[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
HEARING ON THE MANHATTAN DISTRICT
ATTORNEY'S OFFICE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
THURSDAY, JUNE 13, 2024
__________
Serial No. 118-86
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
56-097 WASHINGTON : 2024
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COMMITTEE ON THE JUDICIARY
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California JERROLD NADLER, New York, Ranking
MATT GAETZ, Florida Member
ANDY BIGGS, Arizona ZOE LOFGREN, California
TOM McCLINTOCK, California SHEILA JACKSON LEE, Texas
TOM TIFFANY, Wisconsin STEVE COHEN, Tennessee
THOMAS MASSIE, Kentucky HENRY C. ``HANK'' JOHNSON, Jr.,
CHIP ROY, Texas Georgia
DAN BISHOP, North Carolina ADAM SCHIFF, California
VICTORIA SPARTZ, Indiana ERIC SWALWELL, California
SCOTT FITZGERALD, Wisconsin TED LIEU, California
CLIFF BENTZ, Oregon PRAMILA JAYAPAL, Washington
BEN CLINE, Virginia J. LUIS CORREA, California
KELLY ARMSTRONG, North Dakota MARY GAY SCANLON, Pennsylvania
LANCE GOODEN, Texas JOE NEGUSE, Colorado
JEFF VAN DREW, New Jersey LUCY McBATH, Georgia
TROY NEHLS, Texas MADELEINE DEAN, Pennsylvania
BARRY MOORE, Alabama VERONICA ESCOBAR, Texas
KEVIN KILEY, California DEBORAH ROSS, North Carolina
HARRIET HAGEMAN, Wyoming CORI BUSH, Missouri
NATHANIEL MORAN, Texas GLENN IVEY, Maryland
LAUREL LEE, Florida BECCA BALINT, Vermont
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina
Vacancy
CHRISTOPHER HIXON, Majority Staff Director
AARON HILLER, Minority Staff Director & Chief of Staff
------
C O N T E N T S
----------
Thursday, June 13, 2024
OPENING STATEMENTS
Page
The Honorable Jim Jordan, Chair of the Committee on the Judiciary
from the State of Ohio......................................... 1
The Honorable Jerrold Nadler, Ranking Member of the Committee on
the Judiciary from the State of New York....................... 3
WITNESSES
The Hon. Andrew Bailey, Missouri Attorney General
Oral Testimony................................................. 6
Prepared Testimony............................................. 9
Commissioner James E. ``Trey'' Trainor III, Federal Election
Commission
Oral Testimony................................................. 14
Prepared Testimony............................................. 16
Elizabeth Price Foley, Professor of Law, Florida International
University, College of Law, BakerHostetler, LLP
Oral Testimony................................................. 19
Prepared Testimony............................................. 21
Ambassador Norman L. Eisen, Senior Fellow, The Brookings
Institute, Governance Studies
Oral Testimony................................................. 29
Prepared Testimony............................................. 31
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted for the record by the Committee on the
Judiciary are listed below..................................... 96
Materials submitted by the Honorable Jerrold Nadler, Ranking
Member of the Committee on the Judiciary from the State of New
York, for the record
A letter to the Honorable Jim Jordan, Chair of the Committee
on the Judiciary from the State of Ohio, from Carlos
Uriarte, Assistant Attorney General, U.S. Department of
Justice, Jun. 10, 2024
An article entitled, ``Here's what Manhattan District
Attorney Alvin Bragg saidabout Donald Trump during his DA
campaign,'' Apr. 12, 2023, PolitiFact
Materials submitted by the Honorable Andy Biggs, a Member of the
Committee on the Judiciary from the State of Arizona, for the
record
An article entitled, ``Former President Donald Trump
announces a White House bid for 2024,'' Nov. 16, 2022,
CNN
An article entitled, ``Biden suggests Trump will `not take
power' again if he runs in 2024,'' Nov. 9, 2022, The Hill
An article entitled, ``Manhattan D.A. Hires Ex-Justice
Official to Help Lead Trump,'' Dec. 5, 2022, The New York
Times
An article entitled, ``Pomerantz vs. Pomerantz: An Annotation
of His Leaked Resignation Letter in Manhattan DA Trump
Investigation,'' Feb. 7, 2023, Just Security
An article entitled, ``Donald Trump again teases 2024
presidential bid, saying he'll make a `big announcement'
on November 15--the same day Mike Pence's memoir is
scheduled to be published,'' Nov. 7, 2022, Business
Insider
An article entitled, ``2 Prosecutors Leading N.Y. Trump
Inquiry Resign, Clouding Case's Future,'' Feb. 23, 2022,
The New York Times
An article entitled, ``F.E.C. Drops Case Reviewing Trump
Hush-Money Payments to Women,'' May 6, 2021, The New York
Times
An article entitled, ``For prosecutor Bragg, Trump indictment
is campaign promise kept,'' Apr. 4, 2023, Washington
Examiner
Materials submitted by the Honorable Thomas Massie, a Member of
the Committee on the Judiciary from the State of Kentucky, for
the record
An article entitled, ``FEC drops investigation into Trump
hush money payments.'' May 6, 2021, The Hill
An article entitled, ``Congress has paid $17 million in
sexual misconduct and discrimination settlements,'' Nov.
17, 2017, Axios
An article entitled, ``Congress paid out $17 million in
settlements. Here's why we know so little about that
money,'' Nov. 16, 2017, CNN Politics
An article entitled, ``Top White House Ethics Lawyer Norman
Eisen Reportedly Destined for Prague Ambassador Post,''
Apr. 15, 2010, Open Secrets
An article entitled, ``$18.2 Million Congressional Slush Fund
for #MeToo Claims,'' Mar. 24, 2021, RealClear Policy
An article entitled, ``A timeline of Donald Trump's election
denial claims, which Republican politicians increasingly
embrace,'' Sept. 8, 2022, ABC News, submitted by the Honorable
Madeleine Dean, a Member of the Committee on the Judiciary from
the State of Pennsylvania, for the record
A court document entitled, ``People's Response to Defendant
Donald J. Trump's April 27 Request for a Bill of Particulars,''
The People of the State of New York v. Donald J. Trump, May 16,
2024, submitted by the Honorable Becca Balint, a Member of the
Committee on the Judiciary from the State of Vermont, for the
record
An article entitled, ``Trump's private demand to Johnson: Help
overturn my conviction,'' Jun. 13, 2024, ABC News, submitted by
the Honorable Mary Gay Scanlon, a Member of the Committee on
the Judiciary from the State of Pennsylvania, for the record
APPENDIX
An article entitled, ``Biden's #3 Man at DOJ Resigned to Join
Alvin Bragg's `Get Trump' Team on November 18, 2022,'' Jun. 12
2024, Breitbart, submitted by the Honorable Andy Biggs, a
Member of the Committee on the Judiciary from the State of
Arizona, for the record
HEARING ON THE MANHATTAN DISTRICT ATTORNEY'S OFFICE
----------
Thursday, June 13, 2024
House of Representatives
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to notice, at 11:02 a.m., in
Room 2141, Rayburn House Office Building, the Hon. Jim Jordan
[Chair of the Committee] presiding.
Members present: Representatives Jordan, Gaetz, Biggs,
McClintock, Tiffany, Massie, Roy, Spartz, Fitzgerald, Bentz,
Cline, Armstrong, Van Drew, Nehls, Moore, Kiley, Hageman, Hunt,
Fry, Nadler, Lofgren, Cohen, Johnson, Schiff, Swalwell,
Jayapal, Scanlon, Dean, Escobar, Ross, Ivey, and Balint.
Chair Jordan. [Presiding.] The Committee will come to
order.
Without objection, the Chair is authorized to declare a
recess at any time.
We want to welcome everyone to today's hearing on the
Manhattan District Attorney's Office.
I apologize, it looks like we're 62 minutes late in
starting, but we had an important guest who spoke to our
Republican Conference today.
The Chair now recognizes the gentleman from Texas to lead
us in the Pledge of Allegiance.
All. I pledge allegiance to the Flag of the United States
of America, and to the Republic for which it stands, one
Nation, under God, indivisible, with liberty and justice for
all.
Chair Jordan. The Chair will now recognize himself for an
opening statement.
The New York County District Attorney's Office began
investigating President Trump in 2018, six years ago--2018. It
wasn't Alvin Bragg; it was Cy Vance.
The Southern District of New York months later concluded
its investigation into payments made by Michael Cohen and
determined no charges should be brought against President
Trump.
Of course, while this was going on, Alvin Bragg was running
for the job--vowing to go after President Trump; bragging about
the number of times he had already sued President Trump. Mr.
Bragg ultimately wins and takes office in January 2022.
The first thing he did, the day one memo, a 10-page policy
memo to his staff instituting progressive, soft-on-crime,
antivictim policies. Felony armed robbery charges get reduced
to misdemeanors. He instructed his staff, except for homicides,
not to seek prison sentences for individuals.
Guess what came next? Rising crime. During that first year,
violent crime in Manhattan was at an all-time high. New York
City saw a 23 percent surge in major violent crimes.
In fact, we heard from some of these victims of a crime at
our field hearing up in New York City 13 months ago: A mother
whose son's murderers were allowed to walk free because of
Alvin Bragg's soft-on-crime prosecutors. A bodega owner was
violently attacked. Yet, Bragg's office initially charged him.
Finally, a father whose son was attacked in Times Square
because he was Jewish. Bragg offered one of his assailant's a
sweetheart, slap-on-the-wrist deal, even though he had previous
run-ins with the law; showed no remorse and was arrested while
out on bail.
A few weeks after this day one memo, Alvin Bragg told one
of his prosecutors, Mark Pomerantz, quote, ``He could not see a
world in which he would indict President Trump and call Michael
Cohen as a prosecution witness.'' That's right, after
campaigning on going after the former President, Alvin Bragg
gets into office and realizes the case against President Trump
is ridiculous. That's why the Southern District of New York
didn't bring it. That's why his predecessor Cy Vance didn't
bring it. Everybody knew Michael Cohen couldn't be trusted.
In fact, his former lawyer sat right in this room and told
us, ``You can't believe what this guy says.'' Michael Cohen has
lied to Congress; he's lied to the FBI, and he's lied to the
court. It's not often you can lie to all three branches of
government, and yet, become the star witness in a prosecution
of a former President.
Now, what caused Alvin Bragg to do the 180-degree turn?
What caused him to change? That Special Assistant District
Attorney Mark Pomerantz. The guy Alvin Bragg had told he could
not see a world in which he would indict President Trump and
call Michael Cohen as a prosecution witness, that guy resigned
in protest of Mr. Bragg's decision not to go after President
Trump, and his fellow Assistant District Attorney Carey Dunne
resigned as well, and they leaked their resignation letter to
The New York Times. After that, the left begins their pressure
campaign on Mr. Bragg, and suddenly, the, quote, ``zombie
case'' is resurrected.
Also, never forget, in November 2022, President Trump
announced he was a candidate for President of the United
States. Just a few weeks later, Alvin Bragg hires former Senior
Biden Justice Department official Matthew Colangelo to come up
and run the prosecution--someone who had a history of taking on
President Trump and his family's businesses and had also worked
for the New York State Attorney General.
Alvin Bragg, a partisan DA that campaigned on going after
President Trump, whose newly hired lead prosecutor for the case
also had a history of taking on President Trump, had their case
now in front of a partisan judge--a judge who had donated to
President Biden; who imposed the gag order on President Trump;
prevented an expert defense witness from testifying, and also
told the jury they didn't need to reach a unanimous decision.
There is the fundamental issue: No one knows what the
Federal crime is. Bragg and Colangelo bootstrapped charges the
Federal prosecutors declined to bring and do some kind of
never-seen felony.
Former Attorney General Robert H. Jackson warned us about
rogue prosecutors. The former Attorney General said this in a
speech 84 years ago. The speech was titled ``The Federal
Prosecutor.'' It applies to all prosecutors though.
Attorney General Jackson laid out a vision for how
prosecutors should behave in a fair and just society. He
stated, quote,
Therein is the most dangerous power of the prosecutor: That he
will pick people that he thinks he should get, rather than pick
cases that need to be prosecuted. . . . It is here that law
enforcement becomes personal, and the real crime becomes that
of being unpopular with the predominant or governing group,
being attached to the wrong political views or in the way of
the prosecutor himself.
That is precisely what we have here in this situation. Alvin
Bragg's prosecution of President Trump was personal; it was
based on politics, and it was wrong.
We're going to hear from some expert witnesses today who
will give us details about all that.
With that, I yield to the Ranking Member for an opening
statement.
Mr. Nadler. Thank you, Mr. Chair.
Mr. Chair, we sit here today for one reason and one reason
only. House Republicans are willing to do just about anything
to protect Donald Trump from the consequences of his actions.
On May 30th, a jury of his peers sitting in a State Court
in Manhattan convicted Donald Trump of 34 counts of falsifying
business records in the first degree for paying hush money to
conceal information that could have been harmful to his 2016
Presidential campaign. Let's see how that all unfolded.
[Video plays.]
Mr. Nadler. Let me be clear. This trial was fair and just.
Allegations to the contrary represent a desperate, evidence-
free attempt to shield Trump from accountability.
Today, we are going to hear a long list of allegations
designed to undermine public faith and confidence in the jury's
verdict. Do not be deceived. These are baseless allegations,
and we can take them down one by one.
First, Republicans claim that Judge Merchan was, quote,
``hand-picked'' to handle the Trump case because he had donated
$35 to Democrats in the past. This is false. Judges are
assigned at random in the New York court system. With respect
to Judge Merchan's $35 donation, the New York Advisory
Committee on Judicial Ethics issued an opinion saying that he
need not recuse himself from the case, and there is simply no
evidence that any of Judge Merchan's rulings were bias in any
way.
Second, Republicans claim that the jury's verdict
convicting Trump was not unanimous. This is absurd. The jury
instructions plainly stated that, quote, ``Your verdict on each
count you consider, whether guilty or not guilty, must be
unanimous. That is, each and every juror must agree to it.''
The verdict was unanimous on each of the 34 counts.
Third, Republicans claim that all of Judge Merchan's
rulings went against Trump. This is false. In fact, Judge
Merchan repeatedly ruled for Trump, including a critical ruling
that required prosecutors to prove willfulness under a
heightened mens rea standard.
Fourth, Republicans claim that Judge Merchan prevented
Trump's expert witness from testifying. This is false. Trump's
attorneys chose not to call that witness because he could not
have testified about underlying questions of law, which is role
solely reserved to the judge.
Fifth, Republicans claim that Attorney General Garland
secretly, quote, ``dispatched'' Matthew Colangelo, a former DOJ
attorney who served as the lead prosecutor on the Trump case,
to the Manhattan DA's Office, as part of an elaborate ruse to
plant DOJ prosecutors in State-level offices to attack Donald
Trump. This is false and utterly absurd.
Last week, the Attorney General clearly and unequivocally
told Republicans that they are wrong. The Department of Justice
has no record of any communication to the contrary, and
Republicans have not and cannot produce any evidence whatsoever
to support this nonsensical claim.
That's the theme for today. Republican attacks, one after
another, lack any basis in truth or fact. My colleagues across
the aisle know this, and yet, they repeat their attacks ad
nauseam, because that is the only play left in their playbook.
They didn't like the fact that Trump lost in 2020. So,
lacking facts or evidence to support their claims, they,
instead, attacked our democratic institutions--basically,
claiming that the election was rigged and corrupt.
They didn't like the fact that Trump was indicted for
mishandling highly sensitive classified documents. So, they
claimed that Trump declassified them with his mind.
They didn't like the fact that the FBI had to send in
agents to execute a search warrant at Mar-a-Lago because of
concerns that Trump would destroy documents. So, they claimed
that the lawful execution of a search warrant constitutes a
raid and a witch hunt.
Now, they don't like the fact that an impartial jury found
Trump guilty not once, not twice, but on 34 separate counts.
So, they are attacking the judicial process--calling it rigged,
corrupt, and pre-cooked--without a shred of evidence to back
their allegations.
Why are they doing this? Why are they sowing doubt on our
system? Why are they using rhetoric that is guaranteed to
generate death threats against the judges and jurors and
prosecutors and police involved in these cases? For one reason
only, to protect a felon, who I remind you, faces an additional
37 felony counts related to his mishandling of classified
documents; four Federal counts for conspiring to launch a riot
on January 6th, and 13 counts in Georgia for conspiring to
interfere with the Administration of the 2020 election.
Within the bounds of our system of laws, there is nothing
Trump can do to escape a trial in each on each of those counts
or to escape a sentence if he is found guilty on any of them.
Trump and his allies know this. So, they are moving heaven and
earth to undermine the system itself.
That includes the attempt by our Chair to reach into the
New York case while sentencing is still pending and drag the
Manhattan District Attorney before this Committee. That demand
represents a completely unacceptable abuse of the gavel. It is
entirely inappropriate for us to interfere with an ongoing
State prosecution, no matter how much blind loyalty you feel
you owe to the defendant.
It is also an effort that smacks of desperation. It seems,
from the standing of MAGA Republicans these days, that the
American public has caught on.
Donald Trump has faced a jury of his peers. Nothing can
change that. We here will face our constituents in November. We
should conduct ourselves accordingly.
I thank the witnesses for being here today, and I yield
back.
Chair Jordan. The gentleman yields back.
We will now introduce today's witnesses.
We have, first, Mr. Andrew Baily, the Attorney General of
the State of Missouri. Prior to becoming Attorney General, he
served as a prosecutor and Deputy Counsel, and then, General
Counsel, to the Governor of Missouri. Attorney General Bailey
has also served our country in the United States Army.
The next individual, I would yield to the gentleman from
Texas to introduce.
Mr. Roy. It's my honor to introduce Mr. James Trainor, Trey
Trainor. He's a Commissioner on the Federal Election
Commission, where he served as Chair of the Commission in 2020.
Prior to his confirmation, he practiced law for two decades
with a focus on election law, campaign finance law, and ethics.
He has also served on the Advisory Board of the Election
Assistance Commission, and he's a constituent of mine and lives
about five miles down the road, around the corner from Salt
Lick BBQ, and like my wife, is a Texas A&M graduate.
Great to have you here, Trey.
Chair Jordan. Great to have the Attorney General and the
Commissioner.
Next, we have Ms. Elizabeth Price Foley. Ms. Foley is a
Professor of Law at Florida International University College of
Law, where she teaches Constitutional law, separation of
powers, and civil procedures. She is also Counsel at
BakerHostetler, where she practices Constitutional and
Appellate law. Ms. Foley is the author of three books on
Constitutional law published by the Yale, Harvard, and Oxford
University Presses.
We have Hon. Norm Eisen. Mr. Eisen is a Senior Fellow in
Governance Studies at the Brookings Institution. He previously
served as U.S. Ambassador to the Czech Republic from 2011-2014.
We have had Mr. Eisen in front of the Committee numerous times.
We welcome our witnesses and thank them for appearing
today. We will begin by swearing you in. Would you all please
rise and raise your right hand?
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief, so help you God?
Let the record show that the witnesses have answered in the
affirmative. Thank you and you may be seated.
Please know that your written testimony will be entered
into the record in its entirety. Accordingly, we ask that you
summarize your testimony in five minutes. We'll be a little
liberal with that, but around five minutes will be great.
We're going to start. We're going to go right down the
line, and we'll start with the Attorney General, and then,
we'll move down the line.
Mr. Attorney General, you're recognized for five minutes.
STATEMENT OF THE HON. ANDREW BAILEY
Mr. Bailey. I want to thank the Chair and the Ranking
Member and distinguished Members of the Committee for having us
here today.
The people of the State of Missouri watched in horror as
the left's direct assault on President Trump manifested itself
in the form of a corrupt prosecution of the President, which
resulted in an errant criminal conviction. We are a Nation of
laws that are supposed to be equally applied. Instead, the left
has prioritized its hated of President Trump above the rule of
law. To put it plainly, the left hates President Trump more
than they love this country.
The term ``lawfare,'' while apt, fails to adequately convey
the moral depravity underpinning this strategic attack. The
Manhattan District Attorney's Office's recent prosecution of
President Trump represents one of the most morally abhorrent
volleys in the left's ongoing barrage of lawfare. This
prosecution was politically motivated and is replete with legal
errors.
First, prosecutors are explicitly forbidden from waging
politically motivated prosecutions. To the extent a prosecutor
is self-interested in a case, that prosecutor must recuse
himself. That did not happen in New York. Mr. Bragg was
previously involved in civil litigation against President
Trump, campaigned on a promise to prosecute President Trump,
and then, recruited the third highest-ranking official from
President Biden's Department of Justice to lead his trial court
efforts against President Biden's political opponent.
Second, the indictment charges President Trump with 34
counts of falsifying business records for making entries in
records with, quote, ``the intent to commit another crime.''
The charge's reference to an unidentifiable other crime
constitutes a deprivation of due process by denying the
President a right to be informed of the crimes for which he is
charged.
Third, the prosecutor sought an unconstitutional gag order
in this case. There's a strong presumption against gag orders
as violative of individual's First Amendment rights of free
speech. Bear in mind, the right to free speech protects not
only the speaker, but Americans' right to hear from a
Presidential Candidate.
Fourth, the prosecutor perverted the law to meet the facts
rather than objectively apply the facts to the law. The statute
at issue prohibits a false entry into a business record.
However, the financial entries were authentic, in that the
entities listed received the funds enumerated in the documents.
The prosecutor illegally bent the law to allege that these
transactions that were accurately recorded were for some other
purpose.
Fifth, the prosecutor failed to correct the court's error
in instructing the jury that unanimity was not required as to
the predicate offense that forms the basis for the fallacious
charges.
The Sixth Amendment right to trial by jury includes jury
unanimity as to each element of the offense for which the
defendant is tried. The prosecutor had an affirmative duty to
object to this violation of President Trump's Constitutional
rights.
Missouri has a unique history that parallels much of what
recently happened in New York with the exception that systems
in Missouri countered a rogue prosecutor who filed politically
motivated cases. In fact, I filed the lawsuit that ultimately
removed her from office and prevented this kind of lawfare.
George Soros has repeatedly funded progressive prosecutors
to wreak havoc on the criminal justice system at every level.
Not only do they prosecute political opponents, but they refuse
to prosecute actual violent crimes happening in our
communities.
In fact, President Biden's Department of Justice is in
lockstep with radicals like George Soros and is actively
funding groups like the Vera Institute that are turning our
streets into war zones. The Vera Institute, a progressive
organization dedicated to undermining criminal prosecution in
the United States, receives tens of millions of dollars in
Federal funds annually.
My lawsuit to remove the prosecutor in the city of St.
Louis uncovered the disastrous relationship between her office
and the Vera Institute that resulted in more than a 90 percent
nonprosecution rate of reported crimes.
Meanwhile, the St. Louis prosecutor had to be disqualified
from cases in which she was politically motivated. Missouri
systems worked, in that the judiciary prevented her political
witch hunts, and my lawsuit removed her from office after she
neglected to prosecute violent crime.
The same systems failed in New York. George Soros has
funded Alvin Bragg's candidacy, and under his watch, the
Manhattan District Attorney's Office has partnered with the
Vera Institute. In this case, the judiciary of New York failed
to disqualify Alvin Bragg from his case against President
Trump.
These facts, coupled with the Federal and State
prosecutions that have yet to play out, display a level of
collusion never seen before between a corrupt Department of
Justice and illicitly motivated State prosecutors. I believe
the investigations and subsequent prosecutions of President
Trump have been illegally conducted in coordination with the
Department of Justice. That is why my office demanded
communications between the DOJ, Alvin Bragg, Letitia James,
Jack Smith, or Fani Willis related to the investigation or
prosecution of former President Donald Trump.
To protect the rights of all Missourians who plan to
participate in the 2024 Presidential Election, the State of
Missouri has the right to know to what extent the prosecutions
of prominent Presidential candidates are being coordinated by
the Federal Government, which is currently run by President
Trump's primary political opponent.
The credibility of our criminal justice system has been
undermined and hangs in the balance. If we are to protect the
rule of law, we must end the lawfare against President Trump.
As a Nation, we must affirmatively reject Soros-backed
prosecutors who refuse to enforce the law and, instead,
weaponize the criminal justice system to achieve political
ends. As a Nation, we must eliminate the very institutes'
influence over the DOJ and our local prosecutors' offices.
I want to thank the Chair and Ranking Member and
distinguished Members of the Committee.
[The prepared statement of The Hon. Bailey follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chair Jordan. Thank you, Mr. Attorney General.
Commissioner, you are recognized for five minutes.
STATEMENT OF COMMISSIONER JAMES TRAINOR
Commissioner Trainor. Thank you, Mr. Chair. Chair Jordan,
the Ranking Member Nadler, and distinguished Members of the
Committee, it is an honor to appear before you today to discuss
the critical issue of jurisdictional overreach and the
prosecution of Federal campaign finance law, specifically
regarding the actions of Alvin Bragg, the District Attorney
from Manhattan, in this prosecution of former President Donald
Trump. No less critical, I want to highlight the inaction by
the Department of Justice to defend Federal jurisdiction in
this case.
The Federal Election Campaign Act serves as the bedrock for
regulating money in our elections. It delineates the
authorities responsible for enforcing these rules, vesting
exclusive jurisdiction in the Federal Election Commission and
the Department of Justice. This statutory framework is designed
to ensure uniform application of campaign finance laws
nationwide, preventing the creation of fragmented enforcement
landscape and leveraging the expertise and resources of Federal
agencies.
District Attorney Alvin Bragg's decision to pursue charges
against former President Trump for alleged violations of
Federal campaign finance laws mark a significant deviation from
this established legal framework. By doing so, Bragg has
effectively usurped the jurisdiction that this Congress has
explicitly reserved for Federal authorities. This overreach
sets a troubling precedent for the politicization of legal
proceedings at the State level. The danger here lies in the
disparate enforcement standards that torture well established
Federal law processes. As an example, the State Judge in New
York misinterpreted Federal criminal mental intent standards
and gave the jury an instruction which read willfully
contributing campaign contributions. The statutory mental
intent found in the Federal Election Campaign Act is knowing
and willful.
Now, imagine 50 States enacting the crime of campaigning by
unlawful means and a thousand different State and local
prosecutors prosecuting Presidents, former Presidents,
Presidential candidates, and any number of House and Senate
candidates under varying interpretations of FECA by
bootstrapping those laws to their States' unlawful means
criminal code. It is also disturbing in this case what hasn't
happened over at the Department of Justice. Given the clear
precedent established by the U.S. Supreme Court regarding the
prohibition of State officers prosecuting Federal crimes, it is
perplexing that Attorney General Merrick Garland and the
Department of Justice did not intervene in the prosecution of
Donald Trump. The DOJ's election year sensitivity policy is
designed to protect the public from being influenced by legal
proceedings during election year. Had the DOJ zealously
represented the United States by intervening to protect its own
jurisdiction and that of the FEC, this issue might not be the
predominant one of the 2024 Presidential cycle.
A disclosure on May 31st in unredacted FEC documents
reveals that the Department of Justice conducted a year-long
investigation and found no criminal acts committed by former
President Trump. This revelation underscores the problematic
nature of Bragg's prosecution and his intrusion on Federal
jurisdiction, again, the implications for allowing local
district attorneys to prosecute based on their interpretations
of Federal campaign finance law are profound. Such actions risk
eroding the uniformity and predictability that FECA aims to
provide.
For me, a larger First Amendment concern is at play here.
That is the deterrent that this encroachment on Federal
jurisdiction will have on well-qualified candidates from
seeking public office. Fearing disparate legal standards based
on their locality, preserving the centralized enforcement
mechanism envisioned in FECA is essential to a fair and
impartial oversight of campaign finance regulations and of our
elections.
Alvin Bragg's misguided prosecution of former President
Trump represents a clear usurpation of Federal jurisdiction.
Coupled with the DOJ's inaction, it has compounded the issue.
The dangerous precedent of local prosecutorial overreach in
matters of Federal concern must be addressed to maintain the
integrity of our electoral system. We must reaffirm the
exclusive authority of the FEC and the Department of Justice to
enforce Federal campaign finance laws, ensuring consistent and
impartial application across the United States.
Thank you, Mr. Chair, for the opportunity and I look
forward to your questions.
Chair Jordan. Thank you, Commissioner. Ms. Foley, you are
recognized.
[The prepared statement of Commissioner Trainor follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF ELIZABETH FOLEY
Ms. Foley. Chair Jordan, Ranking Member Nadler, the Members
of the Committee, thank you so much for the opportunity to
testify today. I am going to focus my remarks on due process,
as a Constitutional lawyer and someone who practices in the
field. Most of you went to law school, so you remember that due
process is part of the Constitution that ensures that the
processes employed to deprive someone of life, liberty, or
property are fundamentally fair. Of course, we all learned that
there are twin pillars of due process.
(1) Is notice and in the criminal context, that means
notice of the specific charge that you face, as well as the
issues that are raised therein, in other words, the elements of
that crime.
(2) A meaningful opportunity to be heard on those charges.
Unfortunately, Mr. Trump's New York trial violated both of
these twin pillars of due process and to explain why, first, I
have attached a flow chart to my written statement that might
be helpful as I go along through my oral testimony. I thought I
would also bring another visual of the Russian nesting dolls to
give you some sense of the complexity of the theory of
criminality with which Mr. Trump was faced in New York.
This first doll represents the actual charges in the
indictment against Mr. Trump. There were 34 charges of felony
falsification of business records under New York law. To make
it a felony falsification, you have to meet all the elements of
misdemeanor falsification which means you have to have a
falsified business record with an intent to defraud and then to
make it a felony, you have an additional that must be proven.
That additional element is the intent to commit another crime.
All right?
So, the next nesting doll is what is that other crime that
Mr. Trump intended to commit? Well, Mr. Trump wasn't sure, and
neither were his attorneys, so he asked the New York prosecutor
for what is called a bill of particulars, saying hey, please
tell me what that other crime you think it was that I intended
to commit. The prosecutor interestingly responded and said you
don't have a right to know. ``We don't have to tell you what
that specific crime was,'' and oh, by the way, ``without
limiting the people's theory at trial,'' that is a direct
quote, in other words, without limiting our ability to change
our minds during the trial, the other crimes that Mr. Trump may
have intended to commit, may include one of four things: First,
New York election law; second, New York tax law; third,
falsification of other business records, presumably other than
the 34 with which he was actually charged; and finally, the
Federal Election Campaign Act, FECA, right?
Now, if you hear me list those four possibilities as the
other crimes that Mr. Trump intended to commit, you see that
they are very different crimes, right? They range from State
crimes to Federal crimes, from misdemeanors to felonies. Within
each of those crimes, or statutes, there are different ways to
commit a crime. So, for example, under New York tax law, tax
fraud was one of the statutes cited by the New York prosecutor
and his response to the bill of particulars request. Tax fraud
can be committed in multiple different ways under that statute.
There are different kinds of ways to engage in tax fraud.
FECA, as you probably know, is the Federal Election
Campaign Act, is a Federal law that is over 100 pages long. If
you read it, you see that there is lots of different crimes
embedded in that one mega statute. So, Mr. Trump didn't know
for sure what was that other crime that the prosecutor thought
he intended to commit and, in fact, the first time he learned
what it was, was during the jury instruction when Judge Juan
Merchan told the jury that the other crime was New York
election law. OK? That is far too late for due process
purposes, for purposes of notice, right? That is after all the
evidence has closed. All right.
So, then he picked out of those four that were mentioned by
the prosecutor New York election law. When you look at New York
election law, you see even further that embedded in it there is
another predicate. To violate New York election law, you have
to basically interfere with an election by quote ``unlawful
means.'' He said well, what does unlawful means? Unlawful means
that the way that you committed the violation of the New York
election law was itself unlawful in some way. So, there is a
second predicate crime buried in there, right? Then you say
well, how do I know what those unlawful means are? Mr. Trump
had no notice of what those unlawful means were because
unlawful means was embedded in the New York election law, which
he didn't even know was the first predicate for the basis of
the felony falsification charge.
The first time Mr. Trump realized what the unlawful means
could be for the basis of the New York election law was again
during the jury instructions by Judge Merchan and at that
point, Judge Merchan instructed the jury and I wish I had three
of these, but I only have one. I got these in Russia, actually.
The three means that Judge Merchan pulled out of the sky,
right, were (1) FECA, again, the Federal election law; (2)
falsification of other business records, although he didn't
specify which ones; and (3) this is kind of fascinating, quote,
``tax laws,'' which Judge Merchan's instructions say ``could
include not only State law, but Federal tax law, and local tax
law as well.''
Now, to make matters worse--
Chair Jordan. Finish up really quick. I apologize. If you
can finish up really quick.
Ms. Foley. Sorry. To make matters worse, Judge Merchan
instructed the jury that they need not be unanimous in picking
out which one of these three means by which they could convict
Trump. This is a travesty of justice. It is clearly a violation
of due process. If anyone would like to ask me about the
Supreme Court's decision in Schad on the unanimity of means--
Mr. Ivey. Mr. Chair, point of order. Point of order, Mr.
Chair.
Ms. Foley. I would be glad to give further details. Thank
you.
[The prepared statement of Ms. Foley follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chair Jordan. The gentlelady yields back. The Ambassador is
recognized for five minutes.
STATEMENT OF THE AMBASSADOR NORMAN EISEN
Ambassador Eisen. Thank you, Chair Jordan, Ranking Member
Nadler, and distinguished Members of the Committee. I
appreciate you inviting me back today for this hearing. You may
notice that I am not turning my microphone on and off today. It
is the Jewish holiday of Shavuot and we do not operate
electronics on our holidays.
I didn't think I would be come at all, but my rabbi gave me
permission when I explained the significance of today's
hearing.
I was in court throughout the six-weeks plus Manhattan
criminal trial of former President Donald Trump for interfering
in the 2016 election and covering it up. I want to make three
points today.
First, a jury of Mr. Trump's peers in the city where he
lived and worked most of his life found him guilty. I spent
most of the trial watching them and, unlike some in court who
dozed, they paid extremely close attention throughout.
The jurors got it right. Witness after witness, formerly
inside Mr. Trump's orbit, supported both parts of the jury's
conclusion. First, that Mr. Trump intended to influence the
2016 election by unlawful means, including in the form of
$130,000 payment to Stormy Daniels to benefit his campaign,
over $127,000 in excess of the legal limit. Second, Mr. Trump
covered it up through 34 false business records that disguised
the repayment of that excessive contribution as a legal
expense.
The jury were not the only ones who got it right. So did
the judge. I know this may astonish some who were fed a steady
diet of disinformation about him, but Justice Juan Merchan bent
over backward to be fair to the defendant. Why should Mr. Trump
have been allowed, for example, to act in contempt of court by
violating the gag order no less than ten, ten times before he
was warned that the eleventh violation would lead to more
serious consequences. Justice Merchan was judicious on that end
and many other occasions as I believe the appellate review will
demonstrate.
Second, the jury found Mr. Trump lied to voters and covered
it up with phony documents. Does that sound familiar? It should
because we saw this pattern repeat in 2020 with the Big Lie
that Mr. Trump won the election. The false documents in 2020
were fake electoral certificates that were part of a scheme to
overturn the legitimate outcome of the election in this body
with tragic results on January 6th, 2021. Mr. Trump is
limbering up to try the Big Lie again. He will not commit to
accepting the 2024 election results unless he wins.
Third, brings me to my final point, where the real threat
of the politicization of the justice system and the
weaponization of government lies. The attacks on the trial and
verdict by the former President and others are politicizing a
crime, falsification of business records, that has been
prosecuted about 10,000 times in New York since 2015. Mr. Trump
should not be treated any differently, no better, no worse than
those other defendants who falsified documents. His
politicization of the case has led to a staggering amount of
confusion such as that there was no underlying crime specified
that made his document falsification a felony. Not so. I
brought an exhibit also, the May 12, 2023, bill of particulars.
That is their response to the bill of particulars that did
specify the crime and I have a pile of other documents here
showing that this happened over and over again.
As bad as all that is, the worse politicization is the call
by Mr. Trump and others to baselessly prosecute his adversaries
in retaliation for the verdict. Just last week, Mr. Trump
pointed to his own prosecution and then said it is very
possible it is going to have to happen to them to his political
opponents. Those words are more chilling because they are not
isolated to the issue of this trial. We should take them as a
warning of what is to come should he return to office, starting
with his promise to be a dictator on day one. That would be the
real weaponization of government, not Mr. Trump's being held
accountable by 12 of his fellow citizens. Thank you.
[The prepared statement of the Ambassador Eisen follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chair Jordan. The gentleman yields back. The gentleman from
Florida is recognized for five minutes.
Mr. Gaetz. We are here at the hearing on the Manhattan
District Attorney's Office and the essential ingredient we seem
to be missing is the Manhattan District Attorney which I guess,
Mr. Roy, would be a lot like going to the Salt Lick BBQ and not
getting the moist brisket. To Mr. Jordan's credit, great
credit, he sent a letter to Mr. Bragg on May 31st, inviting him
to come participate and we got sort of a nastygram back from
Mr. Bragg on June 7th.
Mr. Chair, I seek unanimous consent to enter into the
record the June 7th response from AG Bragg.
Chair Jordan. Without objection.
Mr. Gaetz. I am sorry, DA Bragg. In this letter, I am going
to quote from it Ms. Foley, Bragg says ``This office is
committed to voluntary cooperation.'' Can you believe that?
Ms. Foley. No.
Mr. Gaetz. As the letter continues, ``That cooperation
includes making the District Attorney available to provide
testimony on behalf of the office on an agreed-upon date.'' Do
you believe that?
Mrs. Foley. I will believe that when I see it.
Mr. Gaetz. It goes on to say, ``they are evaluating the
propriety of allowing an Assistant District Attorney to testify
publicly about the matter.'' Now, that Assistant District
Attorney is the one who downstreamed from DOJ, right? So, do
you think they are going to provide Mr. Colangelo here to
answer our questions?
Ms. Foley. I would not expect Mr. Colangelo to show up.
Mr. Gaetz. Do you base that opinion on the lawsuit that
Alvin Bragg filed against Jim Jordan in his official capacity
in the Committee on the Judiciary?
Ms. Foley. I saw some of that, yes. I mean look, you have a
legitimate legislative purpose to be inquiring as to what you
are doing, so they have no leg to stand on.
Mr. Gaetz. They are not going to come because we asked, and
they are not going to come because they say so. We learned that
by observing our dear friends at the Oversight Committee,
because this will surprise a lot of Americans. After hearing
the enthusiasm around oversight of the Biden crime family, we
never sent a subpoena to Hunter Biden to give live testimony
before Congress. Let that sink in. The Republican House
majority has never subpoenaed Hunter Biden for live testimony
in public. We have never done that. I worry that we are going
about the same kind of process here. We may end up there in
July right after sentencing with an empty Alvin Bragg nameplate
and an empty Matthew Colangelo nameplate. Then we will start
the process again on letters, subpoenas, and accommodation. I
have just grown tired of it, and I think you are right, Ms.
Foley, that this is all professional wrestling. There is no
real effort to bring these people to bear.
Mr. Johnson. Will the gentleman yield for--
Mr. Gaetz. No. One second. I have a motion. Mr. Chair, I
move under Committee Rule 4 and Clause 2M of House Rule 11, to
require the attendance and testimony of Alvin Bragg and Matthew
Colangelo on July 12th to discuss their involvement in the
Trump prosecution including their offices' coordination with
Department of Justice.
Mr. Nadler. Mr. Chair, Mr. Chair.
Chair Jordan. The Ranking Member is recognized.
Mr. Nadler. It is a little absurd because Mr. Bragg and Mr.
Colangelo have already agreed to appear before the Committee on
July 12th. We have a letter to that effect. There is no point
requiring them to do what they have already said they are going
to do. The Committee asked them to appear. They were asked to
appear today. They made the point that--Mr. Bragg, I should
say, made the point that he didn't think he should appear
before the sentencing on July 11th, but he could be available
thereafter, and he has agreed to come on July 12th.
Mr. Gaetz. Mr. Chair, this debate is out of order.
Mr. Nadler. You made a motion. It is not out of order.
Mr. Gaetz. You have to seek recognition pursuant--you can't
just inject. I am still on my time. I am still controlling two
additional minutes of time.
Chair Jordan. You will get your time back.
Mr. Nadler. I have a letter here. My point is simple. The
Committee requested them to appear, Mr. Bragg and Mr.
Colangelo. They have agreed to appear. They plan to appear on
July 12th. I don't know what this debate is about. I yield
back. Oh, I would like unanimous consent to--Mr. Chair--ask
unanimous consent to introduce into the record a report from
Fox News headlined--
Chair Jordan. Without objection.
Mr. Gaetz. I object. I object pending consideration of--
Chair Jordan. I want to deal with Mr. Gaetz' motion and
then we will take your unanimous consent.
Mr. Bragg and Mr. Colangelo have agreed to come on the
12th. If they don't show up on the 12th, they will be
subpoenaed. So, I would ask the gentleman if he could withdraw
the motion. They are coming. We worked hard over the weekend to
make sure they are coming. If they change their mind, they will
get a subpoena from the Committee requiring them, compelling
them to be here. If they choose to go to court on that, I think
we will beat them in court like we did the first time when we
got Mr. Pomerantz to come testify in front of--to be deposed in
front of the--
Mr. Gaetz. Time then becomes determinative. The problem is
if we are going to bring these people in, let's go--I have made
a motion to subpoena these people now pursuant to the rules and
I want a vote on my motion or I want someone to move to table
it.
Chair Jordan. You made the motion to subpoena them for the
12th?
Mr. Gaetz. I moved under Committee Rule 4, Clause 2M of
House Rule 11--
Mr. Johnson. I move to table. I move to table the--
Ms. Jayapal. I second that.
Mr. Gaetz. It is not debatable.
Chair Jordan. The gentleman made a motion, the motion to
table is not debatable. Those in favor of--the Committee will
stand in recess.
[Recess.]
Chair Jordan. The Committee will come to order. The
gentleman from Florida has two minutes remaining on his five
minutes of questions.
Mr. Gaetz. Mr. Chair, I will withdraw my motion based on
the representations not only that you've made, but that the
Ranking Member has made in our colloquy previously that Mr.
Bragg and Mr. Colangelo will be here and willing to answer our
questions. Ms. Foley, I wanted to come back to you. You made
mention of this theory of unanimity. I wanted to give you a
chance to talk about that case law a little bit that you were
referencing.
Ms. Foley. Oh, yes. Thanks. In fact, Professor Eisen and I
were just sort of debating that case, Schad from 1991. So,
Schad is a case where Arizona had this first degree murder
statute. To commit first degree murder under that statute, you
could either have premeditated murder or you can have felony
murder. The question was whether or not the jury had to be
unanimous in its conviction under first degree murder, whether
they had to make a specific finding that it was premeditated,
or they had to make a specific finding that it was felony
murder.
That case is very split. There's, like, a 4-1-4 split among
the nine justices in Schad. The main plurality written by
Justice Souter says, well, in a case like that, that statute,
the Arizona legislature looked at the crime as first degree
murder and said that if you commit it either by premeditation
or by during the commission of a felony, you sort of have
equal, sort of moral culpability to warrant the first degree
thing. So, you don't--the jury doesn't have to be unanimous as
to whether it's one or the other, right?
Along the way at the end of that, they said, oh, a point of
caution that if the means by which a crime could be committed
are too capacious, there might be due process problems. Then
you have a Scalia concurrence that reiterates that concern and
says if you have sort of an umbrella crime, it will violate due
process. Then you get four other justices in dissent who are
even taking a tighter position saying, if it's an element of
the crime, it must be unanimous.
Mr. Gaetz. It almost seems like it's--I get the Russian
nesting dolls. It's almost like a Mr. Potato Head doll, where
you're sticking the wrong parts on and ending up with quite an
odd looking legal feature.
Ms. Foley. Well, yes, and the thing about New York's
election law is quote ``it can be violated by any unlawful
means.'' That's the language of the statute. Now, any unlawful
means, means any unlawful means.
It can mean a local crime. It could be a State crime. It
could be a Federal crime as opposed to the Arizona statute,
which was upheld, only gave you two choices. It was either
premeditated murder or it was murder in the commission of a
felony. That's much tighter.
Mr. Gaetz. I see our time has expired. It sounds like a
real Constitutional due process issue as applied in this
prosecution. I yield back.
Ms. Foley. Correct.
Chair Jordan. The gentleman yields back. The gentleman from
New York is recognized for five minutes.
Mr. Nadler. Thank you, Mr. Speaker--Mr. Chair. Ambassador
Eisen, I want to talk about some of the disinformation that's
been spread about the trial in New York. Republicans have
attacked Judge Merchan as biased and have suggested that he
continually ruled against Trump. What is your response to that
allegation?
Ambassador Eisen. Mr. Chair, I was present throughout the
trial. Thought that the conduct of the judge was the exact
opposite of bias. He was scrupulously fair.
He upheld dozens and dozens of the objections that were
articulated by the defense. At times, for example, during the
testimony of Stormy Daniels when the defense did not object, he
objected for them, sua sponte, to limit the testimony. I would
not have allowed Donald Trump to violate the gag order ten
times as you heard in my opening testimony before threatening
him, that the 11th would require more dire consequences.
One of the biggest fights Commissioner Trainor referenced
this was over willfulness. The judge actually adopted the
instruction that was proposed by the defendant and his counsel.
I could give you many, many other examples. I thought it was
one of the outstanding jobs of judging that I have seen in my
over three decades in court.
Mr. Nadler. Now Ambassador, Republicans have alleged that
it would be impossible for Donald Trump to get a fair trial in
New York City. Is there any shred of validity to this?
Ambassador Eisen. I watched that jury, Mr. Nadler. They
paid close attention. Many of them took notes throughout. They
included those who said they followed Mr. Trump's statements on
Truth Social. The notion that a jury of Manhattanites where Mr.
Trump chose to live and work, where the offenses were committed
cannot sit is really wrong. I think it's not fair to these 12
ordinary Americans who perform their duty in our rule of law
system.
Mr. Nadler. Republicans have also alleged that Donald Trump
would never have been charged with felony falsification of
records if his name were anything other than Trump. In fact,
this is a common charge in New York. The Manhattan DA's offices
pursue these case 120 times since Bragg took office. Isn't that
correct?
Ambassador Eisen. That's right.
Mr. Nadler. Is there any--
Ambassador Eisen. Mr. Bragg has--that's right.
Mr. Nadler. Is there any evidence at all that Donald Trump
is being politically and unfairly targeted?
Ambassador Eisen. Since we're doing exhibits, Professor
Foley, a trial lawyer. I love exhibits. For my book--I may even
borrow her nesting dolls at some point if the Chair will
permit.
For my book, ``Trying Trump,'' I surveyed almost 10,000 New
York falsification of business records cases. This is a crime
that is regularly charged. If you do the FBR in New York, you
do the time. So, there's nothing unusual here about charging
false documents.
Mr. Nadler. Thank you. MAGA Republicans' attacks on Alvin
Bragg should not come as a surprise. It's a clear pattern. Just
look at how Republicans have viciously and baselessly attacked
Special Counsel Jack Smith who's overseeing the two Federal
prosecutions against Trump and conducted the investigations
into Trump's criminal behavior.
They have desperately tried to discredit Smith to lessen
the effects the indictments have had on his reelection bid
despite the mountains of evidence against him. The former
President called Smith a lowlife who is nasty, rude, and
condescending, a Trump hating prosecutor, a disgrace to
America, and a very vulgar profanity that I won't repeat here.
Even brought Mr. Smith's family into the attacks, saying,
quote, ``Smith's wife and family despise him much more than he
does,'' and called Mr. Smith's team thug prosecutors.
These attacks on Smith clearly mirror the attack on Bragg.
Why are Republicans going to such lengths to attack these
prosecutors and what are the benefits of delegitimizing them?
Ambassador Eisen. Because Mr. Trump is guilty of
interfering in the 2016 election and covering it up with 34
false documents. Because the American people understand that is
a disqualification for a public figure in our country and
because that pattern was exemplified again in 2020 is a threat
for 2024. These attacks on prosecutors, juries, judges are of a
piece with Donald Trump's promise to be a dictator on day one.
That is why they're pushing back.
Chair Jordan. The gentleman's--
Mr. Nadler. Thank you. I yield back.
Chair Jordan. The gentleman yields back. The gentleman from
Arizona is recognized.
Mr. Biggs. Thank you, Mr. Chair. So, I'll ask you, Mr.
Bailey. Do you know why Alvin Bragg originally declined to move
forward with the prosecution of Donald Trump?
Mr. Bailey. I believe the reasonable inference to draw is
that the charged aren't supported by the laws or the facts.
Mr. Biggs. So, let's talk about a guy named Mark Pomerantz.
So, Mark Pomerantz and his colleague, Mr. Dunne, resigned from
the office because they felt that Mr. Bragg was not going to go
forward with the case. So, he issued a statement.
An analysis, if you start looking at what Mr. Pomerantz
said, he said, ``many members of the team did not think that
they could prove Trump committed crimes.'' He did not think the
New York State criminal charges advanced by Pomerantz applied
to Trump's conduct. In his book, he writes, ``many of the
lawyers were relentlessly negative.''
There were references to our case as weak. One lawyer
opined that it had many fatal flaws. Another expressed a view
that the case may be way out there. It's not the strongest case
in the world.
If you go on, there were defectors from the Trump
investigation. All this is taking place from December 2021 all
the way through February 2022. Now, why is that important?
Because I want to get to this, Professor Foley. Because
there's a timeline issue and you're talking about due process.
So due process, you've mentioned two pillars.
I'm going to suggest that if you have a firm prosecution
and they're looking to find a way to prosecute because it's a
person as opposed to the case. So, here's the timeline which
may seem coincidental. This is exactly what happened.
On November 7, 2022, Trump teases, he says, ``I have a big
announcement coming up.'' September 9, 2022, at a press
conference, Joe Biden says, ``we just have to demonstrate that
he will not take power if he does run, making sure he, under
legitimate efforts of our Constitution, does not become the
next President.'' On November 15th, Trump announces his run.
Now, here's where it gets interesting. On November 18th,
Matthew Colangelo, No. 3 in the DOJ, resigns. He gives a two-
week notice in a letter, and he's going to end up quitting his
job at DOJ on December 2nd.
He's going to work for Manhattan DA Alvin Bragg's office
beginning December 5th. Nobody can tell us from DOJ or Alvin
Bragg how they even--nobody seems to know. Just apparently
Colangelo just shows up in the office one day.
, on that same date, November 18th, Merrick Garland
appoints Jack Smith on two cases against Trump, one in Florida
and one in Washington, DC.
Point 3, same day, November 18th, Fani Willis' paramour,
Nathan Wade, spends eight hours in meetings with White House
lawyers. It wasn't too long after that the indictments start
falling into place.
We can go through those. I wanted to ask you, Ms. Foley, if
a prosecutorial agency is actually searching for crimes because
of an individual. They've stated, don't forget Mr. Bragg.
I'm leaving out all his campaign promises to get Trump.
Couldn't name any kind of thing that he had done wrong. He's
going to get Trump. Is that antithetical to the very notion of
due process in and of itself?
Ms. Foley. Yes, you ask a really interesting question. Yes,
the short answer is yes. There is a line of Supreme Court
jurisprudence beginning with a case called Rochin v. California
in 1960 which establishes what's called the shocks the
conscience test for violation on due process.
You may remember that from law school. It's where your
stomach got pumped forcibly against his will. Since Rochin was
decided, there had been other Supreme Court cases. There's one
called ex rel. Vuitton. There's one called Caperton involving
judges. This line of jurisprudence under due process says that
if you can establish that there was bias by a prosecutor, an
investigator, or a judge that shocks the conscious, it's a due
process violation as well.
Mr. Biggs. All right. So, when we start looking at this and
you realize that there was no theory of the case that seemed to
work. That's from Mr. Pomerantz's testimony. They couldn't come
up with a case. You have prosecutors saying we just can't find
anything here. Then all of a sudden, you get jury instructions
like you have here. How antithetical to that is to due process?
Ms. Foley. Well, I think when you piece all those pieces of
evidence together, they paint a pretty compelling picture of
bias. Whether or not it would shock the left side of the
aisle's conscience, I don't know. It certainly would shock me.
I'm trying to be pretty objective about this. It's a high
bar to shock someone's conscience. Basically, the idea is if
you're doing the Attorney General Justice Jackson maneuver of
picking the man and pinning some crime on him, then yes, I
would hope that would shock your conscience.
Ms. Foley. Thank you. I yield back.
Chair Jordan. The gentleman yields back. The gentleman from
Tennessee is recognized.
Mr. Cohen. Thank you, Mr. Chair. This Committee has engaged
in many off the wall, pointless, politically driven hearings in
this Congress. It seems to be the mode.
We are in the basic format of trying to do everything we
can to defend one of the most lawless people in this Nation's
history, Donald Trump, who has been found civilly liable
numerous times in New York for tax fraud, for rape, for
defamation, and for violating the New York State tax laws. Now,
34 times for a felony and a criminal action for interfering--
business records and interfering in the election of 2016. Now,
of course, he's got other Federal cases coming in Florida where
he has his friend, Judge Aileen Conner, Cooper, whatever her
name is.
Ambassador Eisen. Cannon.
Mr. Cohen. Cannon. He's got Georgia and he's got Jack Smith
on overthrowing the government and January 6th. This Committee
concentrates on defending him and bringing up his case. We've
got crime going on in the country.
We've got immigration problems in the country, problems at
the border. Nothing is more important that defending the No. 1
person criminal, civil defendant, and criminal defendant in
this country in the history that I can remember over the years.
Nobody has been to court so many times and had so many losses.
Yet, we defend him here. This is an attack on the rule of
law and on democracy. It's very, very unfortunate. These are
political purposes that this Committee has publically,
aggressively, and despicably tried to intervene in a criminal
proceeding.
We are a Nation of laws, and those laws are enforced
through the judicial system. The Federal Government has
specific duties and State Governments have specific duties.
Both are equally bound to satisfy the principles of due process
and equal justice under the law.
This is what we're looking at here. We're looking at what
the GOP has done to try to run this Committee as a Trump legal
defense team. They just met with Mr. Trump over in the Capitol
Hill Club.
I'm sure he did a Harvey Korman impression of you go do
that voodoo that you do so well when he sent the Klansman and
the Hell's Angels, and all the other despicable characters
round up together to go into Rock Ridge. They're here doing
that voodoo that they do so well. They're losing as Trump and
his lawyers lost in Manhattan.
Thirty-four times a felon, and they've tried to say this is
about you, not about Trump. Well, malarkey. Ambassador Eisen,
as a general rule, judges interpret the laws and juries are
finders of fact. Can you please tell us what that means and
explain it to the people here who might not have an
understanding of that theory and what happened in New York.
Ambassador Eisen. The principle that judges interpret the
law and juries find the facts is a foundational one in our
American rule of law--Anglo-American rule of law system. The
reason we ask judges to interpret the law is because they have
the expertise in what the law means. The reason we ask juries
to determine the facts is because in the American justice
system and in its role as a foundation of our democracy, we
trust the fate of a criminal defendant ultimately to their
fellow Americans.
That is exactly what happened here. One of the many canards
that we've heard, Mr. Cohen, is that of one of Trump's
witnesses, former FEC Commissioner Brad Smith who I've known
since we were in law school together. I edited his note to
prevent him from testifying.
No, he was welcome to testify. He was free to testify. The
only limitation was he was not allowed to instruct the jury on
the law because is the job of the judge.
Mr. Cohen. You saw Judge Merchan preside over this case?
Ambassador Eisen. Every day.
Mr. Cohen. What kind of job--what you saw and what you have
heard from others--did he perform?
Ambassador Eisen. I thought that everyone in the case,
including Donald Trump's own defense lawyers who I praised. I
wrote a daily trial diary published. I dedicated one to singing
their praises myself as a--
[Simultaneous speaking.]
Ambassador Eisen. Merchan was one of the great judges that
I've seen.
Mr. Cohen. Thank you. Thank you. Ms. Foley, one question.
Is Trump one of those nesting dolls underneath Putin?
Ms. Foley. Where? Which?
Mr. Cohen. That's the ones I've seen. I yield back the
balance of my time.
Chair Jordan. The gentleman yields back.
Mr. Biggs. Mr. Chair, I have some--
Chair Jordan. The gentleman has a unanimous consent
request.
Mr. Biggs. Thank you. An article from CNN, former President
Donald Trump announces his White House bid for 2024. An article
from The Hill, Biden suggests Trump will not take power again
if he runs in 2024. The New York Times article from December 5,
2022, Manhattan DA hires ex-Justice official to help lead Trump
inquiry.
On February 7, 2023, Pomerantz v. Pomerantz: An annotation
of his leaked resignation letter in Manhattan DA Trump
investigation. From Business Insider, Donald Trump again teases
2024 Presidential bid saying he'll make a big announcement on
November 15th, same day Mike Pence's memoir is scheduled to be
published. On February 23rd from The New York Times, two
prosecutors in the New York Trump inquiry resign clouding
case's future.
On May 6, 2021, FEC drops case review in Trump hush money.
From the Washington Examiner, For Prosecutor Bragg, Trump
indictment is campaign promise kept. Biden's No. 3 man in DOJ
resigned to join Alvin Bragg's get Trump team on November 18,
2022.
Chair Jordan. Without objection.
Mr. Biggs. Thank you.
Chair Jordan. Gentleman from California is recognized for
five minutes.
Mr. McClintock. Thank you, Mr. Chair. Of course, the
leftist lawfare didn't start here. I think it started when the
Democrats used the IRS to target Tea Party volunteers for
harassment and intimidation in advance of the 2012 Presidential
election.
In the 2016 Presidential election, the FBI, the DOJ, and
our intelligence agencies used their power to legitimize the
lie that had been concocted by the Hillary Clinton campaign
that Trump was colluding with the Russians despite knowing this
was a lie. These agencies use their powers to legitimize it, to
authorize spying on the Trump campaign, and to terrorize its
supporters. When this failed, they continued to pursue it to
undermine the Trump Administration, question legitimacy of the
election, and shook this country apart for more than two years
before the lie was finally fully exposed to the public thanks
to the Inspector General's reports.
Then, we have the 2020 Presidential election. Hunter Biden
laptop contained emails that clearly documented longstanding
influenced peddling scheme involving the Biden family in which
millions of dollars were paid. Yet, 52 high ranking
intelligence agency officials signed a letter circulated by the
Biden campaign calling it Russian disinformation.
Although the DOJ has that computer in its possession and
knew it was authentic, they suggested otherwise and then used
their power to pressure social media companies to censor and
suppress that story. Pollsters have reported that action alone
could've decisively influenced the 2020 election. Now, we have
this.
I'm sorry to inform the Ranking Member. Jack Smith was one
of the principle figures in the IRS scandal. He had a history
of prosecutorial misconduct culminating with unanimous reversal
by the U.S. Supreme Court.
Yet, he was the one appointed by the Biden Administration
to try to put their chief political opponent in jail. Biden's
Attorney General personally approved a raid on a former
President's home despite strenuous opposition by career DOJ
officials and by the local field office that would normally
have had jurisdiction. Alvin Bragg who campaigned by boasting
he'd prosecute Donald Trump was joined by the No. 3 official in
the Biden Justice Department.
Nathan Wade named prosecutor by his paramour, Atlanta DA,
spent eight hours consulting with the White House Counsel at
the White House before filing these felony charges, not to
mention the multiple failed attempts by Democrats to throw
Trump off the ballot. This Administration and its confederates
have broken every political norm, every civil tradition, every
due process protection shielding Americans from the convulsions
suffered by banana republics. We can now clearly see the full
power of leftist lawfare.
We always thought this couldn't happen here, but it has. My
question is what can be done by Congress, firs, to close this
Pandora's box and assure that it is never opened again. Mr.
Bailey?
Mr. Bailey. I think this body has a duty to erect a wall of
separation between tech and State to prevent government
censorship of conservative voices on big tech social media
platforms. As you pointed out, the Deep State has actively
suppressed information that interfered with the 2020 election.
I think that will continue to happen as we move into 2024.
I think the distinguished member is absolutely right, that
we've got to stop looking at lawfare in terms of trees and
start seeing the forest for what it is. It's censorship. It's
civil suits. It's President Trump being unconstitutionally
stricken from the ballot in States. It's now criminal charges--
Mr. McClintock. It's the turning of the most terrifying
powers that government possesses against its own citizens to
influence elections. This has been going on now through several
cycles. Now, it's getting to a whole new level. Mr. Trainor?
Mr. Trainor. Thank you for the question. I think it really
comes down to the fact that we have to get away from allowing
government to be the weapon to interfere in political
participation.
Mr. McClintock. How do we do that?
Mr. Trainor. I had the opportunity last year to testify
before the House Administration Committee on this very issue of
how complaints are filed with the Federal Election Commission
and used to do nothing but go investigate political opponents
under the guise of the Federal Government conducting that
legitimate investigation. They ultimately turn out to be
nothing at all. In fact, the most infamous once that I talked
about was a gentleman who spent 348 dollars on a Facebook page.
The allegation against him was that he had spent 23,000 dollars
on a Facebook page. He spent 3\1/2\ years being investigated.
Mr. McClintock. Right. Word gets out to anybody else, don't
even go near the political process because you'll expose
yourself to this kind of liability. I know tea party
volunteers--
Mr. Trainor. Absolutely.
Mr. McClintock. --today won't go near politics for fear of
invoking the harassment of the IRS. What really frightens me is
what happens to our country when Trump--if Trump narrowly loses
the election and the case is then overturned and repudiated and
exposed by the higher courts. That could tear our country
apart. Ms. Foley, final word?
Ms. Foley. Well, I think there are a few things that at a
minimum should be done.
(1) To defund the district attorneys and actors who engage
in these nefarious acts.
(2) Congress needs to use its oversight authority. It has
clear oversight authority under the Civil Rights Act to make
sure that law is not weaponized to prevent people from
exercising their First Amendment freedoms and other
Constitutional rights. I think that is really a pattern that is
going on today.
There is mass intimidation through lawfare and other means
to intimidate especially those on the right from speaking their
mind, from gathering, assembling, and protesting. Also, to a
certain extent, we are late to the game as conservatives and
Republicans, but we have to start engaging in lawfare of our
own. I think there is various ways, for example, that Mr.
Trump, if wants to and is--
Mr. McClintock. My time is us, but I hope we don't do that.
We must never allow the left to become our teachers.
Ms. Foley. Well, but there is good lawfare and there is bad
lawfare.
Chair Jordan. The time of the gentleman is expired.
The gentlelady from California is recognized for five
minutes.
Ms. Lofgren. Thank you, Mr. Chair.
I want to start off by recognizing that the felony
convictions of a former President represent a first for our
country and that is solemn. I don't celebrate these
convictions. It is disappointing when crimes are committed, but
it may be even more disappointing when our country's justice
system gets criticized for political ends. I for one don't
always agree with the outcome of cases, but I do respect the
process and especially the public servants who do their jobs.
Now, some of my colleagues on the other side of the aisle
claim the verdict against the ex-President is--and these are
all quotes, ``a travesty,'' ``rigged,'' and ``a sham,'' that
the jury of peers who assembled to do their civic duty
delivered a, quote, ``rigged verdict,'' that a defendant
afforded due process was part of a, quote, ``witch hunt,'' that
the DA is, quote, ``corrupt,'' the judge is corrupt. Corrupt
seems to be a big catch-all. I saw a judge that made rulings in
favor of both the defense and the prosecution and who provided
clear lawful instructions to the jury.
Now, some of my colleagues say the Department of Justice, a
Federal agency that is part of the Biden Administration,
somehow directed the Manhattan District Attorney to indict Mr.
Trump in a New York State case.
Ambassador Eisen, can you please help correct that specific
fallacy? What jurisdiction was involved with this hush money
and election interference case, the State of New York or the
Federal Government?
Ambassador Eisen. This was a case that was brought by the
Manhattan District Attorney under New York State law. The
Federal Government had no role, and that is a fundamental
misunderstanding, Ms. Lofgren, of our federalism to confuse the
role. It is a conspiracy theory. The Department of Justice just
this week debunked that conspiracy theory with the AG issuing a
letter saying there is no evidence.
Ms. Lofgren. Right. So, it is fair to say that the Biden
Administration was not involved in this case?
Ambassador Eisen. Not whatsoever.
Ms. Lofgren. OK. Just to make things clear, it is fair to
say that President Biden himself was not involved in this case?
Ambassador Eisen. Not involved in this case. Indeed has
given extraordinary latitude even on the Federal side to his
own Department of Justice including to prosecute his own son.
Ms. Lofgren. In addition to muddying the waters about the
current Administration's involvement, loud criticism,
ironically from some who say the back the blue, can really
erode Americans' faith in the justice system. Now, that is a
problem for basic law and order in our country and I think it
also puts lives at risk.
The number of threats targeting Federal judges has more
than doubled over the last three years, and at the local level
threats and harassment against local public officials rose last
year, too.
Now, Ambassador Eisen, can you please talk about these
increased threats to public officials as well as distrust in
the system, how harmful both of those could be to our country's
independent judiciary and really our democracy?
Ambassador Eisen. They are devastating, Ms. Lofgren, and
one of the worst outcomes of the former President's incessant
flow of disinformation, the attacks that you describe on the
judge, the jury, the prosecutor, the system is to incite those
threats. We know that his incitement led to the tragedy of
January 6th. We saw that in this body.
The constant flow--when I read the well-founded factual
predicate for the gag order in this case, the sheer number and
explosion of threats against the DA--they documented hundreds
of these threats that were received. It is chilling. That is a
tragic consequence of Donald Trump's irresponsibility.
Ms. Lofgren. Can democracy survive if the rule of law is
eroded?
Ambassador Eisen. One of the privileges of my life was to
sit on the dais in the first impeachment of the former
President between the Ranking Member and Ms. Lofgren. That
process demonstrated to me that a vibrant rule of law is the
foundation of a strong democracy. I believe our democracy will
survive, but we have not seen such a profound internal threat
as this promise of day one dictatorship since in my view the
end of Jim Crow or the beginning of the Civil War.
Ms. Lofgren. Thank you.
Mr. Chair, my time is expired. I yield back.
Chair Jordan. The gentlelady yields back.
Commissioner Trainor, I want to read from your testimony.
They have sat idly by and allowed the State officers to assert
Federal jurisdiction where they themselves had taken
jurisdiction and couldn't prosecute.
I want you to unpack that sentence for us again really quick.
Mr. Trainor. Thank you, Mr. Chair, for the question. The
Department of Justice, all these claims with regard to the
$130,000 for Ms. Daniels stem from a complaint that was filed
at the Federal Election Commission following the 2016 election.
Chair Jordan. Which you guys were investigating?
Mr. Trainor. We were in the process of investigating that.
Chair Jordan. The DOJ came to you and said stand down; we
are taking over, and give us your information?
Mr. Trainor. They asked us to abate that and several other
matters.
Chair Jordan. They, meaning the Southern District of New
York?
Mr. Trainor. That is correct.
Chair Jordan. They took your information and you guys voted
to stand down and give it to the Federal authority, right?
Mr. Trainor. That is correct, Mr. Chair.
Chair Jordan. They determined that there was nothing there
to prosecute other than Michael Cohen--
[Simultaneous speaking.]
Mr. Trainor. That is correct. They took a very long time in
doing it, and when they sent it back to us, we had no more
authority to investigate because they sent it back to us and we
were barred by the statute of limitations from even
investigating the normal civil things that we would look at
with regard to those type of expenditures.
Chair Jordan. Your point here is they have sat idly by and
allowed a State officer to assert Federal jurisdiction where
they themselves had intervened, to use the word, and taken
jurisdiction from you and concluded there was nothing there
regarding a Federal statute, right? In a, quote, ``Federal
crime'' that they come up with somewhere.
Mr. Trainor. That is correct, Mr. Chair. I don't know what
role Mr. Colangelo played in that investigation that took place
when they took it away from the Federal Election Commission.
Did that investigation and then he later left the office to go
prosecute this at the State level.
Chair Jordan. Well, we are going to find that out on July
12th, when Mr. Colangelo will be sitting in your seat and Mr.
Bragg will be sitting in Ms. Foley's seat and we will get a
chance to ask them.
Ms. Foley, excuse me, the Democrats talk about jury of his
peers. OK. Fine. That is how our system works. If President
Trump didn't learn what the unspecified crime was until the
jury got the instructions from the judge, that sort of changes
the dynamic a little bit, doesn't it?
Ms. Foley. Yes, it is not blaming the jury.
Chair Jordan. Of course.
Mrs. Foley. The jury has to operate according to the
instructions provided by the judge. The fruit, the poison here,
the poison pill are the jury instructions themselves which
provided the notice, but it came too late for purposes of due
process. So, yes, you can't correct that through a bad set of
jury instructions. If there is a due process defect because he
learned too late, you have to redo the trial, you have to
reverse the conviction, and then the prosecutor has to decide
if they want to--
Chair Jordan. Yes, there is a--
Ms. Foley. Yes.
Chair Jordan. I will wait, ma'am. I was an economics major.
I majored on focused on wrestling, but you had to get a degree.
I got one in economics. They talk about this opportunity cost.
If you don't know what the issue is, you miss the opportunity
to maybe focus in on the issue as the defense counsel, right?
Ms. Foley. Yes.
Chair Jordan. That is kind of important particularly when
you are talking about what kind of sentence they may try to
impose on the President on July 11th. That is kind of
important, right?
Ms. Foley. It is kind of important. I would suggest that
any Member of this Committee who faced similarly amorphous
charges, or a loved one, would be absolutely incensed by facing
these kinds of charges where it was a moving target--
Chair Jordan. You are not the only Constitutional scholar
who has raised this concern, this I think huge concern: Mr.
Dershowitz, Mr. Turley. Other esteemed Constitutional scholars
have said the same thing.
Ms. Foley. I am in good company. I think there is a general
consensus that there are some due process problems here.
Chair Jordan. You sure are.
Mr. Attorney General, July 15, 2021, Alvin Bragg,
I'm the candidate in the race who has the experience with
Donald Trump and I think it would be hard to argue with the
fact that would be the most important, most high-profile case.
And I've seen him up front and seen the lawlessness that he
could do.
That is what he said as a candidate. Is that what is the ethics
of someone who is a member of the bar and running for a
district attorney's position? Is that how you are supposed to
conduct yourself in a campaign?
Mr. Bailey. Absolutely not. That abhorrent statement is an
incurable impropriety that should have disqualified Alvin Bragg
from prosecuting that case.
Chair Jordan. Yes. Not to mention then when he gets the
job, he looks at the facts, looks at all the evidence and he
concludes like this case I shouldn't prosecute. I should do
what the Federal Elections Commission did, not prosecute; what
the Southern District of New York did, not prosecute; what my
predecessor Cy Vance did, not prosecute. That is what he wanted
to do until the political pressure came.
They talk about us all the time. Pressure came from the
left. Mark Pomerantz left his job, volunteered--goes and
becomes an Assistant District Attorney to go after President
Trump. Then when Alvin Bragg gets there and looks at how crazy
the case is, Michael Cohen is going to be their star witness,
he goes this is crazy. I am not doing it. I am not that crazy.
Then they leak--Pomerantz resigns, leaks the letter, and all
the left goes crazy and Alvin Bragg says now I am going to do
what I said during the campaign even though I know it is wrong.
That is what happened.
Then they got a judge that went along with all the crazy
things Ms. Foley's pointed out. That is the story. That story
is consistent with the facts. That is why we are here today and
that is why we look forward to Mr. Bragg and Mr. Colangelo
sitting right where you are at so they can answer our
questions.
Mr. Nadler. Mr. Chair, I have a UC request.
Chair Jordan. The gentleman can State his request.
Mr. Nadler. Mr. Chair, I ask unanimous consent to enter
into the record a letter from the Department of Justice
confirming that it had no role in the Manhattan trial.
Chair Jordan. Without objection.
The Chair now recognizes the gentleman from Georgia for
five minutes.
Mr. Johnson. Thank you, Mr. Chair.
The MAGA Republicans are trying to make the American people
believe a false narrative, that being that Alvin Bragg, a State
prosecutor, was somehow manipulated by Federal officials,
Trump--excuse me, Biden officials, Justice Department, to
prosecute and persecute Donald Trump. The fact that this
Committee, the Judiciary Committee, is trying to get Americans
to buy into this false narrative is concerning. Wouldn't you
say so, Mr. Eisen?
Ambassador Eisen. It is deeply concerning. It undermines
Americans' faith in the rule of law, in the Department of
Justice, which has been quite independent from President Biden.
It is baseless. There is no evidence for it. It is debunked. It
is a conspiracy theory. The Ranking Member just entered the
proof into the record submitted by the Department of Justice.
More proof. It is wrong.
Mr. Johnson. So how does this kind of Federal placing of
the thumb on a State institution, the Judiciary, the rule of
law, the prosecution, the justice system of a State--how does
it come across to State and local officials when the Federal
Congress, when the Judiciary Committee of the U.S. Congress,
the House of Representatives is trying to bully them? What
impact does that have?
Ambassador Eisen. It doesn't come across well. Fortunately,
DA Bragg, as he said he would during his campaign--he stated
that he had--``I don't know where this investigation will go. I
don't want to prejudge it.'' He maintained independence. I was
there in court every day. There were no Federal prosecutors
there calling the shots. They were strictly independent. It
requires that courage and integrity.
The pressure is felt on the part of State and local actors.
Not all of them may show that same independence and they may
knuckle under and not investigate. With Donald Trump promising
to be a dictator starting on day one, that means to attack the
rule of law. We need our State institutions to be stronger.
That is the American idea of federalism, not to intimidate,
threaten, or put the thumb on their scales.
Mr. Johnson. So, when you talk about intimidating and
threatening behavior by bullies, how does this translate into
physical threats or the possibility thereof?
Ambassador Eisen. Just look at the submissions that the DA
made, or other prosecutors have made in response to this
disinformation campaign, these attacks led by the former
President. It opens the floodgates. Mr. Johnson, I don't need
to tell you, like the we will be wild tweet opened the
floodgates of January 6th. It is a clear and present danger to
American democracy.
Mr. Johnson. When it comes State prosecutions which depend
on jurors like the 12 brave jurors in the case in New York, how
do efforts like these that we are going through today affect
States' abilities to procure juries and jurors to handle or to
serve on cases in those jurisdictions?
Ambassador Eisen. It creates a challenge in the--I was
there also for the voir dire, the jury selection in the
Manhattan election interference and cover-up trial and you had
to get hundreds and hundreds of jurors. Half of them chose not
to serve in part because right from the get-go in part because
of this climate of intimidation. Several who were selected felt
they couldn't do it.
I do salute the jury though and the judge, and I will say
the lawyers on both sides because they ran a courtroom together
where those 12 jurors were able freely and fairly to weigh the
evidence, apply the law to the facts, and find Donald Trump
guilty without fear or favor.
Mr. Johnson. Not one of those jurors has chosen to speak
out, whereas you have had jurors in the Hunter Biden case who
decided that case speak out. Why is that?
Ambassador Eisen. They are very smart. It was one of the--I
do juries for a living, and it was one of the most attentive,
smartest, engaged, and plugged-in juries. It is smart that they
are not stepping forward because of this climate of threats and
harassment. Imagine if the former President were to recover the
powers of the Oval Office and the Federal Government or if he
could subvert his DOJ, as he sought to do, turning them on the
legitimate election results of 2020. The level of intimidation
that our State and local prosecutors and our jurors, everybody
involved in the justice system would feel it.
Chair Jordan. The time of the gentleman is expired.
Ambassador Eisen. My apologies.
Chair Jordan. The gentleman from Wisconsin is recognized.
Mr. Tiffany. Thank you, Mr. Chair.
Mr. Eisen, I just want to make sure--you answered the
Ranking Member and I want to make sure I heard it correctly,
that you said President Trump's interference in the 2016
election.
Ambassador Eisen. Correct.
Mr. Tiffany. Is that correct?
Ambassador Eisen. That is correct.
Mr. Tiffany. That he interfered in the 2016 election?
Ambassador Eisen. Yes, sir.
Mr. Tiffany. Really quickly, how so?
Ambassador Eisen. The jury unanimously found in the
Manhattan case that former President Trump had committed 34
felony violations of document falsification.
Mr. Tiffany. You weren't referring to anything else?
Ambassador Eisen. No, no, no. That is not true. That is
disin-formation, sir.
Ms. Tiffany. Yes.
Ambassador Eisen. To find that they were charged with
election interference. The underlying crime that made that a
felony, not a misdemeanor was election interference. Same
pattern as 2020.
Mr. Tiffany. So, it is all about election interference in
2016 also?
Ms. Foley, so we heard from the gentleman that is to your
right that--he said that the DOJ should be viewed as above
reproach because, look, they prosecuted the President's son. A
year ago, weren't they cutting a sweetheart deal? Do you recall
the details of that?
Ms. Foley. Yes, they were basically just going to let him
walk for all of them. They already allowed statutes of
limitations to expire on multiple of the more serious felonies.
Mr. Tiffany. So, how did that happen that we actually may
get justice in that case?
Ms. Foley. Well, look you are right.
Mr. Tiffany. Wasn't it the judge--that threw out the
sweetheart deal?
Mrs. Foley. Yes, you had the judge in Delaware that threw
out the sweetheart deal, yes. Then, I guess there was egg on
the Biden Administration's face, so they felt like they had to
do something, so they pursued these current charges, the gun
charges and the tax charges. Did they reach the right result? I
assume so. I didn't follow that trial very much. I think there
will be an interesting question as to whether the President
commutes his son's sentence, so we will see.
Mr. Tiffany. So, also, the gentleman next to you referred
to--under questioning he said this trial was and jury was
scrupulously fair. It was outstanding. There was nothing
unusual. Care to comment on that? You can start with nothing
unusual.
Ms. Foley. Well again, I am not blaming the jury here. I
think the poison came from the behavior of the prosecutors
hiding the ball and then Judge Merchan giving a cafeteria style
approach where nonunanimity was allowed on the underlying means
by which the New York election was violated. I think those are
clear due process violations. So, it is not the juries' fault.
They just had junk to work with, so to speak. I was going to
use another word, but I probably shouldn't.
Mr. Tiffany. It is almost enough to shock the conscience,
huh?
Ms. Foley. It is almost enough, yes. It shocks me. I don't
know about yours, but--
Mr. Tiffany. I believe it is correct, and I can be
corrected on this if I am wrong, but I believe the judge
contributed to President Biden, the judge in this case. Is that
common for a case that has a real nexus that the judge would
contribute and then not recuse?
Ms. Foley. I have never seen a case like that. Usually, a
lawyer feels pretty confident if he finds out that the judge
has overtly expressed preference for one party or another.
Political contributions to the Biden Administration would seem
to fit that bill given the political overtones of this case,
right? This was not an ordinary State prosecution. This was a
State prosecution that if successful--even though it had been
turned down at every other level to even proceed as a
prosecution, if it proved successful it would basically
interfere with the 2024 Presidential election and possibly
could not--that interference could not be remedied, could not
be rectified until after the election. So, it is slam, dunk,
2024 election interference.
Mr. Tiffany. It is almost reminiscent of Jack Smith and
Governor McDonald in Virginia, isn't it?
Ms. Foley. Right. He got his you-know-what handed to him by
the Supreme Court on that one.
Mr. Tiffany. Yes. I want to get a question into Attorney
General Bailey here.
Talk about the overall chilling effect in regard to this.
In fact, I believe it was Governor Hochul after this charge
happened went on media in New York and said, ``hey, don't
worry, this isn't--we are not coming after the rest of the
businesspeople. This is just Donald Trump.'' Talk about the
impact of something like this for the long run in the rule of
law.
Mr. Bailey. The Constitution is our national identity.
Those rights codified therein come from God, not man and the
document is intended to protect us from the government. Yet,
what we seen time and time again is the government weaponized
against individuals. It is President Trump today. Who will it
be tomorrow? That is the problem.
I think that when you look at the due process issues
contained in the charging document, ultimately in the jury
instructions, you look at the inchoate nature of the offenses
with these ill-defined levels of insinuation, it is as if
invisible links of chain are necessary to connect the facts to
criminal liability. It causes the jury to turn into a roving
commission free to pursue the--whatever facts they want to
attach liability as they please. The issue there is it
undermines the rule of law for the rest of us. Who can have
confidence that we know what is and isn't illegal behavior when
the court and the prosecutor impanel a roving commission to
attack a political opponent?
Mr. Tiffany. I yield back, Mr. Chair.
Chair Jordan. The gentleman yields back.
The gentleman from California is recognized.
Mr. Schiff. I want to begin by quoting the jury in the
Manhattan hush money payment trial. ``Guilty, guilty, guilty,
guilty, guilty, guilty, guilty, guilty, guilty, guilty, guilty,
guilty, guilty, guilty, guilty, guilty, guilty, guilty, guilty,
guilty, guilty, guilty, guilty, guilty, guilty, guilty, guilty,
guilty, guilty, guilty, guilty, guilty, guilty, guilty.'' This
was what the jury pronounced unanimously on every count.
My Republican colleagues don't really contest Donald
Trump's guilt. This is the fascinating thing. Their argument is
essentially he should he never have been prosecuted, or they
falsely claim it was a political prosecution, or they falsely
claim it should have been a misdemeanor, not a felony. They
don't contest, not really, that Donald Trump was making hush
money payments to a porn star to hide their affair from voters.
What they are really saying is they are more than
comfortable electing, nominating and electing as the President
of the United States someone making hush money payments to a
porn star. The party formerly of the moral majority is now I
suppose hoping to fashion some kind of immoral majority to
reinstate Donald Trump as President.
The Presidency, the most powerful office in the world, and
not the most powerful because of the size of our military, but
because of the power of our ideas. What is the animating idea
of a Trump Presidency? It is dictatorship. It is power at all
costs. This is also tragically the animating idea of the
Republicans on this Committee. Power at all costs. What else
can explain what it would profit them to give up their
political soul but a world of power?
Ambassador Eisen, I want to ask Historian Eisen a question.
Is there any period of our history that sheds light on what we
are going through today? Have we ever seen one party or the
other so completely abandon oath to the Constitution,
commitment to truth, commitment to decency, so willing to tear
down the rule of law, our institutions, our justice system,
anything that gets in the way of power? Have we ever seen
anything like this?
Ambassador Eisen. Three periods come to mind, Mr. Schiff.
(1) The first is the founding period, and in particular the
ferment between the Articles of Confederation and the
Constitution when the Founders and the Framers--famously the
Federalist Papers passage, you know well, worried about that in
the period of instability a tyrant would arise. That was
resolved by one of the fortunate accidents, not just in
American history, but I dare say in the history of the world,
George Washington's establishing the tradition of peaceful
transition that Donald Trump ultimately broke for the first
time in our history.
(2) The Civil War period when we had those within who also
proclaimed that they would not accept American rule of law.
(3) That period of divisiveness is also found in the post-
Civil War area--Era, the decline of Reconstruction. That
assault on our Constitutional system that became the Jim Crow
Era.
Those are three precedents.
We see other dangers including here in Congress, the period
of McCarthyism. Donald Trump represents the most grave danger
to this country at least since the end of Jim Crow, very likely
since the commencement of the Civil War and perhaps since the
founding of our Nation from within.
Mr. Schiff. Thank you, Ambassador.
Mr. Chair, I yield back.
Chair Jordan. The gentleman yields back.
The gentleman from Kentucky is recognized.
Mr. Massie. Thank you, Chair Jordan.
There is an amazing construction of some kind of crime
here, but when we dig down to the bottom of it and try to find
out what the underlying crime is, I don't think that has been
discussed enough, or what the supposed underlying crime is. One
of the propositions was that hush money should be reported as a
campaign finance expense.
OK. If somebody pays their attorney to seal divorce records
because they may be going to run for office or they are running
for office, Mr. Trainor, is that a campaign finance expense? Is
that something you see on the campaign finance reports?
Mr. Trainor. That is not. It is something that you would
see--legal fees are often reported, and it has been the
tradition at the commission in looking at those legal fees that
we don't question what the attorney/client privilege between
the candidates and the lawyer of what is needed in those
particular circumstances.
Mr. Massie. So, let me use another example. In 1999, Bill
and Hilary Clinton bought a house in New York, obviously
influenced the election of the Senate race there in New York
because they moved into the house so that she could run for
Senate. Is that a campaign finance expense? Is everything that
could influence a campaign a campaign finance expense?
Mr. Trainor. Well, under Mr. Bragg's interpretation it
would be, but under normal campaign finance law it would not
be. There are distinct similarities here between the John
Edwards prosecution in 2008, where he paid over $1 million to
his mistress to keep her quiet and was prosecuted by the
Department of Justice for that and was ultimately acquitted on
one count and had a mistrial on all five counts because the
jury was given a correct charge as to what the Federal law was.
In this particular case, the jury was given an incorrect jury
charge as to what the law is, and they come out with a
completely opposite ruling.
Mr. Massie. I asked my campaign finance treasurer if I
could pay my wife $10,000; she has got more dirt on me than
anybody else, and then report that as a campaign finance
expense. He is very fastidious. He manages the finances of at
least a dozen different campaigns. He looked at me like I was
crazy. Yet, isn't that sort of the same theory that Alvin Bragg
had here, that something like that could be reported as a
campaign finance expense?
Mr. Trainor. It is very similar to what happened here.
Mr. Massie. So, Congress has paid over $17 million in hush
money for sexual misconduct inside of the offices in these
buildings. What is more is that was taxpayer money, right? The
allegation is that President Trump paid $130,000 of his own
money, but here in Congress we have--there may be some on this
dais--I am for turning loose all these records. Who in here has
had the taxpayer pay for their sexual misconduct charges, the
hush money? I bet there are some over there. There may be some
over here. I don't know. I do know it is taxpayer money. I do
know not a single penny of it has been turned in as a campaign
finance expense. Is the FEC going to investigate the $17
million that Congress has paid to settle behind-closed-doors--
these sexual misconduct allegations?
Mr. Trainor. Congressman, if a complaint were to come to us
about it, I am sure it would be thoroughly investigated.
Mr. Massie. I might file one because it seems like anybody
could do this.
Let me just ask this: Is this verdict going to be vacated?
Attorney General Bailey, what do you think?
Mr. Bailey. It absolutely should be.
Mr. Massie. On what grounds?
Mr. Bailey. Numerous grounds. I think the five grounds I
laid out in my opening statement provide sufficient
justification to undermine the credibility of the conviction. I
think there are additional grounds as well. I think that the
Constitutional violations, the due process violations, the jury
unanimity, the Sixth Amendment problem alone. The gag order is
violative of the First Amendment. I mean, the prosecutorial
misconduct. Those are--the conviction of replete with legal
error.
Mr. Massie. Ms. Foley, do you think this is going to
vacated, this verdict?
Ms. Foley. I do. I think eventually it is going to be
reversed based on legal grounds rather than mixed questions of
facts and law. So, some of the evidentiary issues, some of the
bias issues I think they are more difficult to win on appeal
because the Appellate Courts owe deference on these evidentiary
determinations of trial judges. Bias is very difficult to win
on appeal because the judge has so much latitude in deciding
whether to recuse himself.
That is why the due process errors are so critical here
because obviously due process errors are questions of law, and
they get de novo standard of appellate review. The Appellate
Courts owe absolutely no deference whatsoever.
Mr. Massie. So, the irony here is this is going to be
vacated. This trial was all about trying to influence an
election using the process as the punishment.
Mr. Chair, I would like to submit for the record three
documents. One is entitled ``FEC drops investigation into Trump
hush payments.'' This is from three years ago.
I would like to introduce a document ``Congress has paid
$17 million in sexual misconduct and discrimination
settlement.'' This was in Axios in 2017.
My third and final document I would like to introduce is
from CNN, ``Congress paid out $17 million in settlements. Here
is why we know so little about that money.''
Thank you. I yield back.
Chair Jordan. Without objection.
The gentleman from California is recognized.
Mr. Swalwell. Just a show of hands for anyone in the room
who hung out with a felon today?
Hey, guys, might want to get your hands up. You were
hanging out with convicted felon Donald Trump. I don't think
anyone on our side did. That's why we are here.
Ambassador Eisen, what city did Donald Trump commit his
crimes in?
Ambassador Eisen. In New York City is where it all was.
Mr. Swalwell. Where were the jurors drawn from for Donald
Trump's trial?
Ambassador Eisen. From Manhattan.
Mr. Swalwell. Did Defendant Trump have a say in picking his
jury?
Ambassador Eisen. I was there for it. There was a vigorous
voir dire. His defense counsel was extremely active and, I
thought, effective.
Mr. Swalwell. After that jury of his peers, his neighbors,
deliberated they had to make 34 decisions. Twelve jurors, 34
decisions.
What did they say?
Ambassador Eisen. They decided 34 times that Donald Trump
falsified documents to cover up his 2016 criminal election
interference scheme.
Mr. Swalwell. Four hundred and eight straight times they
said the word ``guilty.''
Now, let's, let's transfer or fast forward to another trial
that took place recently. The President's son Hunter Biden
tried to plead. Was not able to do that.
He was found guilty. Actually, I heard your side and Fox
News celebrating the verdict. Celebrating the idea that a jury
of his peers found him guilty. So, then when it hurts their
guy, it is a rigged jury. When it hurts the President's son, we
celebrate the jury.
I want to talk a little bit about judicial bias because
they suggested that there is a bias that occurred in this case.
Ambassador Eisen, in Donald Trump's other case where he is
alleged to have stolen national security secrets, who is the
judge, who appointed the judge to the bench in the Southern
Florida Federal case?
Ambassador Eisen. Unlike the Special Counsel in the Hunter
Biden prosecution, who is a Trump holdover, David Weiss, that
was a last minute--referring back to our history--midnight
appointment you can call it by Donald Trump of Judge Aileen
Cannon.
Mr. Swalwell. Are you kidding me? Donald Trump is
complaining about bias in his case, and he is on trial for
stealing national security documents with a judge that he
appointed? That is interesting.
I didn't hear any of you all talking about that.
Let's talk about the Supreme Court who is deciding whether
he has absolute immunity and can send the Navy SEALS to kill
any of his opponents, as he alleges in his arguments that he
can do.
One judge is flying an insurrection flag in solidarity with
the insurrection on January 6th that tried to overturn Donald
Trump's loss in the 2020 election.
Another judge's wife was at the President's speech on
January 6th right before the insurrection occurred.
Ambassador Eisen, I want to talk about now that he is a
convicted felon, declared 408 times guilty by his neighbors,
are convicted felons allowed to hold a security clearance?
Ambassador Eisen. No.
Mr. Swalwell. Are convicted felons allowed to serve in the
military?
Ambassador Eisen. No.
Mr. Swalwell. Are convicted felons allowed to visit most
countries?
Ambassador Eisen. There is a long list of countries they
cannot visit.
Mr. Swalwell. Typically, the terms of probation for a
convicted felon, do they allow you to hang out with other
felons?
Ambassador Eisen. That is prohibited. There are other
prohibitions, such as gun ownership.
Mr. Swalwell. That is probably going to be a problem if
your friends are criminals like Paul Manafort, who is Donald
Trump's former campaign manager; Vice Chair of the campaign
Rick Gates; aide to the campaign and convicted felon Roger
Stone; former White House aide, also convicted, Peter Navarro;
Steve Bannon, also a convict on his way to jail soon; former
National Security Advisor, also a convict, Michael Flynn; and
his accountant Allen Weisselberg, currently in custody right
now.
This is the person who you all chose to hang out with this
morning, delaying the original start time of our hearing,
because rather than getting work done for people who need us to
work, you chose a felon over helping families.
We are going to flip that, and we are going to choose
families over felons.
I yield back.
Chair Jordan. The gentleman yields back.
Mr. Massie. Mr. Chair.
Chair Jordan. The gentleman from Kentucky.
Mr. Massie. Mr. Chair, I have a unanimous consent request.
Ask unanimous consent to submit for the record an article
in Open Secrets that says that Ambassador Eisen bundled between
$200,000 and $500,000 to the Obama campaign. Sounds like he's
an ambassadonor not an ambassador.
Chair Jordan. Without objection.
The gentleman from Texas is recognized for five minutes.
Mr. Roy. I thank the Chair.
Ambassador Eisen, a quick question. Is the Biden campaign
guilty of interference in the 2020 election?
Ambassador Eisen. No.
Mr. Roy. Did President Biden say repeatedly and did the
Biden Administration repeatedly declare the Hunter Biden laptop
Russian disinformation?
Ambassador Eisen. I am not an authority on the statements
or on the laptop--
Mr. Roy. I mean, come on. Come on. Was that not repeatedly
stated by the President of the United States and the
President's campaign?
For example, did President Biden not say in a debate, Look.
There are 50 former national intelligence folks who said that
what he is accusing you of is a Russian plan. They have said
this has all the characteristics. Four, five former heads of
the CIA, both parties, what he is saying is a bunch of garbage.
Nobody believes it except him and his good friend Rudy Giuliani
together and talk about it.
That, was that not a central feature of the campaign in
2020 by President Biden?
Ambassador Eisen. I do think it is very important to
distinguish between the vigorous debate that we have seen here
today, extremely vigorous, and a violation of election law.
Mr. Roy. Was Hunter Biden, was Hunter Biden convicted this
week based on evidence contained in that laptop?
Ambassador Eisen. In part, yes.
Mr. Roy. Yes.
Hunter Biden was convicted this week on information that
was brought out from that laptop which President Biden and his
campaign repeatedly referred to as disinformation in the 2020
campaign. So, the former President is or is not guilty or is,
or is not engaged in activity that could be described as
election interference?
Ambassador Eisen. There is a difference between falsifying
documents to cover up and a scheme to interfere--
Mr. Roy. Let's talk about that.
Mr. Eisen. --with an election by--if I may finish my
sentence?
Mr. Roy. No, no, no, it is my time. Let me ask--
Ambassador Eisen. There is a difference between breaking
the law and political debate.
Mr. Roy. Let me ask you this.
OK. So, let me ask you this question. What is the first
date of a crime that is alleged to have been committed by
President Trump, the actual date of the crime?
Ambassador Eisen. The date of the initial crimes was when
the conspiracy to interfere with the 2016 election was formed
in August 2015, at Trump Tower when David Pecker, an
independent witness testified that he, Mr. Cohen, and Mr. Trump
agreed on a conspiracy to violate New York law.
Mr. Roy. Was it not the crime that Alvin Bragg alleged
first committed was on February 14, 2017?
Ambassador Eisen. That is when the--
Mr. Roy. The actual crime?
Ambassador Eisen. That is when the coverup occurred.
Mr. Roy. Was that not--
Ambassador Eisen. That is a different element of the crime.
Mr. Roy. Was that not the actual crime? The conspiracy
began in August 2015.
The fact of the matter is, and for what? Are NDAs illegal?
Ambassador Eisen. When an NDA is used to facilitate an
illegal campaign contribution, over $127,000 in excess of the
legal limits, yes. It is a means.
Mr. Roy. Well, as the gentleman--
Ambassador Eisen. It is an unlawful means.
Mr. Roy. As the gentleman from Kentucky just pointed out,
the absurdity of that assertion is plain, based on what he was
just making in his case.
The fact is, you have in February 2017, well after the 2016
election, the first crime that is even referenced in what the
District Attorney Bragg was doing.
I would just ask, Mr. Trainor, do you see the problem here
in terms of the timing?
Then, can you add an element here in my last minute on the
extent to which the FEC and the, importantly, the Department of
Justice, as you alluded to in your testimony, failed to pursue
this, or not failed, chose not to pursue this?
Mr. Trainor. Thank you, Congressman.
The Department of Justice investigated this very
vigorously. In fact, they asked the Federal Election Commission
to abate our proceedings for over a year for them to go in and
investigate this. They investigated all the individuals
involved in all the money that was being talked about in this
idea that there was some sort of conspiracy.
They took it to a Grand Jury and got nothing back from it.
The only reason that they ultimately concluded to prosecute was
Mr. Cohen was because he admitted to a crime in a plea deal.
Then, they bundled all that back up and shifted over to the
FEC and said, here you go, guys. Your statute of limitations is
run, you can't investigate anything either.
Mr. Roy. I see my time has expired.
I yield back.
Mr. Massie. [Presiding.] The gentlelady from North Carolina
is recognized for five minutes now.
Ms. Ross. Thank you very much, Mr. Chair. Thank you to
everybody for being here to testify.
While my colleagues on the other side of the aisle are
leveling claims of a partisan prosecution, I am from North
Carolina, as you just heard, I want to remind the Committee
that this is not the first time that a former Presidential
candidate has been indicted for having hush money paid to hide
an affair from voters.
Last time in my memory that this happened it was a Democrat
who was indicted. The charges were brought by a Republican
Federal prosecutor, George Holding, who, weeks after filing
those charges resigned to run for the same seat in Congress
that I now hold. That was in 2011.
Federal prosecutors charged John Edwards, a former Senator
from North Carolina, and two time Presidential candidate, for
soliciting nearly one million dollars from donors, including
Bunny Mellon, to keep details of his relationship with his
mistress, with whom he had fathered a child, from coming to
light.
Now, while Edwards' defense team argued that his
prosecution was politically motivated, the Obama Justice
Department defended the charges, even though they had
originated with a Republican prosecutor, arguing that the
Administration had a duty to prevent candidates for high office
from abusing their power to subvert the integrity of democratic
elections.
Now, as you heard earlier, in 2012, a North Carolina jury
found Edwards not guilty of one count of receiving illegal
campaign donations, and deadlocked on the other charges.
I followed the Edwards hush money case, and I also followed
the Trump hush money case. I don't know how you couldn't have.
I am confident that if the prosecutors in the Edwards case had
the type of evidence that the prosecutors in the Trump case
presented, we would have seen a very different verdict for John
Edwards.
The evidence that the prosecutors in the Trump case had was
the type of evidence that prosecutors dream of finding: A paper
trail of emails and bank records, a slate of insider witnesses,
and even recordings of Trump himself discussing the payment.
So, I want to remind my colleagues on the other side of the
aisle that these charges against Mr. Trump are not
unprecedented or baseless, that the verdict is not, as one of
my colleagues on this Committee recently claimed, comparable to
the injustice against Black Americans during the Jim Crow era.
That is disgusting.
Most importantly, this was not lawyers with the Manhattan
D.A.'s office or the Department of Justice that convicted Trump
of these crimes, it was a jury, unanimously, 34 times, and
quickly
So, Ambassador Eisen, I would like to ask you, why is it
important for democracy that Presidents or Presidential
candidates, no matter what party they come from, be accountable
for their crimes and not be held to be above the law?
Ambassador Eisen. Ms. Ross, it is the fundamental American
idea. We were speaking earlier of the proud history of our
country, with all our challenges over the centuries. We
overthrew a system and a king, George III, where one man was
above the law. In his place we put the Constitution and the
founding American principle no one is above the law.
If Donald Trump, as the jury unanimously found, 12 of his
peers, covered up 2016 conduct of a pattern that we saw again
in 2020, and we see him limbering up for in 2024, then he
deserves to be found guilty. If 10,000 other cases,
approximately, in New York since 2015 have resulted in
prosecutions, he should not be held to a different standard
when he falsifies business records to cover up another crime.
That is what America is. That is why this verdict was so
important.
Ms. Ross. Again, Ambassador Eisen, do you think that the
Obama Administration was correct in not interfering in the John
Edwards prosecution?
Ambassador Eisen. I do.
You correctly point out that case relied on the testimony
of a former campaign aide, Mr. Young and his wife Cheri. Weak
witnesses, contrary to what we saw in New York. Witness after
witness, document after document, an overwhelming factual and
legal case that will withstand appellate review.
Ms. Ross. Thank you.
I yield back.
Chair Jordan. [Presiding.] The gentlelady yields back.
The gentlelady from Wyoming is recognized for five minutes.
Ms. Hageman. Mr. Eisen, what you just stated is so utterly
and completely absurd it is almost impossible to even respond
to it.
This case will be reversed on appeal. The level of
egregious reversible error that was demonstrated by this judge
and by the prosecutors is absolutely off the charts. I have
never in my entire career seen anything even close to it. I
think you recognize that. I think the vast majority of the
American people recognize that.
I really want to focus on the equal protection and due
process issues that are so clearly evident here. The fact, Mr.
Eisen, that you keep going back to 2016 and what occurred in
2016 is extremely important from that standpoint.
Ms. Foley, is there a due process and equal protection
aspect to statutes of limitations?
Ms. Foley. Well, statute of limitations can be, I guess,
evaded I suppose, in ways that could violate due process or
equal protection.
Ms. Hageman. Well, in fact in this circumstance that is
what you see. We have got a situation where the alleged crime
was committed in 2016, and they had to bootstrap it to
something that occurred years later to try to resurrect what
was really a dead case.
The way that I looked at statutes of limitations as someone
who practiced law for well over 30 years is that people have
memory issues. That is why there is a statute of limitations.
Do you remember what you were doing on June 13th seven years
ago or four years ago? I am sure Mr. Ambassador cannot.
There are statute of limitations because trying to drag
somebody before a tribunal 5, 7, 10, 12, and 15 years down the
road, by its very definition, especially if we are talking
about a potential criminal prosecution where someone is going
to lose their freedom, do we really want someone getting up and
being able to say 25 years ago I was attacked in a dressing
room? I have no evidence. Can't tell you anything about it.
Don't even know what day of the week it was. Don't know what
month. Don't know what year. For goodness' sakes, we know what
happened.
So, we have the State of New York, and they come in and
they pass a law saying, well, we are not going to have a
statute of limitations for this particular crime or this
particular individual. Wouldn't that be considered a violation
of this gentleman's due process rights?
Mr. Trainor. Yes, I think it is part of the overall context
which, again, kind of shows the political motivation, the
uniqueness of this case.
The Ambassador Eisen talks about the 10,000 cases. Well, I
have read most of those cases, too. None of them approach the
uniqueness of this case and the obfuscation of the theory here.
For example, usually the underlying offense that is
intended to be committed is grand larceny, grand larceny, grand
larceny, insurance fraud, and things like that; very
straightforward facts. By making the underlying offense here
Federal--New York election law, which itself required proof of
unlawful means, which then hinged on FECA, tax laws,
falsification of business records, it just got more, and more,
and more unclear exactly what Mr. Trump was being charged with.
Ms. Hageman. Intimidating.
So, all these facts suggest that there is a shock to the
conscience due process violation here, in addition to the
notice problems I have pointed out.
Ms. Hageman. Well, and I think that there is the due
process issue but, Mr. Bailey, let's turn to you and let's talk
about the equal protection aspect of it.
As you have just described Ms. Foley, this is one case
against one man for one purpose. In fact, the Governor of the
State of New York has said, ``look, everybody, don't worry.
Don't worry, we are not coming after you for these kinds of
fraud claims, we are just going after Donald Trump.''
Isn't that the antithesis, the antithesis of the foundation
of our Constitution that is based on equal protection and equal
application of the law? Have you ever seen anything like they
have done to Donald Trump in their effort to destroy who they
perceive to be their political enemy, Mr. Bailey?
Mr. Bailey. I have never seen such an egregious assault on
the tenets of equal protection as when government officials in
the State of New York claim that they are specifically
targeting one individual and will not use the same laws against
anyone else.
I want to go back to the due process issue briefly, because
everything that is being said here is further amplified by the
fact that Section 1.7--175.10 of the Code of the State of New
York, which forms the basis of the 34 charges, has an
affirmative defense that requires the defendant to get a
preponderance of the evidence.
How can he go get his evidence if you bring the claims
late?
The Statute of limitations are intended to prevent
sandbagging of claims.
Ms. Hageman. Exactly right.
In this particular circumstance and what we have seen in
the other persecutions against Donald Trump, they absolutely
had to violate those basic tenets to go after him.
It is absolutely an egregious violation of the law. It is a
level of Constitutional malpractice the likes of which I have
never seen.
Ambassador Eisen, I think that if you were being honest you
would agree with that.
With that, I yield back.
Chair Jordan. The gentlelady yields back.
The gentleman from Maryland is recognized.
Mr. Ivey. Thank you, Mr. Chair.
I want to address two sets of things. One is the repeated
claim, it is a mantra at this point, about Mr. Bragg vowing to
go after President Trump, campaigning on going after President
Trump, leaving out all the campaign promises to get Trump.
I got to say that I haven't heard anybody specifically
quote anything about it, except the Chair's quote. I wanted, we
have been trying to dig this up and see what the factual basis
is for that reputed allegation because it is very relevant.
The point about some of you have been saying that this is
sort of issue No. 1 with respect to proof that this is a
political prosecution that was inappropriate. As I went through
all the facts, I kept seeing him say that he wanted to follow
the facts.
Now, the quote that the Chair lifted, I have seen him up
front and seen the lawlessness that he could do, well, that was
in the context of the 100 prosecutions that had come through
the State Attorney General's Office. In one instance, leading
to a $2 million settlement against the Trump Corporation for
fraud, along the lines of the corporate finding that is $470
million that has resulted in?
Then, there is also the sexual assault finding as well in a
separate court.
The point that Bragg was making was that he's dealt with
these cases frequently. He was questioned about this over and
over again during the campaign. He made statements along the
lines of these:
I believe we have to hold him accountable. I haven't seen all
the facts beyond the public, but I have litigated it with him,
and so I am prepared to go where the facts take me once I see
them and hold him accountable.
Another quote during the same interview that the Chair
referenced:
You're right. I am being careful, not just because I'm running
for office but because every case has to be judged by the
facts, and I don't know all the facts.
Another quote, again from Mr. Bragg in a different interview:
I'll hold him accountable by following the facts where they go.
Over and over again, he said that he would follow the facts
and follow the law in reaching his decision about making a
determination to prosecute or not.
Another interview after that, this is asking about whether
he had the ability to prosecute these cases, which is where he
referenced his prior experience dealing with Mr. Trump and his
corporations. He said, ``But without talking about what we
don't know, which is where this is headed, the facts that
aren't in the public domain.''
The questioner followed up, ``You can't talk about that?''
Bragg responded, ``I can't talk about that.''
He said over, over, and over again that he wanted to follow
the facts and that he hadn't reached a conclusion about where
he was going to go. He did reference the previous cases against
Mr. Trump, and they are legion, and the subsequent cases as
well.
I think over, over, and over again he made it clear that he
had not made a decision about whether to prosecute or not, and
he hadn't predetermined what he was going to do.
Really quick. I am running out of time. Professor Foley,
you raised the issue of the defense being blindsided,
essentially, by not knowing what the legal theory of the case
was. In your testimony, written and that you stated today, you
quoted the response in the people's response to the bill of
particulars, No. 2.
You left out a key part of the quote. So, when I took a
look at it after Ambassador Eisen referenced it, we got a copy
of it, you quoted page 5. I flipped over to page 6, and it lays
out bullet points about the specifics of what is going to be
pursued, and they are bringing it to the attention of the
offense.
An agreement on lawfully suppressing negative stories
about the Defendant before an election to influence the outcome of the
election.
Multiple false statements in the business records.
I will skip down.
Disguising reimbursement payments by doubling them and
falsely characterizing them as income for tax reasons.
Now, you also stated that the first time they knew the
theory of the case was when jury instructions were read. So, I
looked at your testimony where you quote the jury instructions.
Guess what? It mentions all the same things that were
referenced in the bullet points.
Election, the law was violated. Federal election law, which
is No. 2. Falsification of other business records. Three,
violation of tax laws.
Professor, well, Ambassador, we are running out of time,
but I guess I was a little surprised based on your testimony
when you said that they hadn't given any indication of where
they were going to go beyond broad references to Federal
election law, tax law, and the like, when the specific bullet
points in the bill of particulars response were the same as the
ones that are referenced in the jury instructions according to
you written testimony.
Chair Jordan. Time.
Mr. Ivey. I see my time has expired. I yield back to the
Chair.
Chair Jordan. The gentleman yields back.
The gentlelady from Indiana is recognized.
Ms. Spartz. Thank you, Mr. Chair.
I think Ambassador Eisen was referring to the importance of
a vibrant rule of law for our democracy. Actually, have
Constitutional Republic not pure democracy to survive.
Interestingly enough, when talking about intimidations,
threatening, and disinformation I would say I am not an
attorney.
I am actually a CPA. I have been involved with finance for
a very long time. I think a lot of Americans should be
intimidated and worried if they pay bill to attorney and put it
legal expense, and they can have 34 felony counts for that.
That is true intimidation. That is the truth of what the law
is.
So, that would make anybody very nervous.
Just talking about 2016, Ambassador, you made statements
about interference in elections.
What do you think from your perspective to have Department
of Justice under President Obama at that time, and you are
probably familiar with the Durham Report, rushing through
closing the case for Hillary Clinton without doing any proper
investigation. Then rushing through to have Russian collusion
folks against Trump without even vetting any of the
information. It turned out to be all lies; right? We have a
report on that.
So, do you think from your perspective--and then colluding
to cover up with media like Politico now that want to cover up
the story. Doesn't it seem like that could be looking like
interference in election in 2016?
Ambassador Eisen. No, Ms. Spartz, I don't believe that.
There was ample evidence to predicate that investigation,
including the polling data that was passed from Trump Campaign
Manager Paul Manafort--
Mrs. Spartz. Yes, but like--
Ambassador Eisen. To Konstantin Kilimnik--
Ms. Spartz. No, you just like act you had a report. So, you
think the Special Prosecutor did not do a good job, that he
lied in the report? He actually concluded in his report that
the FBI didn't do its job and it was outrageous. He was
outraged, what is happening in FBI.
Ambassador Eisen. He did a--
Ms. Spartz. It seems strange. Let's go further. The same
situation with Hunter Biden. In 2020, the same media, political
reporters, have the story that actually was 50 security, this
National Security form advisors, that print a story that Hunter
Biden laptop doesn't exist and give legs to that story and all
media go that. He is talking the debate.
This is all former the Department of Justice employees.
Then, it is going to the election President Biden is a
candidate at the time using it to cover up and say oh, it
doesn't exist.
We know it exists. Doesn't it look strange to you?
Ambassador Eisen. The Biden Department of Justice empowered
a Trump holdover U.S. Attorney, David Weiss, to prosecute
Hunter using--
Ms. Spartz. No, but I am just saying--
Ambassador Eisen. The laptop--
Ms. Spartz. --about laptop--
Ambassador Eisen. It is the exact opposite--
Ms. Spartz. --the laptop story--
Ambassador Eisen. It is an affirmation of the way the rule
of law works.
Ms. Spartz. In 2020, doesn't it look strange that this
appeared before the election and they have disinformation
campaign, the same political reporters that do it again?
Doesn't it seem awful strange to you? Doesn't it seem like? It
is not interference at all.
I am not going to probably get an answer because you do
have a double standard. We do have a double standard. Our
system of justice is broken. That is why Americans are
intimidated, and they are worried about not existing of the
rule of law.
Because we have a rule of law that working to protect now
the Department of Justice, to protect people that they like.
This is a political prosecution.
I am not going into details about the case, but it would be
intimated for Americans, and it would be very oppressive and
tyrannical. I couldn't believe, as an American who grew up in
tyrannical country, that we would be sitting here and the
system of media collusion with our justice system.
I think that is very, very sad, and I am very disappointed
that you cannot tell the truth here. I yield back.
Chair Jordan. Would you--the gentlelady yield? The
gentlelady yield?
Ms. Spartz. I yield, I yield.
Chair Jordan. Ms. Foley, Mr. Ivey basically said what you
told the Committee about the jury instructions, he disagreed
with that strongly, and but was going to let Mr. Eisen answer
you. So, I want you to be able to answer for yourself.
Ms. Foley. Well, thank you, I appreciate that. Yes, that is
sort of the bait and switch that was going on here. The stuff
that he talked about on the prosecutor's response was a
response, and then he flipped the page and saw some of the
details.
That is all the response that talks about the first
predicate, which makes the falsification of business records a
felony offense. All that information is about this first
predicate.
The interesting this is that all that detail on the page
that he flipped ended up having nothing to do with the first
predicate for the second predicate, which was the basis for the
New York election law offense. So, all that detail was useless,
because all that detail was about this and not this.
In fact, we didn't even know this was necessary until the
judge instructed the jury about this New York election.
Chair Jordan. That is the point.
Ms. Foley. Right.
Chair Jordan. That is the point.
The gentlelady yields back. The gentlelady from
Pennsylvania is recognized.
Ms. Dean. Thank you, Mr. Chair.
Thank you to all our witnesses for being here today. It is
interesting being here, I will say that. Sixty-two minutes late
starting what is a faux hearing about the New York DA.
Chair Jordan. Would the gentlelady just--I apologize, I
don't like--I think the Attorney General has to leave?
Mr. Bailey. Yes, thank you, Mr.--
Chair Jordan. Are you going to pose any questions to the
Attorney General?
Ms. Dean. I don't think so, Mr. Bailey.
Chair Jordan. Yes, we will pause her time, certainly give
her all her time. I can give you full five minutes back, so you
can.
We thank you for being here. I should have pointed out
earlier we have been at this for a while. If anybody needs a
break, just obviously let us know.
I apologize to the gentlelady from Pennsylvania. You get
your full five minutes.
Ms. Dean. Thanks, Chair. Thank you, Mr. Bailey, for your
participation today.
Here we are. Mr. Eisen, I think I am going to start with
you.
Before I came to Congress, and you might know this about me
because you and I had the chance to work together on
impeachment one. As you remember part of a phone call where
then-President Trump said to a brand-new President Zelenskyy,
``I will need you to do me a favor, though.'' I had the
privilege of working with you then.
I was a teacher before I got here. I know I have told you
that many times. I told my students you need to convey your
thoughts with clarity, integrity, honesty, with the facts, not
misinformation or disinformation.
We have heard so many outlandish claims in this Committee
and all over the Hill, sadly, in service of one man. So, I am
going to, if you permit me--and I am going to give you some
time, I know there are some things you want to address. If you
permit me, I will go back to my old professor days, not that I
did this.
A little pop quiz, help me correct the record, if you don't
mind. Here we go. It is about the claims around our
institutions.
(1) Donald Trump referring to the 2016 Presidential
election claimed, ``I won the popular vote if you deduct the
millions of people who voted illegally.''
(2) Mr. Eisen, Ambassador Eisen, was that statement that
millions of people voted illegally in the 2016 Presidential
election true or false?
Ambassador Eisen. Like 30,000, over 30,000 other statements
that the former President has made, false.
Ms. Dean. Thank you.
(3) Donald Trump in 2019 referring to the free press,
claimed, ``Truly they are the enemy of the people.'' Ambassador
Eisen, is the press the enemy of the people, true or false?
Ambassador Eisen. Under the First Amendment of the
Constitution and the proudest traditions, the Fourth EState is
the pillar of American people, the friend of the American
experiment. False.
Ms. Dean. (4) In November and December 2020, Mr. Trump
claimed, ``I won this election by A LOT, and this fake election
can no longer stand.'' Ambassador Eisen, did Trump win the 2020
election?
Ambassador Eisen. He lost fair and square, and the Big Lie
that he won is one of the most heinous and dangerous falsehoods
in our history as a Nation.
Ms. Dean. That is actually at the crux of this. I was going
to make that extra credit, was it a fake election. Without
being flip, you said it much more eloquently.
(5) Marjorie Taylor Greene, referring to the search at Mar-
a-Lago, claimed, ``The Biden DOJ and FBI were planning to
assassinate Pres. Trump and gave the green light.'' True or
false, Ambassador?
Ambassador Eisen. False. It is a--they were referring to a
standard term of search warrants that you can also find in the
search of President Biden's premises.
Ms. Dean. Strange, thank you for that clarity.
(6) Chair Jordan claimed District Attorney Alvin Bragg's
criminal case against Donald Trump was a politically motivated
prosecution. Ambassador Eisen, true or false?
Ambassador Eisen. It was, as we say in the legal
profession, a righteous case. The appeals will prove that. I
have the receipts here with me to prove it.
Ms. Dean. (7) Mr. Gaetz claimed Attorney General Garland
dispatched Matthew Colangelo to prosecute Mr. Trump. Ambassador
Eisen, is that true?
Ambassador Eisen. The AG this week issued a letter, it is
now in the record, definitively debunking that conspiracy
theory. It is outlandish and false.
Ms. Dean. In the time I have remaining, I would like to ask
you, something I have been fighting here on this Committee what
now feels like the entire 5\1/2\ years I have been on this
Committee is the disinformation in service to one. In service
to one who is now a convicted felon.
It is so dangerous, and yet we hear from the other side of
the aisle tearing down faith in our institutions, whether it is
our electoral system, the Department of Justice, the FBI. Some
on this Committee would like to defund the FBI and the ATF.
They decry the fact that Americans' faith in our
institutions is at the lowest low, as they make sure that is
the reality. What comments do you have about the danger of
disinformation and misinformation now?
Ambassador Eisen. We are in a disinformation and a mis- and
mal-information epidemic. I testified about it in my last visit
before the Committee. I do have to point out one piece of
incorrect information that we heard today, that this theory of
the case was never put before Donald Trump until the closing of
the jury.
I have here--not only do we have the responsible
particulars, but I also have the opposition to the motion to
dismiss, November 9, 2023, putting forth--may I have the middle
Russian doll, please?
Ms. Dean. This one?
Ambassador Eisen. Here is it. Look at the document. The
Russian doll is in the document. Here it is, page 25. Please,
these actions violated Election Law 17.152, conspire to promote
the election of a person to public office by unlawful means,
including FECA. The falsifying the records of other New York
enterprises and--
Mr. Massie. Remind the witness--
Ambassador Eisen. Mischaracterizing the nature of the
repayments for tax purposes.
Mr. Massie. The witness cannot introduce documents into the
record.
Ambassador Eisen. May I? May?
Mr. Massie. No, sorry.
Ambassador Eisen. I didn't ask to introduce it.
Mr. Massie. The gentlelady's--
Ambassador Eisen. May I return the Russian doll?
Ms. Dean. May I have unanimous consent?
Mr. Massie. The gentlewoman is recognized for unanimous
consent.
Ms. Dean. Thank you, Mr. Chair. Thank you, Mr. Eisen, for
the demonstration.
An unanimous consent please for, this is an article, ABC
News, ``A Timeline of Donald Trump's Election Denial Claims,
Which Republican Politicians Increasingly Embrace,'' ABC News.
Mr. Massie. Without objection.
Ms. Dean. Thank you.
Ms. Balint. Mr. Chair?
Mr. Massie. Recognize the gentlelady for Vermont.
Ms. Balint. I ask unanimous consent to enter into the
record ``People's Response to Defendant Donald J. Trump's April
27 Request for a Bill of Particulars.''
Mr. Massie. Without objection.
Now, recognize the gentleman from Oregon for five minutes.
Mr. Bentz. Thank you, Mr. Chair.
Professor Foley, do you want to respond to the rant we just
heard?
Ms. Foley. Yes, if I may have this back? OK. So, this
opposition to the motion to dismiss, also and he gives one page
out of context. That paragraph that he is pointing to, these
actions also violated Election Law Section 17.152.
In other words, it is just regurgitating exactly what they
said in response to the requested bill of particulars that the
underlying offense, the first predicate, could be one of four
different statutes, all which are very, very different and do
not provide adequate notice to a defendant.
Because this is an element of the crime. You have to be
specific about elements of the crime. That is what the court
said in Schad.
Mr. Bentz. So, if I may, thank you for that explanation.
Ms. Foley. That is why there is a due process--
Mr. Bentz. To your point, the complexities I think many
times are a nuisance to those who disagree with you, Professor.
So, thank you for the details that you share.
Also, folks earlier on the other side of the aisle suggest
that this hearing is not necessary because it was a State
Court, and thus this Committee, being Congress, shouldn't be
saying anything about it.
Perhaps you could address that for just a second and
explain why, in your opinion, you think the Federal Government
should be concerned about what went on in Alvin Bragg's
district.
Ms. Foley. Well, I mean, look, as the Judiciary Committee--
and I assume the Oversight Committee also would have legitimate
legislative purposes for looking into abuses of power by State
prosecutors to violate anyone's Constitutional rights.
That would include intimidation based on gag orders, First
Amendment violations, due process violations, and equal
protection violations. All the ones we have talked about are
ripe for investigation by this Committee and others.
Mr. Bentz. In fact, if we didn't, we would be derelict in
our duty when we see a former President being drawn into this
circumstance, we would have to ask ourselves to come on. So,
thank you for that.
Commissioner Trainor, same question to you. Is there a
Federal reason for us to be looking at a State action such as
what we observed in Manhattan?
Mr. Trainor. Unquestionably there is a reason for this
Committee to investigate this. It goes back to my opening
statement, where I talked about the fact that the Department of
Justice did not zealously represent the United States in this
particular case to go in and defend the jurisdiction that this
Congress has given through FECA to the Federal Election
Commission and to the Department of Justice to prosecute those
crimes.
Instead, they abrogated that to a local official to
prosecute.
Mr. Bentz. Right, and the question would be, and quoting
the professor from earlier today, to prevent the fractured
application of the law and disparate justice, double, triple,
and quadruple standards. This is what we are trying to avoid by
bringing this issue up at this hearing. Is that correct?
Mr. Trainor. Absolutely. You can't have 50 different
standards of what violations of Federal election law. It would
apply to every Member of this Committee, it would apply to
Presidents, former Presidents.
If we are allowed to investigate what goes on in campaign
finance spending under the guise of how 50 different States
interpret it, we will never have any equal protection for any
individual running for political office.
Mr. Bentz. Right, and you would think that those on the
other side of the aisle would recognize the danger of opening
this Pandora's box, so to speak.
Let me go to another point. Anybody that has tried a case,
and I have tried many, recognizes that the jury process is
imperfect. It is a great system, but we have this thing called
an Appellate Court because it is known that mistakes will be
made.
The idea is once they are, you will get another shot at it
in the Appellate Court. Yet, here we are, we know this is going
to be appealed. We are holding this hearing today.
Why is this hearing important when there is an appellate
process available? Go with you, Professor Foley, first.
Ms. Foley. Well, again, I think you have a responsibility
to determine, for example, whether or not Federal funds are
being used to further lawfare that is designed to be election
interference.
I think you have a responsibility to make sure that Civil
Rights law, Section 1983, and other Federal civil rights
statutes, are not violated by State prosecutors, especially for
purposes of political interference.
At the end of the day, judicial process, even though there
is a trial, judicial process is not due process, right.
Otherwise, we would never have any reversals based on due
process.
You can have long, elaborate trials with lots of witnesses
and lots of documents. They have them in Russia and Venezuela
all the time. They look like trials, they kind of smell like
trials, but they are not due process-based trials. That is the
error that occurred here that I think ultimately is going to
lead to reversal.
Mr. Bentz. Yield back.
Mr. Massie. The gentleman yields back. The gentlelady from
Texas is recognized for five minutes.
Ms. Escobar. Thank you, Mr. Chair.
I would like to thank our witnesses for being here. It is
wonderful to see you, Ambassador Eisen. I want to thank you for
your incredible commitment to our country, to the rule of law,
to our democracy. I am very, very grateful for your voice.
We, this Committee is so important, as you know. There are
so many critical issues that our Nation is looking to us to
address. Week after week after week this Committee is
unfortunately focused on things that don't matter to the
everyday American.
Going after various Biden Administration officials, going
after the President himself, attacking border communities,
etc., you name it. I look forward to the day that this
Committee actually produces good work that the American people
expect us to address.
This hearing didn't even start on time, and I apologize for
the incredible delay. My Republican colleagues had to go bend
the knee and make sure that they provided homage to the person
that controls the House of Representatives.
Anyhow, I would like to debunk some of what we have heard,
and I have some questions for you. Before I ask these
questions, is there anything that you have heard today that you
would like to address? It has been just a cascade of
bizarreness but would love to give you the opportunity to
respond.
Ambassador Eisen. When my friend Professor Foley, whose
work is thoughtful, in an excess, I hope, of enthusiasm, was
being questioned by Mr. McClintock and suggested that warfare
should be waged in retaliation, and Mr. McClintock, to his
credit, said no.
It gives me hope, Ms. Escobar. This was a legitimate case.
Any other American who did what Donald Trump did would be
prosecuted and convicted. We saw that it is false, it is false
that these issues were raised in the jury for the first time.
It is normal.
I have been a criminal law practitioner expert for over
three decades. It is normal to have alternative prosecution
theories. Every complex case I have ever had them. Many had far
more, dozens of counts, under widely disparate laws.
The prosecution here had alternative theories. They chose
one. There is nothing untoward about that. That is not going to
be reversed on appeal.
So, I could go on, but I am eager to hear your questions.
Ms. Escobar. Thank you so much, Ambassador. Before I ask my
questions, I will say one last thing. There were two trials
that took place within a span of several weeks.
The difference between how President Biden and Democrats
reacted to a guilty verdict in a case against the President's
son was remarkably different from what we saw in terms of the
reaction by former President Trump, his family, his allies, and
acolytes.
Democrats are not attacking the institutions that are
important to our democracy. Unfortunately, Republicans are. It
is devastating to the future of our democracy.
Ambassador Eisen, what do you make of the claim that Trump
can appeal his case based on Judge Merchan not recusing
himself?
Ambassador Eisen. I think my friend the professor will
agree with me that this is not going to be one of the grounds
for reversible error here. I don't think there will be any
grounds for reversible error.
Certainly, before he ever had the case, he gave a modest
$15, exercising his freedom under the First Amendment that we
all have. Gave another $20, that 15 was to Joe Biden, another
$20 to other political organizations.
He asked the judicial authorities. There is a judicial
opinion. To his credit, he put it out of his own hands.
Advisory Committee on Judicial Ethics Opinion No. 2354, May 4,
2023. No, you don't have to recuse yourself for that when you
did it years before you got the case.
Good on Judge Merchan to ask. That is the right answer. No
reversal there.
Ms. Escobar. Excellent. Thank you, Ambassador, good to see
you. I yield back.
Ambassador Eisen. You.
Chair Jordan. The gentlelady yields back. The gentleman
from Wisconsin is recognized.
Mr. Fitzgerald. Thank you, Mr. Chair.
Thanks for being here today. I know we have been kind of
going on. I am trying not to rehash anything that has already
been discussed.
Commissioner Trainor, is the Manhattan District Attorney's
Office charged with determining whether someone violated the
Federal Elections Campaign Act, or FECA?
Mr. Trainor. No, Congressman, that is exclusive
jurisdiction of the Federal Election Commission and ultimately
could be referred to the Department of Justice if it is found
to be criminal.
Mr. Fitzgerald. So, certainly not the New York Supreme
Court either, State Supreme Court.
Mr. Trainor. Absolutely not.
Mr. Fitzgerald. No. So, as you said, it is the Federal
Elections Commission. Was President Trump's alleged payment via
Michael Cohen to Stephanie Clifford referred to the FEC?
Mr. Trainor. We did have several complaints related to it.
Mr. Fitzgerald. What did the FEC decide with respect to
that referral?
Mr. Trainor. Well, ultimately, we deadlocked on a decision
related to it, but the real factor in making the determination
was the fact that the Department of Justice asked us to abate
those proceedings so that they could conduct an over a year-
long criminal investigation, which they determined there was no
criminality in.
Then they sent it back to us, and it was statute of
limitations barred.
Mr. Fitzgerald. So, did the Justice Department also decline
to charge the former President for charges related to FECA?
Mr. Trainor. They did.
Mr. Fitzgerald. Right. So, the two agencies that are
charged by Congress to determine whether President Trump's
payment constituted a violation of FECA found no violation and
took no enforcement action, is that correct?
Mr. Trainor. That is correct.
Mr. Fitzgerald. All right, thank you very much.
Ms. Foley, you argued in a recent Wall Street Journal op ed
that Judge Merchan likely denied President Trump a meaningful
opportunity to be heard by denying the testimony of former FEC
Chair Brad Smith. Can you please elaborate a little bit on
that?
Ms. Foley. Yes, there has been a lot of sort of
misreporting on what happened here. Yes, Judge Merchan, as my
colleague Mr. Eisen points out, did allow Brad Smith to
testify.
The catch was he could not opine at all, either provide his
opinion or any personal opinion or legal opinion, regarding
whether or not President Trump's actions had violated FECA,
which was basically then he was useless. Which is why President
Trump didn't call him as a witness.
So, the whole point was President Trump wanted an expert
witness to put before the jury to show the jury that what he
had done did not in fact violate Federal election law. He was
denied that opportunity, and that seems like a rather basic
thing that he would have the opportunity to be heard on.
Mr. Fitzgerald. Do you think there was a chance that he
could have had success on appeal?
Ms. Foley. Will he have success on appeal of this?
Mr. Fitzgerald. Yes.
Ms. Foley. Yes, sure, absolutely. The thing is that, again,
I agree with Norm on the fact that the bias issues are
difficult to win because they get deferential standards of
review. The due process issue is a question of law. It gets de
novo review, the Appellate Courts get to look at it fresh with
fresh eyes, no deference whatsoever.
More importantly, due process issues are issues that the
Supreme Court can ultimately grant cert in here.
Mr. Fitzgerald. Right. So, Judge Merchan also ruled that
Michael Cohen's guilty plea for violating FECA was inadmissible
at trial. Why do you think he made that ruling? I think we
know.
Ms. Foley. Well, because you can't basically taint one
individual by the guilty conduct of another.
Mr. Fitzgerald. Judge Merchan also ruled that DA Bragg
could elicit testimony from Mr. Cohen about his guilty plea to
impeach his credibility as a witness. DA Bragg then repeatedly
made reference at trial in his office closing arguments to the
jury about Cohen's FECA guilty plea.
Did repeatedly subjecting the jury to this testimony
essentially get around the judge's own ruling that Cohen's FECA
guilty plea was inadmissible as substantive evidence?
Ms. Foley. Yes, that should have been reined in. That was
clearly trying to taint one person through association with
another who was guilty.
They also did the same thing I believe with the CFO of
Trump Organization and made similar comments because he also
entered a guilty plea. Weisselberg.
Mr. Fitzgerald. Thank you, I yield back.
Chair Jordan. Would the gentleman yield? Would the
gentleman yield?
Mr. Fitzgerald. Yield.
Chair Jordan. Thank you. So, I just want to get this
straight. The campaign finance expert wasn't allowed to testify
about campaign finance.
Ms. Foley. Yes, exactly. The way Judge Merchan tried to
explain it is he said, well, ``I am the expert of the law.''
OK, granted, that is why the judge is there, he is--but--
Chair Jordan. Brad Smith wasn't allowed to talk about the
very testimony we just got from Commissioner Trainor--
Ms. Foley. Precisely.
Chair Jordan. Well, we are going to give Brad Smith a
chance to testify in front of this Committee as well. We are
going to let him tell the Congress and the country what he
wasn't allowed to tell the court and the jury. Because we think
that is important.
The gentleman from Wisconsin was right on target when he
asked him that question.
Now, recognize the gentlelady from Vermont.
Ms. Balint. Thank you, Mr. Chair.
Before I start my line of questioning, I just have to make
a comment about something one of my colleagues said earlier on
the other side of the aisle. There was implication made that E.
Jean Carroll must have had memory problems, she couldn't
possibly have remembered what happened to her.
I just am so incredibly shocked by that statement. I can
tell you, when someone has been sexually violated, they don't
forget who did it. A jury found him liable, him being the
former President, for sexually abusing and defaming E. Jean
Carroll.
Those are the facts. A jury found that. I just think it is
shocking that somebody on this Committee would not only attack
juries, but we are the Judiciary Committee after all--the
onslaught against juries on this Committee is shocking to me.
Also, to use time in Committee to further defame E. Jean
Carroll.
So, shifting gears here, part of the Republicans' attempt
to absolve former President Trump for his fraud conviction is
the claim that former Justice Department official Matthew
Colangelo was somehow dispatched to the Manhattan District
Attorney's Office to prosecute Trump. One of my colleagues
touched on this briefly, but I want to circle back around.
I have heard my colleagues say, in this hearing and others,
it was because Mr. Colangelo took a job with the Manhattan DA
after working at DOJ, and in that--their eyes, this was pay
reduction or career stepdown. That the only conclusion would be
that he changed jobs to get Mr. Trump.
People on this Committee have asked the Attorney General
specifically how is it that a man, Matthew Colangelo, takes a
pay cut and takes a cut, and just what is it is he doing for a
living as far as prestige to go and join that case.
This part of the theory is very revealing to me. It
suggests that a person could never change jobs based on
anything other than money or prestige. It seems that some of my
colleagues have forgotten that public servants may take other
things into account when navigating their career.
Ambassador Eisen, thank you so much for being here. The
other witnesses, I should have said at the top, thank you for
your time.
Are you aware of any evidence that Mr. Colangelo was a mole
dispatched by General Garland to the Manhattan DA's office?
Ambassador Eisen. No, there is none. The Attorney General
has definitively debunked this conspiracy theory with his
detailed letter that he sent to the Committee.
For good measure, when I came to work on Committee staff
with the Ranking Member and with the Chair in the first
impeachment, I took a substantial pay cut. People are motivated
by public service. I hope I was in that instance.
Chair Jordan. I am not sure how much you worked with me,
but you did work with the Ranking Member.
Ambassador Eisen. Mr. Chair, notwithstanding--
Chair Jordan. I don't want to take the gentlelady's time.
Ambassador Eisen. Notwithstanding our differences, I like
to think that we have maintained a cordial relationship. We see
it differently, but we are both trying--
Chair Jordan. We do.
Ambassador Eisen. To the best for America. Sorry.
Ms. Balint. That is all right, that is all right. It is
important to have conversations. So, you touched on it, but can
you think of some other reasonable explanations for a lawyer
taking a job that may not appear to be the next step in their
career?
Ambassador Eisen. Mr. Colangelo has a long record of public
service including in the nonprofit sector. He had previously
worked with Mr. Bragg in the AG's office.
When you do have a new DA, he acquired a variety of
responsibilities when he entered the DA's office. It's an
opportunity because the Manhattan DA is such an important role
with New York as an American and global financial center,
another reason these 34 false records convictions matter so
much.
It was an opportunity to have an impact on the public good.
I like to think that those kinds of motivations come into play.
Ms. Balint. I think one of the challenges for my
constituents home watching the work that we do here, watching
the news, they all tell me they're exhausted.
They don't want to watch anymore. They don't want to watch
the news. They don't want to actually know what we're doing
here anymore because it feels like every single time they turn
on the news there is another bit of misinformation, another
conspiracy theory, another nesting doll, as it were, and it
makes it very difficult to find a way to cut through.
So, once again, there is no evidence of collusion involving
Mr. Colangelo. Is that right, Mr. Eisen? Is there any evidence?
Ambassador Eisen. I hold an empty bottle as the same amount
of evidence. None.
Ms. Balint. I appreciate it. Thank you for your time. I
yield back.
Chair Jordan. The gentlelady yields back.
The gentlemen from New Jersey is recognized.
Mr. Van Drew. Thank you, Mr. Chair.
Ambassador Eisen, just a thought--a comment. I know you
spoke about the climate of threats, the climate of
disinformation. I'm going to maintain that is not the climate
that you're speaking about. You just don't want to hear the
truth because you don't like it.
Congresswoman Lofgren, my colleague--a good person--she
asked, can a democracy survive without the rule of law. Well,
we know the answer.
It can't, and that's what makes me sick with what's going
on because we want to speak, and it's been spoken about often
here, about what people are thinking, what they're saying.
Well, I'm a little crazy. So, we get literally thousands
and thousands of calls and letters and emails, you can imagine,
every single week. I pick out a handful and I call people back.
Some are Republicans. Some are Democrats. Some are people
that don't care about either. You know what a lot of folks are
telling me, and they're not all hard Republicans. They're
telling me they're scared and the reason they're scared--and by
the way, they should be.
I don't make them feel good. I don't sugarcoat it. I don't
say, no, nothing to worry about--nothing to see here, because
they don't believe in equal justice for all, which should be
for the left and the right.
It should be for Republicans and Democrats. It should be
for progressives and libertarians. It should be conservatives
and liberals. Equal justice for all. That's what is making me
sick because we don't have it now.
This is all about politics and money and teaching a
lesson--the politics of it. The politics of it is we have a
judge who's a known and strong Democrat, not just because of
the contributions he made but for other factors.
His daughter alone is a major operative in the Democratic
Party, millions of dollars flowing through her hands.
I tell you what, you wouldn't like it if it was reversed,
and you had a judge that didn't recuse himself. We should have
judges and prosecutors that are objective and fair whatever
political party you are, whatever persuasion you are.
It's about money because if you follow the money--and
politics is about money a lot. We don't like to say it, but if
you follow the money here, huge contributions going to the
prosecutor coming from the far left, coming from Democrats, and
he runs for office saying that he's going to get Trump--saying
that he's going to get Trump.
You may have one speech where he didn't say that. There
were plenty of times where he made it clear that he was the guy
to make sure to go after Trump.
How unobjective can you be? How wrong is that in the
American system of jurisprudence? How terrible is that? You
wonder why people are worried.
Let's talk about Trump for a second. Everybody else is.
President Trump--first they tried to impeach him, and they
didn't have grounds. That didn't work.
So, then we tried something, and I would hope, Ambassador
Eisen, that you didn't even agree with this. They tried to take
him off the ballot. They're scared of this guy.
They tried to take him off the damn ballot illegally,
incorrectly, and so the Supreme Court has to come in. Liberals
and conservatives, some real people from the left on that
court, and say, man, this is just wrong. That didn't work.
So, what do you got left? You weaponize the judiciary, the
only thing you can do, and what's teaching the lesson about.
What you all--not you guys, but you know what's being done?
We're teaching--I really mean this--Americans to be afraid
if they differ, if they speak out, especially if they have, in
this case, to have a conservative or different viewpoint.
Talk about those people you speak with on the phone. I do
it. I really do it because my humble beginnings as a councilman
and going all through--I've held every damn office you can
hold, and you know what these people will tell you?
Some of them are a little nervous about putting signs up.
They're a little bit nervous about giving a campaign
contribution because they're afraid they're going to go after
them because you know what they know. If they went after this
man, they could go after you.
Now, the right thing to do here is the judge should have
recused himself. The right thing is not to have the trial in
the town with a prosecutor who's made it his aim in life to go
after him.
It's wrong, and people are afraid they're going to go after
your family, your friends, your businesses, your life.
Politics, money, and teaching a lesson.
You know what? It's a tale of two prosecutors, and I'm
running out of time, but I want to ask a question. This is a
guy who wants to prosecute nonexistent crimes like this one
but, damn it, he won't prosecute the violent crimes and he
downgrades them in the city of New York to misdemeanors. He's
causing people to get murdered and killed--murdered and robbed
and hurt.
I'm only going to get one question in here but I'm going to
squeak it in.
Commissioner Trainor, can you elaborate on why the FEC
commission did not move forward with an investigation? I know
we have talked about this, but I want to hear it again.
The FEC, who should have been the ones to do it, they said,
no, we're not going to do it, because they were neutral and
objective. Why didn't they do it?
Mr. Trainor. The commission did not move forward with an
investigation because we were asked to abate that proceeding by
the Department of Justice.
The Department of Justice then took over a year to conduct
a criminal investigation and then when they sent the
information that they had back to us after they had declined to
prosecute anyone in the case the statute of limitations had run
when it came back--
Mr. Van Drew. Really quick--thank you.
Ms. Foley, your testimony highlighted significant due
process violations. Can you just detail that a little? Three
core due process precepts--noticed meaningful opportunity to
defend and proof of all relevant facts. We only have a few
seconds, if you could.
Ms. Foley. Yes. Lack of adequate notice of the charges and
the basis of the charges by obfuscating a primary element of
the felony falsification offense, which required that there be
another predicate offense that was intended to be committed.
They obfuscated that until the very end, until the jury
instructions. Once they identified that in the jury
instructions it became clear that there was a second predicate
that was required that Trump never had an opportunity to
respond to whatsoever, much less have notice of.
Ms. Scanlon. Point of order, Chair.
Mr. Van Drew. You know what? I yield back and, Ambassador
Eisen, damn it, I wish I could have gotten to you.
I yield back.
Chair Jordan. The gentleman yields back. We have--
Mr. Nadler. Mr. Chair, I have a unanimous consent.
Chair Jordan. A unanimous consent request from the Ranking
Member.
Mr. Nadler. Mr. Chair, I ask unanimous consent introduced
for the record on April 12, 2023, an article from Politifact
that states, quote,
We reviewed Bragg's campaign record and found that although he
often cited his prior prosecutorial experience with respect to
Trump he said he was equipped to inherit the DA's office
investigation. He made no promises about any case. He said that
although he had access to some publicly available information
about Trump's activities he didn't have all the information and
wanted to be fair.
Chair Jordan. Without objection.
Chair Jordan. Let me just real quickly say we have 15
minutes left--Ms. Scanlon, and two on our side. I have to jump
out for a meeting, but I wanted to thank each of you for being
here.
Mr. Eisen, I certainly did not work with you when you were
trying to impeach the President of the United States, but let
the record show I have allowed you to hawk your book at the
Committee hearing and didn't object to that one bit.
Ms. Foley, Commissioner Trainor, we do appreciate your
being here and your testimony as well. Thank you for being here
since 10 o'clock this morning. We appreciate it.
I'm going to let the next Governor of North Dakota Chair
the remainder of the hearing, and we'll go to Ms. Scanlon for
five minutes.
Ms. Scanlon. Thank you, Mr. Chair.
As the Chair acknowledged, we didn't start at 10. We
started nearly an hour late or just over an hour late because
he and his Republican colleagues had prioritized a meeting with
Donald Trump over a Committee hearing and presumably they
received their latest marching orders to weaponize
congressional power against our criminal justice system because
that's what we're seeing here today. It's outrageous.
Over and over again this Congress we have seen House
Republicans set aside congressional work--the people's
business--to do the former President's bidding, as he seeks to
avoid justice and accountability for his numerous misdeeds.
Their Members, including the House Speaker, have spent
hours injecting themselves into these State Court proceedings
and standing outside the Manhattan courthouse instead of
working on legislative business to serve the American people.
They don't seem to understand that they were elected to
serve their constituents, not the disgraced, twice impeached,
and now convicted leader of the party.
So, why are we here in today's hearing? Because two weeks
ago a jury of Donald Trump's peers--12 American citizens--found
him guilty of criminal conduct. Now, those jurors were selected
by both the prosecution and Mr. Trump.
Those jurors considered all the evidence presented to them
by the prosecution and by the former President, not just the
evidence or as is so often the case the alternative facts that
are selectively presented by social media, cable pundits, or
political spin doctors including some of those here today.
Because unlike our political sphere that's how our justice
system works. The jurors performed their civic duty. They did
their job, and when they applied the law to the evidence, they
determined that the former U.S. President was guilty of 34
felonies.
Now, having a former President found guilty of criminal
conduct is a sad day for our Nation but it's sadder still that
the former President is using his allies here on the Hill to
attack our courts and undermine the rule of law and that
Members of Congress are debasing themselves and this
institution to embrace his conspiracy theories and lies.
Unfortunately, these attacks on the very foundations of our
government to prop up the former President have become the norm
for their party. When Donald Trump couldn't bend journalists'
coverage to his will MAGA Republicans echoed his attacks on the
free press.
When American voters rejected Donald Trump's first
reelection bid MAGA Republicans helped him sow chaos,
confusion, and conspiracy theories to drive his attempts to
overturn that election.
Now, when a New York State jury trial has resulted in
Donald Trump's first criminal conviction MAGA Republicans are
attacking the State's prosecutor, the judge, the witnesses, and
the jury, and as several other criminal cases against the
former President head to trial House Republicans are
introducing legislation to fire prosecutors, to defund the
Department of Justice, and to deny States the authority to
prosecute crimes committed in their jurisdictions.
Disturbingly, we now see this pattern of behavior anytime
anyone tries to hold the former President accountable for his
words or actions.
House Republicans have been trying to interfere in the New
York State case since its inception even though such
interference violates both our Constitutional separation of
powers and our Federalist system.
Every step of the way House Republicans have attempted to
insert the Federal Government into a purely State and local
matter without any credible pretense of jurisdiction and
they're continuing their outrageous, unproven accusations
against the Manhattan District Attorney's office with this
hearing.
Republicans say that they're the party of law and order,
until their chosen candidate for President is convicted, and
they claim to support States rights until a State court rules
in a way that they dislike.
The truth is that America is built on the idea that no one
is above the law including former Presidents and their allies,
and these shameless attempts to subvert our most fundamental
American institutions threaten the rule of law that our country
is built on.
So, Ambassador Eisen, why is it dangerous for Members of
Congress to try and influence the outcome and attack the
legitimacy of a criminal court and a free and fair trial, and
how does it threaten judicial independence?
Ambassador Eisen. The genius of the American project lies
in our federalism, our checks and balances, the laws, starting
with the Constitution that reinforced staying in your lane.
When I worked in the White House it was the first rule,
stay in your lane, and that's the rule for a functioning
democracy as well.
There's no place, just like there was no place for Donald
Trump to tell Brad Raffensperger in January 2021 just, quote,
``Find 11,780 votes.'' There's no place for Congress to be
meddling in these State prosecutions.
Ms. Scanlon. Thank you, and I see my time is expired,
although there has been a fairly loose gavel. I'd ask--
Ambassador Eisen. Mr. Armstrong is even more generous than
Chair Jordan.
Ms. Scanlon. I would just ask unanimous consent to
introduce an article from this morning's Politico entitled
``Trump's private demand to Johnson help overturn my
conviction.''
Thank you. I yield back.
Mr. Armstrong. [Presiding.] The gentleman from South
Carolina is recognized.
Mr. Fry. Thank you, Mr. Chair.
Ms. Foley, did Alvin Bragg's indictment actually articulate
a provable felony offense?
Ms. Foley. Did the indictment? No. The indictment was about
as generic as you could get. One of the primary elements is the
intent to commit another crime.
The indictment said nothing, nothing about that, and he
provided a statement of facts that accompanied the indictment.
That also said nothing about what that other crime was.
Mr. Fry. Why do you suppose that was, that it omitted that?
Ms. Foley. I think to the extent that you want to convict
someone to the--you hide the ball, you obfuscate, and that
keeps the defense counsel on their toes. They don't know what
evidence to put forward to the jury. It's an ever-moving
target. It makes it very difficult to defend if you're a
defense counsel.
Mr. Fry. How does that impact the jury instructions in the
end? You talked about that, but I want you to discuss that
again.
Ms. Foley. Yes. Well, you don't know until the end--if you
don't know until the end what exactly the first predicate is
you don't know who to put on the stand. You don't know what
evidence to put forward.
The only reason he tried to bring forward Brad Smith, for
example, the former FEC Chair, was because Alvin Bragg kept
hinting that maybe one of the bases for the first predicate was
the FECA violation.
So, we kind of knew that. So, he tried to get a witness to
say something about that and he was denied. So, it was just an
exercise in futility for Trump to try to defend this case
because it wasn't clear exactly what he was being charged with.
Mr. Fry. Thank you for that.
Just changing gears a little bit, who is Matthew Colangelo?
Ms. Foley. Well, he was, what, the No. 3 guy in the
Department of Justice.
Mr. Fry. Correct. What is his current title? What does he
do now?
Ms. Foley. He's on Alvin Bragg's prosecutorial team. I'm
not sure exactly what his title is.
Mr. Fry. A State DA.
Ms. Foley. Yes, State DA. That's correct.
Mr. Fry. Is it unusual to see somebody go from, what, the
No. 3 position at the Department of Justice to a State District
Attorney?
Ms. Foley. I know some other Members of the Committee have
suggested, well, you do it out of the goodness of your heart
because you're a public servant and all that jazz, and I'm sure
that's true.
At the same time, it's exceedingly unusual for that to
happen--for you to take a downward movement in your career, and
because of the unusual nature of it makes you go, hmm.
Mr. Fry. Yes. I think it raises questions and I think the
American people see that. I think polling consistently shows
that the American people believe that the prosecution of
President Trump in Manhattan was more about politics than it
was about some violation of the law.
Of course, we have seen that, right. District Attorney
Bragg campaigned on going after a certain individual, not some
violation
of the crime. It was identify the man and then go after the
crime, and I think that's incredibly alarming just for the
justice system broadly.
Is it fair to say that as a former DOJ official that Mr.
Colangelo would have high-level contacts within the Biden
Department of Justice?
Ms. Foley. Oh, undoubtedly, and I hope if he does actually
show up before the Committee that there are a lot of vigorous
questions about that.
Mr. Fry. If there was or continues to be some sort of
coordination between the Department of Justice based on those
contacts and the District Attorney's office what effect would
that have on a case?
Ms. Foley. It would have a tremendous effect. It would be a
huge advantage for someone from the Department of Justice to
sort of implant themselves in a State prosecution which
involves State crimes, obviously, only because it would benefit
his former boss, the person for whom he worked.
Again, it would just sort of reemphasize the impression,
the suspicion, that this is a politically motivated
prosecution.
Mr. Fry. I think that's why it's important, too. Let me--
are you aware that Members of Congress have the ability to
remove cases from State Court to Federal Court?
Ms. Foley. Yes.
Mr. Fry. Judges, same thing?
Ms. Foley. Mmm-hmm.
Mr. Fry. There's a bill that I've introduced called the No
More Political Prosecutions Act, which would allow that to
happen. Why might a President or a former President want to
remove the venue from a State district case to a Federal
jurisdiction?
Ms. Foley. Well, the hallmark of Federal judges as opposed
to State judges is they're appointed for life with the advice
and consent of the Senate whereas State judges are generally
elected and so they're more political creatures by nature.
They wear the robes of legislators to a certain extent
because they do have to stand for election. So, you hope to get
neutrality--the political independence from a Federal Court.
Mr. Fry. In your experience does is the jury selection
process more robust at the Federal level than it is at the
State, generally speaking?
Ms. Foley. Yes, absolutely. The voir dire is much more
extensive. The judge controls that process much more in terms
of making sure abuses don't take place.
So, I would assume that, in general, the Federal judicial
process is much tighter and less loosey goosey, I guess is the
way I'd put it, than a State process.
Mr. Fry. Thank you, Ms. Foley. I see my time has expired,
Mr. Chair, soon to be Governor of North Dakota. With that, I
yield.
Mr. Armstrong. The gentleman from Virginia is recognized.
No, the gentleman from Texas is recognized.
Mr. Hunt. Thank you, Mr. Chair.
When a Democrat gets convicted of a crime it's called
political retribution. When a Republican gets convicted of a
crime it's called justice.
This is the justice system that the American people have
seen and come to expect over the course of the past few years,
Soviet style show trials to persecute political enemies.
I keep hearing my colleagues on the left say no one is
above the law and Trump is being treated like anyone else would
be, and we're talking about Trump's conviction only. Is that
true?
In the American justice system, we do find that we target,
then look through the entire life of history to find a crime,
any crime that can be used against them, and then contort the
law to convict that target.
That's what the Manhattan DA Alvin Bragg did, and how do we
know this? That's what he campaigned to do. Do you know who
else campaigned for that? Leticia James, and then they
delivered on their promises.
The No. 3 guy in the Department of Justice, Matthew
Colangelo, even left a high profile job, as you just
articulated, ma'am, in the DOJ to work for a local DA's office
with Alvin Bragg. That's weird.
So, from now until Election Day Democrats will keep calling
President Trump a convicted felon and that's because Alvin
Bragg delivered for his team.
Now, we're talking about a man in President Trump who is
the most investigated person in our country's history and the
only thing that Alvin Bragg could bring up was a zombie crime
that no one else wanted to prosecute.
Speaking of that zombie crime, I and the American people
are still waiting to hear what the underlying crime actually is
and no one can tell us that. The left keeps touting themselves
as the gatekeepers of democracy and that they are the adults in
the room and can impartially administer justice.
I know this doesn't have to do with the Manhattan DA's
office. I understand that. I'd like to highlight a few
political prisoners of the Justice Department.
While Joe Biden and his team are scaring people into
thinking that Donald Trump will put people in jail, Joe Biden
is already putting political enemies in prison that we know of.
Let's start with the 74-year-old economist Peter Navarro
who served in the Trump Administration. Do you know where he is
currently? Peter Navarro is currently sitting in a jail cell in
Miami for not complying with the subpoena from the Democrat-led
January 6th Committee.
How about Steve Bannon? He has to surrender himself by July
1st or he will be arrested. His crime? Not complying with a
subpoena from a Democrat-led January 6th Committee.
Now, let's talk about Eric Holder. Oh, that's right. He
never went to prison. The DOJ decided not to prosecute him
after he ignored a Congressional subpoena during the
investigation into the Fast and Furious scandal.
Does anyone find that hypocritical? Because Lord knows I
do. What about the Attorney General Merrick Garland? He was
just held in contempt by the House yesterday and how many
Democrats are going to jump on the side of Lady Justice now?
I have a prediction. Nobody. In our 250-year history we
haven't had this problem until Joe Biden was sworn into office,
but now we're witnessing the Democratic Party persecuting and
jailing their political opponents including the former
President, our party's nominee and likely the 47th President of
these United States of America.
Biden is right when he says democracy is on the ballot this
November. The only problem is that Joe Biden is on the wrong
side of history. I hope and pray that Alvin Bragg and Colangelo
will show up to testify before this Committee next month. We
have asked them, and we shall see.
Because the American people deserve oversight, we deserve
better, and we deserve accountability. I know it's been a long
day for you all but thank you so much for being here. I really
appreciate it and I yield back the rest of my time. Thank you.
Mr. Armstrong. The gentleman from Virginia is recognized.
Mr. Cline. I thank the Chair.
On May 30th, Donald Trump was found guilty after years of
lawfare by the radical left and this is the result of a justice
system that has been abused and used against the former
President for quite some time.
Ms. Foley, can you explain for us what the primary
jurisdiction doctrine is?
Ms. Foley. Primary jurisdiction doctrine is that Federal
offenses are generally adjudicated in Federal Court.
Mr. Cline. The purpose of this doctrine is to allow an
agency of competent jurisdiction to review the facts to
determine if there was in fact a violation of the laws that the
Federal agency administers, correct?
Ms. Foley. Correct.
Mr. Cline. The theory underlying the doctrines that
Congress has designated these Federal agencies to adjudicate
such questions because the agencies have a special competence
and expertise over factual and legal questions within its
designated mandate, correct?
Ms. Foley. Correct.
Mr. Cline. Was the primary jurisdiction doctrine implicated
in the Manhattan criminal case against President Trump?
Ms. Foley. I'm going to assume so, and I would defer to
Commissioner Trainor on this. FECA is not my area of law, but
what I will say is having looked at the FECA statute in
preparation for this testimony I'm shocked that there's been no
preemption argument here.
Mr. Cline. Commissioner Trainor?
Mr. Trainor. I would agree with Professor Foley on that.
The whole purpose of my testimony was to highlight the fact
that the jurisdiction that was asserted here is jurisdiction
that belongs to the Federal Election Commission that could
ultimately then refer to the Department of Justice.
Mr. Cline. Do you believe the Justice Department should
have intervened to protect both the FEC's jurisdiction and its
own?
Mr. Trainor. Without question.
Mr. Cline. Did the Justice Department intervene?
Mr. Trainor. They did not. They only intervened in the
Federal Election Commission's investigations.
Mr. Cline. So, in other words, the Biden Justice Department
allowed the Manhattan DA's office to usurp both the Justice
Department and the FEC's jurisdiction, correct?
Mr. Trainor. Absolutely.
Mr. Cline. Tell us why is that problematic.
Mr. Trainor. Well, it's problematic because it sets up a
system--well, first and foremost, it allowed the judge to get
the law wrong in this particular case and issue a jury charge
that had to do with willful contributions as opposed to knowing
and willful contributions which is what the law requires to be
proven.
In a larger picture it sets up a standard where you can
have 50 different States trying Federal election crimes under
various standards.
Mr. Cline. Judge Merchan neither stayed nor dismissed the
case on primary jurisdiction grounds, did he?
Mr. Trainor. He did not.
Mr. Cline. In fact, he along with the 12 residents of New
York County decided that issue, correct?
Mr. Trainor. They did.
Mr. Cline. Do you believe that the Trump conviction will be
vacated on the primary jurisdiction grounds?
Mr. Trainor. I think that's definitely a possibility.
Mr. Cline. All right, thank you. I yield back.
Mr. Armstrong. Thank you.
All right. I just want to bookend this thing a little bit
and we know this. The first Federal prosecutor decided not to--
or declined prosecution. Commissioner Trainor told that. The
first DA--Manhattan DA didn't prosecute and then Alvin Bragg
actually campaigned on prosecuting it.
At the core this is false business record entries were used
to cover up a conspiracy to promote an election by unlawful
means. So, the filing of false records is a misdemeanor--the
two-year statute of limitations.
The New York conspiracy is a misdemeanor, two-year statute
of limitations. By combining those two you get to where you can
actually create the felony with statute of limitations.
Outside of anything else and talking about political/not
political this is an unbelievably aggressive use of
prosecutorial discretion. So, the charged offense is the
falsifying business records. The predicate offense is the New
York concealing a conspiracy to interfere.
Here's where my question comes in, and this is--I've
actually read all the jury's selections. The unlawful means is
where we get this grab bag, right, Ms. Foley?
Ms. Foley. Yes, that's where we get three possibilities
instructed by the--
Mr. Armstrong. Basically pick.
I went through the jury instructions and here's my
question. What elements of any of those predicate claims are
unlawful? Conspiracy in and of itself is--so if you charge a
second offense driving under the influence usually the sentence
for a second offense is different than a first offense.
To get to the second offense you have to prove the first
offense beyond a reasonable doubt.
Ms. Foley. Right.
Mr. Armstrong. Now, in those types of cases it's a
certified record of a court judgment. You just put it in the
record. I've objected to just about everything that's ever been
put into court when I was doing this. It's impossible to object
to that.
So, when we're talking about these unlawful offenses and
these three pictured things and dealing with the New York
misdemeanor statute that when you combine with the other
misdemeanor statute you end up getting to this felony and
passed it to your statute of limitations.
Was the jury required to prove any of those underlying
elements beyond a reasonable doubt to any of those crimes?
Because I'm talking about the Fifth Amendment and the due
process part of that.
Ms. Foley. No, and in fact, based on the instructions we
don't even know which of those possible three areas of law the
jury decided--
Mr. Armstrong. Yes, I've read it.
Ms. Foley. --because they didn't have to be unanimous. It's
really more than three laws too, by the way, because the tax
laws that he instructed the jury on could include local, State,
and Federal tax laws.
By the way, the mention of local or Federal tax laws had
never been made at all before at most, right. The prosecution
had mentioned the possibility of State tax laws as being the
first predicate, not second.
Mr. Armstrong. Yes. I'm actually into the third layer of
this because unlawful means--I'm just thinking of--I've never
defended a case in New York. I just never practiced in New
York.
I have defended cases in State Court and I've defended
cases in Federal Court and I'm thinking about arguing against a
case when you--I made my living on if there were seven elements
of a crime.
Winning one of them--like, I don't need to win all seven. I
got to get proof beyond a reasonable doubt on one of the seven
elements and they're not laid out anywhere in this whole
process, are they?
Ms. Foley. No. That's the problem. You don't know how the
jury got to where they got at the end. In fact, you didn't even
know how they could get there until they were instructed, and
then once they were instructed because they could pick and
choose which of the unlawful means they wanted to base the New
York election law violation on you have absolutely no idea why
President Trump was guilty of a felony based on theories of two
different misdemeanors.
Mr. Armstrong. So, I'm glad you said that because I was
busy and doing all these things and I tend to not listen to the
cable news rhetoric and all these different things because I've
actually been in there and I think they get it wrong a lot.
I get through it, I read it, and I'm just thinking how do
you possibly do this and that's where I'm frustrated, and I'm
frustrated with the rhetoric today too, because I've been
criminal of the Administration of Justice since 2003 when I got
sworn into the North Dakota bar.
I've introduced bills on exculpatory evidence, recording
interrogations, crack parity in sentencing, acquitted conduct,
all these things, often times working with the other side of
the aisle.
The nearest I can think of--and I agree with you and I
appreciate you saying it earlier. The jury's only as good as
the instructions they get. I do not criticize the jury.
I get a little frustrated--political demographics and all
that. I've dealt with that. I don't criticize the jury.
Nearest I can figure out anybody who criticizes Judge
Merchan or Judge Bragg--DA Bragg--is causing our criminal
justice system to come crumbling down and democracy itself is
going to fail.
Judge Cannon, Judge Alito, and Judge Thomas are completely
on limits. You can do that whenever you want. So, I think what
it really means is if you don't agree with me, you're a danger
to democracy. If you agree with me, you're perfectly
acceptable.
With that, I yield back.
All right. This concludes today's hearing. We thank our
witnesses for appearing before the Committee today.
Without objection, all Members will have five legislative
days to submit additional written questions for the witnesses
or any additional materials for the record.
Without objection, the hearing is adjourned.
[Whereupon, at 2:36 p.m., the Committee was adjourned.]
All materials submitted for the record by Members of the
Committee on the Judiciary can be found at: https://
docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=117426.
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