[00:00:00] Speaker A: Thank you for being here today. I'm Scott Schiff with the Atlas Society. We're very pleased to have Atlas Society senior scholar professor Richard Salzman today talking about legal subjectivism versus Donald Trump.
And after Richard's opening remarks, we'll take questions from you. So if you want to request to speak, we'll try to get to as many of you as possible.
Richard, bold topic.
[00:00:26] Speaker B: Thanks, Scott, and thanks for hosting. And thanks, everyone, for joining. I wrote on May 30 when Trump was convicted in New York City, and I'll talk about the details a little bit, I wrote on Facebook. The following is probably the best summary I have of it so far. This verdict is morally obscene, fact free, unlawful, unconstitutional, a blatant travesty of justice, the result of a fascistic show trial pushed by the Biden regime to criminalize a political opponent. America is now officially a lawless, authoritarian banana republic, unquote. Now, maybe that's a bit over the top, but banana republics historically have been characterized as no rule of law, no independent judiciary law and intelligence and military agencies weaponized against political opponents, jailing them, bankrupting them, humiliating them. I mean, it also has fiscal dimensions, you know, like currencies that are unreliable, public finances are out of control, elections that aren't believed. We have all that, so we are, you know, if you have a checklist of what banana republics look like, we're heading down that road. And this is an example of it. So I wanted to talk my topic tonight, the title was legal subjectivism versus Donald Trump.
The opposite of subjectivism is objectivism or objectivity. And philosophically, that attack on objectivity, on reason, on logic, on justice, on fairness, is really the root of this. So I don't want to get too much in the weeds of the Trump case. I want to say some things about that to give you the details. So we're not just asserting here, and as usual, I'll stop after about 20 minutes, 25 minutes, and take your questions and comments. But I do want to name some principles involved that I think philosophically might help us interpret what's going on and predict what will happen now when we see lady justice. She's blind.
She has the coverage over her eyes. She's holding up the scale of justice. But what is she blind to? She's not blind to the facts of the case. She's not blind to the law and its application to the case and the facts of the case. The key here is the symbolism is she's blind to who is in front of her.
She doesn't care who it is. If they're a murderer, they're a murderer whether they're a man or a woman, taller, short, black or white, gay or straight, to get the idea.
So the rule of law and objectivity requires not ignorance, blindness of ignorance, but ignoring non essentials like skin color and height and weight and things like that.
And the opposite of that would be peeking behind the blindfold and saying, oh, who is that? Ah, who is that?
And maybe I'll be biased toward making, rendering there actions innocent or guilty.
So, equal justice before the law is equality of treatment of all people.
And that's what is lost when you lose the rule of law and you lose objectivity in the law. That's the main thing that's lost and why it can be abused.
What is a show trial? You know, in Moscow, they had show trials under Stalin in 19, 35, 36 or so. And if you look at the definition of a show trial, it is the. Well, I found a definition right here. A judicial proceeding with the appearance of propriety, but the intention of influencing or satisfying the public opinion, rather than ensuring justice. That's what's going on here. Here's another sub definition where the guilt or innocence of the defendant has been determined in advance, unquote.
We know that judicial principles like presumption of innocence, juror of your peers, fair trials, fair and quick trials, evidence, burden of proof. Who is the burden of proof in the Trump trial, by the way? The judge told the defense to go first and the prosecution to go last. You know how that inverts things. The defense always goes last. Why? Because the presumption is they don't have to prove anything. This prosecution is supposed to go first, and then the defense, listening to what the prosecution says, goes second. It's very symbolic that in the Trump case, he reversed it and just told the defense to go first.
It was also a jury, not of his peers in that district. The jury pool had 6% Trump voters.
They knew that ahead of time. It was in Manhattan from the jury pool in that place. So the venue itself was certainly not by not unbiased, 6% voted for Trump. It was found.
I'll talk a little more about what the jury instructions were and what that case was, but just to back up for a bit, the show trials, the Moscow show trials is indicative of this kind of thing. But you've looked more recently. Just last November, I saw an s, an essay in America's Quarterly by Will Freedman. Do Latin America's top prosecutors have too much power now, this is in Latin America, where he writes that several top prosecutors in Latin America are using their considerable powers to protect their friends and pursue their enemies, sometimes in league with presidents and legislatures, unquote. He cites Cuba, Venezuela, Nicaragua, Peru, Guatemala. Now, notice how similar that sounds to the kind of political targeting we're seeing here today.
Alan Dershowitz, who responded, and by the way, I recommend the Dersh show. It's a podcast. His commentary, his analysis of this is very good, quote, this was a political persecution. This trial was a sham. And the goal of the trial was to get ads on tv and Billboard's calling Trump a convicted felon, in other words, to interfere with the election, unquote. And you are starting to see that already. Ads and billboards and things like that. And by the way, he notes a potential, a chaotic situation. We would have.
Suppose the election is close, he says, and Trump loses.
And subsequent polls show that mostly independents, say, would have voted for him if he was not a convicted felon. But there hasn't been an appeal yet to overturn it. And then he says, suppose the appeal is after the election. It finally gets, in other words, to another court. And they're faced with the following dilemma. They can sit there and say, this is worthy of overturning. This is a crap decision on May 30, and we're going to overturn it. They would be faced with the intimidation of we're overturning an election. Well, they're not really overturning an election, but you see the point. They would have to come down and say this was a invalid prosecution, but while knowing that it actually affected the election. So then the more twisted outcomes, Dershowitz says, is they would actually probably, probably just confirm the conviction so as not to get riots in the streets. But then they would end up solidifying a terrible precedent. They would be, they would be, in effect, not only was he convicted, but later on appeal, it was confirmed. So this kind of approach can be done, again with legitimacy. You see that, you see the dilemma here, the problem. And when you really think about it, it's a judicial system that's democratized in the sense that it cares about public opinion and it cares about influencing elections. And judges normally should not give a damn about the yelling and screaming that goes outside and goes, goes on outside in the streets, around their chambers. Right here we have them doing so and so that the lack of an independent judiciary and the lack of insulation from democratic prejudices. By the way, Dershowitz also points out that he doesn't really think, and I think I agree with him here, why are judges and attorney generals and Das elected, not appointed at the federal level. They're mostly appointed, but they're elected at the state level, meaning they run elections promising and pledging to the masses that they will go after certain people. This is before the evidence is in and they've committed, and they have a political ladder they're climbing and they're ambitious. And this can also lead to a corruption and an erosion of objectivity and the rule of law because it's politicized. But that is considered the democratic ideal. Everything should be voted on. Everything should be voted for. And I think to the extent which voting has infiltrated the judicial system, it has corrupted it.
Now, I want to go back a little bit and read of quite a very prescient and interesting address from years ago, and it sounds so current. And this is from at the time, the attorney general of the United States, Robert Jackson. And he's addressing prosecutors at a conference, Das, in Washington. Now, he was the chief justice in the.
He was at the court from 1941 to 1954, and he was also the head justice at the Nuremberg trials after World War Two. But here's what he said in 1940 to prosecutors.
Quote, the prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated, and if he's that kind of person, he can have it done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrest for present cases to the grand jury in secret session, and on the basis of his one sided presentation of the facts, can cause the citizen to be indicted and held for trial.
If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.
Therein is the most dangerous power of the prosecutor, that he will pick people that he thinks he should rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it's not a question of discovering the commission of a crime and then looking for the man who has committed it, but a question of picking the man and then searching the law books or putting investigations investigators to work to pin some offense on him.
It is in this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass or select some group of unpopular persons and then looks for an offense.
There the greatest danger of abuse, of prosecuting power, lies. And it is here that law enforcement becomes personal and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to, or in the way of the prosecutor himself, unquote. Justice Robert Jackson. An address called the federal prosecutor. You can get it online. How insightful that is and how descriptive it is. Now, this is 1940. I would say in the 80 years since, the prosecutorial discretion has been enormously expanded. I mean, compared to 1940, there is a book called three felonies a day, how the feds target the innocent. I think it was 2011 or so by a lawyer named Silvergate.
What was his point? If you look, there's been a massive increase in recent decades, certainly since Jackson gave that talk in 1940 about the number of misdemeanors and crimes and misdemeanors elevated to crimes that have gone into the record book, the statute books.
And it's somewhat facetious, but the idea of three felonies a day is everybody commits three felonies each day. They don't know it.
You can find it's either in the tax law or, I don't know, maybe it's in some other law. But the point is, when there's massive increase in litigation and the litigiousness of a society, the regulatory state itself, everyone increasingly is prone to being guilty of anything. But of course, they don't prosecute everything.
They're not prosecuting three felonies a day against everyone. So there has to be selectivity. But the danger, of course, of selectivity in the law is the idea that it's arbitrary, that there's a, there's the peeking under the blindfold and seeing who you're going to use, who you're going to go after, for what reason.
So this combination is very nefarious, the combination of a proliferation of things you can be tripped up on, even if it's a technicality.
So we have the rule of lawlessness instead of the rule of law. You know, not law abiding prosecutors, but lawless persecutors.
A couple of other things I wanted to touch on. I mentioned the show trials of Stalin of the thirties. By the way, the head of the KGB famously said to him at the time, to Stalin, you bring me the man and I'll find you the crime. Lavrente Beria, famous quote, bring me the man and I'll find you the crime.
I mean, that's really what's going on here.
The dictator of Brazil in the forties, famously said, for my friends, everything. For my enemies, the law.
See, american people still respect the law. They still have a residual view that the law is sacrosanct and no one should be above the law, including a president or an ex president. Right? That's the argument. We can, we can talk about that later because nobody mentions what it means to be below the law.
And that really is what's happened with Trump. He is being treated below the law. Well, let me, let me address that right now. No one is above the law. True enough. You know what that means? It means defendants can't, you know, with immunity or impunity, be allowed to break laws based on who they are. That's the idea. Based on who you are. If you're a defendant, you can't, you know, get away with it based on who you are. That's what it means to be. No one is above the law. But. But no one below the law would be. Defendants can't be persecuted by selective prosecution based on who they are. See, so both are errors of peaking behind the blindfold. In one case, the defendant is being allowed to break laws because of who they are, but the other one is, they're being targeted because of who they are.
And Dershowitz at one point talks about the other shoe test, which I love, which on any prosecution, you ask if the shoe were on the other foot, if it was on the other candidate, say, or the other side of the political spectrum. If it wouldn't fly there, why is it flying now? It's a test of the, it's a test of whether the person in front of the jury and the judge is the relevant matter in the case.
Now, a couple of details just on, just so people know the facts here. Remember that Trump was twice impeached. So the broader context is they've been going after him for a long time. So when he was president, he was impeached twice. You know, polls have been taken of the american people. You know, they actually think impeachment means conviction. It's amazing. President was impeached. He must have done something wrong. Impeachment actually means charging someone.
So if you're impeached, you're charged.
But as someone once said, you can get a DA to charge a ham sandwich with something. Just because you can charge someone doesn't mean you can prove that they did anything. And of course, he was exonerated in both impeachments. One of them was for talking to the Ukraine leader about Biden's corruption and the other one was the January 6 riots. In neither case was he found guilty. So they've been going after him for a while. But it's a sign of the selectivity and the politicization and the weaponization of the legal system that four cases have gone against him and have just happened to show up in this election year. One from Florida, the Mar a Lago case. That's the presidential records case. Remember, they raided his house. The FBI, in the middle of the night, knock on the door, Stalin typed and raided his house. And by the way, planted evidence. It's been subsequently learned that they planted evidence, put various covers on things that said top secret, which weren't even there. They brought top secret cover boxes and then took pictures of it.
So some of that stuff might get thrown out anyway. Trump has perfect rights to control the presidential documents he had. And so that's a fake case, but that's not over yet. In Georgia, he faces an election challenge case. Georgia, he lost closely. And after the election in 2020, you know, had people investigate whether there was any corruption down there. Perfectly okay to question whether there's corruption or cheating in an election, but they accused him of fraud after the fact.
One of the more crazy ones before this recent May 30 one was the New York case on business. He was accused of defrauding New York bankers by overstating the value of his real estate holdings.
I mean, my gosh, one of the ones who were forced to testify was, I think, Deutsche bank. And, and Deutsche bank said he didn't defraud us. We lent him a lot of money. Everyone has different estimates of what the value of the mortgage, the real estate is. He paid us back in full, never defaulted on anything.
And he was, I think, convicted. I think that one hasn't been appealed yet. So they're going after him for things. He hasn't harmed anybody. In this sharp elbow New York business world of finance and real estate, he's allegedly exploiting bankers in New York City, none of them which came forward and said any such thing.
So you see it on all fronts. It's whether he's president, he'll be impeached, whether it's a vote, whether it's records, whether it's his home, whether it's his business. The idea is, from every different direction possible, try to bankrupt him, try to go after his kids. The kids have spent his kids who spent hours and hours and weeks before people. I think the Trump family and Trump himself is probably the most investigated political figure ever, and yet they've got nothing on him. It is actually quite remarkable. I mean, if you're in real estate working with the construction unions and the mafias, it is amazing that you could get out of there after 40 years and not be corrupt.
And yet they're still going after him. Now, the more recent one is really crazy. So the conviction actually on May 30 was he paid a porn actress who claimed she had an affair with him for a non disclosure agreement. That's a mutual agreement between two people not to talk about a settlement.
He was accused of not disclosing the non disclosure agreement in his business records. I mean, that's just contradictory. It's just crazy. And it was leveraged. And then, by the way, that was a expired misdemeanor. So there's a statute of limitations and it had long expired. So the Alvin Bragg, the DA in Manhattan, brought up an expire misdemeanor and sought to leverage it into a felony where the felony was, you're really hiding this so you can win the 2016 election.
And the Federal election Commission had been asked about this and they said there's no violation. And Bragg's predecessor had looked into it and he said there's no violation. But Bragg ran on the grounds that he would get Trump. So he had to bring this charge against Trump, that he had somehow done this for purpose of defrauding. Well, he said, you might have also defrauded the IR's and you might have defrauded, well, you certainly defrauded the voters because they don't know how bad you are sexually with other women. Ridiculous. Here's a cover. Here's a summary from CB's of what was presented to the jury. Former Trump conviction in New York stemmed from $130,000 hush money payment. They call it hush money. That's called a non disclosure agreement made by his lawyer before the 2016 election. Prosecutors said the deal was meant to keep voters in the dark.
Trump really faced a less salacious, mundane paperwork charge. Actually, this is from CB's News that was generated when he reimbursed Coman for the payment. Under New York law, falsification of business records is a crime when the records are altered with an attempt to defraud. To be charged as a felony, prosecutors must also show that the offender intended to commit another crime or aid and conceal another. What did Bragg argue? That in this case, the violation was a New York election law that makes it illegal for any two or more persons to conspire to promote or prevent the election of any person by unlawful means.
The argument here was Trump was promoting himself, his own election.
Here's what Judge Juan, I'm quoting now, Juan Mershon explained in his instructions to the jury what actually those unlawful means were in this case was up, up to the jury to decide. And not unanimously, but separately, prosecutors gave the jury three areas they could consider a violation of federal campaign finance laws, falsification of other business records, or a violation of tax laws. The jurors did not need to agree on what the underlying unlawful means were, unquote. Did you get that? Like they got a multiple choice question and every answer could be right, or the final answer was, all the above is possible. That's how Donald Trump was convicted. It's an outrage.
It's really obscene.
Quoting Dershowitz again on whether we're a banana republic, he said, maybe we're at seven or eight because, quote, ten bananas is when you start putting your political enemies in gulags. We're not there yet, fortunately. We may get there, but we're not there yet. But it's bad enough. This is the, this is Dershowitz now. This is the first time in american history that the criminal justice system has been abused in so great a manner against the man running for president. And the abuse occurred by Democrats, unquote. The rule of law, quoting again, the rule of law has been considerably weakened today. It is a terrible day for the rule of law, unquote. Now, a Yale law professor, Jed Rubenfeld, listen to this. Quote, those who criminally target members of the opposing political parties, in this case, Trump, the poll leading candidate, better have the goods going after criminally. A former president of the United States and somebody who's running for president now is a very bad look for this country, especially when the folks bringing the case and the judge deciding it are members of the opposing political party. And it's an even worse look when the crime is so unclear that the state is hiding the ball about what the actual charges are right up through the trial and indeed into the trial, you better not be pursuing some novel legal theory where you have to hide the ball and it's not even clear what they are charges are. It's a very bad and dangerous precedent for this country even now. By the way, this is after the trial is over. We don't know exactly what the jury found Trump guilty of, unquote. This is a Yale law professor saying, I have no idea what he was accused was he convicted of.
Just as a summary, before we turn now to question in the comments, just as a summary.
Philosophically, if we look at this, I would say blind justice neutrality requires objectivity, and I believe, really fundamentally backing off now from the Trump case, just generally. And, you know, by the way, this is true of the antitrust laws, where any company could be found guilty, whether they charge a high price, the same higher price than competitors, the same price as competitors, a price that's under competitors. Ayn Rand pointed this out 60 years ago, and so there's selective prosecution there. The whole idea of selective prosecution and the arbitrariness and the subjectivism associated with it is really more reflects a deeper rejection philosophically in objectivity, in belief, in reason, in logic, and true justice before the law, instead of these travesties of justice. And so it has definitely a philosophic root. We can talk about things like Trump Derangement syndrome and the psychology of it and other things, but I don't even think it's the antagonism that comes from politics, which political scientists today call polarization. I don't believe that for a minute. Some people think that the crude and coarse discourse that goes on and the resort to what's called lawfare instead of warfare, you know, using the law as a weapon to go after your enemies. I don't think it's due to polarization. I don't think there's much difference in policy between Democrats and Republicans.
Trump's platform, so to speak, is not overturning the welfare state or Social Security, Obamacare, or anything. He differs mostly on foreign policy, course. So they hate them for being not for forever wars. But I think this is an example where there's so much agreement that people are focused more on just power plays. It's not a matter of principle anymore whether we're for a constitutionally limited, pro liberty republic and capitalism versus statism and Stalinism. It's precisely because people agree so much that they're focused in on the more salacious, the more the personalities of people, the power positions they might have, the jockeying. And notice all the elections are razor close. 51 49. That's not an example of a polarized people.
It's an example of people who totally agree on the massive increase in government and the massive increase in litigiousness that I've talked about, and therefore, in the arbitrariness of things. And it becomes just power plays, real politic, as they call it. And so that's worth talking about and thinking about as well. But Stephen Hicks, my colleague, years ago, wrote about postmodernism, that assault on objectivity that we've had coming from the universities, and people see it show up most in things like woke and in gender disputes and things like that. But here it is in the legal system, anything goes. There are no fixed and objective principles, and these things can be taken up as weapons for political purposes. That's what's happening today, and it's going to take a real change to make things better. I'll stop there.
[00:29:25] Speaker A: Scott, great, great information and just what you've talked about. And we want to encourage people to come up with questions if you've got, got any.
I've got some myself.
What do you say to those that say, oh, well, the law is fair because they're going after Hunter Biden as well on a gun charge?
[00:29:51] Speaker B: Yeah, I think that's actually, again, to be objective. I think that's similar. Namely the test is, would this person be in court and be prosecuted if his name wasn't under Biden? The answer is no. And same thing with Trump with the bookkeeping things and with Trump, if it weren't Trump, no. So both of these cases actually are examples of targeting people because of who they are now in this particular case, I think to have a cynical take on this, I think this was, and it was brought by Biden's Justice Department. Right.
Or at least people down in Delaware, which is Biden territory. So they went after his son even in Delaware. I think part of the argument was he will be, you know, convicted and he was of gun charges. Right. But, but notice that's not the same as Trump being labeled now a convicted criminal for supposedly getting himself in office in 2016. That's at the president Biden level. Right. It's almost as if they wanted a shield to be able to say, see, we're even handed. We went after Trump and then we went after Hunter Biden. Yeah, but they went after Hunter Biden, who was not the president. They went after Hunt Biden for a gun, technical, violating gun laws.
And so they simulate, so it is an example of like a Trump of targeting, which is improper, but it also is a kind of cynical move on their part to say, see, we've been even handed. We went against both sides. But of course, both cases, the two cases are not even close to each other in terms of their political impact.
[00:31:33] Speaker A: Right. Well, for me, you know, it was like in 2016, you know, the Hillary classified docs and it wasn't prosecuted by the FBI. And Comey basically said at the time, you know, they didn't want to be seen as interfering in an election.
But, you know, what happened to them caring about appearances now.
[00:31:56] Speaker B: Exactly.
[00:31:57] Speaker A: That's why it's like it was one thing back then to see, you know, oh, they're just going to let anyone in the political class off. But no, it's apparently, you know, just one party of the political class.
[00:32:10] Speaker B: Yeah. And I think the other thing to notice if you, again, widen the lens a bit is what, how did Shakespeare put it? A pox on both their houses.
When you see one side accusing the other of manipulation and election interference and lawfare and weaponizing this or that. I mean, suppose it's, let's just suppose to be bipartisan about it, that both sides are doing this. The bigger question is, how is this possible?
Something has happened where the size, scope, power and arbitrariness of government has gotten so bad that both sides use it and use it in turn against each other. Okay. Yeah, but the broader picture is government shouldn't be in that position. We should have a constitutionally limited republic where the government does not wield this kind of power. And so it's a, it's, you know, I myself got into the weeds a little bit here tonight, but I also tried to bring principle to the discussion. It's very easy to get into the weeds and to see, well, it's one side doing it more than another. And this is a two tier justice. Well, yeah, it is in a certain sense. But I think the broader problem is this is what you get with a system of arbitrary law generally and a system of a mixed economy where people do not want capitalism or socialism. They want a mixture of the two. And if it was just socialism, it was just Stalinism, you would certainly know your rights, namely, you don't have any. And if it was capitalism, you would certainly know your rights because you have them and you don't expect them to be violated. But when you have a mixture of these two systems, it's anything goes and anything does go, and we're seeing that. And it's a very difficult thing to extract yourself from. The leading examples would be these mixed systems. I think the most relevant are the ones, which is why we call it banana republic. The ones in Latin America are actually more, more than Europe, I would say indicative of what is happening in the United States. I know many years ago, Leonard Peekov, well, I think, quite correctly talked about the prelude to Hitler and what was happening in a very advanced intellectual country like Germany to become so barbaric. And that was in the ominous parallels.
But I think it's. I find it hard to see the kind of intellectual subtlety or seriousness in America today. It's really low brow stuff.
It's not appealing to philosophers and poets and Wagner and all the other things the Nazis did, terrible as they were, they tried to at least influence the intellectuals and get the intellectual support here. It's just brazen demagoguery. It's just brazen populist appeal to people's lowest prejudices and bigot, bigotries and fears and conspiracy theories. It's just everywhere. Right. The whole idea of conspiracy theories themselves are people do not know what's going on, but they see bad things happening and they can't explain it. So they come up with conspiracy theories, but both sides do it. And the questioning of election outcomes, very common in banana republic type situations as well, so that the elections are not only close, then they get questioned, and they're more likely to be questioned when they're close.
[00:35:41] Speaker A: Sure.
If you'd like to join us, you can request to speak and we'll bring you up. What are some practical ideas for Justice Department, FBI, even just legal reform?
[00:35:57] Speaker B: Well, that's a big question.
Yeah.
I'm not sure I'm able to answer that right off the cuff here.
[00:36:05] Speaker A: All right. That's fair. That's fair. I just, I mean, that seems to be where this is going, that to stop these excesses that even Dershowitz was talking about.
[00:36:15] Speaker B: Yeah. It's interesting because he talked recently about a ceasefire, he said, and a ceasefire, not in Gaza, but a ceasefire. Among those wielding lawfare.
There's a project, he refers to the 65 project. Project. If you look it up, it's left wing lawyers going after Trump lawyers and trying to bankrupt them and disbar them. So the lawyers are engaged in going after lawyers, you know, and that, that litany of people have gone to jail from Paul, man, these are Trump people now. Paul Manafort, Roger Stone Right. Giuliani has been convicted or persecuted. They're in and out of jail. PETER NAVARRO so the idea is if you work for Trump or, you know, that goes the other way now that Trump people are saying, well, if you work for Biden, we'll go after you. And the whole point of the three felonies a day is you can go after anybody. And then the question is just how unvarnished you are and how hard knuckle you are, you know? So that is the essence of what's called lawfare. And, you know, he asked for a ceasefire. He said, but it's not going to happen. I mean, there's, there are some people who trace all, all this back to impeaching Clinton 1998 because there hadn't, you know, I don't think there had been an impeachment since Andrew Johnson, so. Which is what? The 1870s.
[00:37:40] Speaker A: Nixon was heading that way.
[00:37:42] Speaker B: Oh, I'm sorry. Yeah. I don't know if he was technically impeached, but yeah. Okay, so suppose it starts with Nixon, you know, for what his people called a third rate burglary of the DNC. So whatever the deal, the Democrats didn't think it was small potatoes, but the Republicans did. Nixon won in a landslide anyway. And it's not because he got information from Larry O'Brien's office. But, yeah, suppose it starts with Nixon. We're talking about 50 years of this stuff where it's a tit for tat is too small a word for it. It's worse than that. And it's gotten much more hardball. And, you know, in the last 50 years, as I said, there's been way more.
There's been way more litigation and legislation and regulation. Where three or four cabinet agencies have been added, many more regulatory agencies have been added. You can violate anything. By the way, tax law, especially, is manipulable. You mentioned Hunter, and I said, yeah, there's another case of selective targeting, but that would be true of Capone. Like, when they went after Capone, they could not get Al Capone for mafia type stuff and murder and things like that. So they got him on tax. On a tax technicality, that is. Yet. Now, that's a long time ago, but that would be an example of. Well, we can certainly find something on the guy.
It happened to Mike Milken, the junk bond trader who made millions and was envied by Wall street and Giuliani. Giuliani went after Mike Milken, the great bond genius. To this day, people think that Mike Milken went to jail for insider trading. No, he didn't. He went to jail for booking security holdings improperly. You're supposed to report if you hold more than 5% of a stock. And he didn't want people to know that he owned more than 5% of a company. I mean, literally what it was, it was bookkeeping.
So you can get, if you want to get people in jail. I mean, that Mike Milken was, what, 430 years ago? 19, 89, 90 or so. So there are these famous cases where that has been the method. But I think now in the political realm, Mike Milken was financed. Al Capone was the mafia. Now it's being used in the political realm, and even the. Even the racketeering statute called RICO, which is intended for mafia organized crime, has been used against Trump.
[00:40:10] Speaker A: There are notorious stories of J. Edgar Hoover going after his opponents. I mean, has it ever not been a tool for narrow interests?
[00:40:20] Speaker B: I wouldn't say it's never not been a tool. I think we're talking about degrees and intensity and frequency and that it's intensifying.
So it would be like saying, is it, has it never been the case that the US is debased the dollar? Yeah, it has, ever since it went off the gold standard. And then the question is, are they doing it more or less as time goes by? The fiscal finance is getting more out of control or less. But, yeah, so I think the trend is definitely in the bad direction, and not just because of the Trump, not just because of the Trump trials.
[00:40:56] Speaker A: We didn't need an FBI for the first 140 years.
[00:41:00] Speaker B: Well, that's a good point, too. I'm not necessarily against the FBI or even the CIA, but they certainly should not be weaponized for political purposes. FDR used the IR's and the FBI against enemies. So did JFK.
I think there's actually a, and I don't think this is a partisan comment, but I think to the extent republicans generally, and I'm just saying generally, and conservatives generally, tend to respect more the Constitution and respect more the rule of law, they tend not to resort to this kind of thing.
And the Democrats, on the other hand, have this long tradition. It starts with the progressive era of the 1890s and the early 19 hundreds where Woodrow Wilson was up this view. Many of the progressive legal theorists were of this view, especially out of Columbia University. Their view was, the constitution is old fashioned stuff. Who needs it anymore?
The priority is whatever the majority wants. So a very kind of jeffersonian ideal and jeffersonian view. It was still ruled by experts, but the idea was we should not restrain the general will, the rousseauian general, whatever people want, we shouldn't have these fuddy, duddy old constitutional limits on what government should do. So that gave rise to more activist judges doing whatever they wanted. And so I think there's a bias on that side toward more using law for subjective and persecutorial reasons rather than prosecutorial reasons. So they're just more inclined to do it. But they're going to create a class on the other side, the resentful, vindictive class on the other side, who will try to, I suppose, put it to them when they get in office. One example of where they did not do this is if you remember in 20 1716, when Trump ran, his crowd would scream, lock her up about Hillary, and he would, you know, laugh or encourage it. And, you know, this is on the grounds that she seemed to have had actually committed some felonies and destroying evidence and things like that. And it's, he didn't do anything.
Now, I think the Democrats, the other side might have said, God, we feared that he would do something, so let's do something to him. But there's a lot of bluster usually on the right, and then they don't, they really don't engage in law fair. I mean, I can people think of cases where they went after their, other than Clinton in 1998, cases where they actually went after their political enemies and tried to, you know, get them off a ballot or get them in jail or get them bankrupt. It's hard to find cases like that where you do find a lot on the other side. By the way, there's a, there's a first amendment aspect to this, which is very dangerous as well. And those are the gag orders on Trump. So.
And one was challenged the other day and it was kept in place. So gag orders means you can't talk, you can't talk about the trial, you can't talk about the judge, the jury, the decision, which I think is a very bad thing. And Alan Dershowitz agrees. He says it's a complete violation of the First Amendment. And so this idea of, it's one thing to be railroaded in a Kafkaeus kind of kangaroo court, but not to be able to say anything about it. And while you're campaigning, he's going to be sentenced, by the way, July 11. And it's not clear what the sentence will be. But suppose this sentence is house arrest. Suppose this head sentence is he has to stay in Trump Tower just like Biden stays in the White House basement. It's almost like they're purposely trying to turn him into Biden so that he has no edge over Biden, shut him up so he can't speak two sentences. Neither can Biden. Put him in his own house where he never leaves and goes on the campaign trail, just like Biden.
It's really, it's really quite bizarre. But the gag orders are totally improper. I think if you, there are already laws on the books. If you intimidate witnesses or judges, there are already laws preventing that. So that's not the issue. You should be able to speak about how you've been mistreated in trials.
Dershowitz's recommendation is that he bring it up in the debate. If there's actually a debate that happens, Dershowitz hopes that Trump will actually brazenly say in the debate before millions of people where they'll really be listened to, that it was a sham trial, that it's a travesty of justice, that the judge is corrupt and the jury was biased and, you know, they would have to, if he's still subject to a gag order, they'd have to arrest him on stage, would be, or let him go. I don't know.
[00:45:50] Speaker A: Yeah, I, even without violating the gag order, I expect them to sentence him to some sort of jail time.
But we'll see how that plays out. You know, I did hear some moderates say that Trump should have been nicer to the judge. I mean, how much should justice be dependent on deference? And would it even have made any difference?
[00:46:14] Speaker B: Well, I mean, in the court itself, he was, he was perfectly behaved. That mean that judge punished one of his lawyers for looking at him sideways. It really screamed at him, don't look at me that way. It was, that kind of judge was really quite a tyrant.
So I don't think there's any argument that Trump was this reckless person in the courtroom. What the judge is talking about is when you left, you went out in the corridor, you went out on the street, you criticized me. Well, so what the funny thing is, he's actually, Trump is, course, when you're in the middle of that, you are risking that you'll be convicted. So the fact that Trump said something anyway, knowing it would increase the chances of him being mistreated, he probably knew he would be mistreated and convicted anyway. That was, that's the whole point of a show trial, is they've convicted you already. It's just a matter of going through the show. So in many ways, he should be credited, I think, with being courageous enough to criticize the judge and the jury and the whole, and Alvin Bragg, especially the most corrupt of all of them, while it was going on.
But, yes, he probably, at the margin, made it harder for himself. But if he had never said anything walking out of that courtroom, you literally had no comment every single day, does anyone think the result would have been different?
I don't think so.
[00:47:42] Speaker A: That's fair.
If any of you would like to join us, you can request to speak. But, you know, I agree that it was a show trial, but how do you respond to people who say, you know, this just, you're just saying that because you don't like the verdict?
[00:48:01] Speaker B: Well, you know, I'm, my theme tonight has been the dangers and the injustice of legal subjectivism. And that kind of comment just suggests that, well, that's just your opinion. You don't like the outcome, so you're calling it a sham.
To answer that kind of thing, you would have to have standards for judging whether a trial is fair or not.
People all the time judge whether, you know, elections are fair or not. Fair and free, they call them.
You can say the same thing about trials, the OJ trial, the most scrutinized of all the trials. You know, people will say, you got away with murder. Well, that's just your opinion. You don't like the result. And, you know, so anyone who hears that, make sure you don't feed into the subjectivism of the entire premise. The premise is, who can know? Jury must know better. No, we know for a fact in cases like OJ, jury was interviewed afterwards, they said the jury members would say, I know he was guilty, but I had other motives. You know, get back at the LA cops. These jurors said such things. So same thing here. You got Trump Derangement syndrome, especially in New York City. And those jurors, you know, in many ways, you don't even have to blame the jurors because the instructions they were given by the judge was basically, this is how you convict him. And you don't really have to agree. There hasn't, doesn't have to be any unanimity. I mean, he himself was corrupt in giving the instructions. So, yeah, I mean, this is a specialized field. You do have to kind of rely on legal experts to give you an assessment of whether they thought the jury instructions were right, whether the whole prosecution was right, whether this misdemeanor should have been, you know, raised to a felony and all that. The three, by the way, the three. I read many accounts and many opinions, including left wing legal opinions. But I find very interesting, not only Dershowitz, he has a podcast called the Dersh show, but also Ted Cruz, the senator from Texas, has a show, has a podcast called Verdict. And when he discusses the legal cases coming down on Trump, those are very good and they're very astute. You know, they're not partisan. He's looking at the actual treatment of and the legal precedents being used and things like that. And the other one, easy to find online is George Washington legal Professor Jonathan Turley. T u r l e y. Turley is very measured and a sober analyst, believes in the rule of law, and, you know, isn't totally against everything being done against Trump, but he's warning about all the proper things, the non objective things. So Jonathan Turley's commentaries are very good, too.
[00:50:45] Speaker A: Yeah. He's been good. We're very pleased to have our CEO, Jag, with us. Thank you for joining.
[00:50:51] Speaker C: Of course, I would never miss a space with Richard.
[00:50:56] Speaker B: Oh, thanks.
[00:50:57] Speaker C: JAG is also my partner when we do these instagram takeovers every week. And I got a question. It's a little bit off the topic of this discussion, but I wanted to see how you would have answered it. I know how I answered it, and it was from one of our overseas followers who asked, who represents the bigger threat to America, Biden or Trump?
[00:51:24] Speaker B: Well, I think Biden, he comes across as a kind of avuncular old man, innocuous. The actually, the more, the more empty headed he is, the less he's seen as dangerous.
But when you get a president like that who's kind of a puppet, the issue is who's behind him. And you could argue that that's even worse because you don't know who's. Well, we can guess, but obviously someone is behind him, pushing policy, pushing out executive orders, putting them in front of him, and he just signs him, not knowing what he's doing.
We can't totally exonerate him for what he's doing. But that kind of shadow puppet government.
Not good. Not good. And if it's anything having to do, which I would guess with Obama type people or Obama himself, it's just another continuation of, call it the Obama Biden regime. So I think Trump, it's interesting because if people look at the personalities or the style, it is funny because Trump kind of looks like the bombast and the expletives and the threatening.
You know, he comes across as like, wow, this is kind of like Mussolini, therefore, he must politically be a tyrant. No, he's actually not. If you actually look what he did for four years, the most tyrannical thing he did actually, was to listen to Fauci and lock down the economy with COVID But nobody criticizes him for that. The left loved that part. What? Pretty much. Right. They didn't complain about Trump when he did that the first three years when he was cutting taxes and growing the economy and not doing anything to Hillary. So I don't know if that helps, but I do find a disconnect between people who look at the superficial personality style thing and assume that's what their politics is without looking at the actual policy. But the Biden policies are very authoritarian, very invasive, very statist.
[00:53:35] Speaker A: Great time for. Oh, go ahead, jag.
[00:53:40] Speaker C: No, I was just going to say I agreed 100%. Even if you just look at national defense, what he has done with the woke policies and the vax mandate for the troops to send us into the, you know, a recruitment crisis of unprecedented while also demonstrating weakness, like the botched Afghanistan withdrawal that only emboldens our enemies. So just even one aspect of the job. But, yeah, I agree. The left liked it when he was being self destructive and destroying the economy with lockdowns, and that is his most unforgivable sin. But, you know, if he gets a second term, hopefully he'll have learned his lesson.
[00:54:27] Speaker B: Yeah. And the other thing I noticed that they did not object to, which I did, was the protectionism and the tariffs and things like that. Biden didn't change any of that. And so that said, the two things that Trump was not good on, terror, protectionism and the authoritarian, the authoritarian Covid approach. Biden kept and endorsed both of those and was opposed to everything good about Trump. And I think you're right. If the question originally from abroad was what's more dangerous? We really should focus on the foreign policy part of the policy in the Middle east, the policy with Russia and Ukraine, that had been a complete disaster in terms of danger, in terms of risking America life, limb, and fiscal sanity. The stuff he's done on foreign policy bring us to the end of wars, to the edge of wars, failing wars. He's a complete disaster there. And maybe we should name that first, because the president, most importantly, being commander in chief, is in most control of foreign policy. And that is the thing that Biden is most control in control of. He is most messed up.
[00:55:37] Speaker A: Great. Well, we do have time for technology.
Thanks for joining. If you can unmute yourself.
[00:55:44] Speaker D: Uh, hello. Uh, I was gonna ask, uh, man, I have a lot on my mind now, but, but I guess that, I guess after talking about Donald Trump, I, I was going to ask what, uh, Donald Trump was at the libertarian national Convention. Uh, he said that he would not, that he would try to get, um, libertarians in his cabinet positions. What do you think that would mean if he gets elected for his next administration?
[00:56:16] Speaker B: Well, I think in general, and he had this problem in his first administration, he's always going to have trouble getting what I call helpers. I've noticed the same thing with Malay down in Argentina. When you're opposed by a political establishment and you really have not been part of it for decades, it's hard to get helpers in the sense of cabinet officials and, and even assistant secretaries and deputy assistant secretaries. At least 1500 or 2000, maybe even 3000 people are needed to launch your administration. And if you don't do that, you have the prior administrator, the people in the prior administration just sitting there overturning or preventing your policy changes. Ronald Reagan was pretty good about this when he got in. Having been governor of California for two terms and knowing the think tanks in Washington pretty well, he could get a list, a bunch of resumes and get the decent helpers helping him right away and get that program off the ground. Trump will be a lame duck. Even if he wins. He'll be there four years, and I don't think he'll be able to accomplish much of anything. They'll try to impeach him again. They'll try to undermine him again. He'll have even maybe fewer helpers than he did the first time because many of them are in jail or have been bankrupted by the left wing law fair. So he might actually well be saying to libertarians, you can come into my cab, because who else will? Would it change policy? It might.
For the better, possibly. But the funny thing about libertarians is they're not known for favoring government at all. So they never work in government. And as a result, they never have any resumes with government experience. And so, so they can be policy advisors and they can write white papers and things like that, but they tend not to be administrators of government. This is the paradox, by the way, of the outsider challenging the system, because if you're not part of the system, you don't know how to run the system and change the system. So you, in a way, have to be part of the system to change it. But yeah, you want outsiders to be radical and change makers and disruptors and things like that. But you see the difficulty. You see the challenge. Trump was a businessman his entire life and then a media star for most of it. And that's not something that may, and it wasn't even a Republican for most of that time.
So by the time he takes office, it's hard for him to find helpers who are actually going to help.
Not a problem for him to go to libertarians and ask for help, but whether he'll get any from them, I don't know.
I can see why he's, I can see why he's talking to them.
[00:58:52] Speaker A: Well, this has been a great conversation.
[00:58:55] Speaker B: Oh, thanks. Thank you.
[00:58:56] Speaker A: Yeah, I look forward to hearing the recording. Thanks to everyone who joined. Thanks to JAG.
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[email protected]. again, we'll be back doing this usually once a week, probably. The next one is July 3 with Stephen Hicks. Will then ask me anything on philosophy. So we'll look forward to seeing you at that one. Thanks, everybody.
[00:59:30] Speaker B: Thank you, Scott. Thanks, everyone.
