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00:00 So we have heard a lot from Donald Trump's lawyers
00:02 the past 48 hours,
00:04 floating what appear to be possible legal strategies.
00:06 And one of them is that the things that Trump allegedly said
00:10 to overturn the election
00:11 were not commands so much as aspirations.
00:15 - You're saying that asking is action.
00:19 No, asking is aspirational.
00:22 Asking is not action, it's core free speech.
00:24 What President Trump did not do
00:26 is direct Vice President Pence to do anything.
00:30 He asked him in an aspirational way.
00:33 Asking is covered by the First Amendment.
00:36 - With us now is Shan Wu,
00:38 defense attorney and former federal prosecutor,
00:40 also former US Attorney Michael Moore.
00:42 And Shan, aspirational.
00:44 Hey, Mike Pence, can you overturn the election?
00:48 It's a little like Henry II,
00:50 who will rid me of this meddlesome priest?
00:51 I mean, is that a sustainable legal defense?
00:55 - I don't think so.
00:57 It might have some jury nullification issues
00:59 if they manage to get it in front.
01:01 I did do a poem about the First Amendment issue,
01:04 which is, it's like the bank robber
01:06 who goes into the bank, hands over a note
01:09 that says, "Roses are red, violets are blue,
01:10 "give me the money or it's curtains for you."
01:12 He gets arrested and then says,
01:14 "Hey, is writing poetry illegal now?"
01:17 That's the same thing with the ask.
01:20 I'm asking you to give me the money.
01:21 I'm asking you to do these illegal issues.
01:25 The aspirational defense just is not gonna fly.
01:28 - Michael?
01:29 - Well, I'm glad to be with you
01:33 and with the new poet laureate here this morning,
01:37 if we think about it.
01:38 I think it's the First Amendment challenge
01:40 is a strong claim.
01:42 And I think it's a good way for an appellate court
01:44 to look at this and to basically deal with the case
01:47 without necessarily getting all the substantive
01:48 and the dirty merits of the case later on.
01:51 So I mean, I have no doubt
01:52 they'll raise a First Amendment claim.
01:54 They're doing that.
01:55 A lot of what they have is gonna be cast
01:57 in the terms of political speech
01:59 as much as aspirational comments.
02:02 And so the question of how those things intertwine
02:05 and what that meant as the speech was given
02:08 on the ellipse that day,
02:10 and certainly in some telephone calls,
02:13 those questions will be, I think, matters
02:17 that will go well beyond any type of trial
02:19 and move forward to an appellate court
02:21 if they get a conviction,
02:22 maybe in some pretrial motions and appeals as well.
02:26 - Yeah, I don't think there's any question
02:26 that the First Amendment is one area
02:28 that they think is fertile to mine.
02:29 I do think there's a legitimate question
02:31 of whether the mere aspirational aspect of it
02:34 makes it protected First Amendment
02:37 versus some other aspect,
02:39 for instance, the political free speech,
02:40 but I suppose that is something
02:41 that an appellate court might ultimately
02:43 get to hear, Michael, yes?
02:45 - Yeah, well, I mean, I do think they could be different,
02:49 but at the same time,
02:51 let's say that a candidate stands on the stump
02:53 and says, "We've got to fight against these terrible laws
02:56 "being passed by the General Assembly.
02:57 "I want you all to please go show your strength."
03:00 It's political speech,
03:03 and it's aspirational at the same time,
03:05 and so the question will be whether or not the request,
03:07 and was it actually a request made
03:09 by a president to a vice president?
03:11 Was it a discussion?
03:12 Was it a request made following legal advice
03:15 or legal suggestion?
03:16 Maybe it'd been the lousiest legal advice
03:18 in the world that he was getting,
03:19 but that's gonna be a question.
03:20 I think it'll be presented.
03:21 So all of these things, I think,
03:23 are being trotted out,
03:24 both to be tried a little bit,
03:26 to see how they focus group in the world of public opinion,
03:30 and they'll decide, the defense team will decide
03:32 what they're gonna put forward in a trial.
03:34 - And Shan, what's interesting about this
03:36 is it gets to the conversation or conversations
03:40 that Donald Trump had with Mike Pence.
03:42 I mean, Mike Pence ultimately will sit in a witness stand
03:45 and be asked something along the lines of,
03:48 "What did you think when you were being asked/told
03:51 "to overturn the results of the election here?"
03:53 Now, John Lauro, who sat and we played just before there,
03:55 also said this week,
03:56 and that he thinks Mike Pence will be a great witness
03:59 for Donald Trump.
04:00 What's your assessment there?
04:02 - Well, I don't think he'll be a great witness
04:06 in the sense that he's gonna be giving evidence
04:09 that exonerates Trump.
04:10 I think he'll tend to be a pretty factual witness.
04:14 He'll be very, very accurate
04:17 in terms of his delivery of his testimony.
04:19 He does have some vulnerabilities on cross.
04:22 I'm surprised Laurel didn't bring this up.
04:24 I think he's trying to spin things politically right now.
04:27 You could certainly cross Pence
04:30 if he starts sounding negative towards Trump
04:32 by saying that he has a bias.
04:33 I mean, he's trying to run against Trump.
04:35 He has bad feelings towards him
04:37 about what happened on the 6th.
04:39 So there is some good fodder for cross-examining Pence,
04:41 but generally, from what we already know
04:44 about what he has said about his experience,
04:46 it's hard to imagine that they really think
04:48 it's gonna be particularly positive for Trump.
04:51 - Good or bad witness for the prosecution, Mike Pence.
04:54 What do you think, Michael Moore?
04:56 - I think for the prosecution,
05:01 if Pence will get some backbone,
05:04 he could be a good witness,
05:05 but he's been so wishy-washy,
05:06 it's like trying to hold an eel.
05:08 He challenged whether or not he should testify before.
05:12 He fought a subpoena.
05:14 He's done all of these things.
05:15 Didn't appear before the January 6th committee.
05:18 He's trying to walk that balance
05:19 of keeping voters on his side and telling the truth.
05:21 And until he decides that telling the whole truth
05:24 is something, then I think that the defense
05:26 will be able to use his refusals and his claims
05:30 that he's made in the past about private conversations
05:32 and this type of thing and how he's downplayed that.
05:35 I think they'll be able to use that against him in cross.
05:38 - Michael, you're in Georgia.
05:39 Let me ask you a little bit about the Georgia case,
05:41 because I'm struck by the fact that they,
05:43 they're doing things like closing the streets
05:45 by the courthouse, putting out barriers,
05:46 and they're doing it for like days at a time.
05:48 I mean, how many days can you do this
05:50 before you have to issue,
05:51 or before they will issue an indictment, do you think?
05:54 - Well, I had all along thought
05:58 that this was the wrong way to go about it.
06:00 I thought that there should be a very clean cut case
06:02 and really that come one Tuesday morning,
06:05 the DA should have stood in front of a camera
06:07 and said the grand jury's issued an indictment.
06:10 But this lead up to it, this sort of drip, drip
06:12 and tease, tease about what may be coming,
06:14 I think is not good.
06:16 Just like the letter that was published.
06:18 I think that should have been done privately,
06:19 talking to the sheriff, the security people,
06:21 and the chief judge.
06:22 You don't have to write it in a letter
06:23 that can be leaked out.
06:25 It almost presumes that the grand jury
06:27 is gonna issue an indictment.
06:29 And that's not what our system is about.
06:31 I mean, we all can talk about whether or not
06:32 a prosecutor can always get an indictment,
06:34 but certainly in a case like this,
06:36 you wanna at least have the appearance
06:38 that there's been some impartiality
06:39 and consideration of the evidence
06:41 as opposed to just a presumption
06:42 that there would be an indictment
06:43 and we need to close down the city.
06:44 So I don't know that it's gonna go on much longer.
06:47 I expect that we'll see an indictment this week.
06:50 There is a hearing on August the 10th
06:52 that a senior judge set up to sort of deal
06:54 with the same issues that we saw last week
06:56 in the McBurney order.
06:58 That's specifically dealing with whether or not
06:59 the DA has some conflict,
07:01 whether or not they could use
07:02 the special presentment grand jury
07:04 and whether or not Judge McBurney
07:05 should be presiding over the case.
07:07 Both parties were ordered to brief that
07:09 and there is a hearing scheduled.
07:10 So I've always thought the indictment
07:12 is likely to come after that hearing
07:14 so that it doesn't muddy the waters anymore.
07:17 But I agree with you, this is not, in my opinion,
07:19 at least been the best way to move forward.
07:21 - Michael Moore, Shan, Shakespeare Wu,
07:23 thank you both for being with us this morning.
07:26 - Can you talk about that term aspirational
07:30 and is that a legal thing?
07:32 - No, it's not.
07:34 I mean, in any, I mean,
07:36 let's take this to the employment law context, right?
07:39 When your boss asks you to do something
07:42 and that's coming from your boss,
07:43 that's more than an ask.
07:44 It carries the significance,
07:48 it can carry the significance of coercion and influence.
07:51 We know this from decades and decades of employment law.
07:54 This is like the most obvious employment situation.
07:58 Your boss is the leader of the country.
08:00 - You're choosing employment
08:01 because Donald Trump was Mike Pence's boss.
08:03 - Exactly.
08:04 So it's not, an ask is not just an ask.
08:07 At law, if it comes from someone
08:08 who has power and authority over you,
08:10 that's uniformly recognized as a different thing.
08:12 But put that aside,
08:14 what Donald Trump has been accused of doing
08:16 is conspiring to defraud the government,
08:20 conspiring to obstruct an official proceeding.
08:23 So he's not being charged
08:24 because specifically he asked,
08:26 they had this one conversation.
08:28 Those conversations are evidence of the agreement
08:32 and the effort that he put in with his co-conspirators,
08:35 allegedly to defraud the government
08:38 and to obstruct an official proceeding
08:40 and to deny approximately 80 million Americans
08:44 their right to have their votes counted.
08:45 - And yet it is a window into the defense
08:48 that we are likely to see during this trial.
08:52 Another window into that,
08:53 John Laurel did all the rounds.
08:55 He did every Sunday show yesterday.
08:57 This is another thing that he said
08:59 with regard to violating the Constitution.
09:03 - He never said, no, that's wrong, that's wrong.
09:08 A technical violation of the Constitution
09:12 is not a violation of criminal law.
09:14 That's just plain wrong.
09:15 And to say that is contrary to decades of legal statute.
09:20 - A technical violation of the Constitution,
09:24 I'm not sure exactly what he is referring to there,
09:27 but what they lay out in the indictment
09:29 is this alleged conspiracy
09:33 to completely undermine the democratic process.
09:35 It's not a technical violation of the Constitution.
09:38 It's a pressure campaign both on states,
09:40 on his own vice president, on his own justice department.
09:43 This is not a quote unquote technical violation
09:46 of the Constitution.
09:47 So I'm not sure that's gonna be
09:48 John Laurel's strongest defense.
09:50 - Yeah, I think what they're getting at,
09:53 sort of reading between the lines,
09:54 is that the Constitution doesn't set a lot of rules.
09:57 It sort of sets out broad principles and says,
09:59 well, we have the electoral system
10:01 where states will each have votes on presidents,
10:03 but it doesn't lay out the mechanics
10:05 of things will happen on December 14th
10:07 and June 6th and so on.
10:08 I think he's saying that
10:10 because the president was tinkering with that,
10:13 none of that's expressly prohibited by the Constitution.
10:15 So it's just a technical violation.
10:17 To Paul's point, it's just a little confusing
10:20 where they're going with it.
10:21 - And those counts aren't counts
10:23 of violating the Constitution.
10:25 They are counts of violating U.S. federal criminal laws.
10:30 18 U.S.C. 371.
10:33 I mean, he's conflating the two to try to say,
10:37 look, it was a trivial argument about dates,
10:42 about just postponing the count from this day to that day.
10:45 Well, it's not trivial,
10:47 but that's not actually what he's been charged with.
10:49 He's been charged with violating the law.
10:50 - Both this and the aspirational thing,
10:54 at the heart of their defense is going to be,
10:56 we were bouncing ideas around.
10:59 We were just testing things out,
11:01 and this was where we landed.