 You very forcefully argued that there is a very strong case for prosecuting Trump from a deterrence perspective and a retribution perspective. Could you walk us through why should libertarians be supportive of prosecuting Trump? Give us just the basic of that case. And that will pull up some material to sort of support what you're talking about. Sure. So in the piece that you referenced, I take a step back and ask, well, why do we have criminal punishment in the first place? And there are a number of different kinds of answers that different people give to that question. And indeed, libertarians don't agree among themselves necessarily on this, just as non-libertarians have disagreements. But the most common answers are retribution and deterrence. Retribution is simply the idea that some people deserve punishment because they did something evil or terrible, committing murder, rape, assault, theft, and so on. And therefore, we punish them because they deserve it, not because necessarily there are good extended consequences to punishment, but simply because it's the right thing to do in itself in a situation where the defendant has committed some particularly heinous or reprehensible act. Then deterrence is the idea that we punish people to prevent others from committing the same acts in the future. So on this theory, we punish the murderer or the rapist or the thief, not necessarily because they deserve it, though maybe they do, but because punishing them sends a signal to other potential criminals or potential perpetrators, the same acts that this is what will happen to you if you do this, and therefore you shouldn't do it. You should think twice before you do it, and hopefully you'll be deterred from doing it. I recognize not everybody necessarily accepts either retribution or deterrence, and there are some libertarians who believe there should be no criminal punishment at all, just as there are some whiffling people who believe that. So if you believe there should be no criminal punishment for anybody and you reject both the retribution theory and the deterrence theory, I'm not going to suggest that you should support prosecuting Trump anyway. There you would have to consistently say, I oppose prosecuting Trump, just why I oppose prosecuting pretty much anybody, because I don't think there should be criminal punishment for anyone of any kind. And similarly, there are some libertarians who argue that the system of criminal justice should be replaced purely by a system of civil justice. And if you believe that, you won't be persuaded by the criminal prosecution arguments against Trump, either that you would face some interesting issues about whether Trump should face civil liability for what he did. But if you do accept the ideas of retribution or the idea of deterrence, then there is a very strong case for prosecuting Trump for what he did in his efforts to overturn the 2020 election through the use of fraud and the threat of force. Because certainly in a democratic system, one of the most reprehensible things that any high official can do, particularly the president, is attempt to stay in power even after he lost an election, which in this case he very clearly did. And staying in power by the use of fraud, in this case of finding fake electors or impressing officials to falsify vote counts and the like, that is very reprehensible. And it goes beyond merely just asserting that you won the election, even though you didn't. This is actually taking action through the use of fraud to overturn it. And then of course, instigating the attack on the capital adds force to fraud, the purpose that was to disrupt the certification of the electoral votes. So if anything is a reprehensible act for a high official in a democracy that deserves retribution, this is a good example. And the same point applies to deterrence, that it's very important to deter high officials from serious misconduct of various kinds is actually more important than deterring low level officials or deterring private citizens. And given the enormous potential benefits to a power hungry politician of being able to stay in power indefinitely, even if he was an election, and in fact, making himself dictator for life, or at least dictator for another four years or two, like it's important for there to be severe punishment for schemes like this. So as to deter future power hungry politicians from doing the same kind of thing that Trump tried to do, some of what Trump tried to do, maybe put down to just specific aspects of his personality or to circumstances that of the 2020 election, but the desire to stay in power as long as possible is one that's not unique to Trump. It's one that many politicians have indeed a desire for power is one of the main reasons why many of these people want to be politicians in the first place. So if you're a libertarian, and you're suspicious of government power, one of the things that you should worry about is politicians who try to keep themselves in power indefinitely, even if they lose an election. Democracy has many flaws from a libertarian perspective. I've done scholarship on many of those flaws myself. So not arguing that anything democratic is good. But I would say from a libertarian perspective, or any more general liberal perspective, democracy is less bad than politicians who get to stay in power, even if they lose an election, because democracy does provide some useful check on the abuses of politicians, even if it's flawed, and even if it does also, in some cases, cause abuses as well. So I think there is a strong retribution case for punishing Trump, given the extreme heinousness of the actions he undertook. And there is a strong deterrence case, because what he did is the kind of thing that it's especially important to deter, and particularly when we're dealing with the official who held the most powerful office in the land. If some low-level flunk he did, something similar, the need for deterrence might be less, and maybe the heinousness would be less as well. The reprehensibility would be less, but with Trump, given that he was the president, both retribution and deterrence are particularly significant in this case, in a way that goes beyond even when ordinary people or low-ranking officials do something similar. A more substantive, I think, critique of the case for prosecuting Trump comes from Jack Goldsmith, who you've engaged with in writing before. He's a former AG for George W. Bush. He published this op-ed in The New York Times, entitled, The Prosecution of Trump May Have Terrible Consequences. And he's making, the reason I find this more persuasive, in a way, is that it's not really even trying to make the case that Trump didn't do something wrong, or that he legally isn't culpable, but he's kind of taking a more pragmatic approach. And what he says here also is that this is all happening against the backdrop of perceived unfairness in the Justice Department's earlier investigation, originating in the Obama administration of Mr. Trump's connections to Russia in the 2016 general election. Also, the perceived unfairness in the Department's treatment of Mr. Biden's son, Hunter. He goes on, these are not what about his employees. They're in the context in which a very large part of the country will fairly judge the legitimacy of the Justice Department's election fraud prosecution of Mr. Trump. Now, for me, there's an ideal in which politicians face the same justice system as the rest of us. And then there's the reality in which the DOJ and the FBI undermine the first half of the Trump presidency with a Russia collusion case that did not pan out, put all sorts of backdoor pressure on social media and lead up to the 2020 election to suppress content under the guise of misinformation. And then the timing of all this is just terrible, especially with the federal case going to trial right before Super Tuesday. It all makes me more sympathetic to the argument that even if Trump in some cosmic sense deserves prosecution, that there's no way it's going to do anything than further degrade the legitimacy of the institutions of justice that we as libertarians want to have legitimacy to do things like secure our liberties by administering justice. What is your reaction to that, Ilya? So Jack Goldsmith is a more serious and substantial figure, certainly than Matt Whittaker, who was quoted earlier, and his concerns deserve to be taken seriously. Nonetheless, I think he's largely wrong. The biggest thing on which he's wrong about is he simply doesn't consider the weighty points on the other side, which is what will happen if Trump is not prosecuted for this stuff and is allowed to get away scot-free. First of all, that will incentivize other politicians, perhaps including also Trump himself, to do similar things in the future. If you can lose an election and try to stay in power by force and fraud, and it's a freebie, why not? Go ahead and do it, and the worst will happen is your scheme will fail, but you won't suffer any punishment for it. That's a terrible set of incentives and it's awful. That's a much greater risk than any of these scenarios that Goldsmith posits. Second, we would respect the perceptions of legitimacy. He has a lot of solicitation for the feelings of Trump supporters and their perceptions, but what about the rest of us? What we will think about the legitimacy of the justice system if a person is able to get away with this kind of behavior and this kind of criminal abuse of power merely because he's a prominent politician and his supporters are likely to get mad if he's prosecuted and convicted. That will certainly degrade the legitimacy of the justice system in the eyes of the roughly 60 to 70 percent of the population who do know that Trump lost the election and who believe that he deserves prosecution for his actions at that time. If you're looking at judging these things by public perception and public reaction, and it may be that we shouldn't do that at all, but if we are going to judge that way, then we should consider the whole public and not merely the Trumpist public and the rest of us matter too. These people, because of their false perceptions, should not enjoy a veto power. I also dispute some of what Goldsmith said about some of the previous investigations in the wake. While it is true that they did not find quote-unquote collusion between Trump and Russian agents, there was good reason to investigate him for that because there was a lot of evidence of contact between Trump campaign officials and various Russian agents. The Mueller report weighs this out in great detail. And as for Hunter Biden, well in fairness, this hadn't happened yet, but we just in the last couple of days have heard the announcement that he will in fact be charged and very likely prosecuted. You can argue he should be prosecuted more and that there's some double standards there. That could well be. It's nowhere near on the scale of Trump trying to stay in power despite losing an election and using force and fraud to do so. So the fact that officials or in this case relatives of high government officials can get away with some smaller scale wrongs that would not be forgiven ordinary people, that's a bad thing and we should criticize that. That in no way justifies letting Trump get away with something far, far worse than anything Hunter Biden is charged with. Okay, but for Trump supporters and some non-Trump supporters, which I'm not a Trump supporter, but it is, you do get the feeling given the timing of this given kind of the constant investigations that Trump has been under that it's the attitude from the beginning has been we're going to throw whatever we can at this guy to stop him from staying in the presidency or getting elected again. Just in a practical sense, why not let this play out in the political arena rather than in the halls of justice? There was the chance to impeach him, which the House did and the Senate did not convict. There's the ballot box. Why not just leave this in the realm of politics? For three reasons. Two of them I've already mentioned before, retribution and deterrence. He deserves retribution and we need to deter future officials from engaging in the same kind of behavior and the political process by itself cannot do that, especially in the case of retribution. Third, it is makes no sense to say we're going to rely purely on the political process to deal with schemes whose very purpose is in fact to undermine that very process. The whole point of Trump's scheme to overturn the 2020 election was to stay in power even after he lost to short circuit that process and therefore the process by itself is not sufficient to deal with a scheme that if it's successful would actually destroy that very process. Additional mechanisms are needed to deal with that and criminal prosecution, while not the only possible mechanism, is an important one that stands a good chance of being effective. I think one of the arguments that people sort of frequently conflate is Trump has been persecuted by the court system, by people bringing lawsuits against him, but also that Trump has been persecuted by much of the media and that the narrative surrounding Trump has sort of been pre-decided. Ever since he came down that escalator and announced his original, his initial bid for presidency, there has been just a ton of aggressive animus directed his way. I think sometimes I'm sympathetic to the argument that he's been persecuted in some ways and treated very unfairly by much of the media, but not sympathetic to the argument that that is the case in the court system. I think it is absolutely heinous what he did in terms of attempting to cast doubt on the legitimacy of the election based off of very flimsy evidence. I think it's important for that evidence to be weighed, but as we discussed before, I mean you know those 60 cases that were considered and the 30 of which were actually judged on their merits, the fact that only one turned up any sort of substantial evidence and 29 of them did not proceed and did not find any evidence, I think is super, super compelling. What do you make of sort of Trump's argument that like there has been such persecution before all of this happened and it leaves such a sour taste in their mouths where they're not totally sure that he'll get a fair shake? Do you think there's any validity to that? Yeah, so I think your distinction between the courts and the media I think is largely right in that when cases have been filed against him in court, he has been treated fairly indeed probably more fairly than in sort of an ordinary person would have in some of these cases in that for instance right now if an ordinary person was charged with the kinds of things that Trump was charged with and then made the kinds of comments about potential jurors that he has made implicitly threatening them there's likely that the ordinary person would be in pretrial detention rather than out free and also that at the very least he would be required to post very hefty bail which Trump for the most part is not going to require to do and the same thing I think is true in the civil system or various civil lawsuits should be filed against him. I think with Trump as with any prominent politician there are some claims made in the media about him which are unfair and untrue that said I'm not actually all that sympathetic to the argument that he's been persecuted by the media overall even though there are certainly particular media claims that have been made or are likely wrong and that is if you want to complain about people being mean to you my answer in the case of Trump is you reap what you sow. Hey thanks for watching that clip from our conversation with Ilya Soman about the Trump indictments for another clip go right here for the full conversation click here.