‘Two-Tiered System of Justice’: Kash Patel Dissects the 34-Count Trump Indictment and 16-Page Statement of Facts

“As a prosecutor, you either have the facts and the law to bring the case or you don’t. You’re not supposed to go in there and create a novel legal theory. That’s the job of the state legislature,” says Kash Patel.

In this episode, Kash Patel and Jan Jekielek do a deep dive into the 34-count indictment and the 13-page statement of facts released on April 4 after former President Donald Trump was arraigned in the Stormy Daniels “hush money” payment case.

What is the legal basis of the case? Why did Manhattan District Attorney Alvin Bragg issue a speaking indictment? What does Patel think the defense’s strategy should be?

FULL TRANSCRIPT

Kash Patel:
Hey everybody and welcome back to Kash’s Corner. This week we are going to spend the entire show talking about the indictment of the former President Donald J. Trump. There are so many facets to dive into. Since we are doing this from different locations, Jan, I thought it would be fun to remind everyone that you and I have never used a teleprompter on this show, and we’re not going to start today.

Jan Jekielek:
No. Absolutely not. Again, there’s so many things to dig into, and of course, the indictment. We’ve got this statement of facts. We want to break down everything that’s in there. Let’s just start with the indictment. The indictment is this cookie cutter thing, with 34 counts cut and pasted. At least that’s what it looks like to me. What’s the meat of it?

Mr. Patel:
We’re talking about 34 counts. That means the allegation in the indictment is from Alvin Bragg, the district attorney in New York, and there are 34 separate criminal offenses alleged in the indictment. Now, when you read through it, as you said, it reads sort of like a rinse, repeat, enter number here; rinse, repeat, enter number here.

In most types of fraud cases, or what we call paper cases as a prosecutor, where you’re relying on the evidence of receipts and ledgers and checks and things like that, you would see documentation that shows the fraud. We haven’t seen the underlying documents.The problem with the indictment as it’s laid out with what Alvin Bragg is alleging, and we’ll get into why he has to allege an actual crime to connect the 34 counts of fraud to make it an actual crime, is that I don’t believe he met the threshold.

He’s saying every time that there was a check or what we call a ledger, a payout of money from one entity to another, Alvin Bragg is alleging that was illegal because it was done by Donald J. Trump with the intent to commit a conspiracy to defraud and rig the 2016 presidential election.

Mr. Jekielek:
I’ll just read from the indictment. It’s falsifying business records in the first degree with the intent to defraud and commit another crime, and aid and conceal the commission thereof. But the crime at this point is a mystery.

Mr. Patel:
Let’s jump into that since you brought it up. Under New York law, in order to bring a charge like this one outlined by Alvin Bragg, the fraud, the checks, the ledgers have to be connected to an actual crime on the books in order for it to be a crime in its totality. If you don’t have part A or part B, you can’t bring the case under the law.

You’re asking, “What is this crime attached to the purported fraud that Donald Trump perpetuated by utilizing these checks and ledgers?” It’s a great question, Jan, because there isn’t one that I see outlined in the indictment, and there isn’t one that Alvin Bragg has talked about in public.

The indictment, just to remind our audience, is the charging document. As every judge who’s ever presided over a case and every prosecutor and every defense attorney who’s ever presided in a courtroom during a jury trial, the indictment, as the judge will instruct the jury, is not evidence of any crime whatsoever. That’s the law in all 50 states under our federal government.

What the prosecutor is supposed to do in the indictment is inform the judge what is the legal threshold that is being brought for this case that will be ultimately heard by a jury. In the conspiracy, what he’s saying is, if you look at the first portion of the indictment, he calls it a catch and kill scheme. It’s in bold in the statement of facts.
What exactly is a catch and kill scheme? That’s not a crime. What it is to me is a headline. What Alvin Bragg has been trying to do this entire time is to have the mainstream media run another disinformation campaign like they’ve done so many other times, utilizing this indictment to say, “Donald Trump is a criminal.” The problem he’s run into, and even the mainstream media has said, as you have astutely pointed out, Jan—what is the crime?

The crime, if I were to do Alvin Bragg’s job for him, needs to be connected to an actual conspiracy that’s on the books. Conspiring to defraud and rig the 2016 election in general isn’t a crime in the New York State judicial process. As we now know from the Federal Election Commission, the Department of Justice in the Southern District of New York, the federal prosecutors, they all refused to bring any sort of case on these facts against Donald Trump.

What Alvin Bragg would have to do in a state court is allege a state crime, and connect it to a state violation to bring those two together. He’s done neither in my opinion. If he tried to bootstrap it to a felony, which is essentially the narrative he’s putting out there, that’s unconstitutional. That’s not how New York state law works. We can get into the legal weeds about it if you really want to. What is important for our viewers to understand is the mechanics of the state court system versus the federal court system.

There are two systems for a very good reason. State law violations are prosecuted in state court. Federal law violations are prosecuted in federal court. You can’t just combine the two and say, “I’m going over here to get my home court advantage for my home team because I think I’ll get a better reception,” which is essentially what Alvin Bragg has done. Since we have the answer from the federal government and they didn’t bring a charge, it’s up to Alvin Bragg to show us what the actual crime connected to this catch and kill scheme is. I don’t think he has done that.

Mr. Jekielek:
This is definitely into the weeds. There is this indictment, which is essentially 34 counts, and there’s a very short statement made at the beginning. Then, there’s a statement of facts where the legal strategy or the legal theory is developed. Are these both part of the indictment? How does this work exactly?

Mr. Patel:
Yes. They sort of dovetail into one another, but let’s stick with the indictment for just one more minute, Jan, and talk about the 34 counts, just so we can illuminate some things for the audience. What Alvin Bragg is saying in terms of the duration of the criminal enterprise that Donald Trump supposedly committed began back in 2016, and then ran all the way through 2017.

The problem with a substantial number of the counts, he’s alleging Donald Trump tried to rig the presidential election of 2016, in the year 2017. That’s just problematic, even without the law. That’s just logically impossible based on facts and time. Putting that aside, I want to catch our audience up onto the actual components of the 34 counts.

What Alvin Bragg is saying is that people in Trump’s world, Michael Cohen and others, were directed by Donald Trump. Every time there’s an allegation account in the indictment, he’s saying there was a different instance where a payment was made, recorded on a ledger, and utilized either via check or direct cash payment. Each one of those instances, Alvin Bragg is saying, is a separate crime.

Whether it’s a separate crime is a whole other story. I don’t agree that it is, even if the outline case was a crime, but that’s how he chose to bring the case. As a prosecutor, you have the option of just laying a bare bones indictment like he did, that we’ve all now seen, or you can turn it into what we call a speaking indictment and include information that you want to disclose to the court and ultimately the public, because they’re going to see it, obviously, this being the most watched case in U.S. history.

Alvin Bragg chose to include a statement of facts. What he’s saying is he is trying to layer meat on the bones of the indictment by saying this is the overarching scheme that Donald Trump perpetuated with people like Michael Cohen and other attorneys and other individuals that are highlighted by title to protect their actual personal information.

Let’s turn to this statement of facts. Now, we get into what Alvin Bragg is really thinking internally on how he brings this case. What he’s saying is each one of those instances of the 34 counts in the indictment, each one tracks with a specific set of facts, i.e., Donald Trump instructed Michael Cohen to pay this amount of money on this date. On the next date, this amount of money was transferred from Trump.org to this bank account or from Trump to this checking account and the like. That’s what he’s saying is the overarching scheme.

Let’s pause on the counts themselves. I don’t believe the counts themselves meet an allegation sufficient to warrant a crime. Because if it were true, then any individual in elected office, state or otherwise, who took campaign funds and spent it on lunch or t-shirts or a limousine service could under Alvin Bragg’s theory of prosecution be charged for interfering in the electoral process by utilizing campaign funds.

I put, “improperly,” in quote marks because Alvin Bragg has determined what he believes is appropriate or not. Unfortunately for him, the law determines that. The reason that no other politically-elected officials have been charged for this type of violation is because not only would it be unlawful to bring such a charge, it would be a violation of free speech in and of itself for people who are out there campaigning for elected office.

Mr. Jekielek:
Not too long ago there was a revelation that the DNC and the Clinton campaign had to pay for hiding legal fees that were effectively the development of opposition research. It strikes me as somehow similar here.

Mr. Patel:
Right. It’s similar and it’s different. Of course, no one ever prosecuted Hillary Clinton for it. But the distinction is that Hillary Clinton actually had to pay a fine and admitted to improperly utilizing campaign dollars to buy the Steele dossier, which the FBI used unlawfully to lie to a federal court and ascertain a surveillance warrant on then candidate President Trump, all for the purpose of actually interfering in a federal election.

When you take that case precedent, you see an actual violation of campaign finance laws and a conspiracy to rig or steal a presidential election. The case here with President Trump, even if we were to presume the facts alleged by Alvin Bragg are true, still falls short of the Hillary Clinton, Russiagate, Steele dossier case, because there has been no proof shown that the money, even if it were paid to the people as “hush money,” was used for the purpose of interfering with the presidential election, especially since most of the dates in the indictment are after Donald Trump assumed office.

Mr. Jekielek:
That’s fascinating. There’s a couple of things that jump to mind, and I’m thinking about the statement of facts. One of them is that Cohen actually did plead guilty to making illegal campaign contributions, if I’m not mistaken. That’s something that’s outlined in there, as well as the National Enquirer Company.

Mr. Patel:
Yes. Let’s take it in reverse. The head of the National Enquirer entered into a non-prosecution agreement, which is essentially a get-out-of-jail free card. If you admit that you did X, we will not charge you with a felony and there is no possibility that you’ll ever be charged.

You don’t get any criminal record whatsoever. They’re just saying, “Admit to X.” The head of the National Enquirer, according to the indictment, admitted to federal investigators or state investigators his involvement in helping to perpetuate whatever alleged scheme that Alvin Bragg outlined in the indictment.

Switching to Michael Cohen, it’s a very different comparison. Michael Cohen, as we’ve talked about in depth, is a federally convicted felon who defrauded and schemed against individuals to enrich himself financially. He went to federal prison for three years for that, and he’s the main source, as you can tell by the indictment even though his name is not used. The whole world can see for themselves that that individual outlined in the indictment is Michael Cohen.

They have taken a large chunk of this indictment and rested it on the individual who is a convicted felon and has massive credibility and bias issues. We’ve talked about that before. But the two individuals, the National Enquirer head and Michael Cohen are not similarly situated. Even if we take the totality of their information as alleged in the indictment as true, as we talked about at the top of the show, it doesn’t amount to a crime, because there is no crime that Alvin Bragg connected that fraud to, which is what the law requires.

Jan, when you only have half the equation, as a prosecutor, you’re supposed to stop. If you don’t have all the elements of the case, or all the ingredients to make the cake, you don’t bring it. That’s the job of a prosecutor. It’s not simply to prosecute. It’s to apply the facts to the law and see if the burden of proof is met, so that you can bring a case before a jury. If you don’t have that burden of proof met ethically, you are not allowed to bring a prosecution. But that gets us into the whole two-tier system of justice and what should we do about that, if anything.

Mr. Jekielek:
We had a number of legal commentators, both Republican and Democrat, on our NTD broadcast yesterday. Essentially, all of them agreed that what they saw in the indictment was very underwhelming. That was the term that a number of them used. One said, “You still have to see what else he has, so I’m going to reserve my judgment.” Basically, everybody agreed on this point.

Mr. Patel:
The folks that you’re referring to are people who have vehemently been against anything Donald Trump stands for and don’t want him reelected. Let me give you an example. Andy McCabe was the former deputy director of the FBI who lied to federal investigators about leaking sensitive information about Hillary Clinton and other matters to the media while the deputy director of the FBI.

It’s the same Andy McCabe who stated to me under oath that had there not been a Steele dossier, there would not have been a FISA warrant. It’s the same Andy McCabe that authorized the Russiagate investigation and presented information through his team to the FISA court fraudulently. This individual, now a CNN contributor, came out and called the indictment a disappointment. Just let that sink in for a moment. The individual who has been so public about his hatred for the target of the investigation calls this indictment a disappointment.

Like so many others that you’re referring to in the media out there, when they’re using terms like that, what they’re actually saying is this falls way short of the legal mark. You have to ask yourself, Jan, whether you like Donald Trump or hate Donald Trump, why are they doing that? They have been able to spin disinformation from Russiagate, from Jan 6th, from Ukraine impeachment, and from anything that Adam Schiff has said. They were willing to take lies and put it out there.

If these individuals themselves can’t stand up and say, “Alvin Bragg has made a case,” you don’t need to listen to me, Jan. The case, by their own admission, is deeply flawed.

Mr. Jekielek:
Kash, let me read from this statement of facts again. We mentioned the catch and kill scheme to suppress negative information. There are three other parts to the argument. The second one is that the defendant falsified business records. The third is an investigation into lawyer A. That’s Cohen and the defendant’s pressure campaign. And finally, lawyer A and AMI admit guilt in connection with the payoffs with the intent to influence the election. That’s the entirety of the legal theory. Is that right?

Mr. Patel:
That’s it. They are saying Donald Trump’s intent was to interfere with the election by concocting this scheme. Therein lies a problem. You have a convicted felon saying that this was what Donald Trump wanted, and you still don’t have the nexus to the conspiracy of making this whole scheme an illegal act.

If that’s the best that Alvin Bragg has, he’s going to have some serious problems. Jan, As a prosecutor, let me tell you this. In the indictment, if you’re being professional, you keep the indictment very bare bones just outlining the information that you want to make public under the law as it is required for an indictment. You just show the court the charging document and you have an arraignment and you move on.

A prosecutor that writes this statement of facts in support of his indictment is one who wants more attention immediately out of the gate. He had his opportunity, Jan, to put his evidence forward. He chose every word in the statement of facts himself with his prosecutorial team to put meat on the bones of this indictment. He fell far short of the measure. If he had anything better, Jan, it’s not like he would be holding it back. He would have brought it forward.

Mr. Jekielek:
The other thing that surprised me was the next appearance when Donald Trump is supposed to appear in front of the court is actually in December 2023. Is that standard?

Mr. Patel:
Yes. It sounds like a long time for those not used to the state court process. But on average, a criminal case in New York can take about two years to get from arraignment, which is what happened this week, to jury trial. There are so many intermediary steps that occur in between those two. In the New York State court system, 95-plus percent of cases never get to jury trial.

There’s a reason because there’s so much volume in the state court system that a case can’t be ingested by a judge, attorneys brought in, a jury convened, all the due process rights upheld, and a matter adjudicated in a week. It’s not realistic. It doesn’t happen in any state and it doesn’t even happen in the federal court.

That’s why you’re seeing the next date so far out. You could check the cases right before and right after President Trump’s arraignment. I bet you they’re all set in December at the end of this year.

Mr. Jekielek:
Let’s discuss what is actually going to happen between now and then. One of the things, of course, will be the production of documents. There will be some discovery. There’s something like 65 days. One of our hosts mentioned yesterday that evidence has to be presented to the judge who’s going to decide. At this point, the judge is going to be deciding on whether the case should go forward, if I understand correctly.

Mr. Patel:
That’s partially right and partially a little too general. Let’s dive into the specifics. At an arraignment, a defendant has the right to plead guilty or not guilty, and President Trump pled not guilty. Accompanying that under the due process of law for New York State and the federal government, there is a what’s called a demand for discovery and jury trial. He’s made those demands and the judge has granted them, as is his constitutional right.

Discovery is a fancy word for evidence and information. The prosecutor is supposed to turn over, at least in a rolling fashion, all of the evidence he has ascertained in his investigation. Whether it proves guilt, or whether it shows innocence, or somewhere in between, he’s supposed to start filing that over to Donald Trump’s defense team. It could be paperwork, electronic communications, voice recordings, videos, source-provided documentation, and the sources themselves. Over the coming months, all of that moves over.

The reason there is such an extended process is because as this stuff is ingested by the defense counsel, they are going to be making pretrial motions before the jury trial date, saying, “Judge, based on this evidence, we feel that you should censure the prosecutor for withholding evidence of innocence. Based on this discovery obligation, the prosecutor has failed to meet his burden on X, Y, and Z,” and there can be some kind of censure.

In my opinion, they should not seek a motion to dismiss right out of the gate. What they should do is akin to what we did in Russiagate or what any good defense attorney would do. Get all the information the government has in its possession, collect it, and ingest it, so you know what they are going to charge your client with in public. And then, utilize that ammunition. This is a public defender strategy, not something that’s just applicable to Donald Trump.

Then you go into court and say, “Judge, there’s a Brady violation. Judge, there’s some prosecutorial misconduct. Judge, there’s a grand jury violation. How did this material leak to the public before the arraignment occurred?” There are so many other matters. “Judge, we need to know more about source X, Y, and Z. He’s highlighted here, but the prosecutor has failed to provide us with more information.” There is that constant back and forth.

What you’ll see in this case, which is why so many people in the media have said they’re disappointed, is that there’s not going to be this show of force of evidence inundating the Trump camp. They can’t say, “Oh wow, look how guilty he is.” Because the crime itself doesn’t exist. If the crime itself doesn’t exist, what is he going to do, create evidence that doesn’t exist?” These are the problems Alvin Bragg’s team will have going forward.

And then, you’ll get to the motion to dismiss. That’s my approach, how I would take it. I don’t know. I haven’t talked to these defense attorneys. I don’t know if they’re going to go for the motion to dismiss right out the gate. There’s an opportunity to see here for those out there who’ve been saying anyone that says there’s a two-tier system of justice is floating some sort of crazy conspiratorial theory.

We’ve covered this over the years from Russiagate onwards. This case, which will be the most watched criminal case in U.S. history, is a way to show people who don’t necessarily pay attention to these matters what exactly is going on. Was there prosecutorial misconduct or prosecutorial overreach?

By the way, Jan, on a motion to dismiss, that’s an extreme measure for a judge to issue as a ruling in favor of the defense. It is rarely granted because a judge is very reluctant to take the case away from the jury. The jury system exists for the jury to adjudicate the matter. But a judge will grant a motion to dismiss if the case is legally impossible, if there’s a legal flaw, or if there was prosecutorial misconduct.

If you can show one of those things, then the judge will enter, and rightfully so, a motion to dismiss in favor of President Trump. That’s why there’s such a long way to go, Jan. You could take one document and spend a month on it. All these prosecutors and defense counsel can go to the court and say, “Judge, we need more time. We need more time to review it. We need more time to hire experts. We need more time to talk to consultants. We may need to bring in another legal team to handle this specific matter.” They don’t know any of the facts yet.

I doubt that the Trump team, upon the airing of this show, has seen much, if any discovery, because the obligation from the court is not that it needs to be turned over tomorrow. There’s probably a window of about a couple of months, is my guess, without looking at the standing order they have to produce that information. In my opinion, if the case isn’t tossed out, it’s going to take past the next election cycle.

Mr. Jekielek:
You mentioned Brady evidence, which is something that many of our viewers will be familiar with due to past trials that we’ve discussed on this show. This is exculpatory evidence that can prove the defendant’s innocence that the prosecution may have.

They need to present that as readily as they would of the damning evidence. But I was curious about this, because you’re saying the case isn’t convincing in itself. It’s almost like anything out there becomes Brady evidence. How does that work?

Mr. Patel:
That’s a great question. From a prosecutor’s position, anything that even comes close to what might be Brady evidence, that could be evidence of innocence, a prosecutor is supposed to, under the canon of ethics that guide how we prosecutors operate and how due process the law operates, is supposed to air on the side of caution and turn it over.

In any sort of close call, the prosecutor can always go to the judge himself and say, “Judge, you’re the referee. We’re not sure what to do with this information. We think we should turn it over, but we’re not sure. Will you take a look at it and let us know?” That’s the safe route you’re supposed to take if you as a prosecutor for some reason can’t come up with a decision on your own.

But as we’re taught, if you’re even questioning that, it could be that you just turn it over, Jan. It’s not worth subjecting your case in prosecution to a chance Brady violation, where the defense can come back and use it when all you had to do was turn it over. And 99 percent of the time, most of the stuff prosecutors failed to turn over. Most of the stuff I caught them failing to turn over when I was a public defender probably would not have hurt their prosecution. But since they withheld it, it did. You’re going to see some of that here.

Mr. Jekielek:
Is this commonly done, or is this uncharted territory? That’s the other question I have about this complicated legal theory or tenuous legal theory.

Mr. Patel:
It’s not commonly done. As I said earlier, as a prosecutor, you either have the facts and the law to bring the case or you don’t. You’re not supposed to go in there and create a novel legal theory. That’s the job of the state legislature. This New York State legislature, just like Congress does for the federal government, has a penal code which says, “These are the crimes on our books.” If the crime is not on the books, it’s not a crime, because the legislature for the state of New York ascribes what is and isn’t an illegal act.”

Jan, the prosecutor’s job is not to go in there and say, “If we connect A to B to C, and then maybe talk about a federal violation, we can get there and say, “There was this overarching conspiracy and we have a crime.” That’s not how it works. That’s also why you have an appellate court system, which is likely where this case is going if it’s not thrown out or doesn’t result in an acquittal. Of course, they’re going to appeal this new legal theory that Alvin Bragg has brought forth like no other prosecutor has.

Here’s the kicker, Jan. We all know that whether you like or dislike President Trump, the mainstream media, if another case like this ever existed, and I don’t mean charging a president, I just mean another campaign finance ledger case trying to rig a presidential or congressional election, if that ever existed and was prosecuted, we would have heard about it by now, whether it was in Arkansas or California or the Southern District of Texas, we would have heard about it.

The reason we haven’t is because no one has brought it, which is why people on the TV have continuously said they’re disappointed. That is why you have egomaniacs like James Comey, the former FBI director who signed off on the fraudulent FISA warrant, the boss to Andrew McCabe, who went out in public and called it a “good day” that Donald Trump was charged.

You were the number one police officer in the United States government, and instead of looking at the facts and the law, you’re espousing your opinion to say it’s a good day that someone was charged improperly. That’s not surprising to me since James Comey had conducted so many improper acts as FBI director and conducted the illegal act of leaking classified information.
I keep bringing these things up not to regurgitate history, but because it puts it back into context when so many people for the first time hear these individuals speak and say something like this. It’s worth taking a second to note who is doing the talking, i.e., the Andrew Weissmanns of the world.

Mr. Jekielek:
If this legal theory goes forward, it potentially opens the door to all sorts of prosecutions for spending that you might have done for lunch and connecting that with some kind of election interference. Can you expand on that a little bit?

Mr. Patel:
Yes. Let’s just look at every member of Congress. There are 535 members of Congress, 435 in the house, and 100 in the senate. I understand there’s only one president. But each of those 535 individuals runs a campaign every two or six years, depending on which chamber you sit in. Every one of those individuals pays people to advise them, pays people to come onto their staff, goes out to lunch, goes to advisory board meetings, goes to luncheons, gets their haircut and utilizes campaign funds to do a lot of this while they’re running for reelection.

We’re just looking at the federal level. How is it that none of these individuals have been charged with this same type of conduct before? We haven’t even dropped down to the state legislature level. Each state has up to a few dozen members in their state legislative chambers. How come none of them have been charged under this legal theory?

In my opinion, the reason they haven’t been charged is because it’s a legal fiction. They know that if this case were to result in a conviction, then the overwhelming majority of folks in Congress, state or federal, would be guilty of similar conduct. Then, the question is, who’s going to bring those charges? That to me is one of the most telling pivot points you have in the Alvin Bragg prosecution. Because if it were illegal, somebody would’ve done it before Alvin Bragg and Donald Trump.

Mr. Jekielek:
Maybe it’s a bit different in this case. I want you to speak to it because in this case, hiding an alleged affair actually might help the electoral chances of the candidate.

Mr. Patel:
Right. But again, let’s say we’re assuming it’s true. Let’s put aside the fact that Bill Clinton paid $835,000 to quiet his affair. If it was done to impact a federal election, that’s not a state crime. Bootstrapping a New York State legal theory to a federal conspiracy doesn’t equate. There’s two systems of justice as we talked about. We also talked about the federal government, which rightfully chose not to prosecute Donald Trump on those facts, because they believed that it wasn’t a crime to use campaign dollars in that fashion.

Mr. Jekielek:
For the benefit of our audience and myself, how is buying lunch similar to this kind of hiding of a payment?

Mr. Patel:
Great point. I should have clarified this earlier. If someone who is running for office sits down and uses campaign finance dollars to buy someone lunch and says that someone is an advisor, a campaign staffer, a possible donor, this is what politicians do every single day of the year they are on the campaign trail.

Those individuals on the receiving end; the donor, the staffer, the advisor, and the lawyer are all in that seat to help define what the result of the upcoming election is going to be. That’s why I equated it to that. That’s why that activity, in my opinion, is not illegal.

Remember, the law doesn’t distinguish between what you might find moral and immoral in terms of such a grotesque act having to do with hush money and possible marital affairs versus a lunch at a fancy steakhouse. The law is anodyne to that, as it’s supposed to be. Unless there’s a specific separate criminal offense for hush money payments regarding marital affairs during a campaign election cycle, then the legislature in the state of New York didn’t intend for that to be a crime. Otherwise, they would’ve legislated as such.

That’s why, to me, all of it is in the same boat. That’s why, to me, the crime fails for Alvin Bragg. Jan, on this show, we talk a lot about Congressional obligations for constitutional oversight when there is overreach by the federal and/or state government. Congress has a role here, especially now that Alvin Bragg has admitted himself that at least $5,000 of federal funding was used in the investigation and prosecution of these charges against Donald Trump. Those are American taxpayer dollars.

Let’s flip the script on them. Were those taxpayer dollars utilized to interfere with an upcoming presidential election in 2024? Did federal police dollars go to this fraudulent investigation? If so, who authorized it and why? The subpoenas from Congress, which now in the House of Representatives reside with the Republicans, should be going out to explore this admission by Alvin Bragg.

Now, it could be that it was all above board and done right, but it’s sufficient with the underlying indictment problems that federal officers in Congress demand answers of Alvin Bragg under subpoena, and then bring him and his officials in.

Remember it’s now been publicly reported that Alvin Bragg had to hire, I think the guy’s name is Colangelo, and he was the one who created this novel legal theory to prosecute Donald Trump. Great. Who paid him, and what dollars were used for that? Let’s go ahead and subpoena him so we can have that answer.

Because the two-tier system of justice can’t exist in the federal government, and it definitely can’t exist in the state court system either. If federal dollars were used, then it’s worth examination in my opinion, because that’s the accountability that this Congress owes every American.

Mr. Jekielek:
We’re going to see in the coming weeks and months how this all starts to play out. The one other thing I wanted to mention on the show. It’s very curious timing that the Ninth Circuit Court just ordered Stormy Daniels, in a totally separate defamation case, to pay for President Trump’s legal fees in this defamation case, something to the tune of $122,000. Is this just completely unrelated, or is there any connection here that we should be looking at?

Mr. Patel:
There’s a connection in terms of the facts, but in terms of the judicial process, it’s completely unrelated. The timing is an actual coincidence, because it’s brought by completely separate entities. But it’s worth highlighting. I’m glad you brought it up.

Stormy Daniels is, of course, one of the individuals alleged by Alvin Bragg to have received these hush money payments from Donald Trump in the indictment. In a separate matter where Stormy Daniels was suing Donald Trump’s for defamation, the decision by the judge was to issue not just a ruling throwing out the case in favor of Donald Trump, but also mandating that Stormy Daniels pay for Trump’s entire legal team during his representation of that case is a rare move by a judge.

But it was done because the judge felt that the case that Stormy Daniels brought was so flawed and had so many problems, it was essentially equivalent to prosecutorial misconduct. Remember, defamation cases are civil, so there are no prosecutors involved, but there’s a plaintiff and a defendant. Stormy Daniels in this case was essentially the prosecutor saying, “I was wronged by Donald Trump.” The judge said, “Not only were you not wronged, you owe the defendant money because you, the plaintiff, were wrong.”

While it may be factually unrelated, these matters can be raised before the state court jury should this ever go to trial, because Stormy Daniels is one of the critical witnesses in this case. They can present this information to the jurors and the judge and say, “Wait a second, you already alleged this defendant who is on criminal trial now wronged you, and it turned out that it was improper that you did that, and it was wrong that you did that.”

“Now you’re alleging criminally in state court that the same defendant wronged you or was involved in a criminal scheme that involved you being on the wrong end.” That’s a tough hill to overcome factually and credibility-wise when someone has already been ruled against in a massive judgment like the $122,000 one you just raised.

Mr. Jekielek:
Sure, but in a way, Stormy Daniels is kind of incidental to this. It’s the payments themselves that are the issue, correct?

Mr. Patel:
In the Alvin Bragg prosecution, Stormy Daniels is “one of the essential witnesses” because he’s saying the money as alleged in the indictment went to her. Now she’s going to have to come in and say, “This is what the money was for, and yes, I received it.”

But remember, this is the same individual who tried to say in another court hearing that the same defendant wronged me and spoke ill of me and falsely of me. It’s very hard. Now you’ve established a pattern of conduct where you as the witness in the case have to say, “Not only was my case against this individual thrown out, I now have a bias. I now owe him $122,000.” These are all things jurors are allowed to hear about the credibility of the witnesses. It’s problematic because the critical witness for Alvin Bragg is Michael Cohen, who has all the other problems we’ve already outlined.

Remember, the issue here is not whether money was paid from A to B. That’s not the illegal act that Alvin Bragg’s alleging. The issue that Alvin Bragg is alleging is that money was paid from A to B and it was done with the intent to defraud a federal election. That’s a whole different narrative.

Even if that law were on the books, which I don’t believe it is, even if that law were on the books, I don’t think they have the facts to meet it. But this is the distinction, Jan, that law isn’t on the books. That is what everybody has been saying in the media as to why they have a problem with this prosecution.

Mr. Jekielek:
I’ll add that President Trump vehemently denies that there was any affair with Stormy Daniels in the first place. There’s a ton we’re going to be finding out over coming weeks and months. We’ll cover it on the show when appropriate. It’s time for our shout-out.

Mr. Patel:
Indeed, it is, Jan. This week’s shout-out goes to Rhonda Hensley. Thanks so much for posting your comments on the board for Kash’s Corner. Thank you everybody who participates in our weekly live chats on Friday night. We hope you’ve enjoyed the live chats. We’re going to continue to do them. We ask you to keep posting your comments on the board as Jan and I read them all when we have a spare minute. We’ll see you next week on Kash’s Corner.

This interview was edited for clarity and brevity.