Hi, welcome to the reason stream. I'm Zach Weissmuller joined by my colleague Liz Wolfe. Hey, Liz Happy to be here Former president Donald Trump has four separate indictments hanging over his head at this point He also leads the presidential Republican primary field by a long shot in the polls and is pulling neck and neck with president Biden Most recently he pled not guilty in the case originating in Fulton County, Georgia, which of course generated this now iconic mugshot It is safe to say now that whatever the outcome, it's gonna be ugly Partisans on both sides have rather predictable positions on the Trump prosecutions But on this show we aren't partisans. We're skeptics of government power Vigilant about the threat of authoritarianism wherever it originates And the direction from which those threats originate. I'm sad to say are many these days So joining us today to help assess those threats and determine the best path forward from the perspective of those of us Who believe our country is at its best when government is limited to securing our liberties And government officials are held accountable for their misdeeds is Ilya Soman He's a law professor at george mason university The simon chair in constitutional studies at the cato institute and a writer at the volet conspiracy a legal blog that's hosted at reason.com There and elsewhere. He's argued forcefully for the prosecution of donald trump for his actions following the 2020 presidential election And we'll get into those arguments very soon Ilya, thank you for joining us today Thank you very much for having me We're going to focus on the election interference cases and put aside the stormy daniel's case and the classified documents case for the purposes of the stream And we are live today and we do plan to take audience questions if you have them So start putting them in the chat if so But let's start with a discussion of the georgia case since it's the most recent filing and in many ways It's the most expansive case What are the key differences in the georgia case distinguishing it from the federal tripe and uh trump indictments? There are many differences, but I would just focus on a few of the most important ones One big one is that the georgia case unlike the federal case features 18 additional defendants besides trump Which includes some very familiar people like john easman who were key figures and well known people in the Sort of national conspiracy to overturn the election But also a number of sort of local georgia figures that at least up until this point I had not heard of and I bet most of our listeners also had not heard of So that's a big difference. This makes this case more complicated and more sprawling than the federal one Do it is likely that there will eventually be separate federal indictments against some of the uh Unnamed co-conspirators that are listed in that uh indictment, but even though they're unnamed in the indictment We know who very likely who they are A second big difference Is that this is state rather than federal? So it's a somewhat different though related body of law and it's worth noting that state charges cannot be pardoned By the president united states He can pardon federal charges though. There is a dispute over whether a president could pardon charges against himself That's a long-standing disagreement among legal scholars about that issue But uh, even if trump were to become president again after the 24 election He could not pardon these state charges And then a third big difference is that uh, in addition to a number of charges Which looks similar in some ways that reached the federal charges like charges about fraud and And charges that relate to schemes about fake electors and the like that are cast as In the form of fraud against the government There is also charges under riko And not the federal riko that many people may be familiar with From various cases against organized crime figures But the george estate version of riko which in some ways is similar to the federal one But in some ways it's different and i admit i'm not a riko expert Not even on the federal riko much west of state riko So i don't know how to fully assess that but it does seem to me that this is an important feature Of the georgia charges that is not present in the federal ones Though it is also the case that some of the charges in the georgia case are essentially what i would call state versions of the federal charges uh, charge about fraud and the like And you might say it's unfair that essentially similar conduct or in some case even the same conduct Could be charged in both state and federal court. You can argue this by ways double jeopardy But the supreme court has said several times most recently just a couple years ago that the so-called dual sovereign Doctrine means that it's not double jeopardy if one set of charges about the same thing as federal and the other is state I happen to disagree with the supreme court majority on that but they're the ones who get to decide that And not me could I jump in there? So i was prepping for this I was fast sanded by some of your writings specifically on the double jeopardy issue Um, could you unpack that a little bit what your disagreement with that is? One what when did the supreme court hand down this decision? It was relatively recent, right? So the roots of the uh doctrine are not recent this dual sovereign theory has been around for a long time Uh, but the supreme court supreme court case But the supreme court reaffirmed the idea in gamble versus the united states, which is a 2019 decision It was a 7-2 decision with both liberal and conservative justice in majority But in the set, uh, we had One conservative justice justice gorsuch and one liberal justice ruth vader ginsburg I happen to agree with many of the points those two justices make But the supreme court is an institution that decides things by majority vote and I do admit As ginsburg and gorsuch do that the dual sovereign doctrine Was not simply a product of the 2019 decision It had long standing roots and one of the reasons why the majority Reaffirmed it wasn't part because of this long standing precedent So the basic idea is that double jeopardy Does apply if the same entity like the same level of government files The same charges or essentially the same charges twice But if it's different entities that is one is federal in the other state Then the the theory is well, they're not really the same charges because even though They're about the same kinds of things and maybe even about the same exact events It's still different crimes And not the same crime because one crime is created In this case by the state of georgia By statutes they have enacted and the other by the federal government I've seen some arguments that this georgia case and this is coming from people who do want to see trump prosecuted But they believe the georgia case should be brought up to the federal level. It should not be a state case Do you have any opinion on that? So yes another issue that this case raises is the argument that this should be tried in federal court rather than In state court as with rico This is an area the issue of removal that i'm not a true expert on So what I say about it is going to be very tentative and I admit there could be angles that I am missing so There is a removal doctrine which says among other things that If a federal official is charged With offenses that are really about things that he did as a matter of his official duty then Then you know the case has to be dealt with in federal court or can be removed to federal court At least if the defendant wants it to be And this argument applies to some though not all of the defendants in the georgia case Obviously donald trump can make this argument mark meadows who is trump's acting chief of staff at the time has made the argument They're essentially saying what we were doing was related to our jobs as federal officials Various other people who are charged like john easman for example and various people in georgia. These people were not Federal officials at the time so they can't make this removal argument They you know, they have to be tried in georgia if anywhere in my view and again, it's tentative I don't think this removal argument holds water And that's true for two reasons One is the president of the united states and his staff have no role in organizing and running Presidential elections That's by design the founders created that and System that way in part because it would be an obvious conflict of interest if the president had a role in running the proceedings for his own election or reelection secondly even aside from that point things like you Schemes to replace the real electors with fake electors or to pressure state officials to in effect falsify vote counts These things are beyond any plausible definition of the president's or his chief of staff's official Jobs and therefore it seems to me that this removal argument is is relatively weak, but I admit again I'm not an expert on this I could be missing something if people are interested in this there is a lot of commentary on this issue by scholars and other experts who really do know a lot about this removal issue I do not like the trend of people essentially proclaiming themselves as insta experts on things that you know the only first thought about You know a few days ago or or in this case a couple weeks ago and Therefore I want to be very careful in what I say about this particular issue But it is obvious in the Georgia case in a way that it's not an issue in the federal case Which is from the beginning in federal court And so removal, you know, it does not come up so 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 basics of that case And that will pull up some material to sort of support what you're talking about sure, uh, 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 a committing murder rape assault theft and so on And therefore, uh, 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, uh, that we punish people, uh, 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 So maybe they do, uh, but because punishing them sends a signal to other Potential criminals or potential perpetrator the same acts that you know, this is what will happen to you if you do this And therefore, uh, you know, you shouldn't do it You you should think twice before you do it and hopefully you'll be deterred from doing it I recognize not everybody necessarily, uh, Except 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 a deterrence theory I'm not going to suggest that you should support prosecuting trump anyway. I'm gonna there you would have to consistently say I oppose prosecuting trump just like those 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 Uh purely by a system of civil justice and if you believe that you won't be persuaded by the uh criminal prosecution arguments against trump either The you would face some interesting issues about whether trump should face civil liability for what he did But if you do accept Uh 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, uh, you know finding fake electors or impressuring officials to falsify vote counts in 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 uh, we it's very important to deter high officials from serious misconduct of various kinds It's 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 lose an election and in fact making himself dictator for life or at least dictator for another four years or the like Uh, 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 may be 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 runny 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 The reprehensibility would be less but uh with would 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 you know ordinary people or low ranking officials do something similar Speaking of heinous action zack. Do you have some evidence some slides to go through? Well, yeah I mean, and we're gonna get uh as we advance in this conversation into some of the Replies to what you laid out uh, ilia because I know you've gone back and forth with some scholars on this Because when we're talking about deterrence, you know, uh, we want to clearly establish here What what is the behavior we want to do? What is laid out in this case some of the critics would say that the unintended consequences of this could be that you are deterring Speech or legitimate questioning of election results where there there may have been Fraud in play. I don't think that was the case here But um, those those are some of the concerns that we'll get into in in a minute But first let's look at the the the case the the actual case that uh, georgia has laid out against trump um This is there's 41 counts. There's 19 defendants named Including trump and many of his lawyers rudy juliani Uh, you mentioned john easman um act one that they Zero in on here is on the fourth of november, which would be election night 2020 When donald trump gave a speech where they say he falsely declared victory and falsely claimed voter fraud We have a clip from that speech. Let's take a look at that clip and then Talk about it in the context of this case We won states that we weren't expected to in florida. We didn't win it. We won it by a lot and It's also clear that we have won georgia We're up by 2.5 percent or 117 thousand votes with only seven percent left. They're never going to catch us. They can't catch us But most importantly, we're winning pennsylvania by a tremendous amount of it And all of a sudden everything just stopped This is a fraud On the american public. This is an embarrassment to our country We were getting ready to win this election. Frankly, we did win this election So, uh, I should also note that they the um The georgia case the prosecutors alleged that the speech was actually drafted four days or some version of it was drafted four days before The election, um, I'll will be interested to see if they present evidence of that But how might that speech? Ilya particularly if there's evidence that it was drafted in advance Implicate begin to implicate trump in criminal conspiracy So what I would say is no one including the prosecutors in the georgia case claims that merely giving that speech Is illegal. This is something that is misleading and some of the criticism that is offered of the indictment Then when you have the listing of the acts the the listing of acts is not a listing of things that the prosecutors say are by themselves Illegal rather that speech which included a number of false claims that we can talk about Is just part of the evidence Indicating that trump had a broader scheme to overturn the election result after he lost it And indeed one that he began to lay down even before the election. That's why it's important. It was drafted ahead of time Because it's clear that he was going to claim fraud regardless of how and by how much he lost And you know, there's evidence of that but merely saying I was the victim of fraud would not have led to this indictment Rather the statements about being a victim of fraud all statements Were a part of a scheme that involved things that are actually worry legal which is Trying to replace the real electors with false electors Pressuring state officials into falsifying the vote counts as in the famous call with the With the secretary of state of georgia where he said well find me 11,780 votes Which is happening the exact number of votes he was needed to overcome biden's lead in georgia So this is similar to if I merely say, you know, bob is a scumbag and he deserves to die That itself is perfectly legal. Uh, at least it's not a criminal violation You know sending aside possible claims of libel or slander But if I then proceed To tell my flunkies, you know go out and whack bob Then the previous statement where I say to bob deserves to die Could be brought as evidence against me in court evidence of the motive And plan that I had to you know to have bob killed and the same thing applies to Trump statements alleging fraud and also to trump's plans that were clearly laid down even before the election to allege fraud In any situation where he might lose it's worth blowing for a moment if we have time on what was false about trump's statement And that is uh, but but if we could get out or if you'd like to move on No, please do no lay it out for us. I think that yeah, so So it is true that in some of the states to trump ended up losing on election night He was still leading in the count, but that was because of the so-called blue shift Where because trump for many months before the election had claimed that absentee voting or mail-in voting Was fraudulent or suspicious many republicans believe what he said and so republicans Disproportionately voted on election day Whereas democrats as a result disproportionally voted by mail in the many states which permit this and therefore In states like pennsylvania and some others which first counted the in-person vote and only later counted the mail vote initially Uh republicans started out with a big lead But as these other votes which were disproportionately democratic were counted and there's nothing wrong with counting them Indeed, it would be illegal if they had not been counted an unfair as well Then what initially started out as a a lead for the republic for for trump turned into a lead for biden and many experts predicted ahead of time that this is what would happen given the hesitancy of many republicans to Do mail-in voting? Which was a new thing in the 2020 election before 2020 actually mail-in and absentee voting in many states was actually Somewhat disproportionate republican but trump ironically himself was responsible for the for the trend Which led to the perception that you know, he had a big lead which would somehow you know undermine and really within hours Of that statement it became very clear that in in that in these states The eventual vote count would show uh that trump had pretty decisively lost He ultimately lost pennsylvania by doing something like a high close to 80 or 100 thousand votes And he lost these other states of the swing states by many thousands of votes as well and So clear also to be clear You know to the extent that there were any Irregularities with the ballots and the mail-in balloting the trump team did Challenge the stuff in court and I assume we are all in agreement here that that's a totally legitimate route. Yes, of course. Yes, of course for right trump and his supporters filed over 60 lawsuits Challenging the results in various states that itself is perfectly legal Though I think it was somewhat abusive in a case where the overwhelming evidence was that there was no chance That the results would be overturned But he certainly had a legal right to do that and that wasn't the crime And it's worth noting that trump lost all but one of those cases and the one he went in pennsylvania Did not come close to overturning the large margin that biden had in that state And it's important and this is relevant to the criminal aspect of the case that he continued his fake electoral scheme And other efforts to overturn the election even after he lost all those cases And even after it became clear from the way those cases developed That he and his supporters had no real evidence of fraud on anything like the scale necessary to change the result It's also correct. Hold on. Get me correct me if i'm wrong here But is it also correct that some of the judges overseeing and issuing, you know rulings on those lawsuits were in fact also trump appointed? Yes, absolutely. And indeed one of the most eloquent and powerful opinions On this issue Was written by a third circuit trump appointee Who you know, he had nominated for that position And it's worth noting that in some of these state cases that were brought in state courts Many of those cases were also decided by conservative republican judges obviously state judges not federal ones and conservative republican election officials in a number of these states like georgia also certified the results brad raffensperger the georgia secretary of state Whom trump tried to pressure in that famous or notorious call. He is a conservative republican He would have been very happy to see trump win the state of georgia But he knew that simply wasn't the case given the margin of over 11,000 votes and given the lack of evidence of Fraud or other problems and anything like the scale that would have been necessary to overturn that margin So it's not the case that only liberal judges heard these cases or only liberal democratic officials were involved in Certifying the results. Yeah, brad raffensperger would seemingly have every reason to decide to Abdicate his responsibility and to sit on the trump pressure But the fact that he didn't is at least to me That's been one of the really interesting components of this case that I think Many of the maga heads have not really appropriately dealt with at all Yeah, and I agree with you you can say well, you know, this guy's a rhino or he's an establishment person or whatever But if the only evidence that he's a rhino is the very thing that you're questioning then You know his decision making this particular instance, then you know, that's a you know, relatively weak argument of the another key moment in the case we played the clip of trump at the You know On election night, we can now fast forward to his speech on january 6 in front of the stop the steel crowd And React to that so let's play that and then see how that and I hope right is going to do the right thing I hope so I hope so Because if Mike Pence does the right thing We win the election all he has to do All in this is This is from the number one or certainly one of the top Constitutional lawyers in our country. He has the absolute right to do it We're supposed to protect our country support our country support our constitution and protect our constitution States want to re-vote The states got defrauded. They were given false information. They voted on it. Now. They want to Recertify they want it back all vice president Pence has to do is send it back to the states to Recertify And we become president and you are the happiest people So we all know what happened after that. How does that moment potentially strengthen trumps prosecutors So it doesn't strengthen Them as much as a number of other moments in that same speech, but obviously here We have further evidence that there's much other evidence of trumps Desire to push through an illegal scheme the illegal scheme here is Twofold one is getting Pence To set aside the results which Pence had no power to do for it's going to be Pence himself, right? We concluded that he didn't have the power to do it and Therefore did not in fact try to do this second Is the effort to replace the actual electors Actually certified by the states with fake electors who were not certified at all The statement that he made there was said where he said what the states want to revoke or change results. That is simply false none of the states In the state legislators or certifying officials made any effort to Change their results or revoked them Even if they had made such an effort by this point it would still have been illegal because it would have been past the deadline set by law by which they had to Submit their electoral suites, but the fact is that no actual state governments tried to Change the you know, Biden suites to Trump suites. What you had is essentially, you know, Trump supporters who were not actual state officials empowered in this process, you know attempting to You know fraudulently insinuate fake electors instead of the real ones Um, and you mentioned there's other parts of the speech that you find more damning could you just Summarize so there's other parts of the speech Which I think strongly suggest that he wanted to use the violent threat of the crowd to pressure congress into Denying certification of the results. Uh, these are to pass the famous patches where he says you should fight white hell And march to capital and so forth. Uh, and I think this needs to be Considered in not just in the context of what's in the speech But also in the context of trump's previous Encouragement and endorsement of violence on a number of occasions both during the 2016 election and in 2020 when he for instance prays proud boys and others who attacked people violently and uh, it should be viewed in the context of Evidence uncovered by the january 6 commission in congress Which said that when he heard about the riot trump actually wanted to go to the capital and lead the and lead the attack Even though he also was restrained by a secret service agents from actually trying to do this So I do recognize that statements like such as fight white hell can be metaphorical But in this case, I think there is strong evidence to given the overall context to take them more literally Though I should emphasize that The neither the federal indictment nor the georgia indictment Direct we charge him with inciting an insurrection or inciting violence But I do but they do charge him with trying to use the threat of violence Uh as a way to leverage congress and we know that even while the attack on the capital was going on He was trying to call various senators and representatives to try to get them to Deny certification of the results and to use the threat of the riot or the fact that the riot was going on as part of His leverage uh to do so I would love to move us to a few audience questions some pushback on these points that you just made if that's cool You know one one commenter a blinkin says Um, most of the cases were thrown out for lack of standing the cases weren't even heard What do you make of that? Is that accurate? That is not true Some cases were thrown out on procedural grounds But about 30 about half the total cases were decided on the merits either because the court actually reached the merits Or because the court said well you the plaintiffs either trump or his supporters need to present evidence Uh of of fraud and they said no no no we don't actually have any evidence of fraud and therefore they would drew the case for that reason Uh, so about half the cases either ended up being withdrawn by the plaintiffs because they didn't have the necessary evidence of fraud Or were in fact decided on the merits Okay, I wanted I wanted to do two more um really briefly Uh, I also really appreciate that our commenters are you know giving this type of pushback because I think you know So many publications out there and so many journalists aren't interested in engaging in this type of thing and like I think it is important that we Um steelman the the other side's argument as best as we possibly can. Um, one person agorizer says he wasn't asking for Georgia to find votes for him He was asking Georgia to find illegitimate votes for jrb who I imagine is joseph Robinette biden as matt welch would say What do you make of that the idea that He was I think that I think that is not true First the actual statement, uh by trump is find me 11,780 votes, uh, which uh, you know seem to say you'll find votes for me But also, uh, even if you interpret as disqualified votes for biden that still is an attempt to Pressure raffensperger into an illegal scheme given that by the time this call happened first all of trump's legal challenges in georgia alleging fraud had failed and second No evidence of any large-scale fraud had been brought up and third if you look at the transcript of this actual Conversation raffensperger who was the official in a position to know and as I noted earlier a concert of republican He repeatedly tells trump that there's no evidence of large-scale fraud or other problems And trump clearly doesn't care about that and just says, you know find me the votes So given the context, uh, I think it is very clear The trump was indifferent to the question of whether the 11,780 votes were going to be found legally or illegally He just wanted those votes so he could prevail in georgia Let me bring up a question that I I'd like to address here from the audience from josh lian Not even close to persecution. Holy cow. Even proposing that as a legitimate question is dishonest as hell I just want to say that we are going to have these conversations Whether you like it or not and other people are going to have these conversations The frustrating thing about the past five years or or so has been The attempts to rein in what is acceptable discourse and so I just totally reject that that kind of frame and If people are upset by us, you know trying to have a frank discussion about One of the most important political issues then I don't know what to tell you. That's what we're here for There's also a question For a ghost of recon through in two dollars and said presumption of innocence Is missing in his analysis Is that true? Oh, yeah, I mean I I assume so presumption of innocence is a standard that applies in court Uh, and I totally agree that trump should not be convicted in west They can prove his guilt beyond a reasonable doubt. However in public discourse where what's at stake You know, I don't have the power to send trump to prison or impose any punishment on him All I'm doing is I is saying that I think based on the overwhelming evidence that is already in the public sphere That I think it is in fact the case that trump is guilty of at least many of these charges Just as I also think for instance that oj simpson was guilty of murdering those two people Even though I totally agree that of course he deserved The presumption of evidence of innocence in court and I also agree to my merely thinking That simpson was guilty of those murders that that by itself is not enough to send him to court So I think there's an important distinction between What we can conclude as a matter of seeking the truth in public discourse and legal standards That must be met in court Before somebody can actually be sent to prison or indeed subjected to any kind of criminal punishment Can we before we move before we move on to the the next section? Which is going to be responding to some of the other criticisms that you've Delt with and people you've gone back and forth with ilia. I just want to say thank you to wishes network for a $5 donation I don't think there was a question attached to that But uh, if you have one throw it in later go ahead lis Oh, I was just going to ask could you play that matt wittaker clip? sec Sure, it's a really sad day for our country I mean if you believe in the rule of law and if you believe in equal justice under the law This should concern you because you know, we have what appears to be a completely political prosecution of the former president the current leader for the republican nomination and you know, it is Was a rush to get him indicted, you know, you look at the other cases Compare this to hunter biden's case joe biden's case vice president pence's and even uh, you know, hillary clinton And and I just I can't see how Department of justice isn't explaining why they're doing this case and none of these other cases that I just mentioned It's it's really a sad day harrison and and I think it's uh, it's the stuff of banana republics quite frankly So I am fascinated by this because this is something we keep hearing from so many trump lackies and boosters And people in the media frankly, uh, and you've written really forcefully ilia that Actually, the banana republic talking point is totally Incorrect, and I was doing a little bit of digging into this and you actually look at the degree to which other You know countries hold their former leaders accountable for crimes After they leave office. I mean we see this with na nyahu. We see this with Nico sarkozy with silvio berlusconi. This isn't just the stuff of you know, banana republics This is something that decent democracies in the developed world actually frequently do and frankly as a libertarian I mean, I would maybe like to see more people in positions of power held accountable for Um, things they do wrong things criminal things that they do when in office How do you respond to the banana republic talking point ilia in two ways? One of them you've already done for me, which is that many well established respected democracies Have in fact prosecuted current or even for current or former heads of government or heads of state You just listed some of them France israel the prime minister of israel is under indictment for various crimes right now and south korea The former president was removed from power and she was prosecuted for corruption I believe I can't remember offhand, but I think she spent time in prison so Countries which pretty obviously are not banana republics do this on a regular basis But secondly if there's one thing that is banana republic It's a president Who is who tries to stay in power despite losing an election Part of what goes on in a banana republic is that even though we have the forms of democracy We don't have the reality because the person in power can in fact falsify the election Or use force and fraud to stay in power Even if he loses and that's the kind of thing that trump attempted to do And if we want to keep from becoming a banana republic or at least reduce the chances of doing so We have to inflict retribution and deterrence on high officials who do this sort of thing even if And indeed it's particularly important to impose punishment on dem Especially given that we would without hesitation impose it on low level officials or private citizens who tried to do similar things I want to also comment if you have time on First who matthew wittaker is and second Some of the other statements he said regarding biden hillary quinton into like matthew wittaker Is not a neutral objective observer matthew wittaker was trump's acting attorney general After trump got rid of jeff sessions his first attorney general Why because sessions although a very right wing republican with an ideology pretty similar to trump sone and maga populist He was unwilling to go lying with some of trump's illegal schemes into like so wittaker was made acting attorney general Because trump assumed that you know wittaker Would be willing to do this sort of stuff and he only remained acting because trump Likely calculated that wittaker could not be confirmed even by what was then a republican controlled senate That doesn't by itself prove that the things he's saying are false, but it does suggest that this is not a very credible person What he's saying regarding biden and hillary quinton With the case of biden it is true that biden white trump Is under investigation for possibly holding on to classified documents when he shouldn't have and indeed The justice department appointed a special counsel A former trump official no less to investigate biden's retention of classified documents and if that special counsel determines that Chargers are warranted. Maybe at some point they'll be filed You can tell a similar story about hillary quinton's email server if you believe that's a crime that should be charged That among the people responsible for failing to charge it are actually the people in the trump administration Who had four years to file charges in that case if they thought it was warranted And yet they didn't but none of this stuff is on the same plane as trying to use force and fraud to stay in power After you lose a presidential election neither biden nor hillary quinton despite I think some real sins and arguably abuses of power that they committed other instances None of them did something like that So there is no double standard on that and on the classified documents again Both trump and biden had been investigated by a special counsel On that and the special counsel in investigating biden You know is simply taking longer on that It's unlikely that he's taking longer to help biden given that that special counsel is a u.s. Attorney previously appointed by trump If anything it might actually be worse for biden if charges end up being filed against him close to an election Rather than the investigation being completed earlier than that And to be clear the matthew wittaker clip was him talking about the classified documents case, but you hear the banana republic That's there canard often In in relation to all of these cases another Line of criticism you hear comes courtesy of rand paul's tweet here where he says one way to destroy A democratic republic is to criminalize speech When will democratic supporters of the first amendment step forward? And the article that he links here is headlined the criminalization of politics To get trump is endangering everyone's speech What is your reply to that? concern that We are in danger of making any sort of pushback or speeches about Electoral issues A crime Yeah, the response is simple No one including trump is being prosecuted simply for saying the election was fraudulent or simply for saying trump Deserved when the election those are false claims, but they are not violations of criminal law and they should not be Rather what trump is being prosecuted for and others as well is for Not merely speaking but planning and taking action the scheme to Replace real electors with false ones to pressure state officials in some cases also to defraud the courts Placing false evidence in court and the like And it is true that part of what's involved in these schemes is speech But that can be said for any kind of criminal conspiracy If a mafia boss tells one of his underlings, you know, you know, I don't want to see joe around anymore Let's whack him you can say well, that's just speech But of course it's speech that's part of an effort to produce action And that makes it different from a mere expression of political opinion or any kind of opinion And I think there is it's important Not to conflate a situation where speech is being prosecuted purely because it expresses some kind of wrong or objectionable opinion and a In a case where speech is part of a plan of action and is being prosecuted for that reason 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 Call 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 you know that he You know legal legally isn't culpable, but he's kind of taking a more pragmatic approach and he's 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 Uh, he goes on these are not what about his employees. They're in the context They're 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 Uh, you know, so for me there 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 Undermind 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 to 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 Then 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 ilia? So jack goldsmith is a more serious and substantial figure certainly than matt wittaker 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, uh, 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 you know, the worst will happen is your scheme will fail But you won't suffer any uh punishment for it. That's a terrible set of incentives and is awful And that's a much greater risk than any of these scenarios that um, Goldsmith posits second, we would respect to 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 and 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 committed? Lost the election and who believed that he deserves prosecution for You know his actions at that time So 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 and these people because of their false perceptions should not enjoy a veto power I also dispute some of what goldsmith said about You know 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 mower 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 days I've 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 You know 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 i'm not a trump supporter But it is you you do you do get the the feeling given The timing of this given kind of the the constant investigations that trump has has been under that it's the the attitude from the beginning has been like We're gonna do we're gonna throw whatever we can at this guy to stop him From you know staying in the presidency or getting elected again What is like just in a practical sense. What is Why not let this play out? in the political arena rather than In the halls of justice, uh, you know that there was the chance to Impeach him which the house did and the senate did not convict. Um, there's the ballot box. Why not just leave it to the 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 gonna 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 the 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 What do you make of I think one of the arguments that people sort of frequently conflate Is you know trump has been persecuted by you know the court system by by people bringing You know lawsuits against him But also that trump has been persecuted by much of the media and that the the narrative surrounding trump has sort of Been predecided 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 And I think sometimes like 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 out 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 um And and 29 of them did not proceed and did not find any evidence. I think is uh, 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 is largely right in that When cases have been filed against him in court. He has been Treated fairly indeed probably more fairly than it's 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 pre-trial detention rather and 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 be required 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 would 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 you reap what you sow when you see how trump talks about his opponents Or even people within his own party that disagree with him in various ways He certainly is not civil. He doesn't fairly weigh evidence Indeed he appeals to all kinds of bigotry and prejudice of various kinds Even in such things as his attacks on The on elaine chow the wife of mitch mcconnell for the fact that she is of chinese background You know his Advocacy of racial and ethnic and religious bigotry and the like so if you want to be treated nicely by other people A good rule of thumb is treat those other people the way you yourself want to be treated Trump very obviously doesn't do that So it stands to reason given his Complete unfairness to his opponents That other people are going to regard him negatively and sometimes yes be unfair to him as well But he has done plenty to justify The fact that he gets a lot of negative media coverage I think we'll have to agree to disagree on that one. I don't know I think that this is definitely almost a subject entirely worthy of its own live stream at some point sure the like apoplectic way with which so many members of the mainstream media writers at the new york times and the washington post Have heralded the rise of donald trump and then i think also the way they reacted to covid into the pandemic At least for me as both a journalist and a news consumer. I felt a certain Um distrust in many of these people to remain uh even keeled and level-headed in their portrayal of what was going on Um, but that's you know a bigger complaint that I think we can get into some other time. Uh, zack, did you want to move to Yeah, I want to um, you know start to bring this conversation to a close by examining the other aspect of the georgia case Which we mentioned the 18 alleged co-conspirators mostly his attorneys like jenna ells rudy juliani and john easman who was the intellectual architect of that Elector scheme that mike pence rejected It's a scheme that was laid out in this six point memo that was released. Um, I've highlighted a couple sections of this including One aspect is that pence would gavel in trump, uh, as reelected after um, kind of rejecting one slate of electors for another and then force the other side to fight to To fight to fight it out in court. So going on a sort of offense and Point six here. He says the main thing here Is that pence should do this without asking for permission either from a vote of the joint session or from the Court let the other side challenge his actions in court easman Recently appeared he appeared last week on laura engering show on fox and this is what he had to say in his defense You know the people that I was representing had a right to counsel And what's going on here with the bar complaints against everybody involved in any of the litigation This fulton county complaint the unindicted co-conspirators and the federal action They're trying to stifle people from being able to get representation in election challenges if if disputed questions of constitutional law All of a sudden become criminal we we could we could Throw, you know the entire legal profession the entire legal academy in in jail. The fact of the matter is throughout our history Significant leaders in congress have have argued that congress doesn't have authority Under the 12th amendment that the founders specifically designed it that way So that the president wouldn't owe his job to congress It's a core separation of powers principle that the founders adopted and he just doesn't he ignores that In his analysis. So the notion that this is well settled is crazy is bringing the attorneys into this case criminalizing dissent and criminalizing the A profession of law as easman suggests here alia In a word no Because what easman and some of the others were doing here went beyond simply giving legal advice It was participating in urging a scheme of illegal conduct in this case as he's highlighted in that memo Trying to get pens to illegally reject the electoral votes And the like and there's many cases involving mafio lawyers For example where when the lawyer doesn't merely Advise his client and sort of how to defend himself in court or something like that But instead You'll participate in a scheme for for illegal action Your lawyers can be prosecuted for that and this is far from the first time That this has happened to be sure there can be cases where there's gray areas as with many legal doctrines In this case with easman and some of the others I don't think it's that much of a gray area because easman was clearly urging the specific plan That was adopted here He wasn't even merely saying like you know somebody else wanted to you to plan and they asked easman whether it would be legal or not You know easman went beyond you know something like that. So, uh, if You know a mafio lawyer advises His you know his mafia client that you know, we should we should kill this person and not only that But it would be legal to kill him because it would just be self-defense or something like that You know the mafio lawyer could be prosecuted for that and he couldn't hide behind You know the idea that he was just giving legal advice that you the planning of future crimes is one of the standard exceptions to attorney client privilege and one of the kinds of things that historically lawyers can be And have been prosecuted for when they engage in it Okay, but this isn't that kind of an extreme metaphor, you know, he wasn't Uh, uh advocating anyone be killed he His argument is that this is a legitimate contested area of constitutional interpretation You you just agree you just disagree that This is in any way a valid way to interpret the constitution So his argument was extremely bad But uh, this is going beyond merely making a bad argument in the abstract This is urging a specific course of action and planning it out And uh, I don't think it's at the comparisons to mafia is all that extreme when you recognize The dire horrible consequences of what would have happened if this scheme had succeeded That is that a president would have been able to stay in power despite losing an election That's you know, not exactly the same thing as carrying out a murder But it's nonetheless a large-scale awful crime One of the things that Worries me a little bit about the sort of sedition seditious conspiracy Rapper around this is How far that can be extended? I mean, we're already we're roping in attorneys who are Advancing these legal theories or courses of action Um, you know, the the sedition charge has been used to prosecute in sentence to decades in prison I should note there is no sedition charge in any of these cases Okay, there's a but it okay. So there's a conspiracy charge. There's a there's a the rego charge. Okay, and then we can Say that, you know, the sedition charge is a separate charge that's been applied to the the january six rioters Who are now some of them are facing decades in prison some who were not even there I I'm I'm worried that this approach this expansive approach is handing Unbounded power to suppress dissent to whichever party controls the state. Should I be worried about that? uh, I think In this particular set of cases no When you talk about the january six people yes sound and weren't there But those who weren't there were ones who were involved in the planning of the attack on the capital They weren't merely people who just said the election was illegitimate or the trump really won and the like They were leaders of organizations like the old keepers and the proud boys who were directly involved in the planning of the attack So if you're involved in a planning of a violent action, uh, you can certainly be charged with that Even if you weren't personally present there, uh, and uh on the Breath of a conspiracy, you know, as I said before I'm not an expert on reco But uh, I when you're looking at people like eastman. These were people who were in the inner circle of planners specifically planning out the specific actions regarding fake electors rejecting the The plan to have trump reject the ballots and reject the electoral votes and so forth So these are not people with some far out indirect connection to the plan. These were essentially the planners themselves In the georgia case admittedly I'm not an I'm not familiar with all the details of all the indictments of the 18 different people So perhaps you can find someone among the 18 who was much further removed than eastman And if so we can talk about whether, you know, it's a good idea to charge that person or not But with someone like eastman and other People closely involved in the planning. I think you know, there's no great slippery slope risk Indeed, there's a slippery slope risk the other way If you let people these people get off simply because their lawyers are to like Because then that creates an obvious incentive to use lawyers to plan your schemes to Stay in power So I want to end on a note That is sure to make our viewers and commenters extra incensed extra angry And that is the sort of controversial Section 3 14th amendment approach to possibly keeping trump off the ballot in this upcoming election It essentially uses his role or attempts to use his role in january 6th As a means of ensuring that he has kept off the ballot in many states Section 3, I believe was actually something That was added in the wake of the civil war basically when you know, the the Nation was so terribly divided and then came together after that and was attempting to Move on there. They felt the need to stipulate that those who had been involved in insurrection or rebellion Should be ineligible What do you think I mean you've supported this pretty publicly ilia What do you make of this this case? Do you think this is I think there's two questions here there's is this prudent to do and Is this correct to do like there's a pragmatic side and then there's a principal side How do you look at this? Yeah, so I think there's two sets of issues here one is whether the legal argument is correct That issue is sufficiently complicated. There's no way I can do it justice and I've not tried to do it justice rather If you're interested there's a lying in detailed article by michael stokes paulson And we'll go to prominent conservative origin with legal scholars Who have about the article in the university of pennsylvania larryview and I urge people We're interested in the legal side. It is to look at that In my recent law fair article, which you just posted I look at the moral and pragmatic side of this And I argue there That there are good reasons sometimes to disqualify people from elections in a democracy Who are a threat to democracy itself as proven by their track record There are parallels from other democracies particularly in germany and eastern europe and I also criticize Various kinds of slippery slope arguments That have been made against this but I do admit that some slippery slope considerations should be taken seriously and I even raise one that I think hasn't been much discussed which is that The text of the 14th amendment in section three does not distinguish between insurrections for just causes and insurrections for unjust causes I think what happened on january 6th is pretty clearly an unjust cause But by the same reasoning would would disqualify a person Who had participated for instance in john brown's insurrection against slavery At least if that person had been previously a federal or state official So uh, while I think there are some reasonable concerns about section three Unbalanced, I think using it as justified in this instance And I weigh out those reasons in more detail in the law fair article And also does it even count as an insurrection or is it like a failed insurrection? Right. I mean the Q and on shaman was not exactly Wondersly effective in his stated goal, right? So you can have an insert an insurrection can exist even if it fails There's no requirement that it be successful Okay, understood There are other questions about whether this counts as an insurrection and dosing her address very thoroughly in the article by God and uh in poulsen, uh, but the fact that it failed does not count Against it's being an insurrection indeed The rebellion of the confederacy which inspired section three also ultimately failed the confederacy was crushed But none that didn't render for being an insurrection Yeah, I I just have to ask alia since what is being proposed here is essentially that states legislate or you know state election officials Could pull trump off the ballot and said he's he's not uh under the 14th amendment. He's not allowed to run here That just strikes me on of a practical level as That is a potential tipping point, you know people talk about Uh civil war and everything and I think a lot of that's overblown but I think the the kind of blowback from that sort of move strikes me as like Kind of horrific to contemplate does that not worry you? So I think it would be legitimate to worry about this if state official just did us on their own without any Outside review, but in fact there would be judicial review of decisions like this in both state and potentially federal court as well Uh and including of course by in the federal courts by judges appointed by trump and other republican presidents I think there's a good chance ultimately this issue would go to the supreme court if the argument is well Regardless of whether this was done by through courts or not or regardless of judicial review That trump supporters might react with violence. My answer is that the threat of violence Should not deter us from doing what is right if doing this is otherwise, right? Which I recognize, you know, there's an argument about that But if it's otherwise right to do if we allow the threat of violence to deter us then that just incentivizes more violence Uh and just as you shouldn't give in to terrorism you shouldn't give in to Threats of violence in this kind of situation either I am very concerned about the slippery slope argument, but I personally oppose the section three plan with regard to trump I'm in favor of it specifically applied to Vivek Rama swami Because I think uh his assault his insurrection on my earlobes with his m&m rapping attempts Uh definitely means that he ought to be disqualified from being Sent to cease and desist letter to him. So, uh, you can You can stand m&m a little bit for that Yeah, I think we should section three. Vivek, uh, not Trump But uh, we really appreciate you taking the time to speak with us ilia soman. Uh, where can people find you? Sure, so they can google me and find my website. Also, as you mentioned before the vola conspiracy blog V. O. L. O. K. H. Which is on the reason website Wonderful. Thank you so much for taking the time to speak with us. We really appreciated it. Thank you for having me great questions And we'll be back next week. Uh same time same place