoretically right if they've got that evidence that every that they all understood that it was a pretext that there wasn't going to be any way to to to show uh fraud sufficient to Warrant an alternate slate of Elections and that they were just putting this forward in order to you know create an impediment and a roadblock to the certification of of the election results yes theoretically um you know that still wouldn't be a bar to being able to prove uh Criminal Intent I'm just suggesting to you that it is not quite as clean and simple as that and again understand we go back to sort of the original point we were we started with remember that you know all this is what the government suggests that it has what happens when those people actually are called in and are subject to cross-examination and you know and it's going to have to be the kind of testimony where it sort of excludes the possibility you know uh with a virtual certainty that there couldn't have been a path through which an alternate slate of electors would have been appropriate and if they can do that you know more power to them that you know that that that might well be suff Pro sufficient um you know in this area to prove that the charge beond a reasonable down but I I don't I don't think it's going to be clean or simple I think that's going to be another one that's difficult and again the the jury's still out on that one well you know yet to be determined I mean another suggested defense has been that you can't make a a wrong interpretation of the law criminal and that they believe that legislates can revoke you know dutly elected electors that they believe that the Congress can choose whoever they want no matter how legitimate they may be I mean is that really a defense I think it's a defense to a degree right you know I mean you know again you can imagine in the extreme if if if essentially it's it's can't be viewed as anything other than a pretext then it's not not much of a defense exploring though where between it's absolutely a pretext and wait a minute it's a disputed election it's close provisional um actions are taken yes it relies on other people to follow their oath and make judgments about whether or not these are legitimate electors or not but the mere fact of putting it forward and the mere fact that they might have been wrong in making that calculated judgment shouldn't necessarily or inevitably lead to criminal charges do I think there's still space in that area yeah I do I I I think there's still space in that area to say we may even have been wrong and we may have even made an error in judgment and we may even have been wrong on the law but that doesn't mean that we are criminally responsible for uh for the results and the mere fact that we placed it and put it Forward I mean I guess if you're the prosecution you're saying too is is we didn't just put them forward right we pressured the vice president to accept them we did all of these other actions you know uh it wouldn't be surprising to think that in in a hotly contested election that you know pressure is applied we don't think that happened in other elections that were disputed um of course it did May you know maybe not to the same degree that we've now been able to expose here but um you know there's a lot writing on this this is not just any old election this is the presidency of the United States and it comes down to a very few number of states and it's close um you you it would not have been surprising to have had an election challenge it would not be surprising to have had that election challenge continue up to and including uh January 6 where you know it's the point of no return part of the ledge conspiracy um the pressure on the Department of Justice that the acting Attorney General Jeffrey Rosen and the deputy attacking attorney general Richard Donahue push back say you know we're not finding the fraud we're not going to you know sign this letter from from Jeffrey Clark say at one point apparently um Donnie he writes down the President says to them just say the election was corrupt and leave the rest to me and the Republican Congressman after he'd been told that that there was no fraud in the election can that be part of the crime that the prosecution can prove look any anything and everything is is is evidence that can be presented that may well um be accepted or Not by a jury as part of the crime um I look I think that's a very unfortunate statement on the on the president's part but you know it wouldn't be the first time that a president you know said something take it out of this context and just put it into the context of the president's ordinary responsibilities I hear what you're saying about you know legal schmegle but you know this is the course I want to take and let the legal stuff catch up to it um it wouldn't be the first time that a president made a a a conscious decision to reject advice um from his legal advisers including the his White House Council or the Department of Justice that says you know you're going to face a challenge that this the action or the course that you're going to take is not going to be considered to be legal by some and a president's reaction you know to that being akin to this let me worry about that I I'll let me do what I need to do you do what you need to do um you know tell them you're looking into it let me worry about the legal stuff um again is is that evidence of of criminal misconduct could be could be but um you know sorting that out be before a fair-minded jury assuming that there's a fair-minded jury is I I think another question but it is is it conceivable that with the right evidence that it is possible to say pressure on the president's own Department of Justice could be part of a could be part of a crime of course and that you know in the in the exercise of prosecutorial discretion Jack Smith has made that judgment that that has crossed over the line and in fact you know even his indictment seems to sort of concede the possibility about a lot of this conduct to a degree is you might even say an error in judgment or reprehensible or you know some negative connotation but not necessarily criminal And he concedes as much but he's now going to have to prove you know that okay conceding that much I'm going to have to prove that the president went over that line whatever that line is they get access to John Eastman's memos at the January 6 committee and and the judge uses a crime fraud exception to do it what do you think of that moment of of that decision that's significant in a case because otherwise those materials would be privileged likely um the only real recognized exception to overcome it would be that it was advice rendered in connection with a crime and the crime fraud exception applies and therefore that that material um will uh in all likelihood come into evidence I mean there may be other objections that I'm not you know appreciating at the moment but it obviously is a significant piece area of of evidence uh and that was a significant moment in the investigation no question about that why because it because it gives you a window on intent you're getting you're getting people's contemporaneous uh Recollections and understanding about what people including the president were thinking at the time which is obviously something that's very important for a prosecutor to have in order to persuade a jury why the president's action were consistent with Criminal Intent as opposed to an innocent reason and they become pretty Central to this whole to to understanding as you say these memos there's a series of of John Eastman memos where his thinking evolves over time and he goes from saying you know the president can't just reject them to to writing memos where he says that the vice president has the power to to reject or decide which electors of his own want to to accept assume you've read the memos or or or read about them what what do they add to the case or what's the the challenge of them I think you probably can expect to hear from the defense at least in part on that if it were so if it was so clear um why did the vice president need to seek legal advice about it first second if it was so clear why did Congress see fit thereafter to change um The Electoral act um to make it clear for the future that the vi vice president's actions in that regard are entirely purely ministerial um I think that again I understand where it's with the benefit now of 2020 hindsight everybody wants to say well this was an absolutely clear decision it didn't require anybody to think twice about it and the vice president doesn't have that Authority and he doesn't have the Constitutional ability to do anything other than to just simply determine that there are certifications that come from the respective States and to submit to the them to the Congress for that reason and to approve them um but but again I think Scholars have long recogniz legal Scholars constitutional Scholars have long recognize that those provisions of the Constitution and the corresponding provisions of the um the Electoral act uh were not as clear as they they could or should be and I do think in that area there is room for for the defense to um to to exploit and to and to operate I mean it seems like a technicality right the idea of the vice president could you know even if there was a loophole in the law it seems like that's what what it is but but if it is a loophole and it is a potential technicality that could be you know possibly Justified then that might be enough for a defense even though it's disenfranchising the voters yeah but that's a political judgment right I mean that that's the political process that's why we have elections and in order to sort out we don't sort those things out um with the benefit of hindsight that's we have exposed facto Provisions in the Constitution that make it uh unconstitutional to charge somebody with sort of a roving offense that changes you know based upon what you think now as opposed to what was in effect at the time that the defendant allegedly committed the act right so you know it's it's decidedly unfair and inconsistent with due process to be you know trying to sort through and make those judgments and say that the criminal law should stick to them if for example in this case I think you're going to hear evidence from the defendants the president's lawyers uh to the effect that Mike Pence didn't know on his own that's why he consulted with uh judge ludig and I think uh further uh why the Congress decided that if it wasn't clear with regard to what the intention of this act was consistent with the Constitution that the vice president's Duties are um are are you know purely ministerial um that um you know you need to say so I mean you know there's a counterarguments like he's the vice president of the United States he's the president of the Senate he's obviously entrusted with constitutional Authority I don't think it was an accident of the framers to entrust the vice president the only other elected official by all the people in the country to make a determination about certifying electors that deter the presidency with the only other alternative being throwing the election into the House of Representatives I think you could still make a plausible case as apparently Eastman did you may not find it to be persuasive but I think you can make a plausible case that the Pres the Vice President in that circumstance as the president of the Senate has some inherent constitutional authority to reject and if if and if you didn't think that that was the case then um the Constitution vests the the congress with the authority through legisl to clear up the ambiguity which they subsequently did and in that subsequently uh clearing clearing of the ambiguity the there is room for a defense to say well if it was so clear how come the Congress had to change the law and you're you can't stick me with a a violation of the criminal law by asking uh the vice president to do something about which there is some constitutional and statutory ambiguity we haven't heard from Pence we've seen little glimpses of it inside the indictment we've heard from his advisers we've heard from people around him how important I mean if he testifies at the trial could his testimony be I mean it's a presid said you know you're too honest at one point um I mean how how important could could Pence's testimony be I think it could be important um I I think if if he's called I think it will be important I don't think you should assume that he's going to throw former president Trump under the bus either I mean I you know I think he's been clear in his book and otherwise about what he thought his obligations were but if you start getting into the question about whether or not you know I don't know whether this would be admissible at trial but I mean I think the gist of your question is you know what does Mike Pence really think about whether or not Donald Trump acted unlawfully um the government won't be able to ask that that question directly but there'll be ways if if he were a witness at trial that they'll sort of cover that territory I I wouldn't necessarily assume that that Mike Pence is going to be a favorable witness for the prosecution and just so it's clear in a not in a political context because he has basically thrown the Pres the former president under the bus in a political cont I'm talking about in a in a criminal context with Mike Pence under oath which I know he takes very seriously at a criminal trial to testify truthfully you know the oath that that that every witness takes do you do you do you um do you swear that the testimony that you were about to give is the truth the whole truth and nothing but the truth shall help you God I can tell you that Mike Pence takes that oath seriously and that he will tell the truth on that thing I I don't actually know what Mike Pence would say as we get to January 6 um you talked about the speech I mean I think that the case the January 6 committee would make and that prosecutors will probably make because the president was told that there were weapons in the crowd he had said before internally that he wanted to go with uh with the protesters of the capital that it wasn't a spur of the- moment statement that he knew that Mike Pence had said that he wasn't going to go along and yet he goes out and he gives the speech and he does use the word peacefully but he also says fight like hell and he says fight um repeatedly and they allege in the indictment that he was sending a large and Angry Crowd towards the capital that he knew was a large and Angry Cloud and that the intent of it was to fight fight like hell is a political euphemism I I think again trying to turn that into um quote unquote fighting words equivalent to shouting fire in a the uh theater uh is a is a pretty huge leap particularly in light of the president's disclaimer that um that the the protest should be peaceful I I I I mean I honestly think this one to me is the most problematic and you want to turn that one into a crime I I I think that is a decidedly bad idea I I just do um and I I think it has a major First Amendment problem um and I think that um you know my my view as a prosecutor would be I'd have trouble bringing that charge because the prosecutor's obligation is to bring a charge in which the prosecutor believes not just that there's probable cause to return an indictment but a goodfaith belief that a fair-minded jury would convict on that charge and that that that prosecution um would be sustainable under existing law including on on appeal and I do not find that charge to be sustainable irrespective of whether a jury could return a verdict on it I do not find that charge to be sustainable on appeal for First Amendment reasons I I just that that's a bad idea you don't like what happened there about what the president said remove him from Office okay don't elect him president of the United States ever again that that's the solution to that one now do I understand that there's you know it's a it's a matter of degree I mean you don't have to actually have a loaded weapon to be able to say you know you should have known better that if you said certain things it was going to lead to direct act of violence I I think it's a real reach though to to suggest based upon at least the the facts that as I know them under the circumstances in which they were given to hold the president to account for what happened about people you know um trespassing on the capital and breaking windows and going in um in in a what people have characterized as a um a violent you know deadly protest I I I think um I I don't think that's an area that is is suited to the application of the criminal law and I think it has a major constitutional problem including the first amendment I had meant to ask you and I didn't and you probably say the same thing about the tweet that he sends in December saying you know will be wild come to Washington again that's why there's a First Amendment you're you're given a big amount of latitude to say a lot of wild and crazy even stupid things without having to worry about somebody afterwards deciding that you should be sent to jail for it and the the specific thing I think they would say is he said you know go to the capital I will be there with you which he wasn't right which which he wasn't the evidence is maybe he tried to go and he wasn't able to but but that that was not just riling them up that that was an action directing the crowd towards towards the capital I mean do you really think that was well I mean that's the argument they're going to make do you really think that was directing them to do those all those acts I I I I think that's a stretch I don't think they're going to be able to present evidence that would be able to make that um stick uh Beyond A Reasonable Doubt uh again I think there should be room under the First Amendment and otherwise for the president to say an awful lot without having to tag him with a criminal offense um you know and that's separate and apart from whether or not he's covered by you know immunity um it's just simply the zone that the the first amendment protects and I think trying to immediately draw the conclusion um you know that uh we're going to go to the capital and raise hell um and and fight like hell that that's the same thing as you know pinning the tail on the donkey I don't think that that it's the same no and I think it's it's particularly problematic even in the political process for the committee to sort of travel down that road and intentionally exclude what the president said that they shouldn't do that it should be a peaceful protest I you know to me um I I'm not even sure well I think it's a Clos call and I I don't have any doubt about what this judge is going to do but I would have a hard time I think or at least I would be contemplating whether or not I even allow a jury to hear that once the government's evidence is I and I I might change my view based upon what other evidence the government develops but I think there'd be a serious question if the uh defense makes a motion um that uh at the end at the close of the government's case that no rational jury could convict vict the defendant on that charge I I think I might get some serious consideration of saying you know what you're right that doesn't go to the jury so as we come to the the end of the story to the end of this interview too I just want to ask you a couple things about where we are now and the first is Jack Smith I don't know if you know him or know about who he is you do know you didn't have exactly the same job but a similar job what position is he in and how are you evaluate you know how he's operating it's a very difficult position to be in he's entrusted with the authority of of of of trying to prosecute a a former president who happens to be a candidate in this election cycle and to be able to pull that off consistent with public sentiment to have people walk away from this on both sides after the process plays out believing that the process was fair I I I mean right now if we had to make an evaluation as we sit here in the moment I think you have about half the country that thinks has already concluded that that that process is not fair and that's that's not a an enviable uh position to be in I mean what you hope as a prosecutor given the powers that you're entrusted with is that on a bipartisan nonpartisan basis people will come to accept your judgments and decisions about bringing and Prosecuting a case as as as being fundamentally consistent wi with the Constitution and our system of justice which is equal justice under law and without favor um or or Prejudice to any person I think about half the country right now doesn't believe that that's not a good result no matter what the actual results are in the courtroom that to me is troubling and disheartening whatever your views whether in favor of of former president Trump or or not in favor of former president Trump that is not a happy place for the country to be
