At a House Judiciary Committee hearing held last week, Rep. Kelly Armstrong (R-ND) spoke about New York District Attorney Alvin Bragg.
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NewsTranscript
00:00Thank you.
00:02All right, I just wanna kind of bookend this thing
00:06a little bit and be like, and we know this,
00:09the first federal prosecutor decided not to,
00:11or declined prosecution, commercial trainers told that.
00:14The first DA, Manhattan DA didn't prosecute
00:18and then Alvin Bragg actually, I mean,
00:21campaigned on prosecuting it.
00:23And at the core, this is a false business record
00:26entries were used to cover up a conspiracy
00:29to promote an election by unlawful means.
00:31So the filing of false records is a misdemeanor
00:35to your statute of limitations.
00:38The New York conspiracy is a misdemeanor
00:40to your statute of limitations.
00:41By combining those two, you get to where you can
00:44actually create the felony with statute of limitations.
00:50Outside of anything else in talking about political,
00:53not political, there's an unbelievably aggressive use
00:56of prosecutorial discretion.
00:58So the charge of offense is the false
01:01line of business records.
01:02The predicate offense is the New York concealing
01:06a conspiracy to interfere.
01:07But here's where my question comes in,
01:09and this is, I've actually read all the jury selections.
01:11The unlawful means is where we get this grab bag,
01:14right, Mrs. Foley?
01:17Yes, that's where we get three possibilities
01:18to instruct about it.
01:19And it's in basic pick.
01:20But I went through the jury instructions
01:23and here's my question.
01:25What elements of any of those predicate claims
01:29are unlawful means?
01:30I mean, conspiracy in and of itself is,
01:33so if you charge a second offense
01:36driving under the influence,
01:37usually the sentence for a second offense
01:39is different than a first offense.
01:41In order to get to the second offense,
01:42you have to prove the first offense
01:44beyond a reasonable doubt.
01:46Now in those types of cases,
01:48it's a certified record of a court judgment.
01:50You just put it in the record.
01:52I've objected to just about everything
01:55that's ever been put into court when I was doing this.
01:56It's impossible to object to that.
01:58So when we're talking about these unlawful offenses
02:01and these three things
02:03and dealing with the New York misdemeanor statute
02:06that when you combine with the other misdemeanor statute,
02:08you end up getting to this felony
02:10and pass the two-year statute of limitations.
02:12But was the jury required to prove
02:14any of those underlying elements
02:15beyond a reasonable doubt to any of those crimes?
02:17Because I'm talking about the Fifth Amendment
02:19and the due process part of that.
02:21No, and in fact, based on the instructions,
02:23we don't even know which of those possible three areas
02:27of law the jury decided
02:29because they didn't have to be unanimous.
02:31But it's really more than three laws, too, by the way,
02:33because the tax laws that he instructed the jury on
02:36could include local, state, and federal tax laws.
02:40And by the way, the mention of local or federal tax laws
02:43had never been made at all before, at most, right?
02:47The prosecution had mentioned the possibility
02:50of state tax laws as being the first predicate,
02:55not the second.
02:56Yeah, and I'm actually into the third layer of this
02:59because unlawful means, I mean, I'm just thinking of,
03:02I've never defended a case in New York.
03:04I've just never practiced in New York,
03:06but I have defended cases in state court
03:08and I've defended cases in federal court.
03:10And I'm thinking about arguing against a case when you,
03:13I mean, I made my living
03:14on if there were seven elements of a crime,
03:16winning one of them.
03:19Like, I don't need to win all seven.
03:21I gotta get proof beyond a reasonable doubt
03:23on one of the seven elements.
03:24And they're not laid out anywhere in this whole process,
03:27are they?
03:28No, I mean, that's the problem.
03:29You don't know how the jury got to where they got
03:34at the end.
03:35In fact, you didn't even know how they could get there
03:37until they were instructed.
03:39And then once they were instructed,
03:41because they could kind of pick and choose
03:43which of the unlawful means they wanted
03:45to base the New York election law violation on,
03:49you have absolutely no idea why President Trump
03:53was guilty of a felony based upon theories
03:56of two different misdemeanors.
03:58So, I'm glad you said that,
04:01because I was busy and doing all of these things
04:04and I tend to not listen to the cable news rhetoric
04:07and all of these different things,
04:09because I've actually been in there
04:10and I think they get it wrong a lot.
04:12But I get through it and I read it
04:14and I'm just thinking, how do you possibly do this?
04:18And that's where I'm frustrated.
04:19And I'm frustrated with the rhetoric today too,
04:22because I've been criminal of the administration of justice
04:26since 2003 when I got sworn into the North Dakota bar.
04:30I mean, I've introduced bills on exculpatory evidence,
04:33recording interrogations, crack parody and sentencing,
04:37acquitted conduct, all of these things,
04:39oftentimes working with the other side of the aisle.
04:42But the nearest I can think of,
04:43and I agree with you and I appreciate you saying it earlier,
04:46the jury's only as good as the instructions they get.
04:48I do not criticize the jury.
04:50I get a little frustrated.
04:52Political demographics and all of that,
04:54I mean, I've dealt with that.
04:55I don't criticize the jury.
04:56But nearest I can figure out,
04:59anybody who criticizes Judge Mershon or Judge Bragg
05:02is like,
05:05DA Bragg,
05:06is like causing our criminal justice system
05:11to come crumbling down
05:12and democracy in itself is gonna fail.
05:14But Judge Cannon, Judge Alito and Judge Thomas,
05:17completely on limits.
05:18You can do that whenever you want.
05:20So I think what it really means is if you don't agree with me,
05:23you're a danger to democracy.
05:24If you agree with me, you're perfectly acceptable.
05:27And with that, I yield back.