Hearing on the Weaponization of the Federal Government

(silence)

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 now recognizes the gentleman from Ohio, Mr. Davis to lead us in the Pledge of Allegiance.

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.

Again, we want to thank everyone for joining us. We apologize for the delay. The Democrats have an important caucus they’re at or conference they’re at and we had some technical difficulties here. 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. 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.

(35:04)
While on the campaign trail, Mr. Bragg boasted about the number of times he had already sued President Trump. In January, 2021, Mr. Bragg stated, “I’m the candidate in the race who has the experience with Donald Trump.” He said that, “It’d 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.”

(35:39)
That’s 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, it’s 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 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.

(36:22)
It’s 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’s right, the head of the DNC and the Biden White House chief of staff, those were his references. That’s 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 a partisan judge, a 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.

(37:29)
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, but 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, but the problem is a plain reading of that act doesn’t support the indictment or the verdict. As Commissioner Smith stated, allowing this prosecution to go forward and the ultimate jury decision threaten the enforcement procedures established by Congress under the act and stretch the meaning of the statute in such a way as to threaten due process of law.

(38:19)
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 lawyer said you couldn’t trust, Michael Cohen who lied to Congress, lied to the FBI, and lied to the court. It’s 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, but that’s 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.

(39:02)
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’s already been done. As we have seen, other ambitious prosecutors that follow 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. We now recognize the Ranking Member for an opening statement and then we’ll get to our witnesses.

Thank you, Mr. Chairman. Good morning. Thank you to our witnesses for being here. I’d especially like to thank witness former US 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.”

(41:15)
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 on the world was 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 of, 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. In those republics, those democracies, slowly but surely rights are stripped away. My fellow Americans, that’s 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.

(43:27)
We have a blueprint that we can see how that’s being done. Project 2025 plans to upend structures, institutions, and the basic rights that have supposedly been afforded to Americans to make it great. It’s 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’ve asked for a hearing about Project 2025 because I believe it is a dire warning to us all of an individual and others around him’s 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.

(44:49)
It 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. And yes, because it is a Grand Republican plan, Project 2025 calls for severe cuts to Medicare and social security. I’m not just saying that. The authors of Project 2025 are saying that. Here’s a video outlining that.

… Project 2025 believe that a woman should be able to have an abortion if her doctor says that she needs one. It’s a yes or no question.

Abortion is not health care.

So that is a no?

Murder of a human being.

We are also going to have teams because we can multitask to deconstruct the administrative state and to go after criminals and the traitors in the deep state. So suck on that!

We need to have the biggest mass deportation system ever in the history of America because it is unjust and illegal and evil that more than 10 million illegal aliens have come to this country. There are great plans using the Department of Homeland security to return these people back to south of the border.

The best thing that people can do right now if you’re a young person is get involved in one of these things like American Moment or Project 2025 or the Trump campaign. We got to fill up the White House with Groypers.

Project 2025 is something that’s going to transcend the next four years, the next 10 years. It really is for the first time in the history of the conservative movement the apparatus for policy and personnel.

(46:26)
We are in the process of the second American Revolution which will remain bloodless if the left allows it to be.

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’s 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’s what his Defense Secretary said on TV and there’s recordings of it.

(47:24)
This is the man who jokes about being a dictator just for a day and teases the idea of a third term for a US president. This is a man who wants to implement sycophant loyalty tests. He’s a man who will 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’re 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’s 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.

(48:40)
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 and without any care for all people’s rights. A 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’s 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’s counterproductive and threatens years, decades, centuries of progress. Let’s keep moving forward. Let’s not go back to the dark times. I yield back.

Gentlelady yields back. Without objection, all other opening statements will be included in the record. We’ll now introduce today’s witnesses. The Honorable Brad Smith is the Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School. Professor Smith previously served as commissioner on the Federal Elections Commission, including a term as chairman. Mr. Jonathan Fahey is a partner at Holtzman Vogel. He’s a former prosecutor having served for 17 years in the US 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 US Immigration and Custom Enforcement.

(50:08)
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 and Mr. Shan Wu is an attorney focusing on white collar defense in cases involving college students. He previously served as a federal prosecutor and has counseled the 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?

(50:50)
Do you swear or affirm under penalty of perjury that the testimony you’re about to give is true and correct to the best of your knowledge, information, and beliefs, 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 and we’re going to just move right down the line like we introduced you. We’ll start with Professor Smith and go right down and finish with Mr. Wu. So Mr. Smith, you’re recognized for five minutes.

Thank you, Chairman 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 Federal Election Campaign Act or FECA were incorrect as a matter of law. And I discussed 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 any legal contribution. But moreover, the prosecution theory that the defendant, Trump, had to engage in a vast conspiracy because of a desperate desire to hide Stormy 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’ve come out before the election.

(52:23)
As I explained under their reporting schedules, nothing would’ve 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 non-disclosure agreement as of October 27th, 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’ve 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.

(53:04)
As a practical matter then, having Michael Cohen front the money for the non-disclosure 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 and this undercuts the entire theory of the case offered by the prosecution. This is explained in my written testimony. I’m happy to answer questions on 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… In our defense of democracy, we have not been willing to short-change procedures of law, but because it also threatens the bipartisan campaign enforcement system established by Congress.

(53:52)
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. Indeed, they decided not to pursue it. There was 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 and effectively the state was simply making up the law and enforcing federal law in a partisan with elected judges, elected prosecutors unlike the nonpartisan bipartisan system set up by the Federal Election Campaign Act.

(54:38)
And 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 and 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.

(55:27)
It’s worth noting in the end that it’s right for this committee… I guess I would say this. It’s right 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’s not how the Federal Election Campaign Act was set up, and that’s 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.

Thank you, Professor. Mr. Fahey, you’re recognized for five minutes.

Thank you.

Make sure you have that mic on and pull it close.

Thank you.

You bet.

Good morning, Chairman Jordan, Ranking Member Plaskett, members of the committee. I thank you for the opportunity to testify here today. My name is Jonathan Fahey and I’m an attorney with the law firm of Holtzman Vogel. I’m 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. 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 be 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.

(57:11)
And 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’re 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. And 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 victims job, and that’s the way it had really been in Virginia where I live and most of the country up until about 10 years ago. And 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. But 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. And I had the opportunity to prosecute cases anywhere from the lowest level misdemeanor cases to the most violent felons. And again, I learned a lot of lessons there. But the most important lesson I learned was you’re entrusted with so much power from the position, from the community and how you administer that power is what’s most important. You don’t prosecute people because you don’t like them or you have some other ulterior motive.

(58:51)
You prosecute them because they violated the law and you’re treating people equally regardless of the political motivations or political parties or anything else they might have. I went over from the Commonwealth’s Attorney’s office to the US Attorney’s office in the Eastern District of Virginia where I served for 17 years. I served under multiple administrations from George W. Bush to Obama to President Trump. And 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 probably attorneys I’ve 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. And while I was there, I had the opportunity to prosecute drug traffickers, gang members, fraudsters, other types of crimes. I also had the opportunity to train younger prosecutors on how to prosecute cases, ethics, things of that nature.

(59:57)
The reason I go into my background, and I know the time is short, is the reason I’m 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… Sort of the underlying premise was the entire system was unjust, therefore, the prosecutor can do whatever they want. And you saw that in Philadelphia, you see it in Chicago, which incidentally I think had a hundred plus people shot over the weekend, you see in LA, 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.

(01:00:57)
And that seems somewhat benign in some respects. But the problem with it, as you see with Alvin Bragg, which I’ll 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 in prosecuting any misdemeanors whatsoever, reducing misdemeanors to felonies, and reducing serious felonies to lesser felonies. So all of his theme for running, his in-office practice has led to, I think, New York the last two years have the highest crime rate on the big seven crimes in the last 20 years. But he’s taken this a step further because, again, it’s 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’ve seen, now it’s taken from not prosecuting to identifying a political opponent and prosecuting them for political reasons.

(01:02:07)
I’ll 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, and I apologize for going a little bit over.

It’s fine, Mr. Fahey. Thank you. Judge, you’re recognized for five minutes.

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 in and for both Kings County and Bronx County, New York City, from 2005 to 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.

(01:03:09)
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, etc. 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 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 upon the reversal of Harvey Weinstein’s illegal conviction, Donald Trump’s conviction is assured reversal, a reversal that would be premised upon the fundamental errors committed by Judge Juan Merchan.

(01:04:08)
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. One, the indictment was legally insufficient and Judge Merchan should have dismissed the indictment before trial. In my book, the Making of a Martyr and Analysis of the Indictments of Donald Trump, I wrote that 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’s 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.

(01:05:14)
Number two, 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 in that they included these additional charges and allowed for a non-unanimous verdict. A non-unanimous verdict is unprecedented in any felony trial in American jurisprudence. And recently the US Supreme Court reiterated the necessity for

… For a unanimous jury verdict in the case of Erlinger v. United States.

(01:06:05)
Number three, Judge Juan Merchan made unconstitutional and 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 testify 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.

(01:06:33)
Number four, Judge Merchan should have recused himself from presiding over this matter based upon the appearance of impropriety in having contributed to political campaigns regardless of the amount and based upon his daughter’s political activities, regardless of the ethics opinions he received which absolved him of any actual unethical activity.

(01:06:56)
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.

(01:07:25)
It is my belief however that the ones I have outlined are the strongest issues to be presented on appeal. Therefore, it’s my considered opinion based upon my years of legal training and experience that former President Donald Trump did not receive a fair trial, that Judge Juan Merchan failed in his obligation to be fair and impartial, that Judge Merchan committed a series of errors that necessitate 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.

(01:08:03)
Thank you for your attention. I’ll be happy to answer your questions.

Thank you, Judge.

(01:08:06)
Mr. Wu, you’re recognized for five minutes.

Thank you.

(01:08:12)
Good morning members of the subcommittee and thank you Chairman 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. And 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. And 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.

(01:09:18)
From that particular position where my portfolio included liaisoning for the Office of the 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.

(01:10:01)
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 lastly, 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.

(01:10:45)
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 is 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 Ms. Reno, the Attorney General, would always want to know what the take was from career civil servants there.

(01:11:26)
And 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 heroes who always provided their best advice. And that advice is important because they, as career employees, their tenure is 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. And 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.

(01:12:18)
To me, that gives the institution both a sense of integrity as well as steadiness, and that kind of steadiness and integrity is what allows the American people to have confidence in their institutions. My parents were cut off 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 of its people. And as I see the current climate today, one of my concerns is that those freedoms are endangered by an increasing trajectory towards authoritarianism, autocracy, and even dictatorship types of tendencies.

(01:13:02)
My testimony is prepared in writing as well, and of course very happy to answer any questions.

Gentleman yields back. We will now proceed under the five-minute rule. The chair recognizes the gentleman from Ohio for five minutes.

I thank all of our witnesses. I thank the chairman for holding this meeting.

(01:13:21)
Look, in my eight years in Congress, I came in June of 2016, we’ve seen an unprecedented amount of weaponized government. We’ve 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.

(01:13:51)
Frankly, the radicals are counting on it. We’ve seen the IRS go after religious and conservative non-profits, the ATF go after law-abiding gun collectors, ProLife Brand mothers. sent to prison for years for peaceful protests here in Washington. D.C., parents targeted for speaking up at school board meetings, FinTech companies targeted and debanked because they pose a threat to the status quo. The list goes on.

(01:14:16)
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 rule-makings 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.

(01:14:40)
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 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.

(01:15:16)
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. His was clearly a political act, and that is the only reason this case was designed and executed against the current administration’s political enemy.

(01:15:41)
Professor Smith, has there ever been a citizen not named Donald Trump that has been prosecuted with these same crimes anywhere in America?

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. And no, I’ve never seen anything like that.

Has anyone ever successfully paid a hush money settlement to anyone and counted it as a campaign expense?

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, based on things done outside of office, like 10 years before you were a candidate, is not a campaign expense. And we wouldn’t want it to be because, if you think about it, that would mean that candidates could use their campaign funds for exactly that kind of thing.

It’d be a horrible precedent.

Right. Yeah.

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.

(01:17:09)
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?

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… I mean, 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. And that’s really what’s scary about this. And I think 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 case this is the most aggressive stance that’s ever been taken probably on these set of charges.

Clearly, not the rule of law.

Right. And crime is going through the roof. I think the seven biggest felonies the last two years are the highest years since ’06. So it’s like he’s not prosecuting law equally or against other people and more serious criminals.

Thank you. And look, Judge Wilson, you referenced it in your statements about the precedent in the Court’s recognition in Andres v. The United States. But as early as 1898, the Court said that a defendant enjoys a “constitutional right to demand that his liberty should not be taken except by the joint action of the Court in a unanimous verdict of a jury of 12 persons.”

(01:18:34)
I thank Chairman 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.

(01:18:47)
I yield back

Gentleman yields back.

(01:18:48)
The gentleman from Massachusetts is recognized for five minutes.

Thank you, Mr. Chairman. And thank you to the ranking member. And I appreciate the attendance of our witnesses this morning.

(01:18:58)
I’ve served on the Oversight committee here in Congress, which is the Principal investigatory committee in this house for over 20 years. And I have to admit I cannot point to a single case during my tenure, and we have had Republican leadership 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.

(01:19:39)
Even before New York District Attorney Alvin Bragg announced a 34 count felony indictment against the former president in April of 2023, Chairman 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 “serious consequences” of pursuing criminal charges against Donald Trump. And over the next year in the midst of ongoing State criminal proceedings, Chairman 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.

(01:20:29)
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 New York City District Attorney receipts and other use of federal funds. Clearly, clearly trying to intimidate the New York District Attorney’s Office and dissuade them from their prosecution of Donald Trump.

(01:21:12)
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?

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.

And 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 medal in their investigation “crosses the line to political interference that threatens the rule of law.”

(01:22:38)
Would you agree with that assessment?

I would agree with that. And also, I think the presence of those members of 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. Wu, the Brennan Center has also warned that congressional interference in the New York case is reflective of a “worrying trend that threatens to intensify.”

(01:23:04)
Can you talk about the impact of this trend on state and federal prosecutions?

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. And I think that really undermines the integrity of our criminal justice system.

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?

The Supreme Court’s decision on immunity I think very much indicates this Court’s direction towards 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 over-broad 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.

Thank you.

(01:24:19)
Mr. Chairman, my time has expired and I yield back.

Gentleman yields back.

(01:24:23)
Gentleman from California is recognized.

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 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?

Obviously, there’s a general policy reason not to have-

Okay. So the fact is that the Supreme Court’s decision on limited immunity or immunity from prosecution, 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?

I think that’s exactly the problem you point out, is it’s so rare that there is no need for them to-

Well, let’s just get back to rare. There was 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.

(01:25:47)
I’m going to switch to Mr. Smith. I’m going to let him drink his water. You said as a prosecutor, to you and to 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?

Yeah. If I may go first. I think the most glaring thing was 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 crime there.

So the judge clearly let evidence in that-

And 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-

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 a minimum, allow the defendant to present witnesses in response to that or to offset. It would be pretty unheard of that they only let you hit the guy and no one answer back.

Right. That part of it is concerning. 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, 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. And 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 explanatory evidence.

And then, as my time is 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?

Yes. And it goes to question the motivation for this case. Was it just to get the initial conviction?

And now let’s go to the motivation with Mr. Smith.

(01:28:16)
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 in order to get a felony and then take it to the federal court and charge somebody?

No.

So the federal government doesn’t grab state cases to make something that is normally a fine and make it a crime, correct?

No, it does not.

Okay. And 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… There was failure to file. Is that usually something that you would bring them up at the FEC and refer them for criminal felony charges?

It would be extremely rare that it would be referred for criminal charges. You’d have to show clear intent.

So in this case specifically, the FEC made a decision that what they pulled 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?

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 just thought it was an error or something.

So it wasn’t even worth a fine, much less a criminal prosecution?

Right.

Thank you. I yield back.

Gentleman yields back.

(01:29:56)
Gentlelady from Florida is recognized.

Thank you, Mr. Chairman.

(01:29:59)
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.

(01:30:17)
And 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?

Yes, I believe so.

We know Trump abortion bans keep women in abusive relationships. Would Project 2025 make those horrible situations even worse?

Yes.

These Trump abortion bans disproportionately harm 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?

Yes.

Thank you. Mr. Wu, I want to discuss what Project 2025 would mean for women who face medical pregnancy issues.

(01:31:18)
Trump’s abortion 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 lifesaving 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’s not some democratic talking point, that’s directly from doctors.

(01:31:44)
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% of providers say they 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.

(01:32:09)
Mr. Wu, do you think that innocent women, women truly trying to receive necessary healthcare, will be unfairly criminalized by Project 2025?

Yes, I do. And I think 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 in order to have abortions.

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’s 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 mifepristone in order to get it off the market.

(01:32:53)
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 health care 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.

(01:33:14)
Trump’s Project 2025 blueprint even calls on the CDC to increase “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.

(01:33:40)
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?

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. I mean, 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.

Well, I’m glad that in this committee we’re finally exposing what the real weaponization of government is, was under former President Trump, and would be again. And lastly, as my time expires in the next 30 seconds, isn’t this working towards a complete and total national abortion ban? And isn’t that what Project 2025 makes clear the goal is if former President Trump were re-elected again?

I think it does. I mean, it sets out a blueprint to get at that goal through numerous ways.

Thank you very much.

(01:34:52)
I yield back the balance of my time.

Gentlelady yields back.

(01:34:54)
Professor Smith, in your opening… Or excuse me, your written testimony, you said that the Lead Prosecutor Matthew Colangelo, his opening statement in the Court accused President Trump of violating the Federal Election Campaign Act. But the FEC didn’t bring charges, I think you’ve said a couple of times. Is that true?

That’s correct.

And the Department of Justice didn’t bring charges?

That’s correct.

And if President Trump’s campaign had paid for it, it wouldn’t have been reported until after the election. Is that right?

That’s correct.

And did President Trump’s campaign have the money to pay for it?

Yes, they had plenty of money to-

Like, 7, 8 million bucks still on hand on election day, I think. Right?

Yes.

And certainly President Trump had the money to pay for it. He’s not-

Yes, he’d already spent over 60 million on his campaign.

Yeah, they had already done that. Was it a political contribution?

No, I do not believe so for reasons stated. I can elaborate on those now, but it’s-

Not only do you not believe so, their star witness didn’t believe so. Michael Cohen said he was working back in 2011 to deal with this Ms. Daniels making the allegations and wanting make this public, and he was doing it for other reasons. Isn’t that correct?

Yes. They had been concerned about Daniels for a long time, and keeping her quiet.

So the obligation wasn’t caused by President Trump’s candidacy for President of the United States. Is that right?

No, it was not.

Okay.

(01:36:06)
Mr. Fahey, in your written testimony, you said one of the most alarming aspects of the case is that the “fraud” did not involve anyone losing money or even 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 of 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?

Yeah, that’s what makes this so remarkable. And 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.

It wasn’t a contribution, if it was a contribution it would not have been reported until after the election, and no one suffered any losses, and yet they bring this charge against President Trump. I find that just amazing. If that’s not political motivation, I don’t know… Because what other motivation could there be?

It’s really almost inarguable at this point that the motivation for this case was political. It’s really hard… I’ve never heard a serious argument that it should have been prosecuted otherwise. I know Mr. Wu might have one, but I just haven’t heard that, because it seems political from the inception all the way to the end.

Yeah. Wasn’t a contribution, wouldn’t have been reported even if it was, if they paid out of the campaign, no one suffered loss yet, there was some kind of conspiracy to impact an election. But that’s 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?

That’s correct. Right from the indictment, Donald Trump was charged with falsifying business records. To elevate that crime to a felony, he had to be concealing or committing other crimes.

When did the defendant in this trial, in this case, learn what he was being charged with?

At the end of the trial.

At the end of the trial. That’s not supposed to happen in America, is it, Judge?

No, that is illegal.

So not only did he not know what he’s 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.”

It’s an extraordinarily egregious error to tell a jury they don’t have to be unanimous. And 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 unspecific verdict.

Campaign finance expert says it wasn’t a contribution and, even if it was a contribution, if they treated it as a contribution, paid it out of the campaign, it wouldn’t have been reported until after the election, so there’s no conspiracy to influence the election, no one suffered any harm or fraud in the initial case, former prosecutor

… prosecutor tells us and 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, nevermind the fact the judge should have recused himself, which you point out in your written testimony, judge, the judge told the jury, you don’t have to be unanimous.

(01:39:15)
But the real thing here is the opportunity cost. And 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’re 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’s the issue that most Americans see. We’re 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’s the opportunity cost here I believe in Manhattan, you get the last word, Mr. Fahey.

Yeah, 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 now recognizes the gentle lady from Texas.

Okay, 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’re speaking in an opinionated stance. You’re not speaking from a place of fact, correct?

No, I’m speaking from a place of facts [inaudible 01:40:39].

Thank you so much. I’m reclaiming my time. Let me clarify for you that NYPD puts out reports and in April it said overall index crime across New York City dropped another 4.9%. As it relates to May, the report says overall index crime across New York dropped another 2.4% and June’s report hasn’t come out. I would ask for unanimous consent to enter this into the record.

(01:41:06)
Now moving on, I just want to 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’m 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. Number one, how many branches of government do we have?

Three.

Three, okay. Sounds good. So can you name them for me?

Legislative, judiciary and executive.

Very good. Okay. So currently I think that I serve in the legislative branch. Would you agree?

I agree.

Okay, 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?

Well, it’s really the executive. It’s prosecuting and then it’s within the judiciary to run the trial properly.

Okay, very good. So judiciary, so typically if someone has an issue with say 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?

The process would be the judicial appellate process holding aside the issue of state versus federal.

Oh, interesting. Okay. 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?

Yes.

Okay. All right. So something is different about what’s 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’ll get there, there will be a different way to prosecute people. But 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, but just clarify for me, when someone goes into be prosecuted, is it say the President of the United States that somehow becomes the state prosecutor in New York?

Oh, absolutely not.

Absolutely not. Because he’s the executor, huh? That’s that other branch?

Correct.

All right. So you have this prosecutor and in this case it’s Alvin Bragg who was duly elected, correct?

Correct.

Not appointed by the president, correct?

Right.

Duly elected by the citizens in his jurisdiction. Right?

Right.

So he’s elected and usually there’s some sort of an investigation that takes place. Correct?

Prior to his election?

No, no, no. With a case. I’m sorry.

Yes, correct.

I’ve moved on.

Yes.

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?

Correct.

All right. And then they use that discretion, but then when it’s 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?

That’s right.

Now a grand jury is comprised of citizens, correct?

Correct.

US citizens from that area, correct?

Right.

Okay. So they have to come to the conclusion that they are going to issue what we call a true bill, correct?

Correct.

All right, so then we have an indictment and then there’s pretrial motions, there’s pretrial hearings, all kinds of stuff, right?

Right.

All right. And then ultimately, depending on where you are, you have the opportunity to say, “Hey, I want a jury trial.” Correct?

Correct.

And a jury trial is comprised of US citizens again, right?

Right.

Okay, very good. All right, so can you tell me so far if all of this took place in the case in New York?

Yes, it did.

Oh, okay. All right. So you get to trial Now when you show up to trial and you’re facing a felony amount of time as a defendant, are you not entitled to an attorney?

Yes, you are.

And your attorney is allowed to pick the jury. They’re allowed to present evidence and ultimately it is a jury of your peers who decides whether or not you are guilty or not, correct?

Correct [inaudible 01:45:22].

And in this case-

[inaudible 01:45:24] the judge [inaudible 01:45:25].

… and 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 juries is not what we do in this country. In this country we have a system in which jurors decide who is found guilty, and if you have a problem with that, you go to the appellate court. [inaudible 01:45:50] last time I checked he was [inaudible 01:45:53] so that he could go to the appellate court and appeal his decision and they will have the final say so. Thank you so much.

Yes, they will. The gentle lady yields back and the gentleman from North Dakota is recognized.

Thank you.

Mr. Chair. If I may just a quick, I just wanted to say as just as 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. And 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.

Well said. And I appreciate bringing that attention. This is my oversight, I should have said something about our colleague, Mr. Massey. Mr. Davidson and I and [inaudible 01:46:55] and I had a chance to go down and visit with Thomas a week ago Sunday. He’s doing as good as you can under these difficult, difficult circumstances, and his wife Rhonda, was an amazing person. So to both members of this committee, thank you for bringing that up.

Thank you.

Gentlemen for North Dakota is recognized for five minutes.

Thank you, Mr. Chairman. And I very much appreciate the questioning from my friend from Texas. She’s one of the few other people that has actually practiced criminal defense and public defense. And as somebody who’s done that for very long time, I appreciate that very much. I never did practice in New York. I also have practiced in federal court and I’ve practiced in state court and passed several bar exams as well. Judge Wilson, what’s the statute of limitations on a misdemeanor in New York

One year.

The business records case is a misdemeanor, correct?

The underlying crime, the falsifying business records, yes, that’s a misdemeanor charge.

So the only way to get to a felony is by committing or is by in concealment of another crime.

Correct.

And each one of those crimes has specific elements.

That’s right.

In order to get a conviction at trial, you have to prove every element of the crime beyond a reasonable doubt. Right? That’s just traditionally how this works.

That is the right way to do it.

So in the indictment, did they put the underlying crime?

No, they did not. They only described it as other crimes.

Okay. And in the jury instructions, did they put the specific underlying crime?

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 choice of three crimes. There was a description given of falsifying business records, which was pretty ironic because it was falsifying business records, two falsified business records.

And that’s also a misdemeanor, right?

That should be, yeah.

So you have two plus two equals six. 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.

That’s correct. But there’s some more question marks regarding the statute of limitations. It’s not cut and dry 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 New York, in California, should not have tolled the time limitations, but the Court of Appeals ruled against him on that issue. So that’s I think how they get around the statute of limitations problem in this case.

So was the election law case a federal election law or state election law underlying crime?

Seemed like it was charged as both. When we got to the jury instructions, there’s a violation of New York election law charged, but then there’s, among the three charges underlying is an unspecified violation of federal election law.

And then the third one was tax violation, right?

Also unspecified.

So all three of those underlying crimes have significantly different elements of the crime?

That is correct.

Were any of the elements of those crimes listed?

No, not at all.

So, and 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’re defending, how do you mount a defense?

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

And the elements of the crime go in the jury instructions. I mean, traditionally that’s how it works. Federal court, state court in North Dakota State Court in Minnesota, I’ve been in all of these different jurisdictions, you actually get the elements of the underlying crime. Correct?

Any time that I instructed a jury, I instructed them what the elements of the crime were.

And instead in this case, they got a grab bag.

They got a choice of three when it came to the underlying crimes, and 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 instruction.

So not only did we have not the elements of the crime, but we have three different crimes with three vastly different elements of the crimes.

All unspecified.

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.

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 elements of any crime.

And that’s why you believe, as do I, that when this goes on appeal, there’s going to be significant legal issues to argue that the jury never actually got them put in front of them.

I have very little doubt that this matter will be reversed on appeal and based upon these issues.

Because I’ve actually been pretty, I mean, 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. And with that, I yield back.

Gentlemen, yields back. The gentleman from New York is recognized.

Thank you, Mr. Chairman. I’m happy we’re 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 improperly censored social media companies. I’m surprised we haven’t yet heard about the ultimate decision on appeal by the Supreme Court, which dismissed the case.

(01:53:10)
So it’s pretty fascinating to me that we don’t have follow up on the appeals of a case that we’re so excited about the appellate process when the Supreme Court dismissed it. Mr. Fahey, I want to just touch upon a couple of things you said before I move into the crux of my questioning. Am I right that I heard you say that it’s unheard of to bring a fraud case without losses to individual victims?

I cannot think of a situation where that’s occurred. I’m not saying it hasn’t [inaudible 01:53:48].

So you’re saying that every books and records case has losses to victims?

I’m saying every fraud case that I was involved either prosecuting or knowing about usually had somebody that was [inaudible 01:53:59].

But this was a rooks and Records charge, yes?

Well, I think it’s based on a fraud case that somebody committed fraud on the books and records, yes.

A fraud on the books and records.

Yeah. I think the allegation is there were incorrect or fraudulent entries in the books or the records, yes.

Right. And so you’re saying that every single books and records fraudulent entry, which is a false entry, has lost individual victims. Is that your testimony?

That’s not at all my testimony. I said fraud cases are generally not prosecuted without victims [inaudible 01:54:30].

That’s true. Murder cases are generally not prosecuted without victims too. But we’re talking about books and records here. Are you familiar with the term fraud on the market?

No, not really.

Okay. [inaudible 01:54:39] You should look into that-

Other than you just saying-

… and you should look into, let me give you another example of a fraud case that doesn’t have an loss to an individual victim, which would be any insider trading case. So I don’t-

Other than they would have potential victims and other people harmed. This is a case where there’s [inaudible 01:54:54].

Go look up fraud on the market. There are no individual victims with losses, and yet those cases are charged all-

There’s an overall-

… of the time

… harm in those cases.

We’re focused here on the weaponization of the government as usual. And I’m 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?

Yes.

And that that hearing was during the trial?

Yes.

Okay. So do you think that that was an appropriate way of trying to elicit testimony to impeach a witness in a trial in a congressional hearing?

No, I think it interferes with the trial.

Now, interestingly, when he was here, I suggested that he go testify in the trial and he did. That’s the appropriate place for where he should be. Right?

Exactly.

And Mr. Trump’s attorney had an opportunity to cross-examine him, did he not?

Yes.

And Mr. Trump’s attorney had, I believe, three days of cross-examination of Michael Cohen. Did he not?

Yes, I think that’s right.

And ultimately the jury heard all of that, right? And all of the other evidence and decided unanimously that he was guilty.

That’s right.

Are you aware of about two dozen members of the House Republican Party writing an amicus brief to a district judge about the Hunter Biden case?

Yes.

So let me just get this straight. We have legislators, elected officials, trying to intervene in an ongoing criminal case. Is that what happened?

That’s what it sounds like.

And they’re 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. And what Donald Trump has vowed to do is weaponize the Department of Justice to go after his political rivals, a revenge and retribution tour. And the notion that this committee is accusing Democrats of weaponizing the federal government when the 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. And I yield back.

We appreciate the gentleman. The gentleman from North Carolina is recognized for five minutes.

Thank you, Mr. Chairman. 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?

I’m not sure of a specific instance like that. I mean, I think there has been a general feeling that some of the state court processes have been unfair or biased, and that was, for example, a reason for some of the civil rights legislature.

Sure, yeah. Even in the post Civil War era. Right?

Sure.

So I have distinct images of that having occurred, and processes that appear to be ordinary can be used to political effect in such cases, right?

Sure.

Even in totalitarian regimes, totalitarian systems of government, that’s a favorite tactic, isn’t it? The show trial?

Indeed it is.

Is there a legitimate federal government interest in preventing that where it occurs?

Well, there’s some jurisdictional limits on what the federal government can do there. I mean, if it’s a state trial, they’d have to come in after the fact to examine whether there’s been some [inaudible 01:59:23].

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?

Yes. Those legislative-

And they were designed to prevent that kind of misuse, right?

I don’t know that they were designed specifically at the court system misuse, but I think they were designed to correct injustice.

You don’t think they were designed to correct misuses and abuses of the court system, the state court system?

No, that’s not what I said. It includes that but not-

So you would agree with me that they were designed for that very purpose. Right, Sir?

Not only for that purpose.

Yeah, 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?

Certainly they can do investigations, hold hearings, but they should be after the fact of prosecutions, not during the prosecutions.

Oh. So let me just ask you 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?

That’s certainly something that can be part of the fact finding, yes.

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?

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.

How about state legislative renewal of expired statutes of limitations aimed at such a political target? Would that be possibly evidence of such conduct?

Again, I don’t know whether it’s evidence, but it seems like something that Congress could ask about.

What about judicial assignment processes resulting in folks with apparent partisan bias being appointed or ending up administering a trial against such a target? Would that be such evidence?

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 [inaudible 02:01:48] looked at.

How about contriving jury instructions or administering a trial to deny the target fundamental fairness in due process, anticipating that correction of that would be delayed until after the political impact is run its course in an election? Would that be evidence that Congress should be concerned about?

I think that’s more a issue for appeal of the particular conviction. Again, respectfully, I feel there’s a little bit of a conclusory aspect.

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’s okay. Congress shouldn’t worry about that at all, is that right?

I think the appeal needs to run its course first and then if Congress has concerns about the case overall, they’re free to look into it.

All right. I yield back.

Gentleman yields back. The gentle lady from [inaudible 02:02:46].

Thank you. Thank you, Mr. Chair. Mr. Wu, did you conclude your thoughts on that subject?

Yes, I did.

Okay, thank you. I just wanted to give you time if you needed it. Thank you for your analysis of what’s happened in the court case in New York. And Judge Wilson, it’s good to see you here. I just wanted to give a shout-out to a fellow Bronx District Attorney alum as well.

Thank you.

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. At Mr. Bragg’s first year in office shootings in Manhattan declined by 20%. Homicides declined by 16% and the data from the NYPD shows that the rates of virtually every index of crime are lower in Manhattan for the first quarter of 2023 than they were at the same time last year. So while we may not like him having prosecuted former President Trump, I think it’s 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.

(02:04:12)
Would we like to see it further? As a born and raised New Yorker, of course, but 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’ve shared with the chairman 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 author 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?

I think one way that I’ve touched upon 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 the political employees counsel, again, you lose the experience and the context of that position. And 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.

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 if an individual like David Margolis had not passed the loyalty test, would he still have that position?

No.

One of the key tenets is also to defeat the anti-American left. That’s 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?

No, it doesn’t. I think it undermines the democracy.

As a former federal prosecutor for many years, was it your experience that prosecutors and liberal jurisdictions approach the criminal justice system with an anti-conservative bias?

No, it was not.

And what was your experience?

My experience was that federal prosecutors around the country tended to be very independent minded. Sometimes they would butt heads with what we call Maine justice, but I pretty much never have seen an instance that I would identify as a politically motivated federal prosecution.

Thank you. And I’m not going to go into blocking financial aid for American college students if their state permits kids like dreamers to accessing state tuition, getting rid of school lunch programs, 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, restricting access to women’s healthcare and abortion drugs across the market. This again, Mr. Chairman, I believe is a document that we along with others throughout Congress need to take a closer look at. I yield back.

Lady yields back, gentleman from Florida is recognized.

Thank you, Mr. Chairman. 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.

(02:09:16)
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 prosecutor alleged that the unlawful means resulted from a violation of the Federal Election Campaign Act. Is that correct?

That’s correct.

And you were once the chairman of the Federal Election Commission, is that correct?

That is correct.

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?

Yes. The definition of this expenditure, if you just read the statute, says anything for the purpose of influencing an election. So a normal person might hear that and say, well, why did they make that expenditure? But if you read further into the statute, the provisions regarding personal use, and if you read the FBCs regulations and its explanation of those regulations, it’s clear what they mean is for the purpose of influencing an election is not the subjective motivation of the spender. It’s an objective motivation.

(02:10:16)
So setting up a campaign headquarters, hiring a campaign manager, buying TV ads, printing bumper stickers, whatever else you do like that, that’s for the purpose of running a campaign. But 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 US Senate from New York, settling complaints against your business and 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.

And were you allowed to provide any of that context to the jury through expert testimony?

No.

And what is your expert opinion of the instructions that Judge Merchan gave to the jury regarding the Federal Election Campaign Act?

Well, I think the judge’s instructions were clearly wanting. All he gave them was that bare bones, if this was for the purpose of influencing an election, you’ve got a problem. And again, this has been noted in this hearing, he repeatedly allowed witness Michael Cohen, who’s no expert in campaign finance law, and the prosecutors to state that there had clearly been a violation.

(02:11:19)
I would note that had I testified, of course, I would not have testified specifically to what the law is, but I would’ve testified to the reporting system that would’ve shown that there was no advantage to not reporting this as a campaign expenditure to the contribution system, which would’ve shown that Mr. Trump could have clearly paid this without any ramifications had he wanted to do so. I would’ve talked about how the FEC in practice had, in many cases, found that certain things that look like, again and 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.

And Judge Merchan allowed Michael Cohen, who has no expert qualifications in this field whatsoever to provide the jury information on campaign finance

… law, but he prevented you from giving substantive expert testimony on Federal Election Campaign Act.

He did, and then he advised the jury, now you can’t use that to consider Mr. Trump guilty. That’s only for context, which is like saying to the jury or like saying to you, “For the rest of this hearing, I don’t want any of you to think about a yellow mini bus by Volkswagen.” I mean, that’s all you’re going to think about. The rest of the hearing is a yellow VW van. It 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 finance thing and basically got a much lighter sentence.

In the beginning of questioning by Chair Jordan, you talked about how we wouldn’t want non-disclosure agreements of things that happened before a campaign to be campaign expenses. Can you just expand upon that?

Right. I mean, you don’t want members of Congress to pay for their personal peccadillos from 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 think I’d like to seal that up,” even though it’s not relevant. It’s not something that you created from your campaign. It’s the ticket for abuse. And this is why the law specifically lists a number of things, 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’s something that people do even if they’re not running for office, and we don’t want campaign funds paying for that.

Thank all of you for being here today. I yield back.

The chair is-

[inaudible 02:13:37] back. The gentle lady is recognized.

I ask unanimous consent to enter into the record of May 21st, 2024 AP News fact check article entitled Judge and 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, it could be 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.

Without objection, and Mr. Smith addresses that in his written testimony. The gentleman from Florida is recognized.

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?”

I suppose they could, at least, unless Judge Jackson is correct and we’ll have to wait for that overturning on appeal, but yes, that’s-

Yeah. 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?

Yeah, and you could do almost anything else. You could say, for example, “I’d really like to go to the Super Bowl this year, I think I’ll take a couple of donors along,” and buy your Super Bowl tickets and your whole trip to the Super Bowl because it’s for the purpose of influencing your campaign.

So in the prosecution to preserve our democracy, we have now green lit potentially the most expansive abuses of campaign funds ever.

Well put.

All right. I have to test the limits of this. I do not like wearing ties. I would never wear a tie. I’m 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’m not really a tie person?

If you took seriously the subjective standard that was given to the jury as the instruction, yes, it would mean that. If you took the objective standard that appears in the statute, no, you couldn’t.

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 this confusion and then this opportunity for fraud because here’s how this will go. Politicians will then simply use the gray area to enhance their own personal lifestyles through their campaign funds?

Right. That’s correct, and 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, and that was part of the whole idea was you’re not going to be able to do that anymore.

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 that you were presiding over where you had a family member economically benefit from the notoriety of the case?

No. Never.

Are you sure you don’t want to take some more time on that, think about it?

I don’t need more time. I know that for a fact.

Well, I mean, if that had ever arisen, would you have allowed a family member to make money off the notoriety of a case?

I would’ve recused myself from the case.

Well, it’s just interesting because we had Attorney General Garland who spent a good amount of time on the bench and I asked him the same question and he said that he wouldn’t answer it because it was obviously a reference to what had gone on in New York. I thought it was right. I thought Mike could have answered it, but I mean, 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?

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 for many 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, and I made certain to open up 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’m receiving an envelope from someone in the courtroom.

(02:18:28)
The concept is the same here. You are presiding over a case where your daughter is benefiting and where you’ve made political contributions in small amounts, but it’s irrelevant the amount, but you’ve made contributions to the political opponents of the defendant before you. These are the very essence of the appearance of impropriety, and I feel strongly that Judge Merchan should have recused himself on that basis.

Just simple as can be. Mr. Chairman, straightforward answer to a straightforward question. I wish we could have gotten that from the Attorney General. I yield back.

Gentleman yields back.

Mr. Chair, I ask unanimous consent to enter into the record articles that discuss that 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. Chairman, I’ll object pending just to where were the articles from?

I’ll give you a copy of those.

Yeah. As soon as we have those, I’ll withdraw my objection.

Thank you.

The gentle lady from Florida is recognized.

Thank you Mr. Chairman. I actually want to follow up on my colleague from Florida in his line of questioning. As Representative Gates 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, but 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 clients, including 9.7 million by the Biden Harris campaign.

(02:20:40)
Now, I know that there’s been a tremendous amount of discussion today about the severe irregularities of the case, some of the things surrounding jury instructions, but 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, and you were pointing out how just the appearance of any impropriety, it’s to be taken very seriously. Can you talk about the judicial ethics committee who makes up that committee, and 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?

If you’re asking me who makes up the committee, it’s 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 act 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’s based upon a prohibition of judges being involved in political activities, except if they’re 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, but that’s a strict requirement that it’d only be during an election when such a campaign is made.

(02:22:42)
Now, it doesn’t matter so much what the amount of the 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 opposed the defendant before that judge. And even if he had an Ethics opinion, exonerating him saying, “It’s okay, your daughter’s not a witness, and none of her interests are being tried here,” so the Ethics Committee thought it was just fine. There’s still an appearance of impropriety that’s of great concern to the public in general, and that’s what a judge wants to avoid. When you’re hearing a case, you don’t want people to feel that your integrity and that your impartiality is being impacted.

Is compromised. Right, which-

And that’s what happened here.

And the judge himself had given contributions, and I think you pointed out very appropriately that it doesn’t matter if it was a large or small contribution, but the judge in this case, judge Merchan, he contributed to a political action committee called Stop Republicans. That is inappropriate, correct? I mean, especially overseeing the case of the Republican nominee on the ticket, correct?

He should have known better to make those contributions while a sitting judge.

Right, and I see our Democrat witness, Mr. Wu, you’re shaking your head. I’m glad that you agree with us that this is a tremendous question mark on the integrity of this trial, but 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 upon 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?

Not that I can think of. There might be somebody that’s done it before. I think the DA or state’s attorney in Atlanta I think is doing something similar with that case, using that as a campaign case, her case against Trump, but other than those, I don’t know of any. It’s certainly possible, but $800,000 for a DA’s race is enormous. I know in your circles it’s not, but those type of races are usually very low dollar amounts.

So it’s safe to say that there’s financial motivation in the campaigns by multiple different DAs and politicians to, quote, unquote, “get Trump,” correct?

At least a political financial motivation, not necessarily personal.

Correct. Thank you. My time has expired. I yield.

Gentle lady yields back. Gentle lady from Wyoming is recognized.

I think there are a few things that should be cleared up today. First of all, we are not a democracy, we are a republic. I think it’s 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’s happening here. We know that Allen Bragg’s prosecution of President Trump is exhibit A of the lefts 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 lack of sense knows that those statements 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?

Yes.

Okay. And briefly what were the nature of those cases? What issues or federal laws did you testify with regard to?

All of those were other cases in which I was asked to testify about past experience with federal campaign finance laws, customs and 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, and in none of those you’ve mentioned testifying, none of those did I end up testifying either because the case is settled because one is still pending or because in one other case the judge decided that this would be a testimony that would go to the law.

Can you briefly describe your qualifications to provide such expert testimony?

Well, as has been mentioned, I served as a commissioner on the Federal Election Commission, including a term as chairman. I’ve 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’ve had more influence on campaign finance than any other scholar in the last 40 or 50 years or something like that, so I’ve devote my life to this. This is what I do.

You’re qualified to testify about federal campaign finance laws, Mr. Smith.

This is what I do.

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?

Extremely so. At one point, Justice Scalia, when he was serving on the Supreme Court, he actually said during the middle of oral argument, he says, “This law is so complex, I can’t figure it out.”

So Professor Smith, to the best of your knowledge, is Michael Cohen a campaign finance law expert?

Not to my knowledge and not what I’ve seen.

Well yet, Judge Merchan allowed him to testify as such during the course of the Trump trial, didn’t he?

Yes, in theory for other purposes, but nonetheless, you had him repeatedly saying, “This violated the law, and that violated law.”

So Judge Merchan commented when ruling to limit the scope of any testimony that you would provide that, quote, “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 for 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 Versus Wyoming at one point, and Wyoming had over 25 expert witnesses in everything from hydrology to Ag engineering, to economics, to fluvial geomorphology, to all of these things that Nebraska had something similar. Yet the judge, including the United States Supreme Court was not excluding expert witnesses simply because there was going to be a battle of the experts. Is not your experience as well.

That is, and I would point out one thing I mentioned earlier that there were a number of things I would’ve testified to that would not have gone to legal conclusions, but rather testifying about customs practices, about simply reporting dates under the law. And it appeared from the judge’s rulings that even that kind of testimony would not have been allowed.

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?

Yes.

Mr. Professor Smith going on, do you believe that the court committed reversible error by allowing Mr. Cohen to testify about alleged campaign election violations?

I think it was erroneous, and I’m not even sure what the standard, not being a criminal law guy, what the standard of review is for that kind of error. And sometimes if it’s abuse of discretion, courts give trial judges a lot of leeway, but it doesn’t mean the decision wasn’t wrong.

Judge Wilson, do you believe that Judge Merchan committed reversible error in excluding Mr. Smith but allowing Mr. Cohen to testify on these issues?

In and of itself, that may not be enough to secure a reversal of the conviction, but there is a concept in appellate law, a cumulative error. And what I believe we’ve seen in the Trump trial is a series of errors, one piled upon 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.

I’m absolutely convinced that his conviction will be reversed, and I also believe that Judge Merchan was well aware of that when he made the decisions during the course of trial that he did. I found his decisions to be egregious, egregious, reversible error on so many different levels. Thank you all for being here today, and with that I yield back.

Gentle lady yields back, gentlemen from South Carolina-

Mr. Chair before that the-

Gentle lady, the ranking member’s recognized.

For Mr. Gates and for your purposes, I have an article from Reuters regarding Judge and Trump trial as well as the actual opinion of the Judicial Advisory Group of May 4th, 2023, and we’ll make a copy for him.

Okay, without objection, gentlemen from South Carolina is recognized.

Thank you Mr. Chairman. It’s been a bad week for Democrats. Not only is the border wide open, not only to does Main Street feel the pressure of 20% 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, and so they’re 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 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 political enemies or political opponents.

(02:32:49)
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. But 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 force. 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?

A judge has an obligation to be fair and impartial and to appear fair and impartial. Now, Judge Merchan has the right to rely upon the Ethics’ opinions that he received. He asked a question, he got the answer, but 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 of relationship to the judge, profiting from attacking the subject of the trial that the judge is pre residing over has the appearance of impropriety.

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 their own set of witnesses?

I leave that to the prosecution and the defense. The prosecution is 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’ll be other reasons they’ll not testify. But in general, the prosecution defense are the ones that pick the witness.

So if a judge were to do that, in this case, Judge Merchan, to ask of a former Trump CFO to be a witness in a case that would be improper. Is that correct?

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% of cases.

Judge, you talked about this earlier, a parade of errors that… What was the legal term that you used?

Cumulative. These are cumulative errors.

So would the inability of Judge Merchan to recuse himself, would that be part of a stack that could be used by a court of appeals to reverse the decision?

I believe so.

What other grounds for appeal do you think are evident from your mind on this particular case?

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’ve been a simple matter for Judge Merchan to dismiss that indictment and to give the prosecutor leave to represent 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 present until the jury instructions themself.

And then the jury instructions, of course, were wrong too. I mean, it was a 55-page set of jury instructions that were incredibly confusing to an average juror.

Yes, as well as to lawyers for that matter because I heard that comment more than once that maybe he didn’t know what those jury instructions meant.

Thank you, Judge. Appreciate your time. With that Mr. Chairman, I yield back.

Gentlemen yields back. The chair recognized the ranking member for closing questions and comments.

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.

The gentle lady yields back. Judge, the burden’s supposed to be on the judge, right? The burden if he’s going to recuse?

Yes. The judge is the one that makes that final determination as to whether or not they should recuse themselves.

You cite in your written testimony Rule 103(e)(1) of the Chief Administrative Judge for the State of New York, is that right? And it’s pretty clear.

It is.

The judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might be reasonably questioned. It can’t be any clearer. Anyone with a reasonable mind says, “If your daughter’s in the business and 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 would question your impartiality. Is that clear?

That is why I have 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 themselves from [inaudible 02:38:40].

Hey, 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?

Well, that gets more into my political opinion than my legal opinion, and if you want my political opinion-

Of course, I do.

… it sounds to me like Judge Merchan had his marching orders and he moved forward with what was expected of him.

So if you’re a judge who won’t recuse yourself when your daughter’s in the business of making millions of dollars from people who’ve attacked President Trump, you might understand why he’s willing to allow an indictment that you’re not supposed to allow move forward, and President Trump and this defendant not know what he’s being charged with until the end of the trial.

That is all correct.

Yeah. Back to where we started. Lawfare edits, finest or at its worst. I would say at its worst. I want to thank all of you for being here today for your expert testimony. We appreciate that. And with that, I’ve got to read something special here. This concludes today’s hearing. We thank our witnesses for appearing before the subcommittee. Without objection, that 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.