Jonathan Turley: Mar a Lago is Different, This Is The One That Could Put Trump In Jail

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Guy Benson: Joining us now is Jonathan Turley. He’s a professor of constitutional law at George Washington University and a Fox News contributor and Jonathan Turley on Twitter. And it is great to have you here for the first time, sir. Welcome to the program.

Jonathan Turley: Thank you very much.

Guy Benson: So I was watching with great interest on Fox News Sunday yesterday, as you were part of the panel, we were chatting in the green room in advance and then afterwards as well. You have had a lot of legal commentary out there on a whole host of issues related to Donald Trump. And I think that you have really stood out in the sense that you are not a partisan Republican or a conservative, even per se, but you have given a very fair shake to President Trump in a way that some other legal analysts have not. On other occasions, your tone and the substance of what you’re saying on this federal indictment against the former president is different than some of what you’ve been saying in the recent past. When people lump this or try to lump this into the broader witch hunt, they’re out to get him narrative about Trump. It seems like you’re dissenting on that point a bit. What makes this different? What’s the distinction in your mind?

Jonathan Turley: Well, it could very well be true that the Department of Justice was out to get Trump, but he made it easy for them in this circumstance. That doesn’t relieve him of the allegations. Now, we haven’t seen the defense response. My experience is that, particularly with the Department of Justice, that many of the most sort of jump scare moments in an indictment tend to get knocked down by the defense. The problem with this indictment is that many of these allegations are coming from his former counsel or they’re embodied in evidence like this audiotape. And the audiotape is particularly damaging because it allegedly shows the president telling two people there to interview him that he had a document which apparently he showed or at least pointed to that he said was classified because he had not declassified it. And it involved reportedly an attack plan on Iran. The audiotape, which I do expect will say what they said it said, really contradicts his public and legal statements. The reason I’m confident of that is that I have litigated against Department of Justice for decades. But while they will often, in my view, misrepresent evidence, they don’t tend to invent it in the sense of lying about what’s on an audiotape because the court’s going to hear that audiotape. So assuming that that’s true, yeah, it’s damaging. And this has been what I’ve been writing about for two years. For two years I’ve said that I do not believe that the president committed a crime on January six. I certainly not based on his speech. I also don’t believe that he committed a crime in the telephone conversation with Georgia officials unless they come up with something new. I don’t see how that could be the case. And I believe that the Alvin Bragg charges in New York are blatantly political and frankly, a bit of an embarrassment. But for two years, I’ve said Mar a Lago is different. I mean, this is the one that could put the president in jail unless he’s careful. And what we saw in this indictment is something that’s very, very serious. And I think that the Trump team can’t delude itself. It’s going to be very honest with the president. This is a serious threat, unlike cases like the one in New York.

Guy Benson: Let me ask you about his attorneys and now some of these attorneys who have quit, which happened on Friday coinciding with the indictment being released, roughly number one. There’s a fair amount of evidence that the government says it’s had. That rather, the government says it has. That I was reading through the indictment and it’s attributed point after point to at least one of Trump’s own lawyers. And you just pointed out that that is one of the problems for him. It’s not like some unreliable outside person is fabricating something. This is a member or members of his own legal team memorializing certain conversations and that kind of thing. My question and it makes perfect sense to me that some of that would be potentially quite devastating to him in this case. Doesn’t. The privilege apply at some point here. Not that I’m trying to make excuses for him, but the attorney client privilege seems to be something that sacrosanct. How is it that they got around that in this case where you have potentially very damning things being leveled against the client from at least one of the attorneys?

Jonathan Turley: Well, these attorneys did not willingly testify. They were compelled to testify. And that occurred after the government filed what’s called a crime fraud motion, which they alleged is that the lawyers were involved in a crime or fraud in the court, accepted that. I am still a little bit uncertain of how that played out, because judging from these questions, it seems like they just had a wide open field. Usually even with the crime fraud exception and the courts are very limited in the range in which you can question lawyers. But that’s going to be one of the early issues that are appealed by the Trump team. And it may be one of the issues that delays trial, but that is the type of evidence that I can tell you as a defense attorney, you fear that as well as audio or videotapes, jurors tend to believe what they can see. They tend to believe what they can hear.

Guy Benson: Now they’ve got both. They’ve got they’ve got the stuff from the lawyers and they’ve got this tape, apparently.

Jonathan Turley: Right. And so that’s what makes this really tough. The other reason I think this is such a serious threat is that the Trump team is going to challenge the indictment on the basis of the presidential records and and their arguments in novel. But it’s not frivolous. They’re saying, look, the PRA is a sort of a toothless civil statute. You had a judge in 2012 and a Clinton related case say that this is really up to the discretion of the president and there’s no power of the court to order the material to be handed over. And so their point is not a bad one. They’re saying, look, this began as a PRA . And Trump was following essentially the position of Clinton at that point. The problem is that once NARA reported it to the Justice Department, they said that we believe there’s classified national defense information there. The Department of Justice then treated it as a potential Espionage Act case. And so what the Trump people are going to say that, well, that’s wrong. It’s a PRA case. And so, you know, this whole thing should have been criminal from the beginning. It’ll be interesting how that plays out. But my problem is that even if you’re successful at that, I think you would still leave some counsel on the table because you could take out all 31 of the Espionage Act cases. You still have six remaining, and they might be able to take out the conspiracy to obstruct, I’m not sure. But it doesn’t give you a right to make false statements. And the point here is that they have to run the table. They have to take out every count because they have a 76 year old client and he won’t be able to do this time if they demand jail time. And the general approach of the Justice Department is that if you don’t plead, they will demand jail time.

Guy Benson: And I would imagine Trump and his team, at least now the public posture is no way will they plead to anything. I would imagine perhaps they might revisit that at some point down the line. What’s the timeline on this, professor? And our guest is Jonathan Turley, both in terms of when a trial might potentially start, the government wants to have it in a speedy manner, have it happen soon. The Trump people might want to punt it as far into the future as possible with various delays. And then if and when there is a trial, I mean, you know, then what? What if we’re now in an election year or beyond? It seems like these are also very thorny questions.

Jonathan Turley: They are. I you know, when we were doing the coverage of Jack Smith’s press conference, I sort of chuckled on the air when he dedicated one of his lines to calling for a speedy trial. He didn’t have any line. He basically said ten lines, but one of them was, we want a speedy trial. And first of all, that’s not normally what a prosecutor says, because usually it’s the defense arguing for speedy trials. But I think that he was a little too overt because it’s clear that what he fears most is not Trump but time. But what he’s afraid of is that the defense will waive a speedy trial and then delay this case just enough with appeals that it gets too close to the election. And that’s when a judge might say, I’m scheduling for after the 2024 elections. If that’s the case, Jack Smith may never see a courtroom with a jury and he knows it because you already have one Republican contender saying he’ll pardon Trump, the pressure will be on the others to make the same pledge or Trump could win and pardon himself. And Jack Smith knows that. So all of this could be for naught. I mean, if he if he can’t stick the landing before the election. Now, the way this usually works on a speedy trial, you have to get the trial within 70 days. The defense almost universally waives that and the Trump team would be moronic not to waive it now in Florida. That puts you usually around 120 days. But that’s not counting appeals. That’s not counting delays. So you can easily see the thing getting pushed back into 2024. And then you’re right at the primaries.

Guy Benson: I mean, this thing could be hanging over the entire process. Very quick aside, you mentioned that let’s say Trump ends up kind of finessing this and muddling through. Let’s say he wins the nomination. Let’s say he somehow wins the presidency as well. These are all non-zero possibilities, obviously. You mentioned that he could conceivably pardon himself. These are federal charges. Federal crimes, potentially. Is that allowed a president pardoning himself?

Jonathan Turley: It is allowed. You know, I’ve been writing about this for 30 years and there’s long been this debate. Can a president pardon self? I don’t see the serious claim that a president cannot pardon himself. The pardon clause doesn’t have any conditions on it. It’s a it’s a authority and absolute authority to pardon. It doesn’t say anything about pardoning other people. And so most of these arguments by academics has been, I think, rather fallacious. And by the way, as many of the same academics that have alleged that Trump could be tried and convicted for a whole host of other things, it just seems like whenever Trump’s involved, we have these very creative legal arguments. But their argument is, well, the common law says no one can be the judge of their own case. Well, okay, but this isn’t being a judge of your own case. Pardons are, after all, the judging has ended. Pardons are a political decision by a president that justice demands this release.

Guy Benson: Well, I mean, I feel like if let’s say it were another president pardoning Trump, this is all very hypothetical, whether it’s a Democrat or Republican. I think that would be controversial if somehow it were Trump testing this for the first time on himself. It would be such an explosive debate. You might be right on the law, on the Constitution. That would be a very high octane conversation, I believe, in the country. Last question, Professor. It has to do with tactics. We’re seeing President Trump attacking the special counsel, Jack Smith, publicly in speeches. We’re also seeing some people on the left criticizing preemptively the judge that’s been assigned to this case in Florida, who’s a Trump appointee. What do you make of that?

Jonathan Turley: Unfortunately, it’s what we’ve seen for so many years as part of the age of rage. And the thing about rage is it gives you a certain license to say things that you would not normally say. And these attacks on the judge and on the prosecutor are part of that. What’s funny is that I’ve criticized Donald Trump for years for attacking judges. But many of the people that join me in that are now attacking this judge.

Guy Benson: Right.

Jonathan Turley: Using the same rhetoric. The fact is, this judge is a good judge. You can disagree with her earlier decision in the case, but I think that she was wrongly accused of being this wasn’t this partisan, But at some point, mature minds have got to prevail in this country. At some point, this fever has got to break. And I’m not talking about one side or the other. It’s a general fever that we have. It’s like malarial. It just comes back and we can’t seem to kick it. But I think that those of us who like to think of ourselves as mature and reasonable people need to say, enough, enough with the attacks. Either this case is well based or it’s not well based, but it’s not going to be decided in a war of personality. It’ll be decided in a court of law.

Guy Benson: Jonathan Turley, constitutional law professor at George Washington University. A Fox News contributor on The Guy Benson Show for the first time. Professor, we so appreciate it. We look forward to talking again.

Jonathan Turley: Thank you, Guy.