YOU AND BUGGING YOU THE WHOLE TIME. DAVID: THANKS. ELIZABETH: THANK YOU SO MUCH, DAVID. LET'S GET RIGHT AT IT. WE WELCOME FORMER DEPUTY INDEPENDENT COUNSEL SOL WISENBERG, ALSO FORMER ASSISTANT U.S. ATTORNEY ANDREW McCARTHY. THANK YOU SO MUCH, GENTLEMEN, BOTH OF YOU, FOR ALL OF YOUR HELP IN THIS COVERAGE. SOL, WHAT DO YOU THINK OF THE MERITS OF THE TRUMP INDICTMENT IN THERE'S PROLOTS OF TALK ABOUT GOVERNMENT -- THERE'S LOTS OF TALK ABOUT GOVERNMENT ABUSE OF POWER. WHAT DO YOU MAKE OF IT NOW, SOL? >> WELL, EVEN PEOPLE WHO ARE ANTI-FORMER PRESIDENT TRUMP AND HAVE BEEN CLAMORING FOR AN INDICTMENT TALK ABOUT AND RECOGNIZE THE, QUOTE, NOVEL APPROACH OF A LOT OF THESE CHARGES. THEY HAVE THE, THEY POSE THE THREAT OF CRIMINALIZING A TREMENDOUS AMOUNT OF PROTECTED FREE SPEECH ACTIVITY. AND KEEP THIS IN MIND. WHEN YOU PROSECUTE SOMEBODY BASED ON A MICROSOFT E APPROACH IN THE LAW -- NOVEL APPROACH IN THE LAW, YOU RUN THE RISK THAT EVEN IF YOUR INTERPRETATION OF THE LAW IS ULTIMATELY UPHELD, THERE'S A DUE PROCESS PROBLEM BECAUSE THE DEFENDANT HASN'T RECEIVED NOTICE THAT WHAT HE OR SHE IS DOING IS EVEN CRIMINAL. ELIZABETH: THAT'S IT. WHAT SOL JUST SAID, YEAH. SO THERE'S A DUE PROCESS VIOLATION OF THE CONSTITUTION, IS THAT WHAT YOU'RE SAYING, SO TO L? >> THERE IS A POTENTIAL DUE PROCESS PROBLEM IN USING A NOVEL APPROACH THAT NO CRIMINAL DEFENDANT COULD HAVE EVER BEEN T ON NOTICE ABOUT. ELIZABETH: GOT IT. ANDREW McCARTHY, LET'S BRING HIM IN. PROSECUTORS ALONG WITH WHAT SOL IS SAYING, THEY'RE GOING TO HAVE TO PROVE BEYOND A REASONABLE DOUBT THAT TRUMP HAD CORRUPT INTENT SAYING THE ELECTION WAS STOLEN, BUT WHERE'S THE SMOKING GUN AUDIOTAPE OF TRUMP SAYING I KNOW I LOST, BUT WE'VE GOT TO GO AHEAD AND DO IN ANYWAY? >> YEAH. WELL, I THINK, LIZ, I WOULD HOP ON TO SOL'S POINT, BECAUSE I THINK ALL THE STUFF ABOUT TRUMP'S INTENT IS VERY INTERESTING. WHAT'S IN THE INDICTMENT IS SMITH'S VERSION OF WHAT TRUMP WAS TOLD BY PEOPLE THAT SMITH THINKS WERE AUTHORITATIVE WHICH MEANS THAT IF IT COMES TO IT, TRUMP IS GOING TO BRING IN THE HUNDRED PEOPLE WHO WERE TELLING HIM SOMETHING ELSE AND MAKE THE SAME ARGUMENT THAT, YOU KNOW, YOU COULD DEDUCE HIS MINDSET FROM THAT AS WELL. BUT TO ME, YOU DON'T EVEN GET TO THE QUESTION OF CRIMINAL INTENT UNLESS WHAT THEY'VE CHARGED IS ACTUALLY A CRIME. AND, YOU KNOW, SOL JUST MENTIONED PUTTING THE DEFENDANT ON NOTICE OF WHAT'S CHARGED. MY -- I HAVE A SLIGHTLY DIFFERENT TAKE ON IT. WHAT I THINK IS THAT THEY'RE CHARGING SOMETHING THAT'S NOT ACTUALLY A CRIME ON THE FACT PATTERN THAT'S HERE. SO, FOR EXAMPLE, IF I'M RIGHT THAT THE IN FEDERAL LAW FRAUD MEANS A DECEPTIVE SCHEME TO BILK SOMEBODY OUT OF MONEY OR PROPERTY, THEN THE GOVERNMENT'S NOT AT LIBERTY TO STRETCH THAT INTO, YOU KNOW, CRIMINALIZING SOMEBODY'S IDEA OF WHAT GOOD GOVERNMENT LOOKS LIKE. ELIZABETH: WHAT DO YOU MAKE OF THAT, SOL? WHAT ANDREW JUST SAID E? >> OH, I AGREE. THERE'S A WHOLE SEPARATE PROBLEM, THERE'S A HUGE STATUTORY REACH IN THIS INDICTMENT. AND LIKE I SAID, THERE'S A CONSTITUTIONAL PROBLEM OF TAKING WHAT LOOKS LIKE PROTECTED SPEECH AND TURNING IT INTO A CRIME. NOW, HE SAYS IN THE INDICTMENT -- WELL, OF COURSE HE'S GOT A CONSTITUTIONAL RIGHT, FORMER PRESIDENT TRUMP, TO LIE. BUT APPARENTLY NOT IF HE DOES IT IN A PARTICULAR WAY THAT JACK SMITH HAS CHARGE. AND I THINK, I THINK THERE'S JUST A NUMBER OF PROBLEMS WITH THIS, AND HE'S THROWING A BUNCH OF THINGS ON THE WALL AND HOPING THAT ONE OF THEM STICKS. AND I THINK EVERYBODY SHOULD BE WORRIED. THERE'S A GREAT OP-ED PIECE BY KIM STRASSEL IN THE JOURNAL TODAY, "WALL STREET JOURNAL," THAT GIVES SEVERAL EXAMPLES OF POLITICAL EPISODES WE'RE AWARE OF THAT UNDER THE THEORY OF THIS INDICTMENT YOU COULD PROSECUTE SOMEBODY. WHEN PRESIDENT OBAMA -- WHEN PRESIDENT BIDEN CANCELED STUDENT DEBT AFTER SAYING A YEAR BEFORE THAT HE DIDN'T HAVE THE POWER TO DO THAT, ARE YOU GOING TO CALL HIS ADVISERS IN, INDICT HIM AND CALL HIS ADVISERS IN AND HAVE THEM SAY, WELL, WE TOLD HIM IT'S ILLEGAL FOR HIM TO DO IT? I MEAN, THE IMPLICATIONS OF THIS INDICTMENT ARE ENORMOUS FOR PROTECTED SPEECH. ELIZABETH: YEAH. SO, WHAT SOL AND ANDREW, WHAT YOU'RE BOTH SAYING, THIS FEELS LIKE A STRETCH. AND OREGON HOW THEY'RE GOING TO DO A SPEEDY TRIAL BEFORE 2024 GIVEN THE RAMIFICATIONS CAN CONSEQUENCES OF SERIOUS QUESTIONS YOU BOTH ARE RAISING. MINE, LOTS OF CRITICS AND WATCHDOGS SAY THE TRUMP INDICTMENT, IT'S JUST THE LATEST IN A 6-YEAR TRACK RECORD OF DEMOCRAT ABUSES OF GOVERNMENT POWER. IMPEACH TRUMP JUST MONTHS AFTER HE TOOK OFFICE, DEMOCRATS FUNDING AND IGNITING TRUMP-RUSSIA, THE HUNTER BIDEN LAPTOP COFFER-UP, DOJ OFFICIALS STONEWALLING ROBES INTO HUNTER BIDEN AND THE PLEA DEAL GIVING HIM BLANKET IMMUNITY FOR FUTURE CRIMES. ANDREW, HOW ARE THEY GOING TO DO A SPEEDY TRIAL BEFORE THE 2024 ELECTION? THIS INDICTMENT LITERALLY LISTS ELECTION ISSUES IN AT LEAST SEVEN STATES. >> YEAH. AND, OBVIOUSLY, WHAT THEY'RE TRYING TO DO IS PUSH IT, THE WHOLE POINT IS TO LITIGATE THE DAYS CASE CLOSE TO THE TIME OF THE ELECTION. BUT I THINK, LIZ, THEY'VE PUT THEMSELVES IN A REAL BOX HERE. IF YOU'RE MYTH AND YOU REALLY WANT TO GET -- SMITH AND YOU REALLY WANT TO GET THIS CASE TO TRIAL, YOU INDICT THIS ONE FIRST. SO WHAT HE'S DONE IS HE INDICTED THE MAR-A-LAGO CASE FIRST. HE GOT A JUDGE TO SET A MAY TRIAL DATE BECAUSE HE'S HAMMERING FOR A TRIAL IN THAT CASE TOO. AND IS NOW HE'S GOING TO TRY TO PUSH ANOTHER JUDGE IN A JURISDICTION FAR AWAY TO SET A TRIAL DATE IN THIS AS WELL. AND I THINK NO MATTER HOW UNFAVORABLE THE COURT MAY SEEM, I THINK TRUMP HAS A POWERFUL DUE PROCESS ARGUMENT THAT HE'S BEING DEPRIVED WHAT EVERY DEFENDANT IS ENTITLED TO, WHICH IS THE RIGHT TO MOUNT A DEFENSE. WHEN IS HE SUPPOSED TO GET READY FOR TRIAL? WHEN IS HE SUPPOSED TO INVESTIGATE THIS CASE IF HE'S IN FLORIDA? ELIZABETH: THAT'S A GOOD POINT. SOL, TAKE THIS ON, THE FIGHT OVER THE CHARGE THAT TRUMP PUSHED A SLATE OF ELECTORS IN SEVEN BATTLEGROUND STATES, THE SPECIAL COUNSEL'S SAYING THESE WERE FAKE ELECTORS. PENCE SAID TRUMP AND HIS LAWYERS ASKED PENCE TO RETURN THE VOTE BACK TO THE STATES OR LITERALLY REJECT VOTES. TRUMP'S LAWYERS SAYING, NO, TRUMP ASKED THAT THE STATES COULD EITHER AUDIT OR RECERTIFY WHETHER THE VOTE COUNT WAS CORRECT AND PUT FORWARD THEIR SLATE OF ELECTORS. WHAT DO YOU MAKE OF THIS CHARGE, SOL? >> WELL, LIKE A LOT OF THINGS IN THE INDICTMENT EVEN ASSUMING THAT IT'S A CRIME, YOU COULD HAVE CHARGED IT MUCH MORE NARROWLY. I WOULD HAVE EXPECTED TO SEE SOME COUNTS UNDER 18USC1001 IS, THE MARTHA STEWART OR STATUTE OF LYING TO THE GOVERNMENT. PART OF MY PROBLEM WITH THIS INDICTMENT IS IT'S THE BREADTH, THE INTERFERING WITH GOVERNMENT FUNCTIONS, YOU KNOW? IT'S VERY SIMILAR TO OTHER THINGS THAT HE HAS CHARGED, THAT JACK SMITH CHARGED GOVERNOR McDONALD WITH IN VIRGINIA, AND THE SUPREME COURT JUST SAID IT'S WAY TOO BROAD. SO I'VE GOT A PROBLEM WITH ALL OF IT. I DON'T APPROVE IN ANY WAY OF WHAT FORMER PRESIDENT TRUMP DID LEADING UP TO JANUARY 6THON JANUARY 6TH. BUT I ALSO AGREE WITH ANDY, ABSOLUTELY, HE'S NOW GOING TO BE INDICTED -- HE'S INDICTED ALREADY IN THIS THREE DIFFERENT CASES, IN THREE DIFFERENT PARTS OF THE COUNTRY, AND HE HAS AN ABSOLUTE RIGHT TO PREPARE FOR TRIAL. I DON'T THINK, I DON'T THINK ANY OF THESE CASES ARE GOING TO TRIAL BEFORE THE ELECTION. ELIZABETH: THAT'S AN INTERESTING CALL, WHAT SOL JUST SAID, ANDREW. AND THERE'S ALSO THIS, ANDY. IS THIS JUST A COINCIDENCE, THE TIMELINE OF THE BIDEN SCANDALS AND THE SHOES THAT ARE DROPPING IN THOSE SCANDALS AND THEN THE TRUMP INDICTMENTS COMING RIGHT WHEN THE BIDEN CORRUPTION CONTROVERSIES ERUPT. AND NOW ALSO DEMOCRATS TRYING TO CLAIM THE PROSECUTION OF TRUMP IS ALL ABOUT THE LAW, THAT IT HAS NOTHING TO DO WITH THEIR 7-YEAR PUSH TO GO OF AFTER TRUMP. WHAT DO YOU THINK OF ALL OF THIS, ANDY? >> YEAH,ING I THINK, LIZ, THAT THAT IT WOULD BE EASIER FOR THEM TO ARGUE THAT THIS WAS JUST HANEN STANCE AND COINCIDENCE -- HAPPENSTANCE AND COINCIDENCE IF IT WASN'T SO BLATANTLY POLITICAL. SO, FOR EXAMPLE, JACK SMITH'S EXISTENCE AS A SPECIAL COUNSEL IS POLITICAL. THERE'S NO CONFLICT OF INTEREST BETWEEN THE BIDEN JUSTICE DEPARTMENT AND FORMER PRESIDENT TRUMP. IN FACT, THEY WERE INVESTIGATING TRUMP FOR 18 MONTHS BEFORE THEY NAMED, BEFORE GARLAND NAMED SMITH AS A SPECIAL COUNSEL. IF THERE IS A PROPROFOUND CONFLICT OF INTEREST WITH THE BIDEN JUSTICE DEPARTMENT SUPPOSEDLY INVESTIGATING THE BIDEN FAMILY, BUT THERE'S NO SPECIAL COUNSEL THERE. SO HE BROUGHT SMITH IN ORDER TO SET UP THE THE FICTION THAT SMITH9 IS LIKE THIS INDEPENDENT ACTOR AND BIDEN AND GARLAND DON'T HAVE ANYTHING TO DO WITH THE CASE. AND THEN WHEN SMITH BRINGS THE INDICTMENT THAT THEY FULLY EXPECTED HE WOULD BRING ALL ALONG, HE GIVES A PRESS CONFERENCE THE OTHER DAY WHERE HE SPEAKS FOR THREE MINUTES, AND TWO AND A HALF OF THE THREE MINUTES WERE ABOUT THE CAPITOL RIOT WHICH IS NOT CHARGED IN THE INDICTMENT. LET'S ELIZABETH YEAH, THAT'S WHY WOULD STUFF. YEAH. THERE'S NO SEDITIOUS CONSPIRACY CHARGE OR INCITEMENT TO INSURRECTION CHARGES AT ALL IN THE INDICTMENT. THAT'S THE IMPORTANT POINT YOU JUST MADE, ANDREW McCARTHY. AND, SOL, YO
