Show: THE BEAT WITH ARI MELBER Date: November 24, 2017 Guest: Renato Mariotti, Alan Dershowitz, Jennifer Rodgers, Michael Waldman
ANNOUNCER: Tonight, THE BEAT goes to court. A special report. Russia on trial. Debating the evidence of collusion on location at the moot court in John Jay College of Criminal Justice, with former prosecutor Renato Mariotti and defense attorney Alan Dershowitz present both sides of the Trump-Russia controversy to a live mock jury.
Now, to tonight`s host, MSNBC chief legal correspondent, Ari Melber.
ARI MELBER, MSNBC HOST, THE BEAT: Hi, Ari Melber. Welcome to a very special edition of THE BEAT. We are at the moot courtroom here at John Jay College of Criminal Justice at the City University of New York.
And this moot courtroom, like a real courtroom, has places for the lawyers on both sides, a place for the judge, of course, a witness stand. All of this is part of what we`re going to do today, which is test some of the legal arguments in the Russia probe.
We even have a jury. I`ll speak about that in a moment. Everything in the Russia probe under Bob Mueller up to this point has involved a grand jury, 12 to 25 people gathered in Washington, making decisions about the case. But it`s all secret.
What has changed now with two indictments, two trials coming, maybe more, is that there will be a public jury. And a public process to test some of these arguments.
Now, today, we are not going to have a full trial simulation. We`re not going to have a judge. We`re not going to have rules of evidence or ask for a verdict to be rendered, but we`re going to explore some of these key legal arguments because they will ultimately be tested, some of them, in a public court.
Let me speak to our jury, which are students from this college, John Jay. All I`m going to ask you to do, like any jury would be asked, is to keep an open mind about the arguments you hear today.
Now, in the public realm, there`s a lot of talk about the word collusion. But what you`re going to be asked to assess are two types of arguments. Was there a conspiracy between the Donald Trump campaign and Russia to impact the election? And if there was, did it go to the top, to the candidate?
You`ll notice that legal set of questions is different from the word we hear most often in public, collusion.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: The entire thing has been a witch-hunt. And there is no collusion between certainly myself and my campaign.
UNIDENTIFIED MALE: I still maintain that there is evidence of collusion.
STEVE BANNON, FORMER WHITE HOUSE CHIEF STRATEGIST: I was there. It is a total and complete farce. Russian collusion is a farce.
UNIDENTIFIED MALE: There is evidence of collusion.
SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY: It`s literally found zero evidence of collusion between the Trump campaign and Russia.
UNIDENTIFIED MALE: The issue of collusion is still open.
UNIDENTIFIED FEMALE: I believe there was collusion.
JARED KUSHNER, SENIOR ADVISOR TO THE PRESIDENT OF THE UNITED STATES: I did not collude with Russia. Nor do I know of anyone else in the campaign who did so.
UNIDENTIFIED MALE: Yes. There was collusion.
TRUMP: I`m truly not involved in any form of collusion with Russia, believe me.
(END VIDEO CLIP)
MELBER: And now, to the arguments. We have two of the preeminent lawyers to test out some of these ideas in the case today. Renato Mariotti is a former federal prosecutor. He`s done over 100 prosecution cases and he is currently a candidate for attorney general in Illinois.
And Alan Dershowitz is one of the most preeminent criminal defense attorneys in the country, having tried over 200 cases. And he is the author of "Trumped Up: How the Criminalization of Political Differences Endangers Democracy."
Each person will have four minutes to present their side of the case. Renato Mariotti, for the prosecution arguments, goes first.
RENATO MARIOTTI, FORMER FEDERAL PROSECUTOR: Thank you.
One year ago, we were attacked by the Russian government. All of us were the victims. You will hear from a representative of the Department of Homeland Security, who will tell you that 21 states had their voting systems penetrated by the Russian government.
You will also hear from the heads of four intelligence agencies, including the FBI, the CIA, and the NSA, who will tell you that they have concluded that the Russian government was mounting an influence operation to undermine our election.
You will see for yourselves the messages that were paid for by the Russian government. Messages that sought to pick people in the United States against each other to weaken us. Messages where they sought to bring opposing groups together in the same spot to foment violence and conflict.
Messages that sought to encourage people to secede from the United States and messages that supported their candidate of choice, Donald Trump.
You will hear from those intelligence heads that Donald Trump was the favored candidate of the Russian government.
Now, ladies and gentlemen, what you may not know is that when foreign governments or foreign individuals contribute to a United States election, that is a federal crime.
And it`s also a federal crime when two people agree to commit a crime. Or agree to be part of a crime. That is called conspiracy. Conspiracy is just a fancy legal word for agreeing to commit a crime.
Here you will hear not only the evidence I told you about a crime being committed in the United States, the involvement of a foreign power in our election, a crime for which there can be no serious question. But you will also hear evidence that individuals, officials in the Russian campaign were involved in that effort.
That evidence will prove to you that those individuals were part of an agreement to have Russian involvement in our election. And that is why the United States has charged those officials with conspiring to obtain a foreign contribution in connection with an election here in the United States.
So, what will that evidence be? I`d like the spend the next minute walking through that evidence with you. You will hear that the Russians had someone at the top, a man named Paul Manafort, co-chair of the campaign, who was trading influence with a Russian oligarch.
You will hear the testimony of a man named George Papadopoulos, who is cooperating with the United States. He will testify that he was receiving messages from individuals connected with the Russian government who told him that they had dirt on Hillary Clinton.
And he will tell you that, when he communicates that to his supervisor, Sam Clovis, another co-chair of the Trump campaign, that Mr. Clovis suggested that they send someone low level to Russia to communicate with the Russian government.
And who did they send? A man named Carter Page who will testify that he traveled to Russia and he met and interacted with individuals in the Russian government.
You will also hear that the president`s son, Donald Trump, Jr., met with a representative of the Russian government. She came and she offered dirt on Hillary Clinton, e-mails on Hillary Clinton, and you will also hear that, in the same conversation, he told her that they would reconsider their sanctions against the Russian government.
You will also see evidence of messages between him and WikiLeaks, which is connected with the Russian government, a foreign intelligence service. All of that evidence, taken together, will prove that there is a conspiracy to involve the Russian government in our election. And I will ask you at the end of this trial to return a verdict of guilty on all counts.
MELBER: There you have some arguments. Four minutes. A lot packed in there. When we come back, we will hear from Alan Dershowitz on the other side of this case.
MELBER: Welcome back to our special edition of THE BEAT. We are here in the moot courtroom at the John Jay College of Criminal Justice at City of University of New York. And we`re exploring some of the legal issues in the Russia probe.
We just heard a presentation of the case against the Trump campaign from a federal prosecutor, speaking to a jury we`ve assembled here of students.
And now we turn for the rebuttal of that case. And that will be handled by Professor Alan Dershowitz who has appealed over 200 cases and is the author of "Trumped Up: How the Criminalization of Political Differences Endangers Democracy".
Professor Dershowitz, you have four minutes.
ALAN DERSHOWITZ, CRIMINAL DEFENSE ATTORNEY: Thank you so much. Ladies and gentlemen of the jury, I`m sure you were convinced by the brilliant argument of Mr. Mariotti that Russia tried to influence the American election. I was certainly convinced of that.
The problem is that that isn`t a crime. Maybe it should be. But it isn`t. In 1812, the United States Supreme Court, right after the founding of our country, established a clear rule that said, there must be a statute before there can be a crime.
We reject the approach of countries that say, you can make up crimes as you go along. The essential protection of our constitution is, statute first, crime only after the statute is clear.
It is not a crime to collude with a foreign country. The United States has tried to influence many, many elections that have occurred in foreign countries.
So, I challenge my opponent to come up with the - he mentions conspiracy. Conspiracy is the broadest accordion-like crime. But you need to have an agreement to commit a crime. It`s not a crime for a campaign to try to get dirt on an opponent.
I`m going to make the extreme argument to you right here and you will be surprised by this. Hypothetical case. I`m a law professor. I`m allowed to use hypothetical cases. This didn`t happen. Hypothetical case.
Candidate Trump calls Vladimir Putin on the phone during the election and says, Vlad, do I got a deal for you? I want to be president of the United States. You want the United States to help you get rid of some statutes that impose sanctions.
Here`s the deal. You help me become President of the United States and I`ll help you get the statute changed. That would be horrible. It would be awful. If it became public, nobody would vote for the candidate. It`s not a crime. Collusion is not a crime.
It`s a crime in one context, if two businesses collude to violate the anti- trust law. That`s a crime. For example, all the owners of the National Football League colluded to make sure that Kaepernick didn`t get a job, that would be a crime under the anti-trust law.
But it is not a crime simply to collude. And it`s extremely, extremely dangerous to target people because you don`t like them.
Yesterday, it was Hillary Clinton. Lock her up, lock her up, it`s a crime, it`s a crime. E-mails, the deal with Russia with uranium, it`s a crime. Lock her up.
Today, it`s lock him up. Tomorrow, it`s you. Any of you in this jury box could be the target of a prosecutor who takes a statute-like conspiracy and expands it like an accordion to get you.
It was Lavrentiy Beria, the head of the Soviet KGB who once said to Stalin, show me the man and I`ll find you the crime. That`s what`s going on in this country today.
It`s going on by Democrats trying to target Republicans. Republicans trying to target Democrats. We have to go back to a system where we strongly oppose what may have gone on.
There should be a bipartisan commission established by Congress to look into the Russian collusion. Let it all be told to the American public. But let`s not invent crimes out of political sins.
Our basic argument has always to be distinguishing sin from crime. Sin, the punishment comes from - crime, it`s we who impose the punishment for crime.
This is all about the rule of law. This is not about Donald Trump. I did not vote for Donald Trump. I voted for Hillary Clinton. I`m not here to defend Donald Trump.
I`m here to defend the rule of law. I am here to defend you. I am here to defend every American from the misuses of the criminal law. Thank you.
MELBER: Those were the arguments there from the defense, Professor Alan Dershowitz. When we come back, we will hear reaction from legal experts on those arguments and from our jury.
(BEGIN VIDEO CLIP)
MARIOTTI: One year ago, we were attacked by the Russian government. All of us were the victims.
DERSHOWITZ: Russia tried to influence the American election. I was certainly convinced of that. The problem is that that isn`t a crime.
MARIOTTI: It`s also a federal crime when two people agree to commit a crime. Or agree to be part of a crime. That is called conspiracy.
DERSHOWITZ: And it`s extremely, extremely dangerous to target people because you don`t like them. You know, yesterday it was Hillary Clinton. Lock her up.
MARIOTTI: The Russians had someone at the top. A man named Paul Manafort.
DERSHOWITZ: Today, it`s lock him up.
MARIOTTI: The president`s son, Donald Trump, Jr., met with a representative of the Russian government.
DERSHOWITZ: Tomorrow, it`s you.
MARIOTTI: That evidence will prove to you that those individuals were part of an agreement to have Russian involvement in our election.
DERSHOWITZ: And I`m not here to defend Donald Trump. I`m here to defend the rule of law. I`m here to defend you.
(END VIDEO CLIP)
MELBER: Welcome back to the special edition of THE BEAT in the moot courtroom at John Jay of Criminal Justice at the City University of New York.
We heard those arguments from both sides. And now, we turn to our students who are keeping an open mind as a jury.
My first question, just by a show of hands, from what you heard, who is now more convinced that there was a conspiracy that involved the Trump campaign?
And who is less convinced or more dubious based on what you heard?
Let me start with you, sir, in the back. What did you hear that made you less convinced the campaign might be involved?
UNIDENTIFIED MALE: As the defense stated, collusion itself is not a crime. So, I`m really a little bit dubious whether a conspiracy is enough to convict.
MELBER: And who is more convinced and has a reason?
UNIDENTIFIED MALE: What affected my thinking was, when the defense made it very clear that collusion is not a crime, it kind of leaves open the idea of whether or not that is being used as a shield or a veil to cover conspiracy and an actual crime, kind of to divert us a little bit.
MELBER: Who else? Do you want to say something?
UNIDENTIFIED FEMALE: The defense itself said that the prosecution`s argument was convincing. So, do I believe that there was collusion? Yes. It`s a matter of whether or not it was legal or not.
MELBER: And does anyone think that it was hard to have an open mind given everything you`ve already heard?
UNIDENTIFIED MALE: You hear so much in the media that you follow, depending on which side you`re on, that just constantly is supporting the side that you already believe. So, it`s hard -
DERSHOWITZ: You honor, I move to have that juror dismissed and a new juror with an open mind introduced.
UNIDENTIFIED MALE: But I think it is possible to have that open mind, especially in a court setting where you are remind that it`s not about the person, but about the law.
DERSHOWITZ: When Aaron Burr was put on trial at the demand of President Jefferson, he went in front of the jurors and he said, before the trial began, how many of you, based on what you`ve read in the media, think I`m guilty?
And half the people raised their hand. And he said, your honor, I want those jurors kept because they`re the only honest ones in this courtroom.
MELBER: It`s a great point and it goes to what is difficult any time we have the rule of law, which should apply to people even if they have powerful positions in politics, and yet we have the rule of public opinion which can distort the fair trial people are entitled to.
I want to thank our mock jurors.
When we come back, we will hear from two more legal experts analyzing the issues in this case, including a former aide to President Clinton who knows how the White House can work under the strain of an investigation.
And then, later, rebuttals from both of our lawyers today.
MELBER: Welcome back to the special edition of THE BEAT at John Jay College of Criminal Justice at City University of New York. We`ve been gathered in this moot courtroom, hearing some of the arguments on the Russia probe.
And now, we turn to two very special legal experts on all of this. Michael Waldman is a lawyer and president of the Brennan Center for Justice and a former White House aide to Bill Clinton.
And Jennifer Rodgers is a former federal prosecutor who specializes in public corruption. You have been with us this whole show hearing these arguments. You heard from our mock jury.
Jennifer, who had the better argument based on what you heard today?
JENNIFER RODGERS, FORMER FEDERAL PROSECUTOR: Well, I think that the defense has the better argument here.
I think Renato had a tough job here, given the evidence that`s come out to date. And, of course, we don`t know what the Mueller team knows and their investigation is ongoing.
But the facts as we know now make it a really tough sell for me to say that there`s criminal liability here. So, based on that, I think the defense has the better of these arguments.
MELBER: And I imagine, you say that even being someone who is concerned about potential public corruption and is probably concerned about the evidence that shows Russia did try to meddle in the election.
RODGERS: Absolutely. But the fact remains that you need a crime in order to charge people with that crime. And so, I think the real problem here is that, given the stage of the investigation, as we speak, we`re not there yet. We don`t know yet what those charges will look like.
MELBER: Well, and you`re making such an important point because, in public opinion, we often hear a rush to judgment, right, which is the opposite of what the rules are in a courtroom.
And so, what you`re talking about is partly this gap between the type of arguments that can be made right now and what else investigators may find.
Robert Mueller has tremendous powers. And a lot of secret information that might lead to more or not based on what he`s got.
RODGERS: That`s right. And, for example, on the obstruction case side of things, which today was not about, I think he`s much further along and I think he knows where to go to get what he might need to complete that case.
But on the Russia kind of intervention and the Trump campaign`s involvement with that, where we are now, we`re just not far enough along to me to kind of fill out those facts.
MELBER: Same first question to you, Michael.
MICHAEL WALDMAN, PRESIDENT OF THE BRENNAN CENTER FOR JUSTICE: Well, to me, what I was struck by, is that trials aren`t ultimately decided based on the opening statement because I thought both sides did well.
And the prosecution made a compelling case, but you`d need to see what the evidence is behind it.
The defense made a strong point that collusion is not a crime, but crimes are crimes. And so, we want to see, well, what specifically is alleged? What specifically did people do?
The campaign finance laws, which were the basis for the prosecution, are notoriously porous. There are some other things that may even be a stronger hard criminal basis for something.
Just like Watergate, this began with a break-in. That was through the door and this was through the computer. And so, you have a break-in. You have stolen property and you have the distribution of the property.
And this time, you have e-mails. And everything we`re learning is that a lot of people put a lot of dumb things in e-mails. And it may be that Robert Mueller has a lot more of that information than we even know right now.
MELBER: Well, and dumb is not a crime. But intent to commit a crime is a key element. And you mentioned the e-mails. I mean, just in the past few weeks, more evidence of people in the Trump campaign, and even the Trump family, who presumably are in regular contact with the candidate, showing an incredible receptivity to working either with Russians offering dirt, whether they got it or not, or WikiLeaks trying to coordinate.
And that, I guess, goes back to the question of what is WikiLeaks?
WALDMAN: Right. What is WikiLeaks, from what we know, it was well known and certainly the campaign - WikiLeaks was working the Russians and Russian intelligence. And there`s a federal statute that says hacking, aiding and abetting the distribution of hacked material is a crime.
So what happened after they said, hey, we have these e-mails, tons of them. Hey, it would be great if your dad could tweet about this. What happened within the campaign after that? That`s the kind of real factual material that is very troublesome.
MELBER: Right. The evidence -- and as we mentioned, this was just part of what happens in the courtroom. We didn`t go to a witness stand where you might under oath cross-examine people about what did you do when you`re given that offer. And did you think WikiLeaks was speaking as a publisher or an agent of the Russian government, right? Those are big questions. Jennifer, I wonder what you thought about something that Professor Dershowitz did, that effective criminal defense attorney often do which is broaden out from the potential defendant to the principle. You know there are people in this country, some of whom don`t like Donald Trump and there are people who love Donald Trump. But the legal issues on Russia have nothing to do with your feelings about Donald Trump. So Professor Dershowitz seemed to move away from that and say there`s a principle at stake that must be defended. Was that effective and is that something we might see even in the Manafort or Gates cases that are upcoming?
RODGERS: I think it is an effective strategy. You definitely want in part kind of take the focus away from your client but also do appeal to the jury`s you know, sense of this is a -- this is a broader issue. You know, we need to talk about justice and it`s not just about you know, my guy and especially what party he is. There were some things I found objectionable. You`re not allowed to tell people who you voted for, you`re not supposed to say if the government gets my guy, they`re coming to you next. You know, so there`s a little bit of hyperbole.
MELBER: Right. That might not make it into a real court.
RODGERS: I think not. I think not. But -- and I think generally it was very effective in saying, you know, this is not what we`re about as a country, you know, kind of keep your eye on the bigger picture here.
WALDMAN: And part of what this shows is the distortion we`re in where this investigation is so focused on a criminal investigation. Criminal investigations are narrow by definition. They`re secret, we hope, by the way, they`re undertaken. And this is a political scandal, it`s a national security scandal, as much as or more than the specifics of a criminal probe. But because Congress is being slow at the very least, or incompetent or worse, in the investigations they`re doing, we`re all looking at Mueller and looking at this criminal probe and that may not tell us some of the underlying really big questions we need answers to.
MELBER: And final questions to the both of you. We heard from our jurors who are right behind you. They came here with an open mind. What did you think if any that surprise you about their reactions as people who aren`t maybe steeped in it the way you too are?
RODGERS: I think it wasn`t surprising. I mean, they were sort of all over the place which is actually what you expect from a jury when you get 12 people together who don`t know each other and come from all different walks of life. So I wasn`t surprised to see that they came to the courtroom with different views, they reacted differently to the arguments and kind of ended up in different places. That`s what you expect and the trick as a prosecutor certainly is to by the end bring all of those people together with a unanimous verdict.
WALDMAN: I was struck by the common sense I heard but also by the fact that so many jurors felt they learned something from the prosecution` meticulous laying out of facts. Because what that suggests is a lot of people at even very proficient students here aren`t as steamed in the details of this as journalists, as lawyers might be. This may be something of a big blur to a lot of people. And it`s -- the fact of an indictment, the fact of a trial can focus people`s minds.
MELBER: Right. And that`s ultimately the difference in the courtroom. It`s not whether you like it. It`s not whether you think it should have happened. It`s not whether you want to prevent it which is as you mentioned Congress`s brief and maybe what voters will decide if they think one party or the other is not responsibly dealing with this threat from abroad. It`s ultimately was there was criminal liability. And so, what we saw here was jurors wrestling with that a little bit which I think a departure from some of what happened in the politically polarizing discussions. Jennifer Rodgers, thank you for being here. Michael, I want to talk about your White House a little later. We`re going to fit in a break, as you know, in court, there are often commercial breaks. And when we come back, we`re going to hear directly rebuttals from both our star lawyers on the case today.
MELBER: Welcome back to our special edition of THE BEAT at John Jay College of Criminal Justice and we are back with our lawyers who`ve been exploring both sides of the Russia probe. We heard from legal experts and our mock jurors, our students here about both of your arguments. Renato, starting with you, your response to the evaluation you heard.
MARIOTTI: Well, I think the first thing I want to mention, I think the experts just talked about this a minute ago is that while the word collusion is not anything that has a legal meaning, there are actual crimes here. So what I focused on because of the format that we have is conspiracy to accept a foreign contribution in connection with the United States election which is a crime. It is a crime for someone to knowingly and willfully make a contribution if they`re a foreigner and it`s a crime to, for example, aid and abet that. Aiding and abetting is just when you know that there`s criminal activity and you help make it succeed. But there are as one of the experts mentioned other crimes that can be committed here. So for example, hacking a server is a crime. I prosecuted doing -- I prosecuted that when I was a federal prosecutor. And anyone involved in that effort, anyone who knew that there was a hacking and helped make that succeed would be guilty of aiding and abetting that effort. So for example, if you knew -- if you knew that there was going to be a hacking of a server and you said I`ll help you distribute the stolen material, that would be a crime. Knowingly receiving stolen material is a crime if it is worth over $5,000.
MELBER: What did you think though, of some of the students who seemed to have questions about whether you carried the burden on this being worse than "collusion."
MARIOTTI: Well, there`s no -- there`s no question that I think as one of the experts mentioned, I have strung by the format. I don`t have -- I`ve never tried a case before, I don`t have any witnesses, I don`t have exhibits. I have four minutes to make my opening statement off the cuff. So those are -- those are challenges. As you can tell, I was running out of time there at the end. So --
MELBER: That`s what`s unusual though. Again, because we`re explaining how this works and what the limits are. A real prosecutor with Bob Mueller would have way more material than you.
MARIOTTI: Right. I mean, an opening statement might last for 40 minutes, 50 minutes, an hour and there would be weeks of testimony, hundreds of exhibits. That`s what I would expect in a case like this. So -- and you`d also have as someone mentioned narrow charges. You`d have charges against specific individual. George Papadopoulos, Sam Clovis, whoever that might be. And those charges would be brought and it would be narrowly tailored toward that specific case, as opposed to one grand case charging everyone which is what we did here to simplify it.
MELBER: And Professor Dershowitz, same first question for you. Your response to the evaluation of your argument?
DERSHOWITZ: Well, first one brief response. If you made it a crime to knowingly receive at the product of hacked information, the New York Times would be in prison, the Washington Post would be in prison. They have all published material, stolen material from WikiLeaks, from the Pentagon Papers. The United States Constitution distinguishes between receiving stolen goods of a physical nature and receiving first amendment protected information. So it is not a crime to use information that you know was stolen as long as you didn`t participate in the stealing or in any way help the stealing. So here we have one fundamental disagreement that I think I`m right about as a constitutional matter. In terms of the evaluation, I was very happy with the evaluation because I think it showed that my strategy seemed to have worked. My strategy was to immediately concede what I couldn`t defend. I can`t defend the argument, of course, that the Russians are trying to influence the election. I can`t even defend necessarily the argument that there may not have been some collusion.
MELBER: So that`s an important point. You concede what Russia was up to and that there may have been collusion but you say you can still win.
DERSHOWITZ: That`s right. See, I think the most important aspect of advocacy is to concede what you can`t defend. You must maintain your credibility in front of the jury and then draw a line to say, look, I`m not going to argue there wasn`t Russia attempt. I might not even going to argue that there might not have been collusion between some people in the campaign but show me the statutes, show me the crime. And in terms of conspiracy and this campaign contribution, it can`t be a crime under the constitution to make it a campaign contribution to get information, first, amendment protected information. So I think if I were in court, even after all the evidence came in, I think I would have a pretty good chance of winning. Also, nobody mentioned reasonable doubt. You have to acquit if you have any --
MELBER: You mean Jay-Z`s first album?
DERSHOWITZ: The proof beyond reasonable doubt.
MELBER: Oh no. OK, I got you. I got confused.
DERSHOWITZ: Right. So, I was -- I was very pleased with the evaluation. I think it was right spot on.
MELBER: And one more point on you and then I want to go to the obstruction conversation which we didn`t focus on. Is it good for a lawyer to see what we saw, which was I noticed some of our jurors repeating your thesis? There is a debate over whether collusion combined with conspiracy is a crime but I heard he jurors repeat that Dershowitz argument, collusion is not a crime.
DERSHOWITZ: What I do when I argue in front of an appeals court or in front of jurors, is to give them pithy, easily understood concepts that they can make their own. I try never to tell a jury, in the end, this is what you should believe. I want them to come to the aha moment and have it their argument so that it`s harder to talk them out of it when the jury is alone in the jury room and somebody is trying to persuade them. It`s easy to talk them out of Dershowitz` argument but it`s not easy to talk them out of an argument they have taken to themselves. That`s why I try to use language like that.
MELBER: And that`s a big distinction, Renato, because the President continues to cast doubt on whether Russia meddled in these other issues. Now, he`s speaking in public and political forums but he`s making different arguments on obstruction which we didn`t focus on today. We can only do so much. This is not as I emphasize a full mock trial. Do you think that Bob Mueller, and in this case, would have a separate grounds for criminal liability regarding obstruction of justice?
MARIOTTI: I do. This is something else that Professor Dershowitz and I disagree on. At least I believe we do base on our prior debates. But yes, in fact, I think there`s more public evidence on that point because James Comey has already provided testimony that`s in the public record that we can all view so I would have at least one witness which is one more than I had this time. But look, the question is, the President certainly has the power to fire, for example, the FBI Director. The question is, can he do so for an improper purpose? So for example, could the President in exchange for a bribe fire the FBI Director? I would say no. Even though he has the power to do it, that`s a crime. And similarly here --
DERSHOWITZ: But it`s the bribe that`s the crime. It`s the bribe that`s the crime. You don`t have to reach the other issue. Of course, the President can`t accept a bribe. But if a President did it for the wrong reason in order to promote his own reputation. Say President George Bush pardoned Caspar Weinberger on the eve of Weinberger`s trial. Are we going to prove why he issued that pardon if he didn`t get a bribe to do it? I think that really would endanger everybody`s liberty if we could -- if we could make it a crime to psychoanalyze a person`s mixed motive and turn that into criminal conduct.
MARIOTTI: It`s interesting because we always psychoanalyze a defendant`s conduct when they`re on trial.
DERSHOWITZ: If there`s a criminal act. If there`s no criminal act (INAUDIBLE)
MARIOTTI: If there`s a criminal act but that doesn`t -- No, well, first of all, there`s a difference between a pardon and firing the FBI Director to obstruct an investigation. A pardon by its nature is going to derail a judicial process. That`s the point of a pardon. But if you are firing the FBI Director in order to end an investigation, that is you know -- and that is your purpose. If he said, for example, I am firing the FBI Director because I want to derail an investigation.
DERSHOWITZ: That would not be a crime.
MARIOTTI: We`ll agree to disagree.
DERSHOWITZ: Let`s assume the following here. Let`s assume the President said, forget about the FBI. I am ordering the investigation to stop. I am the President, the head of the executive unitary branch. Thomas Jefferson did that. Many other presidents have done that. You don`t even have to have an attorney general under a unitary executive. You know, we have a real problem in this country. We should have a separate independent prosecutorial branch that isn`t the Justice Department. The Justice Department has two roles. One, the minister of justice, the adviser to the President political role and the other is the role to prosecute. In most other countries, those roles are separated, not in our country and that`s what causes the problem.
MELBER: So Renato, let`s speak to the rebuttal of that and add the other news going on which is Donald Trump talking openly about ordering the start of an investigation into a political opponent. Professor Dershowitz told the jury he voted for Hillary Clinton. That apparently is the person that Donald Trump wants investigated. Do you think that could be unlawful or unconstitutional? You`re talking about stopping an investigation. What about starting one and could that ultimately arise in the Mueller probe as well.
MARIOTTI: Well, let me first mention stopping an investigation because I want to respond to that point. You know, the issue for me is not that the President did so directly but the question is his purpose. So if he said, I don`t want my son investigated because he`s my son and I will not allow him to be investigated, period. I think that that is a problem. OK, that -- you know, if --
DERSHOWITZ: It`s a problem, is it a crime?
MARIOTTI: It`s a crime if he`s doing it for an improper purpose. Yes.
DERSHOWITZ: So let me tell you what Thomas Jefferson did. He ordered his attorney general to indict and prosecute Aaron Burr. He called the Chief Justice, John Marshall, and said unless you get a conviction, I`m going to have you impeached. He then called in all the witnesses to the White House and said if you testify against Burr, I`m going to give you immunity and a pardon. If you don`t testify against him, we`re going after you. That was Thomas Jefferson. The great third President of the United States. What did he was probably wrong but it tells us what the framers of our constitution intended the role of the President, the head of the executive branch to be.
MELBER: Well, it tell -- so the rebuttal question for Renato is, does it tell us what the framers did or does it tells us whether the framers fell short? Because there are many president --
MELBER: There are many presidents from the 1800s that don`t stand up that great today.
MARIOTTI: Yes, I mean, Thomas Jefferson owned slaves. Thomas Jefferson as we know, had a relationship with a slave. He`s done a lot of things that were improper of.
DERSHOWITZ: But he does it because they were legal at the time.
MARIOTTI: Well, I don`t know if I would agree.
DERSHOWITZ: You don`t think owning slaves was legal at the time at that time of the constitution?
MARIOTTI: Well, I do think owning slaves was legal but --
DERSHOWITZ: (INAUDIBLE) horribly immoral thing.
MARIOTTI: Well, that`s fine. Having a relationship with a slave. I don`t know if it was. But the long and short of it is that Thomas Jefferson had his personal failings. The question is whether or not that is a crime or not today. I mean, Thomas Jefferson is not on the ballot and he is not alive today. A lot of things that may have been acceptable 200 years ago are not acceptable today.
DERSHOWITZ: But are they criminal?
MARIOTTI: I think they are. I think if the President of the United States ordered people the investigate his opponent and said I will -- I will give you immunity if you testify against my opponents -- this is the exam you just offered -- and if you don`t, you know, I will -- this is going to be a problem. I`m going to go after you, hell yes. That would be obstruction of justice.
DERSHOWITZ: You should --
MELBER: Let me close -- let me close by giving you both an opportunity. You said pithy works in court. I give you each up to two sentences for your final point. Professor Dershowitz.
DERSHOWITZ: I think the rule of law is more important than how we decide to go after particular political figures. If you don`t like what Donald Trump did and I don`t like what he did, in many respects, vote against him, campaign against him. Go on the media against him. But don`t stretch the criminal law to fit and target somebody you don`t approve of. That endangers American democracy.
MARIOTTI: I think if you care about the rule of law, you should care about the President of the United States trying to initiate political investigations of his opponents and also attacking the FBI and the independent Justice Department. That is the real danger to the rule of law.
MELBER: Renato, Alan, thank you both. We will be right back.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We have a Senate hearing, we have judiciary, we have intelligence, and we have a House hearing. I want them to get on with the task, but I also want the Senate and the House to come out with their findings. And they say, no, we haven`t found any collusion. There is no collusion. You know why? Because I don`t speak to Russians. They`re investigating something that never happened.
(END VIDEO CLIP)
MELBER: To continue our special edition of THE BEAT here at John Jay College of Criminal Justice, one thing we didn`t have in this mock trial courtroom today was any witnesses. And in any case that touches on the White House, there`s always the question of whether the most important person in the country becomes a witness or gives an interview or testimony, and that is, the President. Here is a look at that big issue.
MELBER: Presidents have wrestled with testifying under oath as far back as Thomas Jefferson who rebuffed Chief Justice John Marshall`s 1807 subpoena to testify at Aaron Burr`s trial. To comply with such calls would leave the nation without an executive branch, Jefferson wrote. Ronald Reagan initially fought testifying before a grand jury in the Iran Contra affair and didn`t do so until after he left office in 1990.
UNIDENTIFIED MALE: Today`s questioning was behind closed doors. Reagan was permitted to give video testimony rather than having to appear at the Washington trial.
MELBER: Gerald Ford testified in a major criminal case while president, but as the potential victim, not a subject.
UNIDENTIFIED MALE: President Ford today testified as the defense witness at the request of Lynette "Squeaky" Fromme. The young woman charged with attempting to assassinate him in Sacramento.
MELBER: Jimmy Carter also testified on videotape twice while in office and Richard Nixon, whose term was cut short by an investigation, only actually testified after he left office. As for investigations involving conduct in the White House, George W. Bush did an interview with the FBI about the leaking of a CIA official`s name and Bill Clinton testified in the White Water Inquiry.
UNIDENTIFIED MALE: Bill Clinton, the first president ever subpoenaed to testify before a federal grand jury in office will do so tomorrow.
MELBER: Clinton testified about his contact with Monica Lewinsky.
UNIDENTIFIED MALE: Could you please tell the grand jury what that oath means to you for today`s testimony.
BILL CLINTON, FORMER PRESIDENT OF THE UNITED STATES: I have sworn an oath to tell the grand jury the truth and that`s what I intend to do. I engaged in conduct that was wrong.
MELBER: As President, Donald Trump has not been subpoenaed, but he did say he`s willing to talk with Bob Mueller.
UNIDENTIFIED MALE: Would you be willing to speak under oath to give your version of --
TRUMP: 100 %. I didn`t say under oath.
UNIDENTIFIED MALE: So if Robert Mueller wanted to speak with you about that.
TRUMP: I would be glad to tell him exactly what I just told you.
MELBER: That was before Mueller indicted three of Trump`s former aides. If President Trump does give an interview or testimony, he has far more experience than his predecessors. Trump has been personally subject to more litigation than any President in history.
TRUMP: You bet your ass I`d approve it.
MELBER: Compared to his persona on stage, in depositions, Trump is less brash, more muted, and even conciliatory.
TRUMP: I don`t have my glasses. I mean, I am at a disadvantage because I didn`t bring my glasses. This is such small writing.
UNIDENTIFIED FEMALE: Your daughter told me in her deposition that you don`t e-mail and I observe that that`s because you`re a very smart person.
TRUMP: Yes. We`ve figured that out. It took a lot of people a long time to figure that out.
UNIDENTIFIED FEMALE: When you say you think he would have gotten additional business, additional compared to what?
TRUMP: Maybe compared to where he would have been without --
UNIDENTIFIED FEMALE: Without what?
TRUMP: Without, as you say, my running for office. I think my running for office potentially would have helped him as opposed to hurt him.
MELBER: Different presidents handle testimony in different ways. I`m joined again by Michael Waldman who is not only a lawyer but was Chief White House Speechwriter for President Clinton and had a front row seat to some of the ways investigations affected him. First of all, what happens when a president gets close to having to give testimony?
WALDMAN: It`s a very big deal, obviously. You`re under oath when you`re the president or any person, you can`t get by with bluster or spin or charm. The stakes are just much higher. And the work of a White House can grind to a halt or at least always have the eye on this sort of thing. And in President Clinton`s case, he had to testify in the Paula Jones civil lawsuit and that`s where he got himself into so much trouble, and then he had to testify in front of a grand jury, and that was something that was enormously anxiety-producing for the entire system.
MELBER: You say the entire system. What was it like being in a White House under that ongoing criminal probe?
WALDMAN: Well, you know, what wound up being quite effective was there was really a pretty rigid segregation between the people who were worrying about the criminal probe, the impeachment, and everybody else. And the rest of us, by and large, our job was to try to do the job that the public expected, work on policy. When it`s a mess, as it has been in this administration, is when people get into trouble. When an -- a passing conversation you have with someone in the hallway could lead you to have to hire a lawyer. And it seems as if this White House has had a really hard time understanding that these are real probes with real potential consequences and people should not all be hanging around in a meeting trying to concoct fake statements and other things that we know have happened.
MELBER: You say that and it makes sense, and yet Donald Trump entered the White House with the least government experience of any president in history, and the most lawsuit experience. He is, as we`ve shown, an experienced deponent.
WALDMAN: Which is so interesting, because of course, as we know, he occasionally, let`s say, has some difficulty with the facts and the truth when he speaks in public. But by all accounts, as a witness under oath, he`s actually been very careful. You haven`t seen a lot of people saying, aha, see, look how he lied under oath in this case or that case or this case or that case, all of which suggests maybe me he knows when he`s lying in other circumstances. He needs to remember that he`s under oath and the consequences of perjury even when you`re the president, even whether there are clouds about what is and isn`t criminal conduct are very severe.
MELBER: And you`re saying court is the one place that has shown Donald Trump seems to know what he`s doing or at least know when he`s lying.
WALDMAN: In all the things we know about him, we haven`t heard a lot of debunking of his testimony under these cases. I`m sure there`s some, but a typical press conference has produced more facts that are in dispute than a lot of these lawsuits.
MELBER: Michael Walden, thank you for sharing your experience with us. That does it for our very unusual show. I want to thank John Jay College of Criminal Justice at the City University of New York, all our guests and the student jurors today. You`ve been watching THE BEAT on MSNBC.
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