[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
HEARING ON THE WEAPONIZATION OF THE
FEDERAL GOVERNMENT
=======================================================================
HEARING
BEFORE THE
SELECT SUBCOMMITTEE ON THE WEAPONIZATION OF THE FEDERAL GOVERNMENT
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
TUESDAY, JULY 9, 2024
__________
Serial No. 118-89
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
56-300 WASHINGTON : 2024
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
------
SELECT SUBCOMMITTEE ON THE WEAPONIZATION OF THE
FEDERAL GOVERNMENT
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California STACEY PLASKETT, Virgin Islands,
THOMAS MASSIE, Kentucky Ranking Member
ELISE M. STEFANIK, New York STEPHEN LYNCH, Massachusetts
MATT GAETZ, Florida LINDA SANCHEZ, California
KELLY ARMSTRONG, North Dakota DEBBIE WASSERMAN SCHULTZ, Florida
W. GREGORY STEUBE, Florida GERRY CONNOLLY, Virginia
DAN BISHOP, North Carolina JOHN GARAMENDI, California
KAT CAMMACK, Florida SYLVIA GARCIA, Texas
HARRIET HAGEMAN, Wyoming DAN GOLDMAN, New York
WARREN DAVIDSON, Ohio JASMINE CROCKETT, Texas
RUSSELL FRY, South Carolina
CHRISTOPHER HIXON, Majority Staff Director
CAROLINE NABITY, Chief Counsel for Oversight
AARON HILLER, Minority Staff Director & Chief of Staff
CHRISTINA CALCE, Minority Chief Oversight Counsel
C O N T E N T S
----------
Tuesday, July 9, 2024
OPENING STATEMENTS
Page
The Honorable Jim Jordan, Chair of the Select Subcommittee on the
Weaponization of the Federal Government from the State of Ohio. 1
The Honorable Stacey Plaskett, Ranking Member of the Select
Subcommittee on the Weaponization of the Federal Government
from the Virgin Islands........................................ 3
WITNESSES
Bradley A. Smith, Professor of Law, Chair, Capital University Law
School
Oral Testimony................................................. 6
Prepared Testimony............................................. 8
Jonathan Fahey, Partner, Holtzman Vogel, PLLC
Oral Testimony................................................. 21
Prepared Testimony............................................. 00
The Hon. John H. Wilson, Former Criminal Court Judge, Bronx and
Kings County
Oral Testimony................................................. 32
Prepared Testimony............................................. 34
Shanlon Wu, Former Federal Prosecutor, Current CNN & MSNBC
Contributor
Oral Testimony................................................. 46
Prepared Testimony............................................. 48
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted for the record by the Select Subcommittee
on the Weaponization of the Federal Government are listed below 82
Materials submitted by the Honorable Jamine Crockett, a Member of
the Select Subcommittee on the Weaponization of the Federal
Government from the State of Texas, for the record
An article entitled, ``NYPD Announces April 2024 Citywide
Crime Statistics,'' May 7, 2024, New York Police
Department
An article entitled, ``NYPD Announces May 2024 Citywide Crime
Statistics,'' Jun. 5, 2024, New York Police Department
Materials submitted by the Honorable Stacey Plaskett, Ranking
Member of the Select Subcommittee on the Weaponization of the
Federal Government from the Virgin Islands, for the record
The Merchan Judicial Ethics Opinion, New York Courts, Opinion
23-54, May 4, 2023
An article entitled, ``Judge in Trump criminal hush-money
case can stay, New York ethics panel signals,'' Jun. 12,
2023, Reuters
An article entitled, ``Complaint dismissed against Trump
hush-money judge who donated to Biden,'' May 17, 2024,
Reuters
An article entitled ``Judge in Trump's hush money trial did
not bar campaign finance expert from testifying for
defense,'' May 21, 2024, AP News Fact Check
APPENDIX
A statement from the Honorable Sylvia Garcia, a Member of the
Select Subcommittee on the Weaponization of the Federal
Government from the State of Texas, for the record
QUESTIONS AND RESPONSES FOR THE RECORD
Questions to Shanlon Wu, Former Federal Prosecutor, Current CNN &
MSNBC Contributor, submitted by the Honorable Sylvia Garcia, a
Member of the Select Subcommittee on the Weaponization of the
Federal Govern-ment from the State of Texas, for the record
No response at the time of publication
HEARING ON THE WEAPONIZATION OF THE
FEDERAL GOVERNMENT
----------
Tuesday, July 9, 2024
House of Representatives
Select Subcommittee on the Weaponization of the Federal Government
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to notice, at 10:29 a.m., in
Room 2141, Rayburn House Office Building, the Hon. Jim Jordan
[Chair of the Subcommittee] presiding.
Members present: Representatives Jordan, Issa, Gaetz,
Armstrong, Steube, Bishop, Cammack, Hageman, Davidson, Fry,
Plaskett, Lynch, Wasserman Schultz, Goldman, and Crockett.
Chair Jordan. The Subcommittee will come to order. Without
objection, the Chair is authorized to declare a recess at any
time. We welcome everyone to today's hearing on the
Weaponization of the Federal Government. The Chair recognizes
the gentleman from Ohio, Mr. Davidson, 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. Again, I want to thank everyone for joining
us. We apologize for the delay. The Democrats have an important
caucus they are at or conference they are at, and we had some
technical difficulties here. The Chair will now recognize
himself for an opening statement.
Alvin Bragg's prosecution of President Trump is lawfare at
its worst. The New York County District Attorney's Office began
investigating President Trump in 2018. The Southern District of
New York months later concluded its investigation into the
payments by Michael Cohen and determined no charges should be
brought against President Trump. While this was going on, Alvin
Bragg was running for the job. While on the campaign trail, Mr.
Bragg boasted about the number of times he had already sued
President Trump. In January 2021, Mr. Bragg said, ``I am the
candidate in the race who has the experience with Donald
Trump.'' He said that it would be hard to argue with the fact
that any case against President Trump would be the most
important, most high-profile case. Mr. Bragg won and took
office in January 2022. A few weeks after taking office, he
told one of his prosecutors, Mark Pomerantz, ``He could not see
a world in which he would indict President Trump and call
Michael Cohen as a prosecution witness.'' That is right. After
campaigning on going after the former President, Bragg gets
into office and realizes the case against President Trump is
ridiculous. That is why the Southern District of New York
didn't bring it. That is why his predecessor, Cy Vance, didn't
bring it. Why did Bragg change his mind? Mark Pomerantz,
Special Assistant District Attorney, resigned in protest and he
and his fellow Assistant District Attorney, Carey Dunne, leaked
their resignation letter to The New York Times. After that, the
left began the pressure campaign on Alvin Bragg and suddenly
the zombie case was resurrected.
One of the first things Alvin Bragg did was hire Matthew
Colangelo, a top official in the Biden Justice Department who
had a history of taking on President Trump and his family's
businesses. It is also interesting to note who Mr. Colangelo
listed as his references when he applied for the job at the
Justice Department. He listed Tom Perez, former DNC Chair, and
Jeff Zients, who is now President Biden's Chief of Staff. That
is right, head of the DNC and the Biden White House Chief of
Staff, those were his references. That is the guy who went to
work to be the lead prosecutor on the case against President
Trump. Alvin Bragg, Matthew Colangelo picked their target,
searched for a crime, and then they prosecuted President Trump.
The 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, also had their case in
front of the partisan judge, the judge who donated to President
Biden, who imposed a gag order on President Trump, who told the
jury they didn't need to reach a unanimous decision and
prevented one of our witnesses today, Mr. Smith, an expert on
campaign finance, from giving real testimony to the court.
Today, Mr. Smith will be given an opportunity to tell
Congress and tell the country what he wasn't permitted to tell
the court, what he wasn't permitted to tell the jury. Remember,
Bragg and Colangelo bootstrapped charges that are normally
misdemeanors to some underlying crime to make the charges a
felony. What was the underlying crime? Prosecutors didn't
reveal that until after the trial began.
Mr. Colangelo, in his opening statement, accused President
Trump of violating the Federal Elections Campaign Act. The
problem is a plain reading of that act doesn't support the
indictment or the verdict. As Mr. Smith stated,
Allowing this prosecution to go forward and the ultimate jury
decision threaten the enforcement procedures established by
Congress under the act and stressed the meaning of the statute
in such a way as to threaten due process of law.
Although Judge Merchan wouldn't permit the leading expert
on campaign finance to provide this testimony, he did let
someone else speak in the court on this issue and others,
Michael Cohen. Michael Cohen, a convicted perjurer, someone
even his former lawyers said you couldn't trust, Michael Cohen
who lied to Congress, lied to the FBI, and lied to the court.
It is not often you have a witness that can lie to all three
branches of Government and then become the star witness in the
prosecution of a former President. That is exactly what took
place in New York.
It is clear Manhattan District Judge Juan Merchan's
decisions, guided by political bias, unfairly prejudiced the
outcome of the trial, and violated President Trump's due
process rights. Bragg's prosecution of President Trump with the
help of Judge Merchan opened the door for politically motivated
prosecutions, and it will not be easy to undo the damage that
has already been done.
As we have seen, other ambitious prosecutors have followed
Bragg's lead and pursued politically motivated indictments
against the former President. Rather than debate political
opponents on substance, the Democrats' strategy to win the 2024
election is through the use of partisan lawfare tactics. These
politically motivated local prosecutions raise substantial
Federal interest and potential collusion between Federal and
State authorities and that is precisely why we are here today.
Alvin Bragg's prosecution of President Trump was personal. It
was based on politics, and it was wrong.
I now recognize the Ranking Member for an opening statement
and then we will get to our witnesses.
Ms. Plaskett. Thank you, Mr. Chair. Good morning. Thank you
to our witnesses for being here. I would especially like to
thank witness, former U.S. Federal Prosecutor, and former
United States Department of Justice Attorney Shan Wu; my
colleagues. Thank you to the American people watching around
the country for joining another hearing of the Congressional
Committee to undermine American independence and to defend
Donald Trump.
From the early days of our Nation's formation, our Founding
Fathers were very clear. The upkeep of democracy requires
constant proactive maintenance. In his letters to fellow
Founding Father and his political opponent, John Taylor, then
former President John Adams wrote: ``Democracy has never been
and never can be so durable as aristocracy or monarchy.''
Remember, democracy never lasts long. It soon wastes, exhausts,
and murders itself. There never was a democracy yet that did
not commit suicide. Those passions are the same in all men,
under all forms of government, when unchecked produce the same
effects of fraud, violence, and cruelty. American democracy has
always been a question of progress, not finality. Democracy has
been given to us with the blood, sweat, tears, and efforts of
Americans who came before us, who struggled long and hard to
build and protect every democratic institution we have. Indeed,
our country's dark past, the very foundation of our economic
juggernaut in the world, is premised on a sick institution
called slavery that some now want to even erase. This democracy
that our ancestors struggled to bring us all into, these
rights, some of which some Americans do not even have all, are
fragile.
Remember that the great Republic of Rome was destroyed.
Greece was destroyed. Germany of the early 20th century
destroyed. Spain. These great empires are gone. Human history
is laden with examples of great nations, republics, and
democracies that were once beacons of human progress and
eventually destroyed by hubris, autocrats, and the rabid
ambitions of an empowered few. Falls do not happen overnight,
but the signs are there if you want to see them. Those
republics, those democracies slowly, but surely, rights are
stripped away.
My fellow Americans, that is happening here in this
country. The right for a woman to choose what to do with her
body, stripped away in 15 States. Immigrant children being
stripped away from their families. The gains of Blacks for fair
representation, voting rights, recognition of the historic lack
of creating an even playing field stripped away. Slowly, but
surely, the structures, the laws, and the institutions intended
to make the Nation great have been and continue to be eroded,
not to mention the souls of the human race and minorities being
eroded every day by injustices.
We have a blueprint that we can see how that is being done.
Project 2025 plans to upend structures, institutions, and the
basic rights that are supposedly been afforded to Americans to
make it great. It is a playbook for Donald Trump's second term
and a plan for the destruction of America as we know it.
Despite flashy headlines printed over American flags and the
likes of obnoxious men who give loud speeches about their love
for making America great again, Project 2025 delivers no such
thing. Project 2025 will slowly, but surely strip away our
rights.
I have asked for a hearing about Project 2025, because I
believe it is a dire warning to us all individuals and others
around him desire to Weaponize the Government for their own
empowerment. It will rip our experts out of agencies to be
replaced by sycophant political appointees. It will strip women
of even more healthcare access and rights. It will further
dehumanize undocumented immigrants and punish their family
members even those who are American citizens for daring to be
associated with them. They will restrict free speech in schools
to only allow far right approved agendas and curriculum. It
will erode our freedoms all under the vague guise of making
America great.
Yes, because it is a grand Republican plan, Project 2025
calls for severe cuts to Medicare and Social Security. I am not
just saying that. The authors of Project 2025 are saying that.
Here is a video outlining that.
[Video plays.]
Ms. Plaskett. Playing patriotic music, claiming to love
freedom, demonizing every group in the Nation that is not like
you, will not protect you and your civil rights. The Project
2025 playbook is a plan to give Donald Trump the powers of a
dictator just as he wants. That is the plan. This is the man
who threatened to send the Department of Justice after
political opponents. Trump even sent his lawyers to the Supreme
Court to argue that he should have criminal immunity even if he
uses the military to assassinate someone who simply disagrees
with him. We heard his Secretary of Defense say that he asked
the military to shoot people because they were protesting. Yes,
that is what his Defense Secretary said on TV and there are
recordings of it. This is the man who jokes about being a
dictator just for a day and teases the idea of a third term for
U.S. Presidents. This is a man who wants to implement sycophant
loyalty tests. He is a man who fire every employee in every
agency who upholds their pledge to serve their country over the
President. Donald Trump is a clear and present danger to the
continuation of American democracy as we know it.
We are using this Congressional Committee for the third
time to attack a State level felony conviction of a former
President by a jury of his peers. Republicans on this Committee
have used $20 million of Federal taxpayer dollars to deliver
Trump more power and attack his rivals. They are threatening
public servants far outside their legal jurisdiction and even
threatening private citizens who dare not to give Trump what he
wants. The reign of Lord Trump has already begun, and he isn't
even in a second term.
It is vital we remember our Founding Fathers principles and
that we see Project 2025 for what it is, a Republican plan to
slowly, but surely strip away rights. This is about freedom
versus fascism. I beg every American watching don't be fooled
by plastic patriotism. Don't be fooled by those rhetorically
referring to freedom without the substance to back it up
without any care for all people's rights. True understanding of
freedom comes from respecting the sacrifices of our ancestors,
our democratic institutions, and a robust rule of law. Our
country is not and has never been perfect, but our country is
great, and it is our duty to keep it that way. Our country has
never shied away from improving our flaws, but what is being
promoted is a distraction. It is counterproductive and
threatens years, decades, and centuries of progress. Let's keep
moving forward. Let's not go back to the dark times. I yield
back.
Chair Jordan. The gentlelady yields back. Without
objection, all other opening statements will be included in the
record. We will now introduce today's witnesses.
The Honorable Brad Smith is the Josiah H. Blackmore II and
Shirley M. Nault Professor of Law at the Capital University Law
School. Professor Smith previously served as commissioner on
the Federal Elections Commission, including a term as Chair.
Mr. Jonathan Fahey is a partner at Holtzman Vogel. He is a
former prosecutor having served for 17 years in the U.S.
Attorney's Office for the Eastern District of Virginia. Mr.
Fahey also served in various positions at the Department of
Homeland Security, including as Acting Director of U.S.
Immigration and Custom Enforcement.
The Honorable John Wilson is a former judge having served
on the Bronx County Civil Court and Kings County Criminal Court
for 10 years. Judge Wilson also previously served as a
prosecutor in the Bronx County District Attorney's Office and
in private practice. Following his departure from the bench,
Judge Wilson served as Chief Prosecutor for the Standing Rock
Reservation in Fort Yates, North Dakota.
Mr. Shan Wu is an attorney focusing on white collar defense
in cases involving college students. He previously served as a
Federal prosecutor and is counsel to former Attorney General
Janet Reno. He also works as a contributor for CNN and MSNBC.
We welcome our witnesses and thank them for appearing today.
We will begin by swearing you in. Would you please rise and
raise your right hand? Do you swear or affirm under penalty
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 reflect that the witnesses have answered in
the affirmative. Thank you. Please be seated. Please know your
written testimony will be entered into the record in its
entirety. Accordingly, we ask that you summarize your testimony
in approximately five minutes. We are going to just move right
down the line like we introduced you. We will start with
Professor Smith and go right down and finish with Mr. Wu.
So, Mr. Smith, you are recognized for five minutes.
STATEMENT OF BRADLEY A. SMITH
Mr. Smith. Thank you, Chair Jordan, Ranking Member
Plaskett. In the written testimony today, I explain at length
why the convictions of Donald Trump in New York in May because
they relied in the end on alleged violations of the Federal
Election Campaign Act, or FECA, were incorrect as a matter of
law and I discuss some of the errors of law made by prosecutors
and judges in the case.
To quickly summarize, the payments that were made to Stormy
Daniels were not under current law and should not be as a
matter of policy treated as campaign expenditures and thus,
Michael Cohen's brief fronting of the money which was repaid to
him shortly thereafter does not constitute an illegal
contribution. Moreover, the prosecution theory that the
defendant Trump had to engage in a vast conspiracy because of a
desperate desire to hide Storm Daniels' allegations from the
public and thus ignore campaign finance laws simply makes no
sense because even had they treated these as campaign
expenditures which again I think they were correct not to do
so, nothing would have come out before the election. As I
explained under the reporting schedules, nothing would have
been reported until after the election and the idea that
illegality was needed is simply laughable.
In fact, Donald Trump and the Trump for President campaign
had plenty of cash to pay for the Daniels nondisclosure
agreement as of October 27, 2016. They did not need Michael
Cohen to front them money for that purpose. Further, even
assuming the expense was a campaign expenditure, no public
disclosure of the expense would have been required until 20
days after the election and repeatedly, the prosecution
emphasized that the main desire of Trump was to hide this
information until after the election.
As a practical matter then, having Michael Cohen front the
money for the nondisclosure agreement between Mr. Trump and
Stormy Daniels could have no influence on the 2016 election,
despite the repeated claims by the prosecution that that was
the core of the case. This undercuts the entire theory of the
case offered by the prosecution.
This is explained in my written testimony. I would be happy
to answer question son that as we go forward, but right now I
just want to emphasize that this New York prosecution is
something that is a very bad precedent, let's just put it that
way. Not only because it threatens the rule of law, and
generally, we have not short--in our defense of democracy we
have not been willing to shortchange procedures of law, but
because it also threatens the bipartisan campaign enforcement
system established by Congress. If allowed to stand, any State
could do what New York has done. That is, pass a law making it
a felony to try to influence an election by unlawful means.
Then the State Court could effectively try defendants for those
alleged violations of FECA.
Remember, in the Trump case, there was no finding by the
Department of Justice that Trump had violated the law and they
decided not to pursue it. There is no finding by the Federal
Election Commission that Trump had violated the law. They also
decided not to pursue it. No Federal body had found violations
here. Effectively, the State was simply making up the law and
enforcing Federal law in a partisan--elected judges, elected
prosecutors, unlike the nonpartisan, bipartisan system set up
by the Federal Election Campaign Act.
The Members of this Committee, and there are several who
live in States that are dominated by the opposing party at a
State level might want to take heed of that possibility that
this game can be played in many different ways. One can run the
risk of being prosecuted for violating FECA even though the FEC
found no wrongdoing.
It should be pointed out here that Judge Merchan during the
case took great pains to make sure that the jury was not
informed that neither the Department of Justice nor the Federal
Election Commission had decided not to pursue allegations
against Mr. Trump, but at the same time allowed in repeatedly
statements by the prosecutors and by witness Michael Cohen,
stating that he had clearly violated the law and there was no
doubt about that and thus implying that Mr. Trump had done so
as well.
It is worth noting in the end that it is ripe for this
Committee, I guess I would say this, it is ripe for this
Committee to take up this issue because it is a Federal issue,
not only of due process, but of that enforcement of the statute
and we could have a tremendous amount of chaos and every
Federal campaign will be governed essentially by whatever one
can get a State judge and a State jury to do. That is not how
the Federal Election Campaign Act was set up and that is not
how this should be pursued.
So, I hope that this body will recognize that this is
clearly a Federal issue and not only are there major
constitutional questions about due process, but again, it may
even be something where some legislation is necessary to make
sure that State Prosecutors cannot try this again. Thank you.
[The prepared statement of Mr. Smith follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chair Jordan. Thank you, Professor.
Mr. Fahey, you are recognized for five minutes. Make sure
you have your mic on and pull it close.
STATEMENT OF JONATHAN FAHEY
Mr. Fahey. Thank you. Good morning, Chair Jordan, Ranking
Member Plaskett, and Members of the Committee. I thank you for
the opportunity to testify here today.
My name is Jonathan Fahey, and I am an attorney with the
law firm of Holtzman and Vogel. I am in private practice now,
but I spent most of my 25 years as an attorney, as a
prosecutor, both as a State and Federal prosecutor. The reason
I went to law school was because I wanted to be a prosecutor. I
didn't want to be a law firm lawyer or anything else. I wanted
to be a prosecutor and the reason for that is my mom, when I
was growing up, my mom was an Assistant Commonwealth's Attorney
in Arlington County, Virginia, and then she was eventually
elected to the Commonwealth's Attorney as a Democrat in
Arlington and later appointed by President Clinton to be the
United States Attorney for the Eastern District of Virginia.
I learned from my mom--I would go to court. I would
sometimes watch trials and things like that, but I learned from
her about the importance of being a prosecutor in terms of what
it means to the public in terms of public safety, but I also
learned what it meant to administer justice, to be fair when
you are entrusted with so much power, how you administer that
reflects not only on the person that is the subject of that,
but as the whole community, how we treat the accused, how we
treat the most vulnerable victims. I learned from her that
being a prosecutor really wasn't a partisan job. It was a
public safety job. It was a speaking for victim's job. That is
the way it had really been in Virginia where I live and most of
the country up until about 10 years ago. I say that because you
could go through the country and you could see prosecutors that
are Democrats, prosecutors that are Republicans, but they
really approached the job the same way until recently.
I began my career after law school, after clerking in State
Court, I became a State Prosecutor in Fairfax County. There, I
served under Bob Horan, who was an elected Democrat, and he had
been the Commonwealth's Attorney for probably 30 years or so at
that point. I had the opportunity to prosecute cases anywhere
from the lowest level misdemeanor cases to the most violent
felons. Again, I learned a lot of lessons there, but the most
important lesson I learned as you are entrusted with so much
power from the position, from the community, and how you
administer that power is what is most important. You don't
prosecute people because you don't like them, or you have some
other ulterior motive. You prosecute them because they violated
a law, and you are treating people equally regardless of the
political motivations or political parties or anything else
they might have.
I went over from the Commonwealth Attorney's Office to the
U.S. Attorney's Office in the Eastern District of Virginia
where I served for 17 years. I served under multiple
administrations from George W. Bush, Obama to President Trump.
Also, what I learned there, no matter who was within that
office, people were professional. I had a chance to work with
the most talented attorneys I have ever worked with and one
thing during that tenure, people's political--whatever their
political leanings were, you rarely knew other than maybe
outside of work. While I was there, the opportunity to
prosecute drug traffickers, gang members, fraudsters, other
types of crimes, I also had the opportunity to prosecute--to
train younger prosecutors on how to prosecute cases, ethics,
things of that nature.
The reason I go into my background, and I know the time is
short is the reason I am here today I would say, is because of
the progressive prosecutor movement funded by these outside
groups. This started about 10 years ago, these progressive
prosecutors being elected through funding from outside groups
as mostly in Democrat jurisdictions. They defeated incumbent
Democrats, and the movement basically is sort of the underlying
premise was the entire system was unjust, therefore, the
prosecutor can do whatever they want. You saw that in
Philadelphia. You see it in Chicago which, incidentally, I
think had 100 plus people shot over the weekend. You see it in
L.A., other places, and essentially what these prosecutors have
done is to institute what they would call criminal justice
reform. They would go into office, and they would nullify any
laws they did not like. That seems somewhat benign in some
respects, but the problem with it, as you see with Alvin Bragg,
which I will get into briefly at the end of my five minutes
here, but Alvin Bragg has taken this--he was a progressive
prosecutor in New York. He ran on this progressive prosecutor,
I guess, as a progressive prosecutor, and when he got into
office, his main theme was deciding not to prosecute cases,
basically not prosecuting any misdemeanors whatsoever, reducing
misdemeanors to felonies, and reducing serious felonies to
lesser felonies.
So, all his theme for running, his in-office practice has
led to New York the last two years has the highest crime rate
on the big seven crimes in the last 20 years. He has taken this
a step further because again, it is somewhat benign to say I
won't prosecute trespassing, but this sort of opened the door
for the political prosecution of Donald Trump which, as we have
seen, now it has taken from not prosecuting to identifying the
political opponent and prosecuting them for political reasons.
I will talk to somewhat in my testimony hopefully about the
reasons behind the prosecution, the errors in the case, and how
the immunity decision affects the case and I thank you for your
time and I look forward to your questions. I apologize for
going a little bit over.
[The prepared statement of Mr. Fahey follows:]
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Chair Jordan. That is fine, Mr. Fahey.
Thank you. Judge, you are recognized for five minutes.
STATEMENT OF JUDGE JOHN H. WILSON
Judge Wilson. The Members of the House Judiciary Committee,
thank you for the opportunity to appear before you to discuss
the criminal trial of former President Donald Trump held before
Judge Juan Merchan in New York County Supreme Court Criminal
Term earlier this year.
As you may be aware, I served as a criminal court judge for
both Kings County and Bronx County, New York City from 2005-
2014. For five years of my term, I served as a Night Court
Arraignment Judge in Kings County where I was designated an
Acting Supreme Court Justice. Before my election to the bench
in 2004, I served as an Assistant District Attorney in Bronx
County and as a Criminal Defense Attorney. Although I never
tried a felony case as a judge, I tried a number of felony
cases as defense counsel including homicides, child
molestation, drug sales, et cetera. I was involved in all
phases of criminal litigation for approximately 30 years. I
have sat in all three seats, prosecutor, defense counsel, and
judge. I do not personally know Judge Juan Merchan, but I am
intimately familiar with the New York County Supreme and
Criminal Court, having spent most of my career in those
courtrooms.
Based on my experience, I can tell you in no uncertain
terms that former President Trump did not receive a fair trial
from Judge Juan Merchan. In fact, if the Court of Appeals is
fair, and I believe the Court will be fair based on a reversal
of Harvey Weinstein's illegal conviction, Donald Trump's
conviction is a sure reversal, a reversal that will be premised
on the fundamental errors committed by Judge Juan Merchan.
If I may be blunt, Donald Trump was railroaded, and Juan
Merchan was the driver of that train. For the purpose of this
statement, I would like to concentrate on the most glaring
problems presented by Judge Merchan's conduct of this trial. I
believe the following:
(1) The indictment is legally insufficient, and Judge
Merchan should have dismissed the indictment before trial. In
my book, ``The Making of a Martyr: An Analysis of the
Indictments of Donald Trump,'' I wrote in my review of the New
York County indictment revealed that Donald Trump was accused
of causing a false entry to be made in his business records for
the purpose of concealing or committing another crime. What
other crime? The indictment does not say. Simply put, how was
former President Trump to prepare a defense if he is not
informed of the other crime he intended to commit or conceal
when he allegedly falsified his business records? Judge Merchan
was obligated to dismiss an indictment that failed to identify
the underlying crime.
(2) The failure to dismiss the indictment led to charges
being added during trial that were not included in the
indictment. In doing so, former President Donald Trump was not
given a fair chance to prepare a defense to these added
charges, thus, depriving him of his right to prepare a defense.
This was a violation of Donald Trump's right to fundamental
fairness and notice of the charges he faced prior to trial.
Further, the jury instructions given by Judge Merchan were
illegal and they included these additional charges and allowed
for a nonunanimous verdict. A nonunanimous verdict is
unprecedented in any felony trial in American jurisprudence and
recently, the U.S. Supreme Court reiterated the necessity for a
unanimous jury verdict in the case of Erlinger v. United
States.
(3) Judge Juan Merchan made unconstitutional prejudicial
rulings that impacted Donald Trump's ability to present a
defense and that he allowed the prosecutor to use civil
penalties and uncharged sexual assault charges against Donald
Trump where he had testified in his own defense. This deprived
the former President of his right to present evidence in his
own defense and was the very basis for the Court of Appeals
reversal of the conviction of Harvey Weinstein earlier this
year.
(4) Judge Merchan should have recused himself from
presiding over this matter, based on the appearance of
impropriety and having contributed to political campaigns
regardless of the amount, and based on his daughter's political
activities, regardless of the ethics opinions he received which
absolved him of any actual unethical activity.
There are, of course, other appellate issues which exist in
this case: Allowing the prosecution to claim Federal election
law violations without presenting any evidence to support those
allegations, not allowing the defense to present the witness
regarding Federal election law after allowing the prosecution
to make the aforementioned statements; and allowing Stormy
Daniels to testify, knowing that the prejudicial effect of her
testimony outweighed any probative value are several.
It is my belief, however, that the ones that I have
outlined are the strongest issues to be presented on appeal.
Therefore, it is my considered opinion, based on my years of
legal training and experience, that former President Donald
Trump did not receive a fair trial. Judge Juan Merchan failed
in his obligation to be fair and impartial, that Judge Merchan
committed a series of errors that necessitate a reversal of
this conviction.
To be direct, I do not believe anyone can reasonably State
that former President Trump received a fair trial in New York
County Supreme Court from Judge Juan Merchan. Thank you for
your attention. I will be happy to answer your questions.
[The prepared statement of Judge Wilson follows:]
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Chair Jordan. Thank you, Judge.
Mr. Wu, you are recognized for five minutes.
STATEMENT OF SHANLON WU
Mr. Wu. Thank you. Good morning, the Members of the
Subcommittee, and thank you, Chair Jordan and Ranking Member,
Ms. Plaskett, for inviting me here today.
My name is Shan Wu. I'm the child of immigrants from China
who came here seeking freedom and to avoid political
persecution under the communist government there. They came
here as graduate students, and after the communist revolution,
they were stranded here and made a life here.
Luckily for me, they did come here because they didn't know
each other in China. So, they met here, and they had me. They
instilled in me a great love for family, despite the fact that
I had no extended family growing up, as well as a very strong
sense of public service.
My father served under two New York City Mayors as a New
York City Human Rights Commissioner, and his example of public
service led me to attend law school, and then, later, to become
a Federal prosecutor, where I served as an Assistant U.S.
Attorney for 10 years, and had the privilege in the last year
of the Clinton Administration to serve as counsel to then-
Attorney General Janet Reno.
From that particular position, where my portfolio included
liaisoning, for the Office of Pardon Attorney, overseeing
various criminal issues, as well as briefing the Attorney
General on a number of daily issues that would arise in the
Justice Department, it gave me very much of a bird's eye view
of the kinds of issues and the approach that the Department
takes as, what is appropriately calling them, the ``Nation's
law firm.''
It is through this lens that I give you my personal opinion
today, which does not reflect the opinions of my law firm,
McGlinchey Stafford, or any other entities. The view that I
have of the recent conviction of the former President in the
Manhattan DA, Alvin Bragg's case, where he was convicted of 34
felony counts; and also, my impressions of the recent
Presidential immunity decision by the Supreme Court, and
whether or not that affects the verdict in that case in any
way, and last, my views that there is a growing shadow, a
threat to American democracy, presented by many of the former
President's views, as well as the way that those views are
expressed in certain types of writings, such as the Plan for
Presidential Transition, known as ``Project 2025.''
In particular, because of my experience at the Justice
Department, I would highlight some of the issues with these
plans as they relate to the Justice Department. When I was at
the Justice Department, I found that there was enormous value
in the career employees there. They were the heart and soul of
the Department, the conscience, as well as the institutional
wisdom there.
I remember on an almost daily basis, when there were thorny
issues, new issues that came up, that Mr. Reno, the Attorney
General, would always want to know what the ``take'' was from
career civil servants there. It was not just the more famous
ones, such as David Margolis or Jack Keeney, who served for
decades at the Department, but the rank-and-file people who
were unsung hero's who always provided their best advice.
That advice is important because they, as career employees,
their tenures cut across Administrations. They weren't simply
put in there by the latest Administration, and therefore, they
did not always reflect the political views, or even the policy
goals, of the new Administration. In that sense, they supplied
a very healthy buffer zone to make sure that whatever new
policy ideas would be measured against what the Department had
done in the past and what their experience told them was wise
for the Department.
To me, that gives the institution both a sense of integrity
as well as steadiness. That kind of steadiness and integrity is
what allows the American people to have confidence in their
institutions.
My parents were cutoff from their families, but they stayed
here, and they stayed because of the great love of the freedoms
that this country has tried to give all its people. As I see
the current climate today, one of my concerns is that those
freedoms are endangered by an increasing trajectory toward
authoritarianism, autocracy, and even dictatorship types of
tendencies.
My testimony is prepared in writing as well, and, of
course, I am very happy to answer any questions.
[The prepared statement of Mr. Wu follows:]
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Chair Jordan. We will now proceed under the five-minute
rule.
The Chair recognizes the gentleman from Ohio for five
minutes.
Mr. Davidson. I thank all our witnesses. I thank the Chair
for holding this meeting.
In my eight years in Congress--I came in June 2016--we have
seen an unprecedented amount of weaponized government. We have
seen it abused in every way imaginable. This isn't a new
phenomenon. As Bastiat recognized,
When law and morality contradict each other, the citizen has
the cruel alternative of either losing his moral sense or
losing his respect for the law.
Frankly, the radicals are counting on it. We've seen the
IRS go after religious and conservative nonprofits; the ATF go
after law-abiding gun collectors; prolife grandmothers sent to
prison for years for peaceful protests here in Washington, DC;
parents targeted for speaking up at school board meetings; and
fintech companies targeted and debanked because they posed a
threat to the status quo. The list goes on.
The American Bar Association estimates that there are some
400,000 potential crimes that agencies can prosecute that exist
between the Federal Code and mountains of politicized
rulemakings and regulations--hopefully, thinned out by the
recent Chevron deference decision and the administrative law
judge decision, and some other good ones over the past two
weeks.
The average American likely commits something that can be
construed by a corrupt prosecutor as a Federal crime. What
happened to President Trump can happen to any American who has
the audacity to upset someone in a powerful position. That's
not supposed to happen in the United States of America.
Western civilization is based on the rule of law and that
this law must be both impartially administered and fairly
adjudicated. Kangaroo court spectacles, such as what we
witnessed in New York, are fundamentally an attack on and
perversion of the rule of law and its foundation in our
society.
The list of abuses to railroad President Trump is obscene
and outrageous but calling it that is an understatement. Let's
be clear. Alvin Bragg campaigned openly on his persecution of
President Trump. This was clearly a political act, and that is
the only reason this case was designed and executed against the
current administration's political enemy.
Professor Smith, has there ever been a citizen not named
Donald Trump that has been prosecuted with these same crimes
anywhere in America?
Mr. Smith. Well, it depends on what one considers the
crime. For example, they'll say, ``Well, lots of people are
prosecuted for false records under New York law.'' What they're
not prosecuted for is for false records covering up a crime
under New York law that makes it illegal to violate some
unnamed law to influence an election. No, I have never seen
anything like that.
Mr. Davidson. Has anyone ever successfully paid a hush
money settlement to anyone and counted it as a campaign
expense?
Mr. Smith. Well, not that I know of, and I think common
sense would tell us that paying for a nondisclosure agreement,
or any kind of legal settlement, is not, based on things done
outside of office, like 10 years before you were a candidate,
is not a campaign expense. We wouldn't want it to be, because
if you think about it, that will mean that candidates could use
their campaign funds for exactly that kind of payment.
Mr. Davidson. It would be a horrible precedent.
Mr. Smith. Right, yes.
Mr. Davidson. Every day we see headlines coming out of New
York City, illegal immigrants, all kinds of cases, and some of
you in your opening statements highlighted how, Mr. Fahey
highlighted, in particular, how Alvin Bragg ran on this
progressive platform as a prosecutor.
As a former prosecutor, in your career, if you were never
bound by the Sixth Amendment, if you could turn any action
retroactively into a crime, if you could bias a jury by
whatever means you wanted to, is there a single citizen in
America who would be safe from a politicized prosecution?
Mr. Fahey. I don't really think so. If you really targeted
someone and looked for a way to charge them, I don't want to
say there--I'm sure there's some people that could not be,
theoretically, but there are so many people that would be
vulnerable to being prosecuted if somebody is targeting them
for political reasons, or whatever reasons. That's really
what's scary about this.
Your point with Alvin Bragg with--it's funny that, on one
hand, he runs on not prosecuting the law, and then, all of a
sudden, on this case, it's this is the most aggressive stance
that's ever been taken probably on these sorts of--
Mr. Davidson. Clearly, not the rule of law and--
Mr. Fahey. Right. Crime is going through the roof. Seven,
yes, the seven biggest felonies the last few years are the
highest years since 1906. So, it's like he's not prosecuting
the law equally or against other people and more serious
criminals.
Mr. Davidson. Yes. Thank you.
Look, Judge Wilson, you referenced it in your statements
about the precedent and the Court's recognition in Andres v.
The United States. As early as 1898, the Court said that a
defendant enjoys a, quote,
Constitutional right to demand that his liberty should not be
taken . . . except by the joint action of the court and the
unanimous verdict of a jury of 12 persons.
Now, I thank Chair Jordan for holding this vital hearing
today. What we are witnessing is an unprecedented attack on the
rule of law and a weaponization of our criminal justice system,
and it's a shame.
I yield back.
Chair Jordan. The gentleman yields back.
The gentleman from Massachusetts is recognized for five
minutes.
Mr. Lynch. Thank you, Mr. Chair, and thank you to the
Ranking Member. I appreciate the attendance of our witnesses
this morning.
I've served on the Oversight Committee here in Congress,
which is the principal investigatory Committee in this House,
for over 20 years. I have to admit I cannot point to a single
case during my tenure--and we have had Republican and
Democratic leadership--where the Chair has blatantly and
persistently interfered with a State criminal proceeding, as I
have seen it interfere in the case of the People of the State
of New York v. Donald Trump.
Even before New York District Attorney Alvin Bragg
announced a 34-count felony indictment against the former
President in April 2023, Chair Jordan, joined by other
Republican Committee Chairs, had already sent a letter to
District Attorney Bragg demanding his testimony before
Congress. It also warned him of the, quote, ``serious
consequences,'' of pursuing criminal charges against Donald
Trump.
Over the next year, in the midst of ongoing State criminal
proceedings, Chair Jordan proceeded to send nearly a dozen
frivolous investigatory letters and subpoena threats to current
and former employees of the New York District Attorney's
Office.
On top of that, he listed a series of documents that--and
this was an ongoing criminal trial in the State of New York at
the time--asking for all documents and communications between
and among the New York County District Attorney's Office, all
documents and communications received by certain employees, all
documents and communications referring or relating to the New
York City District Attorney's receipts and other use of Federal
funds. Clearly, trying to intimidate the New York District
Attorney's Office and dissuade them from their prosecution of
Donald Trump.
Mr. Wu, as a Federal prosecutor and a criminal defense
attorney, what is the danger in having Congress, which is a
legislative body, use those type of threats against an ongoing
criminal prosecution in State Court?
Mr. Wu. Congressman, what the danger is that it greatly
destroys the integrity of the criminal prosecution. The idea
that a legislative body, which is inherently politically based,
is looking at a criminal prosecution which is meant to
independently assess evidence of criminality during the
pendency of that case is extremely destructive and quite
dangerous for the integrity of the system.
Mr. Lynch. Mr. Wu, on top of that, over 25 Republican
Members actually went to the courthouse, sat in the courtroom,
to support the defendant in that case.
The nonpartisan Brennan Center for Justice recently
reported that Congressional efforts to compel the production of
nonpublic information about a specific case from a local
prosecutor, or otherwise meddle in their investigation, quote,
``crosses the line to political interference that threatens the
rule of law.'' Would you agree with that assessment?
Mr. Wu. I would agree with that. Also, I think the presence
of those Members at the trial, while they certainly have a
First Amendment right to be there, I think it also injected a
great deal of political atmosphere into that case.
Mr. Lynch. Mr. Wu, the Brennan Center has also warned that
Congressional interference in the New York case is reflective
of a, quote, ``worrying trend that threatens to intensify.''
Can you talk about the impact of this trend on State and
Federal prosecutions?
Mr. Wu. I think, as we discussed before, the trend
indicates that the district attorneys in those States, as well
as Federal prosecutors, feel that they aren't free to actually
follow the evidence; they aren't free to actually follow the
law, but that they're going to be criticized; they're going to
be the subject of political leverage if they actually do their
job. I think that really undermines the integrity of our
criminal justice system.
Mr. Lynch. Thank you very much.
What are the ramifications for this, especially following
the Supreme Court's decision on Presidential Immunity? Do you
think there are implications for that as well?
Mr. Wu. The Supreme Court's decision on immunity I think
very much indicates this Court's direction toward overly
empowering the Office of the President. I don't know exactly
how it may trickle down to other kinds of prosecutions, but,
certainly, in my view, their extremely overbroad opinion,
frankly, would obviate the purpose of this Subcommittee, which
is the weaponization of the justice system against a President
is impossible under their view because the President can do
anything he wants.
Mr. Lynch. Thank you.
Mr. Chair, my time has expired, and I yield back.
Chair Jordan. The gentleman yields back.
The gentleman from California is recognized.
Mr. Issa. Thank you.
Mr. Wu, I'm going to stay with you. Every day, Members of
Congress are subpoenaed on behalf of defendants in prison,
people that have griefs/gripes against the government, and the
President receives far more than one a day. Would you suggest
that he should have to go to those places, show up, and be
deposed just because somebody wants to depose the President and
says they have a basis?
Mr. Wu. I, obviously, there's a general policy reason not
to--
Mr. Issa. OK. So, the fact is that the Supreme Court's
decision on limited immunity or immunity from prosecution and
immunity from having to show up and be distracted from the work
of the President is for a good purpose, and only in rare cases,
such as Bill Clinton's case of a civil suit, specifically,
about actions before he was President, has the Court ever said
it doesn't fit there, right?
Mr. Wu. I think that's exactly the problem you point out,
is it's so rare that there was no need for them to--
Mr. Issa. Well, let's just get back to rare. There was a
need. They made a decision that still stands today, that Bill
Clinton could be deposed as to his specific State actions prior
to being President, but they ruled, clearly, that the President
cannot be distracted from that.
I'm going to switch to Mr. Smith. I'm going to let him
drink his water.
You said, as a prosecutor--I'll go to you and Judge
Wilson--that this was not a fair trial, that it violated the
rules that we count on for the admission of evidence. Is that
correct? You both saw that in this case?
Mr. Fahey. Yes, if I may go first? I think the most glaring
thing was somewhat of the--some of the Stormy Daniels
testimony, which the implication from her testimony was that
she was sexually assaulted by President Trump, which is, in any
respects, so unfairly prejudicial relative to the primary--
Mr. Issa. So, the judge, clearly, let evidence in that--
Mr. Fahey. That was surprising to me, one, that the
prosecutors didn't know that ahead of time, that this was going
to come out, and it wasn't vetted ahead of time. So, that's the
most glaring example that I--
Mr. Issa. So, as a prosecutor, something that you dedicated
your career to, there is a sense of balance. If you get in your
unfair twisting, you normally expect the judge to, at least at
minimum, allow the defendant to present witnesses in response
to that or to offset. It is pretty unheard of that they only
let you hit the guy and no one answer back?
Mr. Fahey. Right. That part of its concerning, yes, and
when you think about it, when we would prosecute cases,
generally, defendants had far more leeway, because it was like
they're the ones, that they're in jeopardy. They're going to
jail, or whatever. So, even if they didn't have necessarily the
most viable defense, it was rare to have a judge cut them off
on it.
That's what just seems so striking. On one hand, it's the
most extreme evidence allowed against President Trump, which is
hard to justify, and then, not allowing some sort of at least
explanation--
Mr. Issa. Yes, then, as my time's running out, but, yes or
no, if I could, isn't that kind of imbalance very often exactly
what a prosecutor doesn't want to see, because it leads to a
high probability of a case being reversed based on not being
fair? In other words, if you deny the defendant, you have a
jeopardy of, in fact, getting a perfectly good conviction
overturned because you didn't give them the proper opportunity
for defense; didn't give them the charges in advance; didn't
give them the evidence that you held? Is that right?
Mr. Fahey. Yes, and it goes to question the motivation for
this case. Was it just to get the initial conviction--
Mr. Issa. Now, let's go to the motivation with Mr. Smith.
You were denied the ability to answer a great many questions.
So, hopefully, you'll be able to answer the ones you want to
here today.
Have you, in your history with the FEC, have you ever seen
the FEC take State charges and link them to an FEC violation to
get a felony, and then, take it to the Federal Court and charge
somebody?
Mr. Smith. No.
Mr. Issa. So, the Federal Government doesn't grab State
cases to make something that is normally a fine and make it a
crime, correct?
Mr. Smith. No, it does not.
Mr. Issa. OK. So, if you had a situation in which--and this
is an ``if'' because it didn't happen--but if you had a
situation in which somebody took their own money and used it,
and then, did not declare it, is that usually--in other words,
failure to file--is that usually something that you would bring
them up at the FEC and refer them for criminal felony charges?
Mr. Smith. It would be extremely rare that it would be
referred for a criminal charge. You'd have to show clear
intent--
Mr. Issa. So, in this case, specifically, the FEC made a
decision that what they pulled to, in addition to State, to
make this a crime that they could charge a felony on, is
something that not only normally wouldn't happen, but in this
case, specifically, was looked at and didn't happen. The FEC
declined to prosecute because there wasn't a case here, right?
Mr. Smith. They not only declined to refer it to Justice
for criminal charges, but they declined to bring civil charges
themselves, which is what you'd normally do if you decided it
was an error or something.
Mr. Issa. So, it wasn't even worth a fine, much less a
criminal prosecution?
Mr. Smith. Right.
Mr. Issa. Thank you. I yield back.
Chair Jordan. The gentleman yields back.
The gentlelady from Florida is recognized.
Ms. Wasserman Schultz. Thank you, Mr. Chair.
When Donald Trump's Supreme Court overturned Roe v. Wade,
millions of Americans lost the right to make their own
healthcare decisions. Since Trump did this, 14 States enacted
extreme abortion bans, wreaking havoc on the lives of American
women and families. It happened in my home State of Florida and
more States will follow suit.
Now, Trump's team has a detailed blueprint for what his
next four years--God forbid--would look like called Project
2025. It's 900 pages of legal and administrative assaults on
our freedoms, rights, and progress.
Mr. Wu, you're very familiar with Trump's Project 2025 and
have a deep legal background. I want to ask you some rapid-fire
questions. So, if you could just start off with yes or no.
These current abortion bans, including one in my home State
of Florida, are ruining women's economic security. Would
Project 2025 make those economic hardships worse for American
women?
Mr. Wu. Yes, I believe so.
Ms. Wasserman Schultz. We know Trump abortion bans keep
women in abusive relationships. Would Project 2025 make those
horrible situations even worse?
Mr. Wu. Yes.
Ms. Wasserman Schultz. These Trump abortion bans
disproportionately already vulnerable populations, especially
low-income and communities of color. Would legal assaults on
abortion rights in Project 2025 inflict even more harm on these
communities?
Mr. Wu. Yes.
Ms. Wasserman Schultz. Thank you. Mr. Wu, I want to discuss
what Project 2025 would mean for women who face medical
pregnancy issues. Trump's abortions bans have already caused
irreversible damage to women's health across the country with
women having to turn septic and get close to death before a
doctor can legally perform a life-saving abortion despite
earlier intervention being medically warranted. The bottom
line, Trump's abortion bans have led to inflicting unnecessary
brutal pain and harm to women including preventable deaths.
That is not some Democratic talking point. That is directly
from doctors.
A majority of OB/GYNs stated that when Trump overturned Roe
v. Wade, it increased maternal deaths and discourages doctors
from even going into the field. In a survey 70 percent of
providers believe it has also worsened existing racial and
ethnic inequalities. This comes from the men and women who
actually care for their patients, doctors who took an oath to
do no harm. Legal hurdles are causing harmful health outcomes.
Mr. Wu, do you think that innocent women, women truly
trying to receive necessary healthcare will be unfairly
criminalized by Project 2025?
Mr. Wu. Yes, I do. In particular, some of the language in
the Project 2025 documents such as the phrase ``abortion
tourism'' I find to be deeply offensive. Women do not take
vacations to have abortions.
Ms. Wasserman Schultz. I agree that it is deeply offensive
and dangerous to use language like that. Project 2025 is an
explicit 900-page playbook for a second Trump term and it is
clear that it targets women. Trump's Project 2025 lays out
plans to make sure that abortion is not considered healthcare.
It aims to get the FDA to reverse its decades-long approval of
the abortion drug mife-
pristone to get it off the market.
The Trump plan calls for defunding Planned Parenthood and
excluding it from Medicaid, which is how millions of women get
preventative screenings and other vital healthcare unrelated to
abortions. We know the same extreme anti-choice groups that
helped craft Trump's Project 2025 would also try to exclude
some forms of emergency contraception from no-cost coverage and
gut access to IVF.
Trump's Project 2025 blueprint even calls on the CDC to
increase, quote, ``abortion surveillance,'' including requiring
States to submit invasive privacy-violating data and
information about patients who receive abortions. This creates
a modern day ``Handmaid's Tale.'' These dangerous alarming
policies will ensure that women are second-class citizens. Its
extreme MAGA goals will cause suffering and in some instances
death.
Mr. Wu, as a legal analyst with extensive experience as a
Federal prosecutor, can you explain some of the dangers
American women face by criminalizing abortion like this?
Mr. Wu. Well, immediately what happens is they're being
forced to choose between their health versus being prosecuted,
which is a terrible situation no one should ever have to face.
The point that you make, Congresswoman, with regard to the
surveillance, I think that's extremely dangerous. That is a
weaponization of healthcare statistics to use those statistics
to further criminal punishment of innocent women who are simply
seeking to protect their own health and to further decisions
that really should just be between them and their doctors.
Ms. Wasserman Schultz. Well, I am glad that in this
Committee we are finally exposing what the real weaponization
of government is, was under former President Trump and would be
again.
Last, as my time expires in the next 30 seconds, isn't this
working toward a complete and total national abortion ban?
Isn't that what Project 2025 makes clear the goal is if former
President Trump were reelected again?
Mr. Wu. I think it does. It sets out a blueprint to get at
that goal through numerous ways.
Ms. Wasserman Schultz. Thank you very much.
I yield back the balance of my time.
Chair Jordan. The gentlelady yields back.
Professor Smith, in your opening--or excuse me, in your
written testimony you said that the lead prosecutor Matthew
Colangelo in his opening statement to the court accused
President Trump of violating the Federal Election Campaign Act.
The FEC didn't bring charges, I think you said a couple times.
Is that true?
Mr. Smith. That's correct.
Chair Jordan. The Department of Justice didn't bring
charges?
Mr. Smith. That's correct.
Chair Jordan. If President Trump's campaign had paid for
it; it wouldn't have been reported until after the election. Is
that right?
Mr. Smith. That is correct.
Chair Jordan. Did President Trump's campaign have the money
to pay for it?
Mr. Smith. Yes, they had plenty of money.
Chair Jordan. They had like 7-8 million bucks still on hand
on election day. Right?
Mr. Smith. Yes.
Chair Jordan. Certainly, President Trump had the money to
pay for it. He is not--
Mr. Smith. He'd already spent over $60 million.
Chair Jordan. Yes, they had already done that. Was it a
political contribution?
Mr. Smith. No, I do not believe so for the reasons stated.
I can elaborate on those now, but it's--
Chair Jordan. Not only do you not believe so, but their
star witness did not believe so. Michael Cohen said, ``he was
working clear back in 2011 to deal with this''--Ms. Daniels
making the allegations and wanting to make this public and he
was doing it for other reasons. Isn't that correct?
Mr. Smith. Yes, they had been concerned about Daniels for a
long time and kept her quiet.
Chair Jordan. So, the obligation wasn't caused by President
Trump's candidacy for President of the United States, is that
right?
Mr. Smith. No. No, it was not.
Chair Jordan. OK. Mr. Fahey, in your written testimony you
said one of the most alarming aspects of the case is that ``the
fraud''--quote, ``fraud''--``did not involve anyone losing
money or being harmed in any way.'' To the extent that the
ledger entries were inaccurate, they were entered into the
books of a private company that understood what they were for.
It is unheard for a fraud case to be brought where no losses
were suffered. So, there weren't any losses in this case at
all, were there?
Mr. Fahey. Yes, that's what makes this so remarkable and
just--yes, I can't even imagine someone bringing a fraud case
to the United States Attorney's Office where nobody lost money,
there were no victims, and no one was worse off at the end of
it. It just makes it laughable even before you get to steps 2
through probably 20 that make this case really absurd to have
been brought to begin with.
Chair Jordan. It wasn't a contribution. If it was a
contribution, it would not have been reported until after the
election. No one suffered any losses and yet they bring this
charge against President Trump. I find that just amazing. If
that is not political motivation, I don't know--because what
other motivation could there be?
Mr. Fahey. It's really almost inarguable at this point that
the motivation for this case was political. It's really--I've
never heard a serious argument that it should have been
prosecuted otherwise--I know Mr. Wu might have one, but I
haven't heard that--because it seems political from the
inception all the way to the end.
Chair Jordan. Yes. Wasn't a contribution. Wouldn't have
been reported even if it was, if they paid that out of the
campaign. No one suffered loss. Yet, there was some kind of
conspiracy to impact an election.
That is not the worst of it. The worst of it is they didn't
tell the defendant what the crime was he was being charged
with. Isn't that right, judge?
Judge Wilson. That's correct. Right from the indictment he
was--Donald Trump was charged with falsifying business records.
To elevate that crime to a felony he had to be concealing or
committing other crimes.
Chair Jordan. When did the defendant in this trial, in this
case, learn what he was being charged with?
Judge Wilson. At the end of the trial.
Chair Jordan. At the end of the trial. That is not supposed
to happen in America, is it, judge?
Judge Wilson. No, that is illegal.
Chair Jordan. So, not only did he not know what he was
being charged with, at the end of the trial when he learned
what it was, the judge also told the jury, oh, you don't have
to be unanimous in finding what we just discovered the charge
actually was.
Judge Wilson. That is an extraordinarily egregious error to
tell a jury they don't have to be unanimous. I might add, by
the way, those charges, the three additional ones, were never
specified. They are described generally so we don't know what
exactly the jury thought was the illegality that was committed
by Donald Trump. We have a very in-specific verdict.
Chair Jordan. Campaign finance experts say it wasn't a
contribution. Even if it was a contribution, if they treated it
as--paid it out of the campaign, it wouldn't have been reported
until after the election, so there is no conspiracy to
influence the election. No one suffered any harm or fraud in
the initial case, the former prosecutor tells us. The judge
tells us that the defendant didn't know what he was charged
with until the end of the trial and the judge gave instructions
to the jury--never mind the fact the judge should have recused
himself, which you point out in your written testimony, the
judge didn't tell the jury--or told the jury you don't have to
be unanimous. The real thing here is the opportunity cost.
You raised this in your testimony, Mr. Fahey.
The opportunity cost. When Alvin Bragg did the Day One
memo, says we are not going to charge--all these felonies, we
are going to bring them down to misdemeanors and let the bad
guys roam the streets of New York. How that squares with what
happened here, that to me is the real issue. That is the issue
that most Americans see like we are going to do this to the
former President of the United States, meanwhile take felony
charges against really bad guys on the street and bring them
down to misdemeanors? That is the opportunity cost here, I
believe, in Manhattan. You get the last word, Mr. Fahey.
Mr. Fahey. Yes, exactly. When you're letting carjackers out
on bail or illegal immigrants that assault police officers
aren't getting prosecuted, but this is the way you're using
your time, in addition to the fact you run on a soft on crime
policy and then you take the most creative aggressive approach
to this crime, it's hard to argue it's anything other than a
political motivation.
Chair Jordan. The Chair now recognizes the gentlelady from
Texas.
Ms. Crockett. OK. I got a lot of ground to cover. I do want
to clarify, Mr. Fahey, when you consistently talk about NY--or
New York crime, you are speaking in an opinionated stance. You
are not speaking from a place of fact, correct?
Mr. Fahey. No, I'm speaking from a place of facts. There's
a New York--
Ms. Crockett. OK. Well, let me clarify for you.
Thank you so much. I am reclaiming my time. Let me clarify
for you that NYPD puts out reports and in April, it said
overall indexed crime across New York City dropped another 4.9
percent. As it relates to May the report says overall indexed
crime across New York City dropped another 2.4 percent. In the
June's report hasn't come out.
I would ask for unanimous consent to enter this into the
record.
Chair Jordan. Without objection.
Ms. Crockett. Now, moving on, I just go level set because I
feel as if some people don't understand how government works
and I don't know how they got to Congress.
So, Mr. Wu, I am going to need you to help me out because I
don't know that I trust that other people will know the answers
to these questions.
First, how many branches of government do we have?
Mr. Wu. Three.
Ms. Crockett. Three? OK. Sounds good. So, can you name them
for me?
Mr. Wu. Legislative, Judiciary, and Executive.
Ms. Crockett. Very good. OK. So, currently, I think that I
serve in the Legislative Branch. Would you agree?
Mr. Wu. I agree.
Ms. Crockett. OK. Fine. Can you tell me, when somebody goes
to court such as a criminal convicted of 34 felony counts,
State Court in New York, would that be the Legislative people
or Judicial people?
Mr. Wu. Well, it's really the Executive that's prosecuting
and then it's within the Judiciary to run the trial properly.
Ms. Crockett. OK. Very good. So, Judiciary. So, typically
if someone has an issue with what happens in court, do they
then somehow hop from State Court all the way to the Federal
Legislative Branch or is there a different process in which you
are supposed to be able to explain any issues you may have?
Mr. Wu. The process would be the Judicial Appellate process
holding aside the issue of State versus Federal.
Ms. Crockett. Oh, interesting. OK. All right. So, normally
people don't get convicted on a State level and somehow end up
litigating the issue on the Federal level in the Legislative
Branch, is that correct?
Mr. Wu. Yes.
Ms. Crockett. OK. All right. So, something is different
about what is going on today. I just wanted to clarify because
I thought I was living in the upside down for a second.
Now, I want to move on and talk about how someone is
prosecuted currently because under Project 2025, we will get
there, there will be a different way to prosecute people.
Currently, it is my understanding--and I only kind of went to
law school, passed a couple of bar exams, and practiced on the
State and Federal levels. Just clarify for me, when someone
goes in to be prosecuted is it say the President of the United
States that somehow becomes the State prosecutor in New York?
Mr. Wu. Oh, absolutely not.
Ms. Crockett. Absolutely not. Because he is the Executor,
huh? That is that other Branch?
Mr. Wu. Correct.
Ms. Crockett. OK. All right. So, you have this prosecutor.
In this case, it is Alvin Bragg who was duly elected, correct?
Mr. Wu. Correct.
Ms. Crockett. Not appointed by the President, correct?
Mr. Wu. Right.
Ms. Crockett. Duly elected by the citizens in his
jurisdiction, right?
Mr. Wu. Right.
Ms. Crockett. So, he is elected. Usually there is some sort
of an investigation that takes place, correct?
Mr. Wu. Prior to his election or--
Ms. Crockett. No, no, no. With a case. I am sorry.
Mr. Wu. Yes.
Ms. Crockett. I have moved on.
Mr. Wu. Yes, correct. Yes.
Ms. Crockett. All right. So, the very first part of a case
is that we go through an investigation. After that
investigation then the prosecutor usually has what we would
consider to be some sort of prosecutorial discretion as to
whether or not they want to go forward, correct?
Mr. Wu. Correct.
Ms. Crockett. All right. Then, they use that discretion.
Then when it is somebody that is facing a felony amount of
time, which is usually in most States over a year, then they
have to present it to a grand jury. Is that right?
Mr. Wu. That's right.
Ms. Crockett. Now, a grand jury is comprised of citizens,
correct?
Mr. Wu. Correct.
Ms. Crockett. U.S. citizens from that area, correct?
Mr. Wu. Right.
Ms. Crockett. OK. So, they have to come to the conclusion
that they are going to issue what we call a true bill, correct?
Mr. Wu. Correct.
Ms. Crockett. All right. So, then we have an indictment.
Then there are pretrial motions, there are pretrial hearings,
all kinds of stuff, right?
Mr. Wu. Right.
Ms. Crockett. All right. Then ultimately, depending on
where you are, you have the opportunity to say, hey, I want a
jury trial, correct?
Mr. Wu. Correct.
Ms. Crockett. A jury trial is comprised of U.S. citizens
again, right?
Mr. Wu. Right.
Ms. Crockett. OK. Very good. All right. So, can you tell me
so far if all this took place in the case in New York?
Mr. Wu. Yes, it did.
Ms. Crockett. Oh, OK. OK. All right. So, you get to trial.
Now, when you show up to trial and you are facing a felony
amount of time, as a defendant are you not entitled to an
attorney?
Mr. Wu. Yes, you are.
Ms. Crockett. Your attorney is allowed to pick the jury.
They are allowed to present evidence. Ultimately, it is a jury
of your peers who decides whether or not you are guilty or not,
correct?
Mr. Wu. Correct. The picking--
Ms. Crockett. In this case 30--
Mr. Wu. The picking has the judge involved, too.
Mr. Crockett. In this case, they found him guilty not once,
not twice, not three times, not four, not five, not six--I
could keep going on, but 34 counts were given. So, the opinions
of these people who were not jurors is not what we do in this
country. In this country we have a system in which jurors
decide who is found guilty. If you have a problem with that,
you go to the Appellate Court, which the last time I checked--
Chair Jordan. The time of the gentlelady is expired.
Ms. Crockett. --he was raising money so that he could go
the Appellate Court and appeal his decision. They will have the
final say so. Thank you so much.
Chair Jordan. Yes, they will. The gentlelady yields back
and the gentleman from North Dakota is recognized.
Mr. Gaetz. Thank you--
Ms. Plaskett. Mr. Chair, if I may, just a quick--I just
wanted to say as just a point of personal privilege, Linda
Sanchez is not with us today and she is at the funeral for her
Legislative Director Chandler Mason who served this body and
served this country for a number of years. I just want to say
on behalf of, I believe, all of us here that we extend
condolences to her family, to the office of Congresswoman
Sanchez and pray for God to give them comfort during this time
for the untimely death of Ms. Mason.
Chair Jordan. No, well said and I appreciate bringing that
attention. I should have--this is my oversight. I should have
said something about our colleague. Mr. Massie, Mr. Davidson,
and I and our--
Ms. Plaskett. Yes.
Chair Jordan. --Polly and Lisa and I had a chance to go
down and visit with Thomas a week ago Sunday. He is doing as
good as you can under these difficult, difficult circumstances.
His wife Rhonda was an amazing person. So, to both Members of
this Committee.
Ms. Plaskett. Yes.
Chair Jordan. Thank you for bringing that up.
Ms. Plaskett. Thank you.
Chair Jordan. The gentleman from North Dakota is recognized
for five minutes.
Mr. Gaetz. Thank you, Mr. Chair. I very much appreciate the
questioning from my friend from Texas. She is one of the few
other people that has actually practiced criminal defense and
public defense. As somebody that has done that for a very long
time I appreciate that very much.
I never did practice in New York. I also have practiced in
Federal Court, and I have practiced in State Court and passed
several bar exams as well.
Judge Wilson, what is the statute of limitations on a
misdemeanor in New York.
Judge Wilson. One year.
Mr. Gaetz. The business case is a misdemeanor, correct?
Judge Wilson. The underlying crime, the falsified business
records, yes, that's a misdemeanor charge.
Mr. Gaetz. So, the only way to get to a felony is by
committing--or is by concealment of another crime?
Judge Wilson. Correct.
Mr. Gaetz. Each one of those crimes has a specific element?
Judge Wilson. That's right.
Mr. Gaetz. You have to prove--to get a conviction at trial
you have to prove every element of the crime beyond a
reasonable doubt, right? That is just traditionally how this
works?
Judge Wilson. That is the right way to do it.
Mr. Gaetz. So, in the indictment did they put the
underlying crime?
Judge Wilson. No, they did not. They only described it as
other crimes.
Mr. Gaetz. OK. In the jury instructions did they put the
specific underlying crime?
Judge Wilson. No, the falsifying business records was
described in the jury instructions. There was some brief
description of the New York State election law violation, but
there was no description given of the three--choice of three
crimes. There was a description given of falsifying business
records, which was pretty ironic, because it was falsifying
business records to falsify business records.
Mr. Gaetz. So, that is also a misdemeanor, right?
Judge Wilson. That should be, yes.
Mr. Gaetz. So, you have two plus two equals six. Like if
you commit two misdemeanors you get to the felony statute of
limitations, which they had to get or they could have never
brought the case?
Judge Wilson. That's correct, but there's some more
question marks regarding the statute of limitations. It's not
cut and dried because the time that Donald Trump spent out of
New York could be used to toll the statute of limitations. That
was the ruling in the Court of Appeals Harvey Weinstein case.
He argued that the time that he spent out of California should
not have tolled it--out of New York, that is, in California,
should not have tolled the time limitations. The Court of
Appeals ruled against him on that issue. So, that's how they
get around the statute of limitations problem in this case.
Mr. Gaetz. So, was the election law case a Federal election
law or a State election law underlying crime?
Judge Wilson. Seemed like it was charged both when we got
to the jury instructions. There's a violation of New York
election law charge, but then there's one--among the three
charges underlying is an unspecified violation of Federal
election law.
Ms. Gaetz. Then the third one was tax violation, right?
Judge Wilson. Also, unspecified.
Mr. Gaetz. So, do all three of those underlying crimes have
significantly different elements of the crime?
Judge Wilson. That is correct.
Mr. Gaetz. Were any of the elements of those crimes listed?
Judge Wilson. No. Not at all.
Mr. Gaetz. So, this is important, and it might not be as
robust or anything, but when you defend a client in court, if
you don't know what the elements of the crime you are
defending, how do you mount a defense?
Judge Wilson. You can't. That's the very issue of
fundamental fairness that I referenced. You as a defendant are
entitled to know what the charges are against you so that you
can defend against those charges. Donald Trump was never made
aware of what the extent of the charges were against him until
the end of the trial.
Mr. Gaetz. The elements of the crime go in the jury
instructions. Traditionally, that is how it works. Federal
Court, State Court, North Dakota State Court, and Minnesota. I
have been in all these different jurisdictions. You actually
get the elements of the underlying crime, correct?
Judge Wilson. Anytime that I instructed a jury I instructed
them what the elements of the crime were.
Mr. Gaetz. Instead in this case they got a grab bag?
Judge Wilson. They got a choice of three when it came to
the underlying crimes. We don't even know which ones they
chose, so we don't know whether or not they could have been
unanimous on those three or not. That's another failing of the
jury instructions.
Mr. Gaetz. So, not only did we have not the elements of the
crime, but we had three different crimes with three vastly
different elements of the crimes?
Judge Wilson. All unspecified.
Mr. Gaetz. None of them in the indictment? The elements of
the crimes weren't in the bill of particulars. Last, hearing I
had the bill of particulars waved at me like it was some kind
of magic document that flew in here with its own cape.
Judge Wilson. So, the statement of facts only describes a
series of allegations, a series of actions that it's believed
that Donald Trump took. None of them describe any criminal
activity. None of them describe any--they don't describe any
elements of any crime.
Mr. Gaetz. That is why you believe, as do I, that when this
goes on appeal there is going to be significant legal issues to
argue that the jury never actually got them put in front of
them?
Judge Wilson. I have very little doubt that this matter
will be reversed on appeal and based on these issues.
Mr. Gaetz. Because I have actually been pretty--I believe
jury trials are still the best way to determine guilt and
innocence. I just believe juries are only as good as the
information put in front of them.
With that, I yield back.
Chair Jordan. The gentleman yields back.
The gentleman from New York is recognized.
Mr. Goldman. Thank you, Mr. Chair. I am happy we are
bringing up the appeal in this case because this Committee has
focused for a year-and-a-half on a Fifth Circuit case, has
brought before us as a witness the lawyer for that case twice
to argue that the Biden Administration had censored, improperly
censored social media companies. I am surprised we haven't yet
heard about the ultimate decision on appeal by the Supreme
Court which dismissed the case. So, it is pretty fascinating to
me that we don't have followup on the appeals of a case that we
are so excited about the appellate process when the Supreme
Court dismissed it.
Mr. Fahey, I want to just touch on a couple things you said
before I move into the crux of my questioning. Am I right that
I heard you say that it is unheard of to bring a fraud case
without losses to individual victims?
Mr. Fahey. I cannot think of a situation where that's
occurred. I'm not saying it hasn't--
Mr. Goldman. So, you are saying that every book and records
case has losses to victims?
Mr. Fahey. I'm saying every fraud case that I was involved
in, either prosecuting or knowing about, usually had somebody
that was harmed.
Mr. Goldman. This was a books and records charge, yes?
Mr. Fahey. Well, I think it's based on a fraud case, that
somebody committed fraud on their books and records, yes.
Mr. Goldman. A fraud in the books and records?
Mr. Fahey. Yes, I think they put--I think the allegation is
there were incorrect or fraudulent entries in the books or the
records. Yes.
Mr. Goldman. Right. So, you are saying that every single
book and record fraudulent entry, which is a false entry, has
loss to individual victims? Is that your testimony?
Mr. Fahey. That's not at all my testimony. I said fraud
cases are generally not prosecuted without victims and--
Mr. Goldman. That is true. Murder cases are not generally
prosecuted without victims, too, but we are talking about books
and records here.
Mr. Fahey. OK.
Mr. Goldman. Are you familiar with the term ``fraud on the
market''?
Mr. Fahey. No. Not really.
Mr. Goldman. OK.
Mr. Fahey. Other than you just saying it.
Mr. Goldman. You should look into that.
You should look into--let me give you another example of a
fraud case that doesn't have a loss to an individual victim,
which would be any insider trading case.
Mr. Fahey. So, other than they--
Mr. Goldman. I don't--
Mr. Fahey. --would have potential victims and other people
harmed, this is a case where there's--
Mr. Goldman. Well, go look up fraud on the market. There
are no individual victims with losses and yet those cases are
charged all the time.
Mr. Fahey. There's an overall harm in those cases.
Mr. Goldman. We are focused here on the weaponization of
the government as usual. I am just struck by the fact that we
have a Republican Majority that is accusing other people of
weaponizing government when let's look at what this Committee
and this Republican Majority has done. My colleague Ms.
Crockett ably went through the separation of powers.
Mr. Wu, were you aware that this Committee held a hearing
with Robert Costello as a witness who was the former attorney
of Michael Cohen?
Mr. Wu. Yes.
Mr. Goldman. That hearing was during the trial?
Mr. Wu. Yes.
Mr. Goldman. OK. So, do you think that this was an
appropriate way of trying to elicit testimony to impeach a
witness in a trial in a Congressional hearing?
Mr. Wu. No, I think it interferes with the trial.
Mr. Goldman. Now, interestingly when he was here, I
suggested that he go testify in the trial. He did. That is the
appropriate place for where he should be, right?
Mr. Wu. Exactly.
Mr. Goldman. Mr. Trump's attorney had an opportunity to
cross-examine him, did he not?
Mr. Wu. Yes.
Mr. Goldman. Trump's attorney had I believe three days of
cross-examination of Michael Cohen, did he not?
Mr. Wu. Yes, I think that's right.
Mr. Goldman. Ultimately, the jury heard all that, right?
Mr. Wu. Yes.
Mr. Goldman. All the other evidence and decided unanimously
that he was guilty.
Mr. Wu. That's right.
Mr. Goldman. Are you aware of the number--about two dozen
Members of the House Republican Party writing an amicus brief
to a district judge about the Hunter Biden case?
Mr. Wu. Yes.
Mr. Goldman. So, let me just get this straight: We have
legislators, elected officials trying to intervene in an
ongoing criminal case. Is that what happened?
Mr. Wu. That's what it sounds like.
Mr. Goldman. They are proud of it, by the way. They are so
excited and take credit for undermining Hunter Biden's plea
agreement by interfering in that case. That is the misuse of
official authority and weaponization of this Committee, this
body.
What Donald Trump has vowed to do is weaponize the
Department of Justice to go after his political rivals, a
revenge and retribution tour. The notion that this Committee is
accusing Democrats of weaponizing the fire department, when
then President of the United States did not intervene in the
prosecution of his own son--give me a break.
Why don't you focus on taking care of your own party and
your own weaponization and stop projecting where it doesn't
exist? I yield back.
Chair Jordan. We appreciate the gentleman--well, the
gentleman from North Carolina is recognized for five minutes.
Mr. Bishop. Thank you, Mr. Chair.
Mr. Wu, do you think that in American history State Court
criminal justice processes have ever been perverted or
corrupted for political objectives to affect matters of Federal
politics such as the course of legislation or the composition
of Congress or the control of the Presidency?
Mr. Wu. I'm not sure of a specific instance like that.
There has been a general feeling that some of the State Court
processes have been unfair or biased. That was for example a
reason for some of the civil right legislation.
Mr. Bishop. Sure. Yes, even in the post-Civil War era,
right?
Mr. Wu. Sure.
Mr. Bishop. So, I think I have distinct images of that
having occurred. rocesses that appear to be ordinary can be
used to political effect in such cases, right?
Mr. Wu. Sure.
Mr. Bishop. Even in totalitarian regimes, totalitarian
systems of government are a favorite tactic, isn't it, the show
trial?
Mr. Wu. Indeed, it is.
Mr. Bishop. Is there a legitimate Federal Government
interest in preventing that where it occurs?
Mr. Wu. Well, there's some jurisdictional limits on what
the Federal Government can do there. If it's a State trial,
they'd have to come in after the fact to examine whether
there's been some--
Mr. Bishop. Well, let me ask you this way: Was there a
legitimate Federal interest when Congress acted, as we just
made reference to, in the post-Civil War Civil Rights Acts?
Mr. Wu. Yes, those legislative--
Mr. Bishop. They were designed to prevent that kind of
misuse, right?
Mr. Wu. I don't know that they were designed specifically
for the court system misuse, but I think they were designed to
correct injustices.
Mr. Bishop. You don't think they were designed to correct
misuses and abuses of the court system, the State Court system?
Mr. Wu. No, that's not what I said. It includes that, but
not--
Mr. Bishop. So, you would agree with me that they were
designed for that very purpose?
Mr. Wu. Not only for that purpose.
Mr. Bishop. Right, sir?
Yes. No, I certainly agree. It wasn't only for that
purpose, but it was included.
How should Congress identify the misuse of State Court
procedures where it is happening?
Mr. Wu. Certainly, they can do investigations, hold
hearings, but they should be after the fact of prosecutions,
not during the prosecutions.
Mr. Bishop. So, let me just ask a couple--would evidence of
that include overt public vows by candidates for prosecutorial
office to target a candidate or prospective candidate for
Federal office?
Mr. Wu. That's certainly something that can be part of the
fact finding, yes.
Mr. Bishop. What about the institution of charges for
transparent political motivations, especially in the sense that
the event charged is not regularly or ever charged against
others engaged in similar conduct? Would that be possible
evidence of such a problem?
Mr. Wu. That's a little bit tougher because the
prosecutorial discretion wall is pretty thick on that, but it's
certainly something that could be inquired into.
Mr. Bishop. How about State legislative renewal of expired
statutes of limitations aimed at such a political target? Would
that be possibly evidence of such conduct?
Mr. Wu. Again, I don't know whether it's evidence, but it
seems like something that Congress could ask about.
Mr. Bishop. What about judicial assignment processes
resulting in folks with apparent partisan bias being appointed
or ending up administering a trial against just a target? Would
that be such evidence?
Mr. Wu. I think that's a little bit of a conclusory
question there, but certainly the process for determining
judicial selections appointments--I think that's something
legitimately looked at.
Mr. Bishop. How about contriving jury instructions or
administering a trial to deny the target fundamental fairness
and due process anticipating that correction of that would be
delayed until after the political impact has run its course in
an election? Would that be evidence that Congress should be
concerned about?
Mr. Wu. I think that's more an issue for appeal of the
particular conviction. Again, respectfully I feel there's a
little bit of a conclusory aspect to that question.
Mr. Bishop. So, you think so long as the appeal will
eventually set things right the fact that a State perverts its
processes to achieve a political result to play out in an
intervening election that is OK? Congress shouldn't worry about
that at all, is that right?
Mr. Wu. I think the appeal needs to run its course first.
Then if Congress has concerns about the case overall, they're
free to look into it.
Mr. Bishop. All right. I yield back.
Chair Jordan. The gentleman yields back.
The gentlelady from--or the Ranking Member is recognized.
Ms. Plaskett. Thank you. Thank you, Mr. Chair.
Mr. Wu, did you conclude your thoughts on that subject?
Mr. Wu. Yes, I did.
Ms. Plaskett. OK, thank you. I just wanted to give you time
if you needed it. Thank you for your analysis of what has
happened in the court case in New York.
Judge Wilson, it is good to see you here. I just wanted to
give a shout-out to a fellow Bronx District Attorney alum as
well.
Judge Wilson. Thank you.
Ms. Plaskett. I did want to State for the record this
discussion about homicides in New York City and the lack of
prosecutorial action by the District Attorney in the County of
New York, that Mr. Bragg's first year in office, shootings in
Manhattan declined by 20 percent, homicides declined by 16
percent. The data from the NYPD shows that the rates of
virtually every index of crime are lower in Manhattan for the
first quarter of 2024 than they were at the same time last
year.
So, while we may not like him having prosecuted former
President Trump, I think it is false to say, based on the data,
that Manhattan is suffering from a rise in violent crime. That
is not, in fact, factually the case. Would we like to see it
further? As a born and raised New Yorker, of course. What it is
not right now is a place with a crime spree.
One of the things that I talked about earlier today was
Project 2025. I have shared with the Chair my concern about
this plan and the fact that this I believe fits squarely within
the tenets of this Committee to have a discussion about it, to
go to those individuals, the authors of this plan.
Over a thousand pages have been written that make up the
Project 2025 by the Heritage Foundation, which they and its
authors State is the plan for day one after a Trump second term
presidency.
Mr. Wu, looking at Trump's playbook, that playbook being
Project 2025, which is authored by individuals that are within
his prior Administration, how would it hurt Americans if these
proposals were made into law?
Mr. Wu. I think one way that I have touched on is the
removal or decimation of the career civil servants I think is
very dangerous. Also, some of the other examples. The idea of
removing the General Counsel at the FBI, to replace that with a
political appointee's counsel, again, you lose the experience
in the context of that position.
Similarly, trying to do away with the 10-year term for the
FBI Director, which is there to ensure that they can be in
place over the course of different administrations. I think all
those, particularly at the Justice Department, would gravely
hurt the integrity and steadiness of the Department.
Ms. Plaskett. I agree. Having been a political appointee in
the Bush administration at the Department of Justice working
under the Deputy Attorney General Larry Thompson, and then
under James Comey, who could have fared without a David
Margolis having been in that office? Being someone who had been
there since the time of Kennedy. He came in as an honors
graduate from law school and provided consistency across the
board to multiple administrations.
Under Project 2025, this individual did not--if David--an
individual like David Margolis had not passed the loyalty test,
would he still have that position?
Mr. Wu. No.
Ms. Plaskett. ``One of the key tenets is also to defeat the
anti-American left,'' that is a quote. Trump has promised to
root out liberal prosecutors. Individuals on this Committee
have used the power of Congress to go after anyone who dares to
indict Trump on crimes and publicly attack judges who rule
against Trump or his defense team.
Does this look like a fair and impartial system of justice
to you?
Mr. Wu. No, it doesn't. I think it undermines the
democracy.
Ms. Plaskett. As a former Federal Prosecutor for many
years, was it your experience that prosecutors in liberal
jurisdictions approached the criminal justice system with an
anticonservative bias?
Mr. Wu. No, it was not.
Ms. Plaskett. What was your experience?
Mr. Wu. My experience was that Federal Prosecutors around
the country tended to be very independent-minded. Sometimes
they would but heads with what they call main Justice. I pretty
much never have seen an instance that I would identify as a
politically motivated Federal Prosecution.
Ms. Plaskett. Thank you. I am not going to go into blocking
financial aid for American college students if the states
permit kids like Dreamers to access in-State tuition, getting
rid of school lunch programs, summer school summer programs,
taking aim at free speech and free thinking in American
universities, aim at renewable energy, and what will make
American women second-class citizens by taking them closer to a
national abortion ban and restricting access healthcare and
abortion drugs across the market.
This, again, Mr. Chair, I believe is a document that we,
along with others throughout Congress, need to take a closer
look at. I yield back.
Chair Jordan. The gentlelady yields back. The gentleman
from Florida is recognized.
Mr. Steube. Thank you, Mr. Chair.
Joe Biden's DOJ has utilized their power and weaponized the
Justice System to go after his political opponent. From
Florida, courts in Georgia, courts in New York. The farce that
occurred in New York is a pathetic and sad abuse of the legal
system by a rogue democratic prosecutor and an obviously biased
judge.
As Judge Wilson aptly noted in his testimony, President
Trump was railroaded, and Judge Merchan drove the train. Not
only did Judge Merchan seek to silence President Trump from
informing the world about the judge's own conflicts of interest
in the case, but he made sure to effectively muzzle President
Trump's key expert witness, Professor Bradley Smith, on a
central element of the case.
Professor Smith, you correctly pointed out in your
testimony that the District Attorney's theory of the case
revolved around a State law that prohibits promoting a
political candidacy by unlawful means. In this case, the
prosecution alleged that the unlawful means resulted from a
violation of the Federal Election Campaign Act. Is that
correct?
Mr. Smith. That is correct.
Mr. Steube. You were once the Chair of the Federal Election
Commission, is that correct?
Mr. Smith. That is correct.
Mr. Steube. Given your obvious status as an expert in
campaign finance law, can you explain why the definition of an
expenditure is so important to the case?
Mr. Smith. Yes. The definition of this expenditure, if you
just read the statute, says anything for the purpose of
influencing the election. So, a normal person might hear that
and say well, why did they make that expenditure.
If you read further into the statute, the provisions
regarding personal use, and if you read the FEC's regulations
and its explanation of those regulations, it is clear what they
mean is for the purpose of a Federal--of influencing an
election. It is not the subjective motivation of the spender;
it is an objective motivation.
So, setting up a campaign headquarters, hiring a campaign
manager, buying TV ads, printing bumper stickers, whatever else
you do that is for the purpose of running a campaign.
The mere fact that you do something that might be helpful
to your campaign, like taking a weight loss program so you look
better on the campaign trail, buying a house in New York so you
can run for U.S. Senate from New York, settlement complaints
against your business in your private life, sealing your
divorce records, those are not things that arose from your
campaign. Those are things that people sometimes do anyway, and
those would not be campaign expenditures.
Mr. Steube. Were you allowed to provide any of that context
to the jury through expert testimony?
Mr. Smith. No.
Mr. Steube. What is your expert opinion of the instructions
that Judge Merchan gave to the jury regarding the Federal
Election Campaign Act?
Mr. Smith. Well, I think the judge's instructions were
clearly wanting. All he gave them was those bare bones, if this
is for the purpose of influencing the election, you have got a
problem.
Again, this has been noted in this hearing, he repeatedly
allowed witness Michael Cohen, who is no expert in campaign
finance law, and the prosecutors to State that there had
clearly been a violation.
I would note that had I testified, of course I would not
have testified specifically to what the law is. I would have
testified to the reporting system that would have shown that
there was no advantage to not reporting this as a campaign
expenditure to the contributions system, which would have shown
that Mr. Trump could have clearly paid this without any
ramifications had he wanted to do so.
I would have talked about how the FEC in practice had in
many cases found that certain things that look like, again, for
the purpose of were not found to be for the purpose of a
campaign and let the jury do with that what they will.
Mr. Steube. Judge Merchan allowed Michael Cohen, who has no
expert qualifications in this field whatsoever, to provide the
jury with information on a campaign finance law, but he
prevented you from giving substantive expert testimony on the
Federal Election Campaign Act.
Mr. Smith. He did, and then he advised the jury, now you
can't use that to consider Mr. Trump guilty. That is only for
context. Which is sort of like saying to the jury or sort of
like saying to you, for the rest of this hearing, I don't want
any of you to think about a yellow Minibus by Volkswagen. That
is all you are going to think about for the rest of the hearing
is a yellow VW van.
It kind of flagged it to the jury's attention that Cohen
had pleaded guilty in this case under I think tremendous
pressure, because he was facing years and years in prison for
tax violations. So, he pleaded guilty to the campaign thing and
basically got a much lighter sentence.
Mr. Steube. In the beginning of questioning by Chair
Jordan, you talked about how we wouldn't want nondisclosure
agreements of things that happened before a campaign to be
campaign expenses. Can you just expand on that?
Mr. Smith. Right. You don't want Members of Congress to pay
for their personal peccadilloes from the year before or
allegations of such--I think we should credit those just as
allegations--using campaign funds.
You don't want a person to use campaign funds and say, gee,
this is something really embarrassing to me that happened in my
past. I would like to seal that up, even though it is not
relevant, it is not something that you created from your
campaign.
It is the ticket for abuse. This was why the law
specifically listed a number of things, like for example, you
can't pay for a country club membership, even if the reason you
have it is to raise money for your campaign. Because it is
something that people do even if they are not running for
office, and we don't want campaign funds paying for that.
Mr. Steube. Thank all of you for being here today. I yield
back.
Ms. Plaskett. Mr. Chair, I ask--
Chair Jordan. The gentleman yields back. The gentlelady is
recognized.
Ms. Plaskett. I ask unanimous consent to enter into the
record a May 21, 2024, AP News Fact Check article entitled
``Judge in Trump's Hush Money Trial Did Not Bar Campaign
Finance Expert for Testifying to Defense.''
The judge stated that Mr. Smith's testimony was limited in
scope of the testimony that he could not give instructions to
the jury on what the law was, and that it was the defense
attorneys that decided not to put him on the stand.
Chair Jordan. Without objection. Mr. Smith addressed that
in his written testimony.
The gentleman from Florida is recognized.
Mr. Gaetz. So, Mr. Smith, following up on Mr. Steube's
question, I want to understand the precedent here. So, if a
candidate for Federal office wanted to use campaign money now
to make a hush money payment, could they point to what has
occurred in this New York litigation and say well, I guess I
can go use my donor money to make a hush money payment?
Mr. Smith. I suppose they could, at least unless Judge
Jackson is correct, and we will have to wait for that
overturning on appeal. Yes--
Mr. Gaetz. Yes, so well, I guess I want to ask the question
if an Appellate Court does not in some way deal with what has
been laid before the country, could we see people collecting
money from donors, lobbyists, and PACs and then using it to
make hush money payments?
Mr. Smith. Yes, and you could do almost anything else. You
could say, for example, I would really like to go to the Super
Bowl this year, I think I will take a couple donors along, and
buy your Super Bowl tickets and your whole trip to the Super
Bowl because it is for the purpose of influencing your
campaign.
Mr. Gaetz. So, in the prosecution to preserve our
democracy, we have now green light potentially the most
expansive abuses of campaign funds ever.
Mr. Smith. Well put.
Mr. Gaetz. All right, I have to test the limits of this. I
do not like wearing ties. I would never wear a tie. I am told
that when people vote for a Congressman, they like to see them
wearing a tie in their advertisements.
So, does this now mean that when I go to Ross and buy a
tie, that I should use my campaign credit card, because
otherwise I am not really a tie person?
Mr. Smith. If you took seriously the subjective standard
that was given to the jury as the instruction, yes, it would
mean it. If you took the objective standard that appears in the
statute, no, you couldn't.
Mr. Gaetz. So, in the absence of some appellate review
here, and this is why we have Appellate Courts, to try to
resolve these things, do we not unleash like this confusion and
then this opportunity for fraud? Because here is how this will
go: Politicians will then simply use the gray area to enhance
their own personal lifestyles through their campaign funds,
right?
Mr. Smith. That is correct. One thing we should remember is
that the Federal Election Campaign Act was elected, or enacted
against a background in which Members could just pocket the
campaign funds. That was part of the whole idea, you are not
going to be able to do that anymore.
Mr. Gaetz. Well, thank goodness for the good prosecutors in
New York who have unlocked the greatest potential for campaign
fraud in the history of the campaign finance system.
Judge Wilson, I just want to ask you a precise question.
Was there ever a case where you were presiding over where you
had a family member economically benefit from the notoriety of
the case?
Judge Wilson. No, never.
Mr. Gaetz. You sure you don't want to take some more time
on that and think about it?
Judge Wilson. I don't need more time, I know that for a
fact.
Mr. Gaetz. Well, if that had ever arisen, would you have
allowed a family member to make money off the notoriety of a
case?
Judge Wilson. I would have recused myself from the case.
Mr. Gaetz. Well, it is just interesting, because we had
Attorney General Garland, who was spent a good amount of time
on the bench, and I asked him the same question. He said that
he wouldn't answer it because it was obviously a reference to
what had gone on in New York.
I thought he could, might have answered it. When you look
at what happened in New York, does it concern you that the
judge in that case seemed to have a family member who was
economically leveraging the notoriety of the case?
Judge Wilson. It greatly concerned me, but not so much from
the perspective of the ethical violation that would be
apparent, because that judge did get an ethical opinion from
the Judicial Ethics Committee in New York that exonerated him
from any wrongdoing in listening to the case when his daughter
was benefiting.
What I was concerned about was the appearance of
impropriety. When I sat on the bench, sometimes I would get a
report from Probation or some other organization, and they
would hand it to me in an envelope.
I made certain to open that envelope and show everybody
that it was a report that I was looking at. Because I didn't
want there to be the appearance of impropriety that I am
receiving an envelope from someone in the courtroom.
The concept is the same here. If you are presiding over a
case where your daughter is benefiting and where you have made
political contributions, in small amounts, but it is irrelevant
the amount. You made contributions to the political opponent of
the defendant before you. These are the very essence of the
appearance of impropriety.
I feel strongly that Judge Merchan should have recused
himself on that basis.
Mr. Gaetz. Just simple as can be, Mr. Chair, a
straightforward answer to a straightforward question. I wish we
could have gotten that from the Attorney General. I yield back.
Chair Jordan. The gentleman yields back.
Ms. Plaskett. Mr. Chair, I ask unanimous consent to enter
into the record articles that discuss the ruling of the New
York Advisory Committee on Judicial Ethics, which Judge Merchan
took the judicious step of raising the issue with them about
recusal, seeking guidance on whether he would have to recuse
himself on the case in which the Committee ruled that there was
no basis for recusal.
Mr. Gaetz. Mr. Chair, I will object, pending just where
were the articles from?
Ms. Plaskett. I will give you a copy of those.
Mr. Gaetz. Yes, yes, as soon as we have those, I will
withdraw my objection.
Ms. Plaskett. Thank you.
Chair Jordan. The gentlelady from Florida is recognized.
Ms. Cammack. Thank you, Mr. Chair.
I actually want to followup on my colleague from Florida
and his line of questioning. As Representative Gaetz pointed
out, the judge's daughter significantly profited from this case
to the tune actually of $93 million raised for her Democrat
clients, clients that include a Member of this Committee,
Representative Goldman, I should point out and put on the
record.
Also, Authentic Campaigns of which Lauren Merchan, the
daughter of the judge, she runs this firm, Authentic Campaigns,
and was paid nearly $12 million for her work this cycle for her
Democrat colleagues--clients. Including 9.7 million by the
Biden-Harris campaign.
Now, I know that there has been a tremendous amount of
discussion today about the severe irregularities of the case,
some of the things surrounding jury instructions. I want to
talk about the financial motivations for the DA and the judge.
So, Judge Wilson, you just said that he got a waiver from
Judicial Ethics Committee. You were pointing out how just the
appearance of any impropriety, it is to be taken very
seriously.
Can you talk about the Judicial Ethics Committee, who makes
up that Committee? What are some of the processes that they
would use? Would they consider the $93 million or her clients
or a direct, immediate relative that is benefiting financially
from this case?
Judge Wilson. If you are asking me who makes up the
committee, it is a combination of lawyers and judges who are
selected by the Appellate Division of New York to hear issues
that judges bring to them, asking whether or not they can
ethically in particular circumstances. I myself availed myself
of that Committee on several instances.
When it comes to whether or not they should consider the
amount of the contributions, I actually think the amount of the
contributions are irrelevant, because, as you recall, I said
Judge Merchan shouldn't have made any contribution in any small
amounts to political campaigns.
That is based on a prohibition of judges being involved in
political activities, except if they are in a window period
during their own campaign. At that time, then a judge's
campaign may make a contribution to another campaign or to
another political organization. That is a strict requirement
that it only be during an election when such a campaign is
made.
No, it doesn't matter so much what the amount of money that
was being made. It matters that this is someone of first degree
of relationship to the judge who is profiting from activities
that oppose the defendant before that judge.
Even if he had an ethics opinion exonerating him, saying it
is OK, your daughter is not a witness and none of her interests
are being tried here, so the Ethics Committee thought it was
just fine, there is still an appearance of impropriety--
Ms. Cammack. Right.
Judge Wilson. That is of great concern to the public in
general. That is what a judge wants to avoid when you are
hearing a case. You don't want people to feel that your
integrity and that your impartiality is being impacted.
Ms. Cammack. Is compromised, right. Which--
Judge Wilson. That is what happened here.
Ms. Cammack. The judge himself had given contributions. I
think you pointed out very appropriately that it doesn't matter
if it was a large or a small contribution. The judge in this
case, Judge Merchan, he contributed to a political action
committee called Stop Republicans.
That is inappropriate, correct? Especially overseeing the
case of the Republican nominee on the ticket, correct?
Judge Wilson. He should have known better than to make
those contributions while a sitting judge.
Ms. Cammack. Right. I see our Democrat witness, Mr. Wu, you
are shaking your head. I am glad that you agree with us that
this is a tremendous question mark on the integrity of this
trial. I also want to talk a little bit about DA Bragg.
Now, I pointed out in our previous hearing that DA Bragg
raised $850,000 in campaign contributions immediately on the
announcement of the 34 counts.
Mr. Fahey, have you seen any other prosecutors run this
similar arc of campaigning on getting a particular person, and
then using it subsequently to raise campaign cash?
Mr. Fahey. Not that I can think of. There might be somebody
that has done it before. I think the DA or State's Attorney in
Atlanta is doing something similar with that case, using that
as a campaign case or a case against Trump.
Other than those, I don't know of any. It is certainly
possible, but you know, $800,000 for a DA's race is enormous. I
know in your circles it is not, but those type of races usually
very low dollar amounts.
Ms. Cammack. So, it is safe to say that there is financial
motivation in the campaigns by multiple different DAs and
politicians to ``get Trump,'' correct?
Mr. Fahey. At least a political financial motivation, not
necessarily personal.
Ms. Cammack. Correct. Thank you. My time has expired, I
yield.
Chair Jordan. The gentlelady yields back, the gentlelady
from Wyoming is recognized.
Ms. Hageman. I think there are a few things that should be
cleared up today. First, we are not a democracy, we are a
republic. I think it is extremely important to remember that
and to understand our form of government.
I also think that this is one of the reasons why people
dislike politicians. We all know what is happening here. We
know that Alvin Bragg's prosecution of President Trump is
Exhibit A of the left's by-any-means-necessary lawfare campaign
against President Trump.
Alvin Bragg's prosecution of President Trump opened a
dangerous Pandora's box of politically motivated prosecutions
of political opponents, and Manhattan District Judge Juan
Merchan's decisions, guided by political bias, unfairly
prejudiced the outcome of the trial and violated President
Trump's due process rights.
Anyone with a lick of sense knows that those statements are
actually--cannot be refuted. We all watched what happened
during the course of the trial.
Professor Smith, have you ever been retained as an expert
to testify on campaign finance matters prior to the case
against President Trump?
Mr. Smith. Yes.
Ms. Hageman. OK, and briefly, what was the nature of those
cases? What issues or Federal laws did you testify with regard
to?
Mr. Smith. All those were other cases, in which, I was
asked to testify about past experience with Federal campaign
finance laws, customs in campaigns, how they pay for things.
There were maybe as many as four. I don't like to do expert
witness work and I don't normally do it.
In none of those that you have mentioned testify, in none
of those did I end up testifying because the cases settled,
because one is still pending, or because in one other case the
judge decided that this would be testimony that would go to the
law.
Ms. Hageman. Can you briefly describe your qualifications
to provide such expert testimony?
Mr. Smith. Well, as has been mentioned, I served as a
commissioner on the Federal Election Commission, including a
term as Chair. I have written one book specifically on campaign
finance and served as co-author on two others on campaign
finance and election law.
I have been at one point cited as one of the most cited
scholars in the field of election law. A recent book from the
University of Chicago Press suggested that I have had more
influence on campaign finance than any other scholar in the
last 40 or 50 years or something like that. I have devoted my
life to this, this is what I do.
Ms. Hageman. You are qualified to testify about Federal
campaign finance laws, Mr. Smith.
Mr. Smith. This is what I do, yes.
Ms. Hageman. Would you also agree that campaign finance law
is a complex area and one where a lot of Americans who may have
to sit on a jury would benefit from expert witness testimony to
understand the alleged crimes that they are being asked to
decide?
Mr. Smith. Extremely so. At one point, Justice Scalia, when
he was serving on the Supreme Court, actually said during the
middle of oral argument, he says, ``This law is so complex, I
can't figure it out.''
Ms. Hageman. So, Professor Smith, to the best of your
knowledge, is Michael Cohen a campaign finance law expert?
Mr. Smith. Not to my knowledge and not what I have seen.
Ms. Hageman. Well, yet Judge Merchan allowed him to testify
during the course of the Trump trial, didn't he?
Mr. Smith. Yes, in theory for other purposes, but
nonetheless you had him repeatedly saying this violated the
law--that violated.
Ms. Hageman. So, Judge Merchan commented when ruling to
limit the scope of any testimony that you would provide that,
There is no question that this would result in a battle of the
experts, which will only serve to confuse and not assist the
jury.
From the standpoint of someone who practiced as a trial
attorney for 34 years, I find that to be an extremely bizarre
statement, because that, in fact, is the situation anytime you
have a case where expert testimony is needed.
In fact, I worked on a case called Nebraska v. Wyoming at
one point, and Wyoming had over 25 expert witnesses, in
everything from hydrology to ag engineering to economics to
fluvial geomor-
phology, to all these things, and Nebraska had something
similar. Yet, the judge, including the U.S. Supreme Court, was
not excluding expert witnesses simply because there was going
to be a battle of the experts.
Is that your experience as well?
Mr. Smith. That is. I would point one thing. I mentioned
earlier that there were a number of things I would have
testified to that would not have gone to legal conclusions, but
rather testifying about customs, practices, about simply
reporting dates under the law. It appeared from the judge's
rulings that even this, that kind of testimony would not have
been allowed.
Ms. Hageman. He wasn't going to allow you to testify to
those things, but he allowed Mr. Cohen to sit up there and say
President Trump violated Federal election laws, didn't he?
Mr. Smith. Yes.
Ms. Hageman. Professor Smith, going on, do you believe that
the court committed a reversible error by allowing Mr. Cohen to
testify about alleged campaign--or election violations?
Mr. Smith. I think it was erroneous, and I am not even sure
what the standard--not being a criminal law guy--what the
standard of review is for that kind of error. Sometimes if it
is abuse of discretion, courts give trial judges a lot of
leeway. It doesn't mean that the decision wasn't right--wasn't
wrong.
Ms. Hageman. Judge Wilson, do you believe that Judge
Merchan committed a reversible error in excluding Mr. Smith,
but allowing Mr. Cohen to testify on these issues?
Judge Wilson. In and of itself, that may not be enough to
secure a reversal of the conviction. There is a concept in
appellate law, a cumulative error.
What I believe we have seen in the Trump trial is a series
of errors, one piled on the other, cumulative errors, that when
you put them all together show that Donald Trump did not have a
fair trial and that his conviction should be reversed.
Ms. Hageman. I am absolutely convinced that his conviction
will be reversed. I also believe that Judge Merchan was well
aware of that when he made the decisions during the course of
the trial that he did. I found his decisions to be egregious
reversible errors on so many different levels.
Thank you all for being here today, and with that, I yield
back.
Chair Jordan. The gentlelady yields back. The gentleman
from South Carolina--
Ms. Plaskett. Mr. Chair, before that--
Chair Jordan. The young lady, the Ranking Member is
recognized.
Ms. Plaskett. I just, for Mr. Gaetz and for your purposes,
I have an article from Reuters regarding Judge and trial, as
well as the actual opinion of the Judicial Advisory Group of
May 4, 2023, and will make a copy for him.
Chair Jordan. OK. Without objection.
The gentleman from South Carolina is recognized.
Mr. Fry. Thank you, Mr. Chair.
It's been a bad week for Democrats. Not only is the border
wide open, not only does Main Street feel the pressure of 20
percent inflation, but we saw a pretty tragic debate
performance by the Commander-in-Chief. In fact, Democrats this
week are discovering new tunnels on the way to and from the
Capitol in which to hide from the media. So, they are now
talking about things like Project 2025 and things to distract
the American people from what they're really seeing, which is a
country that is not doing well under his leadership. It is a
total distraction.
Let's recap some of the main players we have here today.
Alvin Bragg used a novel legal theory to bootstrap a
misdemeanor allegation as a felony by alleging that records
were falsified to conceal a second crime. Alvin Bragg is a
pioneer of sorts, but in all the wrong ways. When you look at
what he's done, he's paved the way for rogue district attorneys
to campaign on and get elected to prosecute politically--
political enemies or political opponents.
Then, we have Judge Merchan, who's a top Democrat donor;
his daughter worked for Kamala Harris, and even urged a Trump
organization CFO to be a government witness against President
Trump. When President Trump requested he recuse himself, Judge
Merchan said no. He performed an examination of his own
conscience, which he found that he can rule fairly and that it
would not be in the public interest if he recused himself from
the case. A total farce. The left has really stacked the deck
on this trial.
Judge Wilson, why should Judge Merchan--we talked about
this a second, but we're going to wrap up here--why should
Judge Merchan have recused himself from hearing the case
against President Trump?
Judge Wilson. A judge has an obligation to be fair and
impartial and to appear fair and impartial. Now, Judge Merchan
has the right to rely on the ethics opinions that he received.
He asked the question; he got the answer. That isn't the end of
the analysis.
The judge has to, also, avoid the appearance of
impropriety. In hearing the case, after having made political
contributions and having a daughter, first degree relationship
to the judge, profiting from attacking the subject of the trial
that the judge is presiding over, has the appearance of
impropriety.
Mr. Fry. Judge, have you ever asked, have you ever asked
specifically, a potential witness to be a witness in a case, or
have you let the prosecutors and the defense counsel pick
those, their own set of witnesses?
Judge Wilson. I leave that to the prosecution and the
defense. The prosecution has the burden of proof. They decide
what witnesses they want to put forward to prove their case,
and the defense, then, has the ability to present whatever
witnesses they want.
Sometimes witnesses will be irrelevant, cumulative; there
will be other reasons they'll not testify, in general, the
prosecution and defense are the ones that pick the witnesses.
Mr. Fry. So, if a judge were to do that--and in this case,
Judge Merchan--to ask a former Trump CFO to be a witness in a
case, that would be improper, is that correct?
Judge Wilson. That's out of the ordinary. It's not always
improper for a judge to suggest a witness, but judges don't
call witnesses in 99.99 percent of cases.
Mr. Fry. Judge, you talked about this earlier, kind of a
parade of errors that--what was the legal term that you used?
Judge Wilson. Cumulative, these are cumulative errors.
Mr. Fry. So, would the inability of Judge Merchan to recuse
himself, would that be part of a stack that could be used as--
by a Court of Appeals to reverse the decision?
Judge Wilson. I believe so.
Mr. Fry. What other grounds for appeal do you think are
evident, in your mind, on this particular case?
Judge Wilson. Well, I go right back to the indictments, and
Appellate Courts like to rule on things that are pretty clear.
A clear error is usually the basis that an Appellate Court will
find and not go into a lot of other questionable issues. Courts
like to decide things simply in most cases.
Here, the indictment was facially insufficient right from
the beginning, and it would have been a simple matter for Judge
Merchan to dismiss that indictment and to give the prosecutor
leave to re-present that indictment to get a sufficient one, to
give the defendant proper notice of the charges that the
defendant was facing.
That was not done in this case, and that led directly to
the next significant error, which was not notifying the
defendant of those additional charges until he was already at
trial, and many of them not being notified, many of those
charges not being, not being present until the jury
instructions themself.
Mr. Fry. Then, the jury instructions, of course, were
wrong, too. It was a 55-page set of jury instructions that were
incredibly confusing to an average juror.
Judge Wilson. Yes, as well as to lawyers, for that matter,
because I heard that comment more than once, that many didn't
know what those jury instructions meant.
Mr. Fry. Thank you, Judge. Appreciate your time.
With that, Mr. Chair, I yield back.
Chair Jordan. The gentleman yields back.
The Chair recognizes the Ranking Member for closing
questions and comments.
Ms. Plaskett. I really don't have any questions at this
time.
I just would, again, ask my plea to you, Mr. Chair, for us
to have a hearing, discussion, interview with the authors of
Project 2025. It is a clear weaponization plan by its authors
against the American people, should Donald Trump become
President again.
I yield back.
Chair Jordan. The gentlelady yields back.
Judge, the burden is supposed to be on the judge, right,
the burden if he's going to recuse?
Judge Wilson. Yes. The judge is the one that makes that
final determination as to whether or not they should recuse
themself.
Chair Jordan. You cite in your written testimony Rule
103(e)(1) of the Chief Administrative Judge for the State of
New York, is that right? It's pretty clear.
Judge Wilson. It is.
Chair Jordan. ``A judge shall''--``shall''--``A judge shall
disqualify himself or herself in a proceeding in which the
judge's impartiality might be reasonably questioned.''
It can't get any clearer. Anyone with a reasonable mind
says, if your daughter is in the business of making millions of
dollars for Democrat candidates whose whole career, most of
their career has been attacking President Trump, that might be
something that a reasonable person, a reasonable person would
question your impartiality? Is that clear?
Judge Wilson. That is why I've emphasized the appearance of
impropriety here. It is something that can't be ignored in the
analysis of whether or not a judge should recuse themself in--
Chair Jordan. OK. The final question is, why do you think
the judge, the court, allowed an indictment that wasn't
specific about the charge, the crime that President Trump was
being charged with? Why would he do that?
Judge Wilson. Well, that gets more into my political
opinion than my legal opinion. If you want my political
opinion--
Chair Jordan. Well, of course I do.
Judge Wilson. It sounds to me like Judge Merchan had his
marching orders and he moved forward with what was expected of
him.
Chair Jordan. So, if you're a judge who won't recuse
yourself when your daughter is in the business of making
millions of dollars from people who've attacked President
Trump, you might understand why he's winning to allow an
indictment that you're not supposed to allow move forward.
President Trump, who's the defendant, does not know what he's
being charged with until the end of the trial.
Judge Wilson. That is all correct.
Chair Jordan. Yes. Back to where we started, lawfare at its
finest--or at its worst. I would say at its worst.
I want to thank all of you for being here today and for
your expert testimony. We appreciate that.
With that--oh, I've got to read something special here.
This concludes today's hearing. We thank all our witnesses
for appearing before the Subcommittee.
Without objection, all Members will have five legislative
days to submit additional written questions for the witnesses
or additional materials for the record.
Without objection, the hearing is adjourned.
[Whereupon, at 12:34 p.m., the Subcommittee was adjourned.]
All materials submitted for the record by Members of the
Select Subcommittee on the Weaponization of the Federal
Government can be found at: https://docs.house.gov/Committee/
Calendar/By Event.aspx?EventID=117501.