CLAY: Buck, last night while we were at dinner, the Washington Post came out with a story that the Department of Justice is officially investigating Donald Trump. Now, just calling my shot here one more time. I think they are gonna charge Hunter Biden with felonies and also will try to get Donald Trump for a conspiracy and argue that that is how they are balancing out that they are not political in nature even though we know the Department of Justice is very political in nature.

Donald Trump going to be at Bedminster tomorrow for a LIV golf tour event, scheduled to join us on Friday live on this program. Buck, my general thoughts were I wasn’t surprised because I’ve kind of been anticipating that some story like this would come out because Merrick Garland was under some pressure in the wake of all of the January 6th investigations to try and hold Donald Trump accountable for the insurrection as they call it and the attack against democracy.

Even as Democrats, right now, are supporting Donald Trump-fielded candidates because they think they’re better able to be beaten. If you’re really worried about democracy, would you be spending millions of dollars to make sure that Republicans in your mind are nominating Trump-focused nominees? But did this surprise you at all that the news came down that it would come from a member of the Biden administration effectively in the Washington Post, which does default PR for the Biden administration and certainly Merrick Garland, as we said, under pressure, he’s trying to alleviate that pressure a little bit by saying, “See, guys? We are paying attention here.”

BUCK: Well, it does force you to ask the question, once again, what is the real purpose? I don’t mean the stated purpose. We all know it’s “defending our democracy,” right? So that people who are in hysterics over the one time the right has been involved in a riot in recent years, in recent memory, that’s what they say in Congress it’s about. What is it really about?

If it were creating a narrative that allowed Democrats a better chance of keeping their seats in Congress, we would certainly see that at some level reflected in the numbers. If anything, it has gone in the other direction because they’re putting all this focus on things that aren’t the price of gas, that aren’t the price of groceries, the things that people get energized, understandably about, when it comes to voting, right? So, then what is the purpose? We come back to the fundamental question.

Clay, I think that it is certainly to create the perception that they could indict Donald Trump, right? So, effectively the J6 commission makes it so that he’s like an unindicted co-conspirator in the election. Now, the Washington Post puts out this story — Drudge has a link up — “DOJ Target on the Don?” with a question mark. They say — and I read the little Washington Post piece last night after it came out.

They say there are a couple things going on here. One is, there are two different tracks, right? So, then tell me what you think about these from the prosecution point of view. “The first,” this is a quote from the piece, “centers on seditious conspiracy and conspiracy to obstruct a government proceeding. That type of charge is already filed against individuals who stormed the Capitol.” Okay. That’s track 1.

CLAY: Yep.

BUCK: “Track 2,” the second quote, “involves potential fraud associated with the false electors scheme or with pressure Trump and his allies allegedly put on the Justice Department and others to falsely claim the election was rigged and votes were fraudulently cast.” Okay. Those are saying the two possible prosecution tracks. The first one feels like a declaration of political nuclear war. The second one a little bit more flimsy from the outset. What do you think about either/or both of these?

CLAY: I’ve been arguing that they were gonna charge him, if they charged him with anything, with a conspiracy because — and I go all the way back to when I was in law school, my criminal law professor at the time, Don Hall, lecturing us in criminal law, the initial first-year legal course, he said, “What do you do if you got him for nothing else but you feel like you want to bring charges, you charge him with a conspiracy.”

Because it’s very amorphous charge because you’re not even arguing necessarily that an act to a large extent occurred but just that an act was planned in some way. And so, I have thought that if they were ever going to charge Trump with anything relating to January 6th, it would be a conspiracy of sorts. The challenge that I think they’ve got, Buck, in terms of the advantage they have… Start with the advantage. The advantage they have is Washington, D.C. We’ve seen Steve Bannon already be convicted.

We’ve seen Hillary Clinton’s co-conspirators walk over the Russia collusion. They have a home-field advantage, a forum that is very favorable to them associated with Washington, D.C., which is 90% Democrats. So, Trump getting charged with anything in Washington, D.C., is a difficult scenario. Having said that, if I am looking at this from a legal perspective as a defense attorney, which I have been before, I think it’s really hard to make a case against Trump because there are lawyers that were making the case that he could legally advocate for which he was advocating.

In other words, it may be outside the bounds-of-normal legal process, but there are lawyers who would argue that Mike Pence had the right to reject the electors, right? That there was in some basis a legal claim there. And if you’re out there and you’re saying, “Well, that’s crazy. Look at what Joe Biden has done.” Let’s take it outside of January 6th. Joe Biden has consistently advocated for policies that even his own legal advisers have said, “Well, there’s no basis for this.”

The example was the extension of the eviction moratorium. He even said, “Legally we don’t have a very strong argument here, but I’m going to do it because it might stall the overall evictions and give some benefits.” My point is, Trump is not a lawyer. If he is relying on the advice of some lawyers even if it is not necessarily a sound legal strategy, it is a legal strategy, which makes it hard for me to believe that there is any criminal liability.

BUCK: I want to do a sports thing here for a second here.

CLAY: Yeah.

BUCK: You tell me if this one lines up. It is as though the Democrats are an opposing football team —

CLAY: Oh, man.

BUCK: — and they are saying that the team — the Trump team — threw a challenge flag, and they did so in bad faith. Essentially, they knew that there wasn’t a penalty to be called, but they threw a flag anyway, and they should be penalized for that, which then just tells you that they think this is an issue of judgment that is so bad or so bad faith that somehow even if you’re trying to stay within the rules — this is in the second count — on potential fraud associated with the false elector scheme or whatever they’re calling it. Trump thought they cheated.

CLAY: Yes.

BUCK: And Trump was talking to lawyers (unintelligible) they cheated. So, Trump throws a flag, so to speak, and they’re saying, “Hey, he’s not allowed to throw the flag because it was so obvious there wasn’t a penalty. But that’s actually not how the system works.

CLAY: Yeah. And I think intent is hard to prove. And this goes back to the basics of criminal law in general. You have to show both a mens rea and an actus reus. For people out there, you have to show the intent and an act to further the intent in order to be guilty of most criminal offenses. And if Trump truly believed that there was fraud and if he reliably listened to his attorneys and followed their legal advice in any way, which I think he did, there is no crime here.

BUCK: And it’s funny ’cause you think about the Russia collusion fiasco, I was warning people all throughout that, people are saying, “Oh, just wait, they’re gonna be frog marching guys out of the FBI in handcuffs,” and I said, “No, that’s not gonna happen, because the ultimate fallback for all the Russia collusion conspirators was going to be, ‘We were so dumb that we actually believed it.'”

CLAY: Yeah, right.

BUCK: “’We are so reckless and stupid in the way we did our jobs at the FBI and the CIA, et cetera, that you could just float a news story to us, an actual press clipping to us, and we’d say, “Oh, that looks true. Let’s just go with that,” or we would believe the Steele dossier with the pee-pee tape and all the rest of it. We’re so dumb that we actually… It’s not that we wanted to believe it so we could then go on offense,’” which is what really happened. The FBI’s claim all along — Comey and the rest of them — was they’re such hysterical lunatics about hating Trump that they believed all the Russia collusion stuff, and you can’t prosecute stupid or else there’d be a lot of people in jail.

CLAY: Well, again, Buck, does anybody out there doubt that Trump…? Whether you love or hate Trump, does anybody out there doubt that Trump legitimately believes that the election was stolen from him in 2020? I don’t think even the most dyed-in-the-wool anti-Trump person, I don’t think, is arguing that Trump is acting on a falsehood. I think he believes it.

BUCK: And that’s on the election side of it. On the seditious conspiracy possibility, this would have to be that there was a credible threat to the overthrow of the United States government. All these so-serious congressmen and legal analysts going on cable news are going to be presenting to a jury. The jury is a bunch of anti-Trump libs ’cause it’s D.C. But if they brought this charge, they would be saying that there was a credible effort, right?

If some crazy guy shows up to the front gate of an Army base and says, “I’m here to overthrow the United States military,” you’re not gonna… You are gonna put him in Bellevue or something. You’re gonna say this guy needs a psych evaluation. You’re not gonna charge him with overthrowing the military if he shows up bare-handed and says, “I’m here to overthrow the military,” right? There has to be some credible reality to this.

CLAY: Yes.

BUCK: And there was no credible reality to furry hat guy with the spear and all the people taking selfies. And, yes, even the people that were assaulting police, who should be punished and are being severely punished, I might add, unlike a lot of other assaults on police officers, there’s no credible threat of overthrow of the United States government. It’s why anyone who says it’s an insurrection is a liar or an idiot, Clay.

CLAY: I think so, Buck. And for anybody out there who has never talked to a big group of lawyers together, first of all, congratulations, ’cause if you’ve ever talked to a lot of lawyers… What’s the great line? “What do you have when you have a lawyer up to his neck in cement? Not enough cement,” which as a lawyer, I can say. If there are 10 lawyers advising Donald Trump, they could all have 10 different theories of the case about how Trump should be contesting the 2020 election.

If he has 10 different lawyers making arguments, maybe five or six of those lawyers agree that the most likely path he should follow is X. But if somebody’s arguing for Y and Trump decides that he wants to go in the Y direction, then I don’t understand, if he’s relying on lawyers to make legal arguments, even if they are aggressive legal arguments, and even if most constitutional scholars don’t agree with them, if he is, as an untrained lawyer listening to 10 different lawyers and picking, hey, I want to go in this direction, I don’t understand how the intent is there to do any of this other than to pursue to the full extent of the law his legal opportunities, which is his ultimate best defense.

BUCK: And obviously this all really does turn into a political question, as much or more so than it is even a legal one, as in, do the Democrats have the intestinal fortitude to push this through — Merrick Garland, the DOJ — to indict a former president. Look, if the former president was found — you know, if he had done something that would be criminal under state law, right, if he had —

CLAY: Which is what Georgia’s trying to argue right now, right?

BUCK: I mean, something that’s illegal in all 50 states like a violent assault, right?

CLAY: Right.

BUCK: That would be… But to try to charge a former president with a political crime is Third World, banana republic stuff.

CLAY: Yes.

BUCK: We all know it. So, one, do they have the intestinal fortitude to actually pull the trigger on this, put it before a grand jury, bring the indictment? And then, two, what happens if they do it? I think they don’t know, and that’s one of the reasons they’re not going to do it.