Transcription
You're watching the Legal Breakdown, Glenn. We have a chilling update from one of Donald Trump's, uh, top henchmen. I'm going to throw that clip right here on the screen.
>> Doing at DOJ and all we're doing across the government is saying get the truth out and then, by the way, let's hold people accountable. And that's exactly what's going on. So when Bill Barr sends a criminal referral over to to us and he says Leticia James and Adam Schiff, and, by the way, both their lawyers have come out and talked publicly about that criminal referral. So you can talk to them about the specifics, 'cause I'm going to tell you what we're going to do is we're going to follow the facts. Every American has a more that has a mortgage or has other documents they sign has to follow the law. We're going to go to the very bottom of the facts, and if somebody did something wrong, we're not only going to hold them accountable, we're also going to look at everything else that they've been doing because when you're a liar, you lie not just on one thing. When you're a cheater, you cheat not just on one thing. When you're doing corruption, you generally don't just do it on one thing. So, we have that's our, that's our, our what we're asked to do as prosecutors, and that's what we're doing. >>
All right. So, Glenn, that was Ed Martin, uh, who is right now Donald Trump's pardon attorney. He's also in charge of the weaponization of government committee, and he's also a special prosecutor who has been focused especially on Adam Schiff. And so I'm curious, as he continues his crusade against Schiff, um, kind of looking for some way to pin him down, not necessarily looking at a crime, but rather at the person, how could this kind of come home to roost in terms of, uh, when we might actually see a prosecution go through?
>> Brian, two words: vindictive prosecution. The Supreme Court has said you have a due process right. We all have due process rights against being prosecuted vindictively. What does that mean? Well, the courts have said if a prosecution is brought based on animus or, you know, hatred, dislike for a particular person, or if a prosecution is brought as a form of retaliation for that person engaging in some lawful conduct or exercising some right that that person has, well, then that could be deemed a vindictive prosecution. And frankly, whether or not there was evidence that the person committed a crime, it could be thrown out. Brian, I am not rooting for Donald Trump's dirty DOJ or Ed Stop the Steel Martin. We'll talk about him in a minute. Um, to bring a vindictive prosecution against anybody. Nobody should have to, you know, suffer having to hire lawyers, pay a bunch of money, spend time in court only to have a, a, a bogus case, a vindictive case against them thrown out, dismissed with prejudice by a judge. However, I am almost looking forward to the day that Donald Trump's dirty DOJ indicts someone vindictively because then it's on. And I suspect any self-respecting federal judge, indeed, I'm going to go out on a limb and say any federal court judge, any in any jurisdiction in the country, with the exception of Aileen Cannon, would cram a vindictive prosecution down the throat of the DOJ lawyer who was unethical enough to bring it.
So let's back up. Who is Ed Martin? Well, Ed Martin is one of the very few people that even the Republicans in Congress could not stomach, and they rejected him as Donald Trump's pick to be the United States Attorney for the District of Columbia, the top prosecutor in D.C., even though the man has never prosecuted, not one day in his life, not so much as a traffic violation, entirely ill-suited for any number of reasons. And even the Republicans in Congress said, "Ed, Ed Martin, no, we're not going to vote in favor of that nomination." That should tell you a lot about who Ed Martin is. He is also an election denier, a Stop the Steal devotee, somebody who was tweeting out on January 6th, "Oh, don't believe the fake news. This is like Marty Graw down here." So, you know, this is a man who really is not even in touch with reality. So, of course, Donald Trump made him both the pardon attorney for the United States and the head of the weaponization of government committee, which I take to mean his job is to weaponize government against Donald Trump's enemies. And that's precisely what we are learning he's doing against guys like Adam Schiff and New York Attorney General Leticia James.
So, here is what would happen in court if Adam Schiff was was indicted criminally for anything. So, first of all, Adam Schiff's lawyer would make a motion to dismiss based on vindictive prosecution. Why? Well, because Donald Trump's animus, you know, his dislike, his hatred of Adam Schiff, you know, has been trumpeted, particularly on Donald Trump's, you know, little social media platform over and over and over again. So, for starters, we know that any prosecution of Adam Schiff brought by Donald Trump's Department of Justice, and because there's no separation these days between Donald Trump, the president, the White House, and the leadership of the Department of Justice, Donald Trump is in essence the prosecutor in the case. Um, because we know it was born of animus of the person having nothing to do with any potential crimes of Adam Schiff. That is a basis to have the case thrown out for vindictive prosecution.
But there is a secondary basis if it's not born of animus, but it is brought in retaliation for Adam Schiff exercising some legal right. Let me break that down for our viewers. The usual case of vindictive prosecution, and I, you don't see it arise all that often because as a career prosecutor for 30 years, I never saw a prosecutor bring a vindictive prosecution because they hated the defendant or because the defendant had exercised some legal right. So the prosecutor decided he needed to be punished. Here's what that looks like. Let's assume that somebody demands a jury trial rather than having a judge trial, what we call a bench trial. It's much more cumbersome and burdensome for prosecutors to prosecute a jury trial than it is to just try the case to a judge alone. And so the defendant says, "I'm going to exercise my right and demand a jury trial." And the prosecutor says, "Oh, really? Then I'm going to up the charges against you." The Supreme Court has said that's a due process violation. Why? Because the defendant is exercising his or her right, constitutional right to a jury trial. So the prosecutor can't be vindictive, cannot punish a defendant for exercising a legal right.
Now, the variation on that theme is Adam Schiff was engaged in not only lawful but constitutionally mandated responsibilities when he did what? When he was an impeachment manager, which is another word for a prosecutor, when it is in the context of an impeachment hearing or an impeachment trial. He he participated in the impeachment of Donald Trump, and we all know that that's one of the reasons Donald Trump would retaliate. So actually, Adam Schiff would be able to prove vindictive prosecution in both of those ways. But he only has to prove one, you know, one of those things, uh, motivated the prosecution. And I know I'm turning this into a criminal law 101 class, but let me touch on one more thing, and that is the burden of proof. Here is how that works. Once a defendant makes a claim, makes a reasonable showing that the prosecution is likely born of animus or retaliation, then the burden shifts to the prosecutors to essentially convince the judge, "No, it wasn't." I mean, do you think a DOJ prosecutor could convince a judge that Donald Trump has no animus against Adam Schiff or that Donald Trump is not having his DOJ retaliate against Adam Schiff? Come on, a a novice defense attorney could prove that one up in his or her sleep.
But Glenn, if, if we know that vindictive prosecution is a defense against what may very well be a vindictive prosecution, why is Ed Martin coming out and parading this around? Offering up this defense on a silver platter to Adam Schiff? Isn't because he knows that there's no there there? So really, at the end of the day, his only goal is to kind of prosecute this case in the court of public opinion, to paint Adam Schiff as some, as some, you know, nefarious actor, knowing full well that when he gets into the courtroom, no judge is going to bite. >>
Of course, he is taking a page out of Donald Trump's dirty playbook. Just announce the investigations and poison the well of public opinion against Adam Schiff or whoever the, you know, Trump enemy du jour is. I do not believe there will be a prosecution against Adam Schiff or any of Donald Trump's other announced enemies. We can go back 10 years. He was going to prosecute Hillary Clinton. "Lock her up." Remember that chant? And 10 years later, she hasn't been indicted, prosecuted for anything. Donald Trump doesn't intend to prosecute people. He intends to announce criminal investigations and just let that permeate the public's consciousness.
It's worth asking, too, what's the point of having people in positions of power whose sole goal is to just poison the well of public opinion by attacking Democrats and not really doing anything worthwhile with it? Like, I, I, I don't really understand the point of Ed Martin here. I think it is throwing red meat to Donald Trump's MAGA base. Once Donald Trump announces that he has an enemy, whether it's, you know, um, Liz Cheney, Adam Kinzinger, whether it's Jack Smith or James Comey, whoever it is, we know what happens. Donald Trump's most rabid and lawless supporters, including what I would call some cult members, will potentially immediately make life very difficult for those announced enemies. And that, I think, is part of what Donald Trump seeks to accomplish. Um, and in this day and age, it has become so volatile and dangerous with, for example, um, false police calls being made, you know, to, for example, a judge that Donald Trump has announced is a corrupt, radical left-wing judge who is wrongfully going after him. What happens? That judge's home address is swatted, and that means they call in a fake um crime of violence having occurred at that judge's house, and the SWAT team, the police show up in full force with guns drawn. This is what Donald Trump's base um has been inspired to in the past, and it looks like Ed Martin is just kind of taking that page out of Donald Trump's playbook.
So, with the fact, Glenn, that that Ed Martin is is kind of going on Fox News and parading all of this stuff around, there is purported wrongdoing by Adam Schiff. I think there's some that there's some, uh, announced investigation into mortgage fraud. Would this kind of undermine the legitimacy of that claim? Because if there was a real investigation, we know how the DOJ would act, uh, uh, with regard to to that investigation. They would keep quiet. They wouldn't comment on any on ongoing prosecutions so that they don't undermine their own case in the courtroom by by offering up some, uh, defense by Adam Schiff of vindictive prosecution. Like, wouldn't they just keep quiet? And so, doesn't this suggest that even their claim of some mortgage fraud bogus, that that's complete? Because if it wasn't, they would follow the proper, uh, protocols when actually investigating and prosecuting that thing.
>> Yeah, Brian, we actually have something called the U.S. Attorney's Manual, which is our procedural Bible. It tells us the dos and don'ts of prosecution. And one of the bedrock don'ts is that you never talk about or announce an investigation. That makes good sense for multiple reasons. First of all, you don't want to tip off somebody you are about to investigate because they could destroy evidence. They could tamper with witnesses. They could flee to avoid prosecution. Plus, you don't want to announce that you're launching a criminal probe into somebody because that person may not have done anything wrong. And now what have you, what have you done? You have poisoned the public opinion against that person. You've damaged their reputation, maybe their livelihood, when they did nothing wrong. There are all sorts of reasons we don't announce criminal investigations.
But, you know, Ed Stop the Steal Martin is the antithesis of the responsible prosecutor. He is nothing more than a mouthpiece, a flunky, a lap dog for Donald Trump. And everything he says seems like it's, you know, calculated to please dear leader. And I, I, I hate that I'm even going to suggest this. Maybe Ed Martin is also positioning himself for, I don't know, a federal judgeship or maybe even a spot on the Supreme Court. >>
Right? I mean, we've seen that the only way to advance in Trump's Republican party is to just pander to really one person. Everything they do is for an audience of one. And so really, with this thing as it relates to Adam Schiff, again, there, there's no rational or or reasonable, um, linear justification for what they're doing because there's not a, a legitimate prosecution at the end of this. This is all just to please Donald Trump. It is theater. It is a performance, like in very much the same way that that a court jester performs for the king. I mean, these people are are debasing themselves in as part of an act for Donald Trump. And so, you know, when you have an audience of one, um, the, the normal course of business, uh, wouldn't apply because Trump isn't interested in in all of that stuff. He just wants the performance for himself. And these people, in turn, are looking to help themselves climb up the ladder because you can really fail all the way to the top in today's Republican party. And so, I wouldn't be surprised to your point if, uh, if we see an Ed Martin nomination for, uh, some appeals court, uh, judgeship or even the Supreme Court, uh, at some point in the future, um, because that's what we know Trump is looking for.
With that said, we will of course stay on top of any possible vindictive prosecutions at the hands of Ed Martin or any other MAGA Republicans here. Uh, for those who are watching, if you want to follow along on this or other legal news, please make sure to subscribe. The links to both of our channels are right here on the screen. It's the best way to support our work. It is completely free and it's a great way to support independent media. I'm Brian Tyler Cohen, >> and I'm Glenn Kersner. >> You're watching the Legal Breakdown. [Music]