 Welcome to American Issues Take One. I'm Tim Apachele, your host. The title of today's show is Trump's January 6th indictment arrives. Very quickly, if you looked at the 45-page indictment, the thing that jumped off the page for me is the following. That dishonesty fraud and deceit to impair, obstruct and defeat the lawful federal government's function by which results of the presidential election are collected, counted and certified by the federal government. That is one of the charges in the indictment for Donald Trump. With that, we're gonna discuss this whole indictment. I have my co-host, Jay Fidel, our special esteemed guests, Chuck Crumpton and our other special esteemed guests, Jeff Portnoy joining us today for this discussion. Thank you all for coming. Jay, to you, of the four points of the indictment, none of those charges or none of those points involve the specific charge of sedition. You and I and the guests here on today's show have previously discussed the pros and cons of having sedition as one of the indictment charges and lo and behold, it's not there. Was Jack Smith wise to leave it off the table? But he included the elements that led to sedition. What do you think about that point? Well, obviously this was not a mistake. He intended this. He intended not to talk about sedition or for that matter, the insurrection itself. And of course, there's a reason for it and everybody's speculating on what that was. But I think the overarching takeaway on that is if he doesn't wanna get involved in a long-term trial, he wants it simple. And that's why he left it out. That's probably the reason, but who knows, maybe later we'll find out. Keep in mind that the sum total of the years in prison called for by the four counts that he did specify is 55, 55 years. And that'd be enough for me, that'd be enough for me. But I think there are a lot of other issues that are gonna come up here in the defense of democracy. One of them was written up in today's times. It was all about the freedom of speech, freedom to lie, if you will. And Jeff has been studying this for his whole career, First Amendment. And I would be very interested in his thoughts because there are people who take the position that we really have to be very careful about cutting back on the First Amendment. Up till now, you could lie within the protection of the First Amendment. This is gonna be a new wrinkle on that. Okay, thank you, Jay. Jeff, to you on that point, did Jack Smith take off sedition in order to take off the defense of the right to one's First Amendment? Well, I can't speculate on that. I do think it's clear that Trump's defense is going to be that this is all protected under the First Amendment. His lawyers, I think, are taking a very expansive and unsupported view of the First Amendment and claiming that it's absolute because anybody with one year of law school knows that it's not absolute. There's defamation. You can't shout fire in a crowded theater. You can't threaten someone to harm, but it's pretty broad. So I think Jack Smith has a chore ahead of him in trying to show that a lot of what Trump said is not protected by the First Amendment because I think a lot of what Trump said is, you have the right to lie. There's no law that says you can't lie about anything. Now, if the lie leads to some unanticipated or untoward event or a criminal act, that's a different story. But I have to admit that on prior shows with you guys last year, I thought getting an indictment out of January 6th was gonna be a real stretch. I think the Republicans have already shown they're making hay out of this. Why did it take so long? That's a legitimate question, including many Democrats are asking. Did you do it? You wait till now to try to get it before the election? And the bottom line is, Trump is more popular today than it was yesterday. Okay. Chuck, by taking off the charge of sedition, did that also, and we discussed this last week, did that also take off any opportunities to prevent Donald Trump from seeking office in 2024 under the 14th Amendment, section three? No, and we talked about this last week, but that's not the language of section three of the 14th Amendment. It's actually much broader than that. It's to engage in insurrection. Whether engage means verbally, by action, by inciting, those are all questions. But I think just right, I think Trump and his lawyers focus is, this is all protected speech and activity, and you can't connect us to the crowd boys or the others in ways that make us responsible for their actions on January 6th. I guess it's how you perceive or how you look at the indictment, 45-page indictment. What I saw on there was several examples of actions taken, be it the fake electors, be it trying to appoint Jeffrey Clark, and he was actually appointed for about less than a day as the Attorney General to construct letters to say that the Department of Justice is looking into fraudulent election practices. So there's actually specified actions taken. How does that stack up with words versus actions? But Tim, there's nothing that says you can't go out and hire a lawyer that's gonna do and say what you want. No, I agree. He's got two lawyers who are alleged co-conspirators. The argument is he went and found somebody that's crazy and he'll say whatever he wants. But that's never been a dissent that I'm aware of a prosecution. Advice of counsel is a legitimate defense assuming that advice is not completely crazy. Like, hey, we got a witness, we need to go out and kill. I mean, so he gets somebody that says, you know what, my interpretation of the Constitution says you can do X, Y, and Z. He's gonna rely on that defense. You know he's gonna send those people down the river. Yeah, I agree. But to counter that, he did get the explicit specific advice from his attorney general. Well, so what? Well, vice president, his other attorneys, his staff, and most likely family members. So I guess you have to weigh that which he believed versus that which he was told. Well, all I can say to that issue is that's gonna be really hard. I mean, these were licensed attorneys who gave him allegedly advice that he chose to follow despite the fact that other attorneys were telling him something different. I doubt you're gonna get a prosecution conviction out of that. I really do. Okay, well, you go on record for that. And I think that's good. Okay, thank you. I don't wanna go on record because I went on record. Oh yeah, you're on record. I don't wanna go on record because I said he wouldn't get indicted. That's true, you did. I remember that. So my credibility is shot to begin with. Okay, we'll note that. Jay, let me ask you this. To what degree did the House Select January 6th Committee report serve as a guidepost for the Department of Justice? As Jeff alluded to that there was really nothing happening for the first year. Certainly the FBI wasn't acting. No one was really acting on it until the appointment of Jack Smith. So he did a lot of work in a very short time. You and I criticized Marilyn Garland multiple times for doing nothing. And yet Jack Smith put this together in short order. To what degree do you think he used that House Select Committee report? Oh, to a large degree. Lawrence O'Donnell spoke on MSNBC on that very question yesterday. And what he said was, gee, you have to give them credit. The House Committee laid the pathway. And had it not been for the House Committee, a lot of the information that went to the public would not have gone to the public. I mean, you have to recognize, and this will continue, that this is a trial in public. This is a trial among the country, the people. And that was happening in the House Committee, the Select Committee proceeding. So you can say that Merrick Garland was slow. I'm not sure he did nothing, but it was slow. And I guess he didn't wanna get in the way, but certainly the Department of Justice could use, and I'm sure it did use, the proceedings, the testimony, the analysis of the House Committee and its staff. So on balance, I would say it was very helpful to the Department of Justice. If they can prove to a jury that Trump himself either directed or tried to direct people to delay the vote or somehow subvert the vote, which comes close to this addition, which he's not been indicted for, they might get a conviction. But I still stand by what I said. I don't care if he's been indicted. I don't see him getting convicted on what happened on January 6th, as far as the riot at the Capitol. I think he's gonna be convicted, whether he's convicted of insurrection that's not likely, hasn't been charged with it. But I think he will be convicted. And you can say, well, maybe the First Amendment will be helpful to him. There's a lot of other things. For example, there was an article in today's paper about the constitutional requirement that a defendant be present at his own trial. This is a very convoluted kind of thing. He's running for president, and he's taking the position, he's gotta go out there and run for president and he won't show up or something. I don't know what. But when you take it all, shake it and bake it and you consider this is happening in Washington and you consider that it's happening in front of a judge who is a serious-minded judge who isn't gonna take any tomfoolery here, the probability is that he will be convicted of something. The other aspect of that is he must. And I think that has saturated the public consciousness or at least the liberal side of the public consciousness. And by the way, juries in Washington are liberal and they have shown that many times. And so I think they're gonna see, we're all gonna see that he has to be convicted if the country is to survive. Okay, thank you, Jay. Jeff, to you on the point that you raised about if there is a conviction, most likely it'll be the obstruction of the official proceeding process to transfer power from one president to another. That's number two, conspiracy to obstruct the election's official proceeding, the country to the January 6th electoral college votes. Of the other indictments cited, the other three, do you think that's the one that has the best chance of a conviction? The one I just read. I do. I think there's a federal statute on that. I think you could argue and I think they will, that he's arguing for people to commit a crime because it is a crime and you can't do that. And so I think he'll still rely on the fact, well, I never told them to do anything. I just kind of said, put everything on pause for a day so we can sort everything out. Look, we're talking about the legalities and I think that's important, but this is so intertwined with politics and where the country is, you can't just look at it like this is Al Capone. By the way, I think Trump may now have more indictment than Al Capone. I have to check that. But having said that, this is so much more than whether he gets convicted because between now and whenever any of these trials occurs, this country is so divided and each day is more divided. And yes, I know, Jay, you're watching MSNBC and reading the New York Times. Maybe you should watch Fox and, you know, the news channel and see what else is going on with 40% of the country because in the last 24 hours, the last poll that came out yesterday had him beating Biden in the legitimate poll. So he's just getting strengthened. He's loving this. I don't care what anybody says about how petrified he is like they said on CNN, you know, that secretly he's so scared. This is making his campaign. Okay, so, yeah, I mean, you can't divorce the two. You know what? The only way you can kill a vampire I think is by what? Stabbing them at midnight or whatever it is. This vampire walks the earth. Okay, I like that statement. Thank you. Chuck, Chuck, one of the charges is conspiracy against basically voting rights that the voters were disenfranchised. Is that an uphill push? How do you prove that? You know, I kind of like that one because whatever you say about the First Amendment, Trump's personal call to Brad Raffensperger, the Secretary of State of Georgia, to find him 11,000 some-odd votes to change the votes, to change the voting result. That's not protected speech. Yeah, I think we have a disagreement on that because if he had said, I want you to find 11,000 votes that we can discard and find a way that we can say they're not legitimate, that's one thing as I read that charge. But to say, hey, go find me 11,000 votes that we haven't counted yet, that's something different. Chuck, I think there's a big difference between taking away a vote and trying to find the vote. Yeah, I believe Trump's language that was quoted was, find me. Yeah. Does that mean uncounted votes? Does that mean change the votes? Hey, hey. Well, I think you have to take the statement in the context of the entire call. And if you listen to the entire call, I'm pretty sure a jury will be able to figure that one out. OK, and then continue. Thank you. With the falsely electors and the two of those together make it pretty clear what the intent and the meaning were. There you go. But remember, guys, 1972, the Democratic Party refused to accept the electors in Alabama or Mississippi, tried to present their own electors. How come there was no indictment then and begin? You know, I think Trump is as evil as it can be. But you got to look at history as well. OK, good point. Jay, this indictment involved one individual, Donald Trump. Co-conspiracers were not named in the indictment. Let's go down the list of likely candidates of co-conspiracers, Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark, Kenneth Chesrow. And there's a sixth one there. We have no idea. Was this a smart move to speed the trial on by not naming co-conspiracers? And second part of the question is, when do you think Jack Smith will go after the co-conspiracers? Soon enough, he will. I don't think he's not going to do that, but he's focused right now on Trump. Trump is the keyhole to everything else. And I think he's done this and many other things in order to have a speedy trial and in order not to get the way laid. Lord knows Trump will find every possible defense that he could find and he will appeal. And so I want to add to those remarks that, you know, I think that Trump will be convicted, as I said before, on something and because the jury are not stupid and they do have, whether they tell you front up or not, they have political views of things. We've all been listening to this for six years. So they probably will convict on something and they'll take a look at the whole comprehensive is what they'll do. So what I'm saying is I think the appellate process is going to take a while and there are appeal points. There will be appeal points no matter what. And those appeal points are going to stretch out beyond the election date in 2024. So I think, you know, the bottom line is not so much that he will be exonerated somehow and who have been convicted, but that the process will take beyond election date. In the meantime, he's going to run as hard as he can run. And you're right, Jeff, you know, the polls are showing. I don't know whether they'll continue to show this, especially when there's still another fourth indictment coming down here soon. But right now the polls show he's popular and I know I suspect that he has a viable chance, if not the best chance from the Republican side, to win that election. So I'm not, you know, in general, I see this as another inflection point. I'm encouraged by the fact that finally we had an indictment, but I'm still worried that Trump will find a way to become president again and we will all regret that greatly. Yeah, AJ, let me talk to you about right now. You know, it seems like we almost need a trial calendar traffic cop because these indictments are coming fast and furious and these trials are going to take time. And you know, I think he has the right to say I need time for a proper defense. My attorneys need time. We have the Mar-a-Lago case basically transferred from December of 2023 to May of 2024. There's now a slot open for December 2023. Forget it. Forget it, okay. Jay, what do you think? You think that's the proper place to slip in this calendar trial? Well, who knows? It's going to be a judicial discretion. It's going to be Judge Toucan, Tanya Toucan, I think it is. She's Jamaican and she's been around the block. She's been a serious contender in the various trials of the people who are at the interaction in Washington. She does not take wooden nickels. I don't think she's going to allow him to throw wooden nickels. And I think she's dedicated to having an early trial on this. You know, between the time of the indictment and the time of his required first appearance in 48 hours, not bad. That's a good start. And I think we can already see where she's going. So, you know, I'm very worried about Eileen Cannon, but this judge is a different kettle of fish. Okay, thank you. Jeff, you said no way. Can you explain that, please? No way. Okay. Even a routine federal crime doesn't get tried in four months. Just a routine bank robber. It's just not going to happen. Now, will it happen before November? Yes, I think that's likely. What happens with these other trials is also interesting. Which case takes priority? Jack Smith doesn't decide that. That's going to be up to all the judges, including state judges who will probably defer once the state indictments come down. Do you think coordination has already taken place or ought to take place between all the prosecutors that are bringing these indictments against Donald Trump? Do you think they got together and say, how are we going to coordinate this and do we need a traffic cop? Well, we have two Jack Smith cases. I'm sure it's all being coordinated. And we got a New York case, and we're going to get according to Jay, and he's probably right, a Georgia case. And I think there'll be a combination of motions as to who brings them and how they're brought and what the judges do with the federal judges. I'm sure the state judges will defer. The New York prosecuting attorney has already set a trial for Mark, but he's made it clear a day or two ago, whenever, that he's perfectly happy to allow the Trump trial, the Washington trial, to go first. So I'm not sure that you need a whole big infrastructure on this. Judges talk to each other. They call up and say, when do you want to do yours? And will you agree to move it for mine and including judges from the federal side to the state side and back and forth? You cannot discount public opinion. And there's another issue which deals with when the trial is. They've already begun their crusade on this, and it makes a compelling argument to a layperson. You took two and a half years to bring an indictment, and you want me to go to trial in four months. That is a losing argument for the prosecution in the court of public opinion. There's enough problems with trying to convict an ex-president with 40% of the country. You can't hand them additional arguments that actually make sense, even to rational moderates. You can't say, you need to go to trial in four months, and yeah, we took two and a half years. It ain't gonna happen. I'm just telling you, and frankly, if I was the prosecutor, Jack Smith, I wouldn't push it. You're already fighting other things. And by the way, we're not gonna get to it today, but I brought it up because you need, you guys, we need to discuss this, so you guys at some point, what happens if he gets convicted? What happens to the United States of America? Okay, thank you. Jeff, that's a great point. And Chuck, I wanted to bring this apart. I wanna intersect that with this question. That is, this is a historic moment in the American history. This indictment has never been filed against the President of the United States or former. What does that stake with this indictment? And to Jeff's point, what happens if Donald Trump is convicted? Those are great questions, and exactly as Jeff just said, we don't have anywhere near the time to be able to go into all of those. But I think those are exactly the questions. Connecting the issues, what understanding what really is at stake is going to be key to the 2024 campaign and elections. Okay, well, Chuck, let me ask you this. It's pretty clear that this trial will not be televised, although there's, you know, those are those opinions out there saying that, given the importance and the weight of that, perhaps it shouldn't be televised. How will the public know what's going on with this trial other than any other trial? Well, Jeff's the expert on that one. I'm going to defer to him, but there's going to be coverage literally up the wazoo on this thing. There'll be no television in the federal courts. I can tell you that, no matter what. You'll see a bunch of artists rendering and you'll have 24-7. I'll tell you who's the big beneficiary, CNN. They don't have to worry. It'll be 24-7, it's already started. I mean, you know, they need a crisis like this to boost their ratings and get advertisers. As does MSNBC and Fox and News Nation. This is a media bonanza for the New York Times, for the Washington Post. It's something they dream about and I'm being a little bit cynical about it, but this is something like, wow, we've got 18 months now of 24-7 coverage. To that point that Jeff just made, does this take the oxygen out of the room for the 2024 election campaign for the GOP party? So yeah, this is intertwined with the campaign and he will be using it for the campaign. He'll be taking off on everything he can and showing that this is just another element of the witch hunt and he'll try to, as Jeff says, he'll try to get votes on it. So I think it has a huge effect on the 2024 campaign. I would like to say that if we had a conviction beforehand, and that depends on the trial setting of course, which is a very special unprecedented issue on trial setting. And also if we had a ruling from somewhere that we could televised these proceedings, that would also help because ultimately this is being tried in the court of public opinion as it has been. So that's gonna lead to a determination of votes. I suggest to you that as time goes by, then more of this comes out, whether it comes out in a non-televised or a televised way and as this comes out on the media and all the media, I think people are gonna be more and more aware of what he did and why he did it and how he did it. And I think that's gonna eat up the edges of his base. I think public opinion will probably change as the trial proceeds, which is just another reason why the trial should happen soon. So that process starts soon and we all find out, what's behind that 44 pages of indictment. Let's hear the story, witness by witness. Because I think that a lot of people are going to be affected by that evidence, even more than the select committee. Well, I disagree with you, Jay. I think you will get a little bit on the margins. You can't tell me that the country hasn't already figured all this out. After two years of constant bombardment, all these other indictments, his popularity hasn't diminished at all. It's increased, everyone knew this was coming. Yeah, there'll be some independence. And I don't think he'll be elected president, by the way, no matter what. I don't think that's going to happen. It's clear to me he can't get more, even with Biden screwing things up, he can't get more than 40 or 43, 44% of the vote, whether he's indicted, convicted or not. The interesting question, by the way, which I have not researched, but I know has been raised already today by constitutional scholars, is can a convicted felon be eligible to serve as president? They've never had to really address that issue before. And now it's already starting to be debated among constitutional scholars. But I think it's ironic, in Mr. DeSantis' home state, if you're a convicted felon, you can't vote. But hold on, serve as president in the United States. Oh boy, there we go. That's for another show. Hey, we've run out of time, so I want to go around the table. Jeff, I know you need to get out of here. We get last thoughts, and Jeff, I'll start with you. I think I've said my piece. I look at this, yes, clearly it's a tremendously important constitutional battle. Democracy is at stake, but I don't think you can completely, oh, I don't think you can discard at all what the political ramifications of these indictments are. And I think they have to be looked at in the same box. Okay, great. Thank you for those words. Chuck, to you on your final thoughts on this indictment. Well, I think the question that's been raised, whether this one winds up going first of the three, and potentially four, with Georgia indictments is going to make a big difference. There are a lot of reasons for that to happen. I agree with Jay that it, but I also agree with Jeff that it's going to be really hard to push it given the amount of time it's taken to put it together. But we've got a judge who's probably not likely to indulge along continuances. So sometime before November, that'll make it interesting. Okay, thank you, Chuck. Jay, you get the last word on this topic. Okay, we've been talking about inflection points for six years. And to say that this indictment takes us off an inflection point would be wrong. It doesn't take us off. It creates new ones, a number of additional inflection points. And you will see with all the media coverage we're going to get one way or the other, that there'll be an inflection point every few days, every week. And the question ultimately is whether Joe Biden can win. And Trump is going to be the name on every household. Trump is going to be more in the center of things, the center of the circus, if you will, creating chaos, using his whole bag of tricks, including let us not forget violence and fear. He's an autocrat using his bag of tricks. So I'm not sure that Biden can win against him. When it comes down to it, we are at a series of inflection points and the stakes are astronomically high. And in a year's time, we may not have a country. And I am very worried about that. Okay, thank you. Before I conclude, as we look at the trial calendar, I've also reminded of the Eugene Carroll civil case that needs to be brought up. So very, very busy times for very busy people. Okay, so I would like to thank my esteemed guests, Jeff Portnoy, Chuck Crumpton, and my co-host Jay Fidel. Thank you very much for taking the time to give us your opinions and your thoughts on this very important historic matter. I'm Tim Apachele, your host for Americans Issues. Take one, please join us next week. And until then, aloha. Thank you so much for watching Think Tech Hawaii. If you like what we do, please click the like and subscribe button on YouTube. You can also follow us on Facebook, Instagram, and LinkedIn. Check out our website, thinktechhawaii.com. Mahalo.