The Cosby Case and the Politicization of American Justice

BUCK: Big news story last hour that we covered in some detail here: Bill Cosby’s sex assault conviction vacated by Pennsylvania’s highest court. That’s huge. That is a news bombshell, given that Cosby was perhaps the first or the second, right? I think it’s first or second most visible target of the #MeToo era as a predator. I mean, he was targeted as a predator during that period of time. It was really Cosby and Weinstein were at the top of the list.

CLAY: I think you’re 100% right about that, and, again, there is going to be an argument that Bill Cosby was wrongfully convicted. The data does not reflect that he didn’t necessarily rape this woman.

BUCK: Right. Not innocent, but wrongfully convicted.

CLAY: Wrongfully convicted. And I think tomorrow we probably can discuss this in even more detail. We had a lot of callers who want to weigh in; they still do. But I’m actually curious, Buck, to see how this story plays in the media, because we talked a little bit. We’re gonna talk a lot about this. To me, the great evil of the Democratic Party is identity politics.

And for this you have a white woman who alleged that she was raped, got a conviction, and now a black man is able to use the Pennsylvania Supreme Court, thanks to his superior resources, to argue that the conviction should have never happened because of — and this is an interesting political angle — the DA, in 2005 who would later be in the second Donald Trump impeachment trial.

The primary defender of Donald Trump, that DA trial back in 2005, he made the decision that there was not enough evidence to prosecute Bill Cosby, and then that led to the further incrimination of himself by Bill Cosby responding to questions in a civil lawsuit. By the way, the DA at the time for Bill Cosby and the one who defended Trump at the second impeachment trial, Bruce Castor.

So, the fact that that would overlap and he would end up now with a guy in a significant role in the Bill Cosby case as well as a former defender of 45 is pretty wild, and I’m curious to see how exactly this plays out, because I think it’s fair to say — sometimes the phrase “bombshell” is overused, Buck.

But Bill Cosby, out of nowhere, suddenly having his conviction vacated, the charges can never be brought again, and he’s gonna walk out of jail within the next hours, maybe before this show ends today? We’ll see whether Cosby speaks to the media, whether he claims vindication, and how, again, it’s going to be covered. That is legitimately a bombshell.

BUCK: We have been lectured a lot in recent years, particularly under the Trump administration by the media, but even still now, about the need for our sacred institutions to be upheld and protected. And the justice system has to be very near the top of that. You know, you’ve got the Constitution; you’ve got our checks and balances, our system of government as envisioned by the founders.

But our justice system is absolutely critical, and it’s critical that people believe that it’s operating as it should and that people’s rights are respected and that it is not a partisan instrument, that it is not a system of political domination that is often used. I just bring this up because, on the one hand you’ve got this Cosby trial, where there is a different kind of politics involved there.

Which was in the moment if you’re a incorporate, in the #MeToo era getting Bill Cosby was something that there was a lot of pressure to do because of perception publicly. But there’s also the Trump Organization, which is still getting investigated. We spoke to the president for an hour yesterday. That was… I mean, let’s just say as an aside here, that was pretty awesome.

CLAY: In case you missed it. Just download podcast. Went really well.

BUCK: Pretty awesome. Lots of news stories about it.

CLAY: Everywhere, really. I’m actually, ironically, reading right now, basically every media outlet in the country covered that interview.

BUCK: And the Trump administration and CFO Allen Weisselberg are examined, according to the Wall Street Journal here just in the last hour, to be face-to-face charges tomorrow. Now, I understand they’ll probably have some way of making it seem like that’s not a partisan decision. But we all know it is. Right?

We all know that Cy Vance, who’s the district attorney in New York, that the people involved here, are Democrats who are looking to make a statement, to go after Republicans in this case. And I understand these are very different kinds of cases and involving — you know, one is, you know — horrendous criminal conduct, and the other one has to do with basically, you know, bookkeeping in the case of the Trump Organization.

But it all goes down to we have to believe, there has to be a belief that the justice system is fundamentally trying to be fair and that it is adhering to the rules and the principles that are set out in the justice system. And, you know, I think one of the problems you see continuously of the progressive, authoritarian left is that they…

Because power is the one absolutely critical thing that they pursue, above everything else, they view the Justice Department and the system of justice we have — and particularly prosecutors’ offices — as instruments of partisan warfare to be deployed whatever they see fit. I think that pulls us apart in ways that are really damaging as a country.

CLAY: And I think this case is emblematic of that in many ways, but in particular the rise of #MeToo, Buck. You mentioned, I think it’s fair to say, Harvey Weinstein and Bill Cosby are probably the twin pillars to the extent that you had to point to two powerful people who have been torn down by the #MeToo. Both of those guys convicted.

Jeffrey Epstein would be another one that I think a lot of people think of when that story emerges. To me, this represents how justice is influenced by external factors that have nothing to do with justice. Let me unpack that and explain it a bit. In 2005, #MeToo hasn’t happened. So the DA looks at the evidence; says, “This is gonna be a really difficult conviction to get.”

Which, by the way, he was correct about because the first trial is a mistrial. Later, they get a conviction. Not only the prosecutors, though. One of the reasons why justice is blind, Buck, is because we shouldn’t be allowing external factors to influence guilt or innocence, right? You see the scales of justice. Lady Justice is blind. Our juries are influenced too.

#MeToo, the reason why I found it to be so heinous on so many levels was because as a lawyer, I am taught that all that matters are the facts, the facts, the facts. And when you’re telling me that Brett Kavanaugh can’t be on the Supreme Court because I have to #BelieveAllWomen, that is the exact opposite of what the judicial system should represent. You should never believe someone — or significantly disbelieve someone — because of their race, their gender, their ethnicity, their religion, their sexuality, whatever it might be. Justice is needs be blind.

BUCK: And this is not a both sides issue in terms of the politics and partisan — and now I’m moving now more toward the Trump Organization prosecution, which is also a story in the last hour that is being updated here. The Trump Organization expected to be charged tomorrow. Really? For what?

Oh, with some tax malfeasance. Yeah, trust me, all of a sudden — Trump has never been charged before with this tax malfeasance or his organization, but just in time, just after he leaves office as president and the libs have been screaming about how, you know, he’s worse than Hitler for four years — now he’s being charged.

I would just note that when there’s a very important exercise I’d ask all of you to do, and it’s to think about in just recent memory the high-level criminal investigations and prosecutions of political figures that have occurred in this country. And how many of them just happened to be Republicans versus how many of them were actually Democrats?

The biggest one, of course, being the Russia collusion mess. That was effectively a criminal investigation of a sitting president based on a lie. So that’s the weaponization of the Justice Department against a sitting president, which Donald Trump had to sit through and that did hurt his administration just because the process was the punishment.

But then even beyond that… I mean, Clay, Chris Christie, Bridgegate? Any charges against him? No but they ran with that for a long time. Rick Perry when he was governor of Texas. Any charges against him? No but they said they couldn’t threaten to veto something. That was criminal abuse of power. Scott Walker in Wisconsin, the John Doe investigations trying to see if there was criminal collusion between a PAC and Walker’s gubernatorial campaign.

Did they actually do anything wrong? No, but they made people under the John Doe laws incapable of even talking the dawn raids on their homes about that. You go down the list. Even the former governor of Virginia, Bob McDonnell, they were trying to send his wife for years, federal prison, because he was hanging out with a rich businessman.

He didn’t take any official act on his behalf. You look at the list. I mean, Clay, is there a list of Democrats that have been treated that way? “Ted Stevens!” people are gonna yell at me. Prosecutorial misconduct against Senator Ted Stevens to make him lose his reelection effort in Alaska. If this doesn’t happen, by the way, if they don’t bring that prosecution where they hid exculpatory evidence — this all came out — do you have Obamacare fully the way you do now? Changes a lot, doesn’t it?

CLAY: It changes a ton. And I think what you’re talking about, in particular with this Trump investigation, for anybody who has spent sufficient time looking at the tax code, people think of the tax code as being sort of a scientific manner. You owe X-number of dollars; you plug in your tax returns.

When you’re doing big corporate tax returns, the tax code is an art, by which I mean there are arguments you work make against/for the way that you allocate dollars, the way that move money around. I really genuinely believe this. If you are paying tax on millions of his dollars a year, which a tiny fraction of people are, if you spent three years going over any organization’s tax returns, you would be able to find something that you think is an inappropriate act that could be potentially criminal.

And this is what they’ve said all the time, by the way. The NCAA, basically, is getting blown up tomorrow with athletes being able to get paid. But this is what they always said about the NCAA investigating your program in the world of college athletics. As soon as they show up on campus, they can find you breaking a rule. The IRS and the tax code in general is fundamentally broken. You give a prosecutor who wants to find a reason to charge somebody with a crime years to investigate; they’re gonna find, Buck, a crime to charge somebody.

BUCK: This is like the Soviet secret police director Lavrentiy Beria saying, “You show me the man, I’ll show you the crime.”

CLAY: Yes!

BUCK: Anybody who understands the system — or what about old, you know, you can get a grand jury to indict a ham sandwich, so to speak. There’s a lot of ways to look at this.