← The 47 Morning Update with Ben Ferguson
The 47 Morning Update with Ben Ferguson
The Smirk Heard Around the World: Dems Celebrate & We Break Down Why Trump Verdict WILL Be Reversed
00:54:59
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- [00:01]
Ted Cruz
Welcome. It is verdict with Senator Ted Cruz, Ben Ferguson with you. And, Senator, we now know the White House, they know how to celebrate when it comes to Donald Trump being convicted.
- [00:12]
Ben Ferguson
Well, that's exactly right. We have seen now the smirk heard round the world. Joe Biden, jubilant, gleeful, celebrating and spiking the football in the end zone at this political prosecution. And it's not just a prosecution. It, it is a persecution which Democrats believe will yield dividends in November. We're going to break down the fallout from the convictions in New York and we're going to go into detail about precisely why this was an abuse of power. The jury instructions that were given in this trial, how this was rigged, and the Democrats do not want anyone to acknowledge how it was rigged. Well, we're going to give you the facts. We're going to break it down.
- [00:56]
Ted Cruz
It was shocking to see how gleeful the President of the United States of America was at knowing that his political opponent is now a official political prisoner.
- [01:06]
Ben Ferguson
Well, look, it is sad watching Joe Biden utterly gleeful and not even pretending to hide it. You know, I have to say, if you're going to do a kangaroo trial, if you're going to go after your political opponents and try to attack them and abuse the justice system, usually people pretend they're not doing that. Well, not with Joe Biden. Take a look at how we reacted when he was asked about it.
- [01:29]
Joe Biden
Mr. President, can you tell us, sir, Donald Trump refers to himself as a political prisoner and blames you directly. What's your response to that, sir? Do you think the conviction will have an impact on the campaign? We'd love to hear your thoughts, sir.
- [01:46]
Ben Ferguson
Should he be on the ballot, sir?
- [01:50]
Ted Cruz
That's damning. I mean, it's obvious. He's saying, yeah, and I did that.
- [01:55]
Ben Ferguson
Look, it is disgusting. And I will say, for those of y'all listening to the audio, as you know, in this podcast, we do three shows a week that are on audio. One of them typically is on video. This is one of the video shows. So if you're on audio, I'd encourage you go over to YouTube and watch the video because you actually need to see, see the expression on his face. He's gleeful. He's not hiding it. He is spiking the football and just shameless. It is. I'm abusing power. I'm reminded of Mel Brooks, History of the World. It's good to be the king. That's actually what I thought. I could almost hear Biden saying, I'm abusing my power, dammit, and I'm proud of it. I will say this, the Trump campaign saw that and immediately turned it around. They put together an ad. I got to say, it's a heck of a powerful ad. It's the same thing you've seen you just saw, but with a little bit of music, a little bit of context. Take a look at this Trump ad.
- [02:53]
Donald Trump
This was done by the Biden administration in order to wound or hurt an opponent, a political opponent.
- [03:01]
Joe Biden
Mr. President, can you tell us, sir, Donald Trump refers to himself as a political prisoner and blames you directly. What's your response to that, sir?
- [03:10]
Ted Cruz
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- [05:10]
Ben Ferguson
Yep.
- [05:11]
Ted Cruz
I also think we can see that America saw that smirk for what it was. A threat to our freedom and democracy and our way of life in this country, trying to imprison your political opponents. But even more than that, People went to donate to Trump like never before. They're angry.
- [05:29]
Ben Ferguson
$53 million in the first 24 hours. It was stunning. And by the way, I will say, I think Republicans across the board saw that. I can tell you, in terms of my campaign website, we saw a surge of donations there as well. I assume others did as well. I think people saw what happened in the campaign and they were pissed off. And they were pissed off and they had the reaction. They're like, this is wrong. We need to stand up and fight back. You know, I gotta say, watching that smirk, it's infuriating. But it was a moment when the mask slipped. And so the Democrats are playing a game. This political prosecution was all about calling Trump a convicted felon. They can now do that. They're going to do that every single day until Election Day. Now, there's kind of a script that you play when you're doing a kangaroo court. When the court is over, what you say is all right. To quote south park, respect my authority. That's supposed to be the line. Well, Joe Biden managed, when he wasn't caught smirking, giving his genuine reaction, to read the script and say, we now have the verdict. We must respect the authority. Give a listen to this press conference of Joe Biden telling everyone, shut up and accept the results. Trump is a bad guy.
- [06:59]
Alvin Bragg
Just checking this afternoon. Good afternoon. Before I begin my remarks, I just want to say a few words about what happened yesterday in New York City. The American principle that no one is above the law was reaffirmed. Donald Trump was given every opportunity to defend himself. It was a state case, not a federal case. And it was heard by a jury of 12 citizens, 12Americans, 12 people like you, like millions of Americans who served on juries. This jury is chosen the same way every jury in America is chosen. It was a process that Donald Trump's attorney was part of. The jury heard five weeks of evidence. Five weeks after careful deliberation, the jury reached a unanimous verdict. They found Donald Trump guilty on all 34 felony counts. Now he'll be given the opportunity, as he should, to appeal that decision, just like everyone else has that opportunity. That's how the American system of justice works. And it's reckless, is dangerous. It's irresponsible for anyone to say this was rigged just because they don't like the verdict. Our justice system has endured for nearly 250 years, and it literally is the cornerstone of America, our justice system. The justice system should be respected, and we should never allow anyone to tear it down. It's as simple as that. That's America. That's who we are. That's who we'll always be, God willing.
- [08:44]
Ted Cruz
He said it's irresponsible to say that this verdict was rigged, that this jury was rigged, that all of this was rigged. But then he smirks, basically saying, yeah, it was rigged, and you should respect the system that we just rigged.
- [08:58]
Ben Ferguson
Look, I got to say, listening to that, watching that, it is infuriating. It makes my blood boil. He says, it's reckless to do this, and we need to not tear down the justice system. Nobody has torn down our justice system more than that man, Joseph Robinette Biden Jr. He has presided over, number one, politicizing the Department of Justice in a way that is utterly shameful, that targets his political enemies, that protects his own corruption, and at the same time, he says, well, we gotta respect this system. He ignores the fact that Alvin Bragg is a viciously partisan prosecutor, a Democrat who campaign saying, I'm the guy to get Donald Trump. I'm the one to get Donald Trump. I know how to get Donald Trump. I'm the one to get Donald Trump. Joe Biden doesn't acknowledge any of that. He doesn't acknowledge the fact that the number three person at his own Justice Department left the Department of Justice to go join the prosecution. He has a line in there. This was a state case, not a federal case. Except for the fact that one of the lead lawyers was your number three lawyer at the Department of Justice. He doesn't acknowledge the fact that this judge was a joke, was a rabid partisan, was a donor to Joe Biden. He's one of his donors. And you know what? He behaved. You know, the man should have been. He should have taken off his black robe and he should have put on a Biden hat because it was a campaign. You want to talk about an unacknowledged campaign contribution, how about every day Judge Merchant showed up to work? That was a campaign contribution. And by the way, under their theory, it was clearly intended to influence the outcome of the election. Alvin Bragg, every day. Apparently, Joe Biden needs to disclose Alvin Bragg's salary on his campaign finance reports, because this is entirely intended to influence the outcome of an election. It is. Look, the rule of law matters. What happened this week, it's infuriating and it's disappointing.
- [10:56]
Ted Cruz
He was also premeditated.
- [10:58]
Ben Ferguson
Yes, they knew what they were doing. It's why the smirk. The smirk was the honesty. That whole riff was the planned defense, by the way. It was planned at the beginning. They Knew what they were going to say it was all about, we do a kangaroo court. It's all over now. Listen to the court, listen to the court. No, no, no, you can't call it a kangaroo court. Never mind the kangaroo jumping up and down. Ignore the facts, ignore the law. We have someone who is wearing a robe who says him bad, okay, you gotta keep us in power. And by the way, that's all we care about, that Democrats stay in power.
- [11:30]
Ted Cruz
They preplanned this and you can literally go back years to see it. One of the Soros family members and I wanna pull this tweet up because I think it's an important point that you just made. This was all orchestrated by design. George Soros went out there and said, I wanna find people that are friendly to me. I'm gonna get them elected around the country. I'm gonna weaponize the court system and then I'm gonna get the outcomes from weapon court system. Alvin Bragg was the, the first part of this master plan. You had to have a prosecutor that was willing to say, I'm not going to follow the law and I'm going to do egregious acts of partisanship to get us to a point where we might be able to get to a court. And look at the tweet from Soros's son explaining that we have won. We are successful, quote, Democrats to refer to Trump as a convicted felon at every opportunity. Repetition is the key to a successful message. And we want people to wrestle with the notion of hiring a convicted felon for the most important job in the country. And then the New York Times headline, trump guilty on all counts. They planned this. Yes, and it was years in the making.
- [12:42]
Ben Ferguson
They're all on the same team now. Alex Soros is George Soros son. By many reports, George Soros is, he's very elderly and apparently he has diminished significantly, much like Joe Biden. And so it is widely reported that Alex Soros is running things now. That Alex Soros is the young hard leftist who is distributing billions of dollars funding it all. And so how did Alvin Bragg get elected? With money from Soros. Massive money from Soros. By the way. Soros is doing this all across the country, investing millions and millions of dollars in electing left wing das who let criminals out of jail, who won't prosecute murderers. And it really is striking. They're not hiding it.
- [13:29]
Ted Cruz
No.
- [13:30]
Ben Ferguson
Look at this tweet. Democrats should refer to Trump as a convicted felon at every opportunity. As we said on Friday's pod, the entire purpose of this was for them to be able to call him a convicted felon. Repetition is the key to a successful message. This is all about message. This is all about politics. They're not hiding it. It's why Joe Biden's smirking, which is our political plan worked. Although I'm not convinced it worked, I actually think it may well backfire. They think people are stupid. They think repetition is the key. If we say it a lot, people will be stupid and just believe it. I think people have some real common sense. I think people understand this was a sham.
- [14:13]
Ted Cruz
You look at the sham and you see the media respond. We could play 50 clips. The media, most people that are listening, they know what was said. But there's also this psychotic gleefulness over the idea now that they're saying not only we're gonna call him a convicted felon, but Donald Trump can't travel outside the country to many other countries. Do you really want that guy to be your president? I mean, this is. They obviously knew what they were gonna say long before he was convicted. And play it out for this campaign, knowing that the appeal wouldn't happen in time.
- [14:46]
Ben Ferguson
Look, this is all about politics. The appeal will succeed. This will be reversed on appeal. But this is all about attacking Trump. Now, I will say this. Trump came out and gave a press conference and I want you to listen to the point he made. This is very brief, but it is a fundamental point that ought to scare the hell out of everybody. Give a listen a case where if.
- [15:07]
Donald Trump
They can do this to me, they can do this to anyone.
- [15:11]
Ted Cruz
I think that's incredibly powerful reminder. If the Democrats line is remind him and say it over and over again, He's a convicted felon. Donald Trump's line should be over and over again. If they can do this to me, a former president, United States of America, they can do it to any one of you.
- [15:26]
Ben Ferguson
And let's use an example, Ben, you're an influential guy. You're well known. You've got a very popular podcast. You are on the radio. You've been on the radio since you were 12 years old.
- [15:38]
Ted Cruz
A long time.
- [15:39]
Ben Ferguson
Let me ask you something. Are you a billionaire?
- [15:41]
Ted Cruz
No.
- [15:41]
Ben Ferguson
Do you have a billion dollars in the bank?
- [15:43]
Ted Cruz
No.
- [15:43]
Ben Ferguson
Do you have a team of lawyers on retainer?
- [15:45]
Ted Cruz
No.
- [15:45]
Ben Ferguson
Were you president of the United States?
- [15:47]
Ted Cruz
No.
- [15:47]
Ben Ferguson
Do you have universal name ID across the globe?
- [15:50]
Ted Cruz
No.
- [15:50]
Ben Ferguson
Do you have a jet with your name on the side of it? If they can do it to him, it's a hell of a lot easier to squash a Ben Ferguson than it Is a Donald J. Trump. If they can do it to him, whoever is listening, there's nobody listening. They could do it to me, they could do it to you. They can do it to anyone. They are grinning. We can destroy you and we don't care. It is all about power. Look, we talk a lot on this podcast about Marxism. And as you know, I wrote a whole book, my last book, how to Defeat Cultural Marxism in America. For me, Marxism is very real because my family has suffered and been imprisoned and tortured by Marxists. They care about power. The same thugs that will throw you in prison. They're trying to do the same thing to Donald Trump right now because all they care about is power.
- [16:47]
Ted Cruz
Let's talk about the step forward for Trump and using not just the smirk, but also using this court case to explain the American people just how rigged it is. I think that's an important point for him. He's gonna have to go out there and explain this is how all this went down. This is how corrupt it was. How much into the weeds does he need to go into that?
- [17:10]
Ben Ferguson
I don't think he needs to get into the weeds a lot. I think we're gonna provide details in just a few minutes. That will give you. Give you some backup on that. But, look, I think people know you look at this. Everyone involved in this is obviously a partisan. It's why I get so angry at Joe Biden saying it's reckless to tear down our justice system because he's the one tearing down the justice system. I watched that press conference, and it reminds me of, like, an arsonist holding cans of gasoline with matches in his hand saying, stop complaining about me lighting buildings on fire. He's the one burning our justice system to the ground. And there are real consequences to it. There are real consequences to people losing faith. What he actually said about our system of justice is a cornerstone of America. That is correct. Look, if you contrast America to banana republics, the difference is you have the rule of law. The difference is you don't do this. And these Democrats, they hate Trump so much, they don't care. They're willing to destroy it. And. All right, let's get to Alvin Bragg. Alvin Bragg, mind you, he's suddenly tough on crime.
- [18:18]
Ted Cruz
Yeah.
- [18:19]
Ben Ferguson
This is a guy who, if you murder people, if you rape people, you walk down the street and you punch a little old lady in the face. Alvin Bragg will let you go.
- [18:27]
Ted Cruz
The illegal immigrants attacked a police officer on camera. Let him walk out.
- [18:31]
Ben Ferguson
The same day. The same day, the same day. Let him go. This is A man who was elected to let violent criminals go. That's what Soros wanted. Let violent criminals go. New York will be better with more murderers on the street. New York will be better with more rapists on the street. That is their view. Now, I want you to listen to what Donald Trump said because he made a very powerful point on exactly this.
- [18:55]
Donald Trump
We had a DA who is a failed da. Crime is rampant in New York. Violent crime. That's what he's really supposed to be looking at. Crime is rampant in New York. Yesterday in McDonald's, you had a man hitting him up with, with machetes. A machete. Whoever can imagine even a machete being wielded in a store in a place where they're eating and he's going rampant. And Bragg is down watching a trial on what they call.
- [19:30]
Ben Ferguson
Crimes.
- [19:31]
Donald Trump
Crimes.
- [19:33]
Ted Cruz
He's got a great point. This guy shouldn't be in this court with Donald Trump when this is what he's dealing with. Machete wielding individuals in New York.
- [19:41]
Ben Ferguson
So literally on the day of the trial, there was a lunatic with a machete in a McDonald's threatening people. Now you would think, what is a district attorney supposed to be doing? I would think pretty high on the list is protecting me from machetes. Like if some guy brings out a machete and is trying to hurt people, the DA ought to arrest him and prosecute him. But no Alvin Bragg, you know what's a decapitated person or two when you're talking about Democrats, they're willing to look the other way at that. What was Alvin Bragg doing? He had a political objective to be in that courtroom because he's trying to bloody Donald Trump. He's trying to reelect Joe Biden. He's trying to stay in power. And I want to break down some of the material. So there's a very interesting article that was written in the Intelligencer and it's by Ellie Hoenig, who is a CNN legal commentator, not a conservative, but he is a real lawyer and he analyzes and breaks down a lot of the enormous legal problems with what happened in this trial. Let me read briefly what he said. He said the District Attorney's press office and its flacks often proclaim that falsification of business records charges, which is what they went after Trump on, are, quote, commonplace and indeed, the office is, quote, bread and butter. That's true only if you draw definitional lines so broad as to render them meaningless. Of course, the DA charges falsification quite frequently. Virtually any fraud case involves some sort of Fake documentation. So it's often an add on to some other case. It's one of the additional crimes that's committed. But let me continue, from Ellie Honig. But when you impose meaningful search parameters, the truth emerges. The charges against Trump are obscure and nearly entirely unprecedented. Now listen to this next sentence. In fact, no state prosecutor in New York or Wyoming or anywhere has ever listen to that word ever charged federal election laws as a direct or predicate state crime against anyone for anything. None ever. Even putting aside the specifics of election law, the Manhattan DA itself almost never brings any case in which falsification of business records is the only charge. So that starts off on the front end. This is unusual. They had to get incredibly creative.
- [22:23]
Ted Cruz
Not just unusual. Never been done before.
- [22:25]
Ben Ferguson
Yeah, that's true.
- [22:26]
Ted Cruz
Yeah. I mean, we. We literally said no one's been stupid enough to do it, but we packed this court. We got the judge we want, we got the DA we want. We got a guy that the majority of the people in this area actually hate. They knew this. You couldn't have planned this any better. And it goes back to the George source money. We got the money to get the guy we want elected. We got the judge, he gave money to Joe Biden. We've set up this kangaroo court from beginning to end. Exactly how you'd have to do it to get this to happen.
- [22:52]
Ben Ferguson
That's right. Now, one of the things that we have today that we did not have, we did the last podcast is we actually have the jury instructions. So I've gotten the written jury instructions. I've been able to read them before. I was relying on news reports of what the judge said, but I didn't actually have them in front of me. So understand that the sort of Rube Goldberg machine that they invented to try to get anything to get Trump, the crime is falsifying business records. That's a misdemeanor, by the way. A misdemeanor. Do you know the definition of a misdemeanor, what the difference is between a mirror and a felony? A misdemeanor is a crime that is punishable by less than a year in jail. The definition of a felony is a crime that is punishable by a year or more in jail. So that's the cutoff. Felonies, understandably, are more serious.
- [23:36]
Ted Cruz
Speeding ticket, parking ticket, all misdemeanors, because you don't go to jail for over a year for that.
- [23:40]
Ben Ferguson
Right? Jaywalking, those are misdemeanors. Murder is a felony. Rape is a felony. Burglary, is a felony, crimes that are serious. So falsification of business record, it is a misdemeanor. It's punishable by less than a year, and it has a two year statute of limitations, which means the prosecutor has two years to bring the case. All of this happened years ago back in 2016. So the statute of limitations expired years ago. So every one of the charges that Alvin Bragg brought, you can't bring now under the plain text, because two years has passed. So New York has, however, a mechanism to elevate that crime to a felony if the falsification of business record is done with the intent to conceal another crime. And so I want to break down these jury instructions because it's going to show just how absurd this was. One thing linked upon another, linked upon another. So page 29 of the jury instructions. Here's what the judge told the jury. Intent to commit or conceal another crime. For the crime of falsifying business records in the first degree, the intent to defraud must include an intent to commit another crime or to aid or conceal the commission thereof. Under our law, though the people must prove an intent to commit another crime or to aid or conceal the commission thereof, they need not prove that the other crime was in fact committed, aided, or concealed. So understand this other crime, which is the magic ticket that elevates these misdemeanors to felonies and extends the statute of limitations so you can suddenly prosecute them. The prosecutor, quote, need not prove that the other crime was in fact committed, aided, or concealed. So it's a crime that doesn't have to have happened. All right, so let's read some more. New York election law, Section 17 152, predicate. Here's what the judge instructed the jury. The people alleged that the other crime the defendant intended to commit, aid, or conceal is a violation of New York election law, section 17,152. Okay, that's some clarity that we didn't have through much of the trial, but the judge actually specifies. All right, this is the, quote, other crime. What does Section 17152 of New York Election Law provides? Well, it provides that, quote, any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means, and which conspiracy is acted upon by one or more parties thereto shall be guilty of conspiracy to promote or prevent an election. And so the key words, there are unlawful means. Two or more persons who conspire to promote or prevent the election of any person to a public office by Unlawful means. So those two words, unlawful means, are the entire foundation on which this whole case is built. Now, what does unlawful means mean? And this is the most important jury instruction. This will be the basis for reversal when this case is appealed. There are lots of reasons to reverse it, but this is the easiest and clearest. Here's what unlawful means means. And it's just two paragraphs. It's very short. Quote. Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were in determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means. You may consider the following. One, violations of the Federal Election Campaign act, otherwise known as feca, two, the falsification of other business records, or three, violation of tax laws. So we've talked about how the U.S. supreme Court has long made clear, in order to convict someone of a crime, you must prove beyond a reasonable doubt every element of the crime. And the jury must find unanimously that you are guilty. You have committed every element of the crime. What the judge just said, there is no. No. Number one, this unlawful means means anything unlawful, like, whatever. Like, we're not going to define it, but I'm gonna give you three jurors choice, your pick. It's like mix and match. Choose your own adventure. Couple people say, I think it was federal campaign finance law. Someone else, no, it was. It was violation of the tax laws, by the way. They don't specify. What about the tax laws? Did you violate the tax laws? Yep. Okay. Then suddenly, this is a felony. Then suddenly the statute of limitations is extended. Then suddenly, instead of less than a year, you can sentence Donald Trump to over 100 years.
- [28:36]
Ted Cruz
Is it fair to say that the judge basically gave instructions to the jury that almost put them in a position where there's no way to not find them guilty?
- [28:43]
Ben Ferguson
Because there's such ambiguity the way they define this. The judge knew damn well it was all but forcing the jury to render a guilty verdict. Now, I still think a juror should have said no. And by the way, there is a long tradition in our jurisprudence of what's called jury nullification, which is there are times, and this has happened repeatedly, where a juror says, you know what? You may give me instructions that I've got to do X, y, and Z, but this is garbage. This is B.S. no, this is a miscarriage of justice. And that's part of the reason our system has a jury system is to have 12 ordinary people as a check on the prosecution and on the justice system. It's why I held out hope for a hung jury that someone would say, this is so obviously garbage. I won't play a part. But I will say I feel some sympathy for the jurors because reading this, here's the instruction that the judge gave about the Federal Election Campaign Act. The terms contribution and expenditure include anything of value, including any purchase, payment, loan or advance made by any person for the purpose of influencing any election for federal office. Under federal law, a third party's payment of a candidate's expenses is deemed to be a contribution to the candidate unless the payment would have been made irrespective of the candidacy. So in this instance, the focus was on the money that Michael Cohen paid to Stormy Daniels, the so called hush money to keep her quiet about the alleged affair. Now, under this instruction, the judges basically told the jury that is a campaign finance violation. He says any payment, any payment of candidate's expenses is deemed to be a contribution unless the payment would have been made irrespective of the candidacy. Now, the judge did not allow Brad Smith, the chairman, former chairman of the Federal Elections Commission, to testify. And that instruction on federal campaign finance law is woefully incomplete. So Brad Smith put out a tweet thread that actually explained federal campaign finance law. I want to read it and walk through that because it will show why the judge's jury instructions were so deficient.
- [31:04]
Ted Cruz
Before we do that, I want to talk to you about one of my commitments. And that is I am sick and tired of giving my money to companies that do not stand with my values. And in the coffee business, there are a lot of liberal companies out there. You probably had two or three pop into your brain right when I said that. Well, I start my day every morning at 7:00am on the radio. I've got to be awake and I want a premium cup of coffee to start my day that honestly I can look forward to. And that is why I switched to blackout coffee. Now, Blackout coffee is 100% America and 0% woke. They are committed to conservative values, from sourcing the beans to the roasting process, customer support in shipping. And they embody true American values and they accept no compromise on taste or quality. Now, blackout coffee is a premium cup of coffee. It's not average and I want you to try it. I'm going to give you a discount to give it a shot because when you do, you're never going to switch back. Go to blackout coffee.com verdict. That's blackout coffee.com verdict and use the coupon code. Verdict for 20% off your first order. That's blackout coffee.com Verdict. Be awake, not woke. Try blackout coffee@blackcoffee.com verdict and use that promo code. Verdict for 20% off your first order. Senator, I want you to go over what you were just describing, because it's amazing that the guy that should have been able to go before the court and explain these laws and how they work to the jury was barred from testifying. And that's why apparently he decided to put out this long tweet.
- [32:42]
Ben Ferguson
Yeah, so this is. This is a tweet thread. I'm just going to read it. Let's take a stab. False falsifying business records under New York law is a misdemeanor unless it is done to hide a crime. Bragg says that crime was a violation of Federal Election Campaign act fika or of a New York statute making it illegal to influence an election by unlawful means. But if the latter, what is the quote? Unlawful means. That's what we were talking about a minute ago, an alleged violation of feca. So it comes down to feca. There are two potential violations here. One is the acceptance of an unlawful contribution by the campaign. The other is incorrect reporting of a contribution by the campaign. Either way, we have to have a campaign contribution that allegedly occurred when Cohen advanced money to pay the Stormy Daniels settlement. FECA defines a contribution as a payment made, quote, for the purpose of influencing an election. The 2016 max legal contribution was $2,700. This looks bad for Trump. It's pretty easy to conclude the payment was made to influence an election by buying Daniels silence. Right. And Cohen paid Daniels $130,000, way over the limit. Well, it's not so simple. First, let's clear something up. Cohen just loaned the money. He was paid back and then some. So where, some ask, is the contribution? But this is not a winner for Trump. Under the law, a contribution includes a loan unless made in the ordinary course of business, for example, a bank. So that's not a good argument. But for context, note that there is no limit on how much Trump can pay can contribute to his own campaign. By October 27, when Daniels was paid, Trump had already spent over $60 million of his own money on the campaign. It would have been easy for him to toss in another $130,000. Now back to the definition of contribution. If they bought Daniels silence to, quote, influence an election, what the prosecution has alleged, isn't that a Contribution and also a campaign expenditure which mirrors the contribution definition. First, common sense. We know that a campaign expense is not literally any payment made, quote, for purpose of influencing an election. And reading the statute that way would be way too broad. For example, in 1999, Bill and Hillary Clinton bought a house in New York. One reason they did so was so that Hillary could run for U.S. senate from New York. In other words, the expenditure was clearly done in part for the purpose of influencing an election. Is it a campaign expenditure under feca? Of course not. Common sense. How about if a would be candidate pays a lawyer to seal old divorce records because he's afraid that if revealed they would be damaging to his candidacy campaign expense? No, clearly not. Even though done, quote, for the purpose of influencing an election. Or suppose a business owner wants to settle pending lawsuits against his businesses before running for Congress. He thinks the lawsuits are bs but he's afraid the press will make a big deal of the allegations. Can he pay the settlements with campaign funds? The answer obviously is no, even though there is no legal obligation to pay them and the settlements would be paid specifically, quote, to influence an election. In fact, in each of these examples, it would be unlawful to make the payments with campaign funds. I'm going to take a pause here. Understand what Alvin Bragg's argument is. He's saying Trump had to use campaign funds to pay off Stormy Daniels. That's an idiotic rule.
- [36:32]
Ted Cruz
Yeah.
- [36:32]
Ben Ferguson
And by the way, it's a rule that says every candidate for public office, if you're paying to settle a lawsuit dealing with whether you had an affair, you must use your campaign funds to do so. That's absurd. And what Brad Smith is saying is if you did that, the Federal Election Commission would go after you. Let me go back to what Brad Smith, because he explains it a little bit more. This is because. And this is the part that the judge left out of the jury instruction, didn't tell the jury, so they didn't know this. There's another part of FECA that the judge just said, ignore this part because it shows that Trump hasn't violated the law. Brad Smith, former chairman of the fec, charged with enforcing this law. Quote, this is because FIKA also prohibits using campaign funds for, quote, personal use. So you gotta ask, is it personal use? If yes, you can't use campaign funds.
- [37:21]
Ted Cruz
AKA Hillary Clinton buying a house in New York.
- [37:24]
Ben Ferguson
Exactly what is, quote, personal use under Federal Election Commission regulations and the FEC has primary authority for interpreting the law. It is any obligation that would exist irrespective of the candidacy. Indeed, the FEC regulations make clear that a mixed motive doesn't make something a campaign expense. If the obligation would exist irrespective of the campaign, paying it with campaign funds is personal use and therefore illegal. Certainly Daniels used the campaign to pressure Trump and for the most money she could. The timing affected the value of the allegations. But the obligation didn't exist because Trump was a candidate. It predated his candidacy and it was not created by his being a candidate. She could have shook him down for hush money at any point, whether or not he was running for president. Brad didn't say that. I said that. Brad continues. Let's use common sense. Is it a campaign expense to pay a non disclosure agreement for something arising out of events 10 years earlier and not caused by the act of being a candidate? Is paying hush money a campaign expense? Duh. No. And we wouldn't want it to be. This is really important. We wouldn't want it to be. We don't want candidates using campaign funds to pay personal expenses, whether new clothes, a weight loss program, or a gym membership purchased to help the candidate look better and therefore, quote, for the purpose of influencing an election. You can't use campaign finance funds for that.
- [39:09]
Ted Cruz
So when you're running for office, just to be very clear on his point, you can't say, I'm going to take a $50,000 wardrobe for all these campaign events because it's still technically closed for you personally.
- [39:18]
Ben Ferguson
Yeah, you can't do that at all. You can't buy your clothes using campaigns.
- [39:21]
Ted Cruz
Can't say, I need a haircut or, and I'm going to get one every.
- [39:24]
Ben Ferguson
Day or do any of that you cannot do and they'll go after you for it. If you do it, they will go after you for personal use. Let me, let me finish what he said. He only had a couple more. And certainly not to pay non disclosure agreements to keep embarrassing info hidden. In summary, for the purpose of influencing an election is an objective standard. The motive of the donor or the spender doesn't matter. So what are expenditures? Paying campaign staff? Our expenditures. Our campaign expenditure. Buying ads for the candidate. Paying fundraising costs. Paying a campaign accountant, Paying for polling, travel to campaign events. Basically all the obligations you incur solely because you are running for office. The FEC's approach is consistent with the US Supreme Court, which is consistently held in every case since fica was passed 50 years ago, that its definition of contribution and expenditure must be objective, not subjective, to avoid being unconstitutionally vague. None of that went to the jury. So the Jury was just told, well, if it, if, if it could influence the election, you gotta find it's a violation of law. That is flat out false. And they were not told. If Trump had done what Alvin Bragg said he needed to do, the FEC would have charged him with a personal use violation, with using campaign funds illegally. The jury didn't know that because the judge didn't want him to know that.
- [40:55]
Ted Cruz
And that's why they said you can't come and testify.
- [40:58]
Ben Ferguson
Yes, and he also prevented the lawyers from arguing this, by the way. So that was one ground. The other two grounds, that could be unlawful means, and you could have three jurors on one and five on another, and four, like they could mix and match. The other ground.
- [41:13]
Ted Cruz
Have you ever heard of a jury where that was Okay, I don't think people understand weird that usually it's you either gotta be all in lockstep or you're not. So it's either you're innocent or guilty because the 12 agree and. Or if they disagree, one of them disagrees, we're done.
- [41:29]
Ben Ferguson
Find the elements of the crime, he.
- [41:30]
Ted Cruz
Said, find your own path to guilty.
- [41:34]
Ben Ferguson
Yeah, whatever you want. The objective is guilty, you come up with however you wanna get there. All right, so one was the federal campaign finance law, and his instructions are woefully deficient. He only includes part of the rule. He leaves out the other half, which is. Explains why Trump shouldn't have done so. And it would have been a mistake to do it the way the prosecutor wanted him to, and he would have been charged with it. I mean, it would have been. He would have been violating the law to do what Alvin Bragg is saying he should have done. Another supposed basis of unlawful means was falsification of other business records. The second of the people's theories. This is from the jury instruction. The second of the people's theories of unlawful means, which I will define for you now, is the falsification of other business records for purposes of determining whether falsifying business records in the second degree was an unlawful means used by a conspiracy to promote or prevent election. Here you may consider the bank records associated with Michael Cohen's account formation, the bank records association with Michael Cohen's wire to Keith Davidson, the invoice from Investor Advisory services, and the 1099 misc form the Trump Organization issued to Michael Cohen. So in other words, there are 34 counts of false business records. They're all the identical charge. They just occur 34 different times, 34 different entries in the bookmarks. What he's Saying is, you know what? Every one of these is a misdemeanor. But if you say you made one of these entries to assist in another of these entries, then they're all felonies.
- [43:07]
Ted Cruz
Wow.
- [43:08]
Ben Ferguson
Like, like. It is the most circular reasoning that just makes no sense. And by the way, let's go to the third one, because the third one just makes me laugh out loud. The People's third theory of unlawful means, which I will define for you now, is a violation of tax laws. Under New York State and New York City law, it is unlawful to knowingly supply or submit materially false or fraudulent information in connection with any tax return return. Likewise, under federal law, it is unlawful for a person to willfully make any tax return statement or other document that is fraudulent or false as to any material matter, or that the person does not believe to be true and correct as to every material matter. Now listen to this last sentence. Under these federal, state and local laws, such conduct is unlawful even if it does not result in the underpayment of taxes. So in other words, he told the jury, by the way, you can find a violation of tax laws even if you paid, you didn't pay any less taxes, even if you didn't defraud anyone, even if you're not using it to cheat on your taxes. If you think there's something in the tax laws. And by the way, there is no person on planet Earth who understands all of the tax laws. You know, there was a book that was written years ago called Three Felonies a Day, and it argues that all of us living in this complex world commit three felonies a day. Between tax laws and environmental laws, they're just so much regulations. If you are doing anything, if you're filling out a credit card application, an aggressive prosecutor can find three felonies a day that Ben Ferguson has committed. In this instance, that jury instruction says, well, if you can figure out, if you think there was any violation, come.
- [44:48]
Ted Cruz
Up with your own theory.
- [44:48]
Ben Ferguson
Basically, come up with your own theory. And by the way, the violation of tax law doesn't have to have taken a penny of taxes from New York City, New York State, or the federal government. And if you think there was some amorphous violation of tax law that didn't result in any underpayment of taxes, suddenly, presto changeo these misdemeanors that we can't prosecute, the statute of limitations extended, they're now felonies. And we can sentence Donald Trump to 100 years in jail, 134 years in jail.
- [45:20]
Ted Cruz
In other words, Orange man bad. Find your way to figure out how to say he's guilty.
- [45:26]
Ben Ferguson
That's exactly what this was all about. This is politics. It'll get reversed on appeal. But the judge doesn't care. He knows that the purpose is what Alex Soros said. The purpose is what Joe Biden said. The purpose is all the Democrats and all the media get to call him a felon over and over and over again between now and Election Day. This is a five month battle. It's not a five year battle. The purpose is not to put Donald Trump in jail. They know that's not going to happen, cost the election they are trying to win. This is about keeping Joe Biden and the Democrats in power because it's all they care about. And they're willing to burn the justice system to the ground to keep the Democrats in power.
- [46:12]
Ted Cruz
One more question I want to ask of you, and it deals with what's next for Trump. But before we do that, I want to say thank you to so many of you that are listeners and watchers of this podcast for getting involved with the International Fellowship of Christians and Jews. Since the terror attack on October 7, anti Semitism has been on the rise, not just in Israel, but here at home in the US and around the world. And that is why I partnered with the International Fellowship of Christians and Jews to make a difference for the needs of those in Israel. Right now, they are asking for help when it comes to actually giving and putting up bomb shelters as well as the supplies you need while you are in that bomb shelter for the month of June. We're asking Christians to sign this pledge which will deliver to the president of Israel to show that Christians in America are not only standing in solidarity, but they are speaking up as well. So let's take a stand today with the International Fellowship of Christians and Jews and let the Jewish people know that they are not alone. They need your help. And if you're ready to pledge to stand side by side with your Jewish brothers and sisters, to never be silent, to show the Jewish people that they're not alone, that they have God and Christians standing by their side, to sign the pledge, go to supportifcj.org that is supportifcj.org to take a stand today. Help the people in Israel again, sign the pledge and stand with our brothers and sisters in Israel, go to support IFCJ.org that support IFCJ.org to take a stand today. Senator, final question for you. And this goes back to the last podcast you were Conflicted on what Trump's plan should be next. Do you go to the Supreme Court? Do you try to get there quickly, or is there a way to force this case moving forward? Now, knowing the jury instructions and what they were given, and most importantly, what they had admitted from them, does this open up any different legal pathway for the Trump team to say, okay, we need to get this seen even quicker so it isn't, hey, we got what we wanted. We get to say, you're a convicted felon all the way through Election Day. Can this speed up the process or no?
- [48:39]
Ben Ferguson
So let me answer that, but let me answer that in connection to a question that people ask quite a bit, which is, what's the sentence going to be? We've got the sentence. We know that is just a few days before the Republican Convention, and a lot of folks are asking, is the judge going to sentence Trump to jail time? I think there's a very real chance the judge sentenced Trump to jail time. I think this is a vicious partisan. I think he hates Donald Trump. I think he's willing to abuse his power, but I will wager large sums of money, regardless of what he sentences him to, jail time or something else, that if there is incarceration, he will suspend it pending appeal. I think that I could see the judge at sentencing saying, I sentence you to four years in jail or 40? No, no, I don't think he would. I do think you've got four years for each of these 34 counts is the maximum amount. Typically, they would run concurrently, which means they would all run at the same time. You could run them consecutively, which is how you get over 100 years in any ordinary circumstance. Number one, a judge of Trump's age that does not have any prior offenses in New York would never serve a day of jail time in any other case. I mean, look, you can physically assault someone, you can repeatedly, violently beat people up, you can engage in all sorts of crimes and not serve jail time in New York. That being said, I think it's entirely possible this judge is enough of a partisan to say, you're the president, what you did mattered. I'm sentencing you to four years in jail. I could see him. He would love that. That would be the crowning moment of his life to utter those words.
- [50:15]
Ted Cruz
It'd also be useful politically, because then not only can you say, he's a convicted felon, but then you can say, do you want a guy going to the White House that's about to go to jail?
- [50:24]
Ben Ferguson
Yeah, so what? I do not think he will do is sentence him to jail and say, take him into custody and put him there right now. He could, but I think if he did that, it would prompt an immediate emergency appeal and he would get reversed. I assume this guy is smart enough to know that he doesn't want to get reversed, and he especially does not want to get reversed before election day. He's engaged in politics, so he's not going to do something. I think that will prompt an immediate reversal because that undermines the political value of the charade that he's conducting. So if the sentence is imprisonment or it could be home confinement, if the sentence is something like that, I think he'll suspend it pending the resolution of the appeal. In that case, I think the odds are quite high this appeal will have to go through the New York State system first. We talked about in Friday's pod, and by the way, you should go back and listen to Friday's pod. We did Friday's pod late Thursday night. We did it on the road as I was driving from Dallas to Houston. It was right after the verdict came down, and it was analyzing the next steps in much greater detail than we have in this pod. And so you ought to listen to the two pods together. But the ordinary course of appeal would be to appeal from the trial court to the intermediate appellate court in New York in the state court system. And then if you lose in the intermediate appellate court, to appeal to the top appellate court in New York, called the New York Court of Appeals. And then finally, if you lose there, then you can appeal to the U.S. supreme Court. That's normally how a criminal case would proceed. It is possible you can file an extraordinary writ to ask the U.S. supreme Court to intervene right now, but it is very, very, very rare. There is a chance, and as I'm sure the Trump legal team is debating this right now, there's a chance the court would say yes, but I think it's probably unlikely. I think the court's instinct, particularly if a sentence is suspended, if the judge ordered Trump put in jail, the Supreme Court would say yes. It would force the court to say yes. So if the sentence is suspended and Trump is free to campaign, free to debate, free to go to the convention, I think the justice's instincts will be, you know what, the New York State courts might correct this. The Court of Appeals might reverse this. The intermediate court of Appeals might reverse this. They might get it right. And there's a long ethos at the court, which is if we don't need to act, we don't need to act. If someone else can fix this, if another level of the justice system can fix this, the US Supreme Court doesn't need to step in. That's their general approach. If they were to deny the extraordinary writ, I suspect you would have some justices right. And say something like, there are lots of reasons to be concerned here. But right now, the sentence is suspended, the verdict can be overturned on appeal, and so we'll allow the state, state proceedings to go forward. If there was an order of immediate incarceration, it would force their hands. I think the whole game here from the DA and from the judge is the political advantage not actually sending Trump to jail. They know these jury instructions will never survive an appeal. If you had anything resembling fairness in the judicial system, the New York Courts of Appeal should reverse it. I gotta say, based on the absolute disgrace we just saw play out, I have no confidence of that. The New York justice system is, I suspect, forever a global laughing stock. And you put this on top of the prior civil case where they took a half billion dollars, they're trying to take half billion dollars from Trump. The combination, the message New York has said is if we don't like you, if you are politically disfavored, welcome to Communist Cuba. We will treat you the same, and you have the same rights as you would have locked. Locked in a gulag.
- [54:30]
Ted Cruz
This is going to be interesting to see how it plays out. It's going to be interesting to see what the poll numbers say. This week. We're going to cover it all. Don't forget, we did a show Monday, Wednesday, Friday. Hit that subscribe or auto download button. And on those in between days, there's a lot of breaking news. Grab my podcast as well, the Ben Ferguson Podcast, and I will keep you up to date on those in between days. Make sure if you didn't get to watch this on YouTube, watch it on YouTube. You'll get to see those clips in this famous smirk of Joe Biden and the senator and I will see you back here in a couple of days.