Todd Blanche, Former President Trump’s Lead Lawyer, On The Appeal In Manhattan

The Hugh Hewitt Show

Todd Blanche, former President Trump’s lawyer in Manhattan, joined me this AM:

Audio:

07-16hhs-blanche

Transcript:

HH: We are going to talk with Todd Blanche. Mr. Blanche joins us from New York, or he might be back in Florida at the office of the Blanche Law Firm, Blanchelaw.com. Good morning, Mr. Blanche. Welcome to the Hugh Hewitt Show.

TB: Good morning. It’s great to be here, and thank you for the opportunity to spend some time with you this morning.

HH: I want to begin immediately with the motions pending before Judge Merchan, the trial judge in Manhattan. They call them “justices” in New York, but I use “judge” for the benefit of the audience that isn’t aware of the weird titles up there. You’re a former Assistant United States Attorney in the Southern District of New York. I believe you are the lead counsel for President Trump in Manhattan and in other proceedings. Can you tell us when you expect Judge Merchan to rule on the motion that you made, 54 pages just days ago that Trump V. United States ought to render the proceeding’s nullity in Manhattan?

TB: That’s right. I do represent President Trump as lead counsel in the Manhattan case, and also the Florida case, which is a little bit more enjoyable to talk about this morning. And hopefully, we will in a minute.

HH: (laughing)

TB: But you’re right. We put a motion in. Look, the Supreme Court unequivocally said that a president, not just President Trump, but any president is entitled to a significant immunity when it comes to his job. And we had briefed that before the trial started in front of the judge, Judge Merchan. And he gave it, you know, I don’t know the legal term, but “back of the hand” is what he gave it before the trial started. And it turns out that we were right. And there was some key testimony that was offered by “the People,” which is what the government is referred to in New York, by “the People” at trial that is absolutely immune and never should have been said to anybody, much less to a jury in Manhattan, in communications that the President had with his advisors while he was president, documents that were used during his presidency were offered against him at trial. And so we, this conviction, in our view, should have never happened in the first place. But just under the Supreme Court’s decision, it should be dismissed, in our view, immediately.

HH: Now Mr. Blanche, the Supreme Court, Chief Justice Roberts, was very explicit about the fact that evidence of advisors [advice] to the president cannot enter into proceedings against him. What specifically are you referring to? Is it Margo? What is it that you’re talking about that got into the trial record that the jurors heard that they ought never to have heard?

TB: A lot of evidence. A couple, I’ll just hit a couple of the key pieces. Hope Hicks was the communications director for President Trump.

HH: Yes.

TB: She testified about a key conversation she had with President Trump in the White House regarding the Michael Cohen scandal at the time. And the significance of that conversation was she said that President Trump had implied to her that he in fact knew about the payments before the election. Now we contested that, and we still do contest that. The only other witness who said that President Trump knew about that payment before the election was Michael Cohen himself. And so during summation, the prosecutor described Hope Hicks’ testimony as devastating, okay, because it corroborated Michael Cohen. That communication, under the current Supreme Court precedent as of two weeks ago, it should have never been allowed in. There was also a government ethics form that President Trump was required to complete. And there was a footnote in that ethics form that described the repayment to Michael Cohen. That document was used, admitted into evidence. It was used at trial as an admission by President Trump, and the prosecution again argued strenuously in their summation about how key that was. That’s something that should have never been allowed into evidence. I mean, we can go on and on. There’s testimony from President Trump’s, really like his secretary, Madeleine Westerhouse. She’s a really amazing woman, and she testified about really important details of the life of President Trump while president. That’s not supposed to be allowed.

HH: Oh, my goodness. That’s dispositive.

TB: And we said that…

HH: You can stop right now, Mr. Blanche, because Hope Hicks, for the benefit of the audience, was with Donald Trump before he became president. Throughout much of the White House, she took a period of time off, and then she returned. She’s the only person…

TB: That’s right.

HH: …I remember that came back to the White House. And so she’s still with the President’s team, in some respects. Madeleine was there until, I remember the Washington Post leaked a private conversation, got her fired. And she’s still a friend of mine, went to high school with my son, in fact.

TB: Yeah. Yes.

HH: But that’s dispositive. So there’s evidence in the record before the jury argued by the prosecutor in the summation that you can’t even answer that the jury heard, that the Chief Justice ruled without any qualification. They can’t use that evidence.

TB: That’s right.

HH: So you’ve got a slam dunk winner.

TB: That’s right. That’s right. And look, the other part, just not to dwell on this all morning, but there were tweets admitted into evidence from when President Trump was president about Mr. Cohen and about others, and before the trial, we said you can’t let these in. These are immunized. The President should enjoy immunity, and the judge, Judge Merchan, said absolutely not. You’re never going to convince me that that’s the sort of thing that can’t come in. Chief Justice Roberts said unequivocally that most communications, including tweets from the president, should be immune and should never be used at trial.

H: Yeah, that pre…

TB: So look, we have a good motion, so we’ll see.

HH: That is, that’s very interesting to me, because I saw that when Judge Merchan made his motion, made his ruling, that sentencing would be postponed until September 18th. He also wrote that he will be ruling on motions, and that sentencing, if it is still necessary. So he’s clearly open to dismissing the entire proceeding. Yesterday, Andy McCarthy, who I’m sure you know from United States Attorney alumni circles…

TB: Yes.

HH: …said on this program that the Erlinger decision also ought to force Judge Merchan to dismiss the case, because Erlinger reaffirmed a unanimity in every element of a conviction, and obviously the Judge’s instructions allowed for non-unanimity in the second crime theory. Do you agree with Andy on that?

TB: I do. Andy and I had the same job. We were both chiefs in the White Plains division at the Southern District of New York, and I think Andy’s a genius. And I respect his views, and I very much agree with him. Not only was there not a unanimous requirement for a key part of this case, but to those that followed the trial, that part of the case was really 90% of the evidence. So they spent two full weeks talking about this supposed, you know, conspiracy, misdemeanor conspiracy under New York state law to influence an election, and at the end of the day, the jury didn’t have to agree on what was improper or illegal about that effort. And we’ll never know whether they did agree, whether they had, you know, four or five different views about which crime was the other crime. And so the Supreme Court again has for decades been warning prosecutors, Apprendi and other cases, that you cannot punish, take away somebody’s liberty if you’re not going to make the jury find everything completely unanimous. So we’re cautiously optimistic that this case is going to be thrown out. It should be. It should have never been brought, and we’re fighting every day. And we’ll see what happens in September.

HH: Do you expect the judge to rule quickly given the assassination attempt on President Trump? And the situation in the country, it would be incumbent, if I were the judge, to move quickly on your motions. Your motions seem to be to be obviously going to be granted. Do you expect him to move quickly in light of recent events?

TB: I hope so. Look, the People’s brief is due in a week or so, two weeks. And he’s given himself, the judge gave himself a September 6th date of when he’ll announce a decision. But he’s not wed to that. He could announce it whenever he wants. Saturday was just a very sad day for this country, and it’s in part a reflection of the lawfare, in my view, that’s been happening against President Trump, including the D.A. in the Manhattan case. And I hope that Judge Merchan does it. I really do. We, it would go a long way, in my view, to healing some of the wounds that we have. And look, I have spent the past year being disappointed, so I don’t want to get too excited, but I really hope Judge Merchan agrees with our motion and throws this case out.

HH: I’m going to go to a quick break, so I want my affiliates to know I’m going to continue to talk with Mr. Blanche of www.blanchelaw.com as we go to the break. I’ll talk to him during the break. I’ll play it tomorrow, put it on the podcast today, and then he’ll be back. And in the second segment when we’re back on the radio network as well as the SalemNewsChannel, we’ll talk about yesterday’s big win in Florida, again, after Clarence Thomas wrote his concurrence. That was telegraphed, and it has long been my opinion that this is crazy what Merrick Garland has set up, because it is a unitary executive, also a position made very clear by the Chief Justice in his opinion in Trump V. United States. I’ll be back with Mr. Blanche during the break, and I’ll put this on the podcast, play it tomorrow. Stay tuned, America.

—- – – –

HH: I am back now on the podcast with Todd Blanche. I’ll play it on Wednesday’s show as well. Mr. Blanche, Jed Rubenfeld is a Yale Law professor, has been a guest of mine. He urges that a USC1983 action, 42USC1983 be filed before sentencing, should sentencing be scheduled again because of the irreparable injury that will occur to your client, and I believe to the United States should sentencing occur. Has that crossed your mind? Is that out there? Does Professor Rubenfeld have a good argument, in your view?

TB: …with him on several occasions, and communicated with him during the trial. And there is nothing that’s not on the table for us if there’s going to be a sentencing. 1983 actions based on this type of conduct and facts, it’s a very steep hill. And I don’t know that it’s something that we feel like is guaranteed success, but we’re not looking for guaranteed successes. We’re looking for any opportunity to stop this. So there’s nothing not on the table. And I think what we would have to do in that case is walk across the street to the Southern District of New York and file an action, if that’s what it comes to. We’ll cross that bridge if we get to it. There’s procedures within New York that we can work within as well before sentencing, and so everything’s on the table. And we have a lot of really smart folks around President Trump that are giving advice and counsel to us and to the team, and we’re taking it all. And obviously, we’ll see what happens.

HH: My friend and old colleague from the Department of Justice, I was there in the Reagan years. Mark Levin was there in the Reagan years. I worked for Smith and Meese. He worked for Ed Meese, and then I went to the White House Counsel’s office. We have disagreements, but we get along very well. Mark wants to use extraordinary writs to the Supreme Court. I don’t think that’ll work. Jed Rubenfeld doesn’t work. I think it would look bad if you go to the Court early on an extraordinary writ and they decline to take it, which I think they would. What do you say to people like Mark who want you to throw everything at the wall, including the Extraordinary Writs Act?

TB: Look, Mark is great. You know, you’re right. I don’t necessarily agree on everything that he says, but I love the fight, and I love the ideas. There’s a lot of things to think about there, right? It’s not just this case. You know, we won a case yesterday, but we have other cases going on with President Trump. And you have to be, I think you have to be strategic about when you run to the Supreme Court. And so there’s a lot of factors, I think, beyond Manhattan that come into play with whether we use the Writ. But listen, there’s nothing not on the table, and I mean that. And I say that to the President when we talk about strategy. And he, of course, knows Mark and knows, and watches and hears a lot of options. And I think that, if you’re going the Extraordinary Writ route, by definition, you’re doing something extraordinary. So the chances of success are diminished. But we’ll see what happens. I remain, I still have faith in the system. It’s just taken a lot out of me this year, but I’m hoping that Judge Merchan does the right thing. And if he doesn’t, then there’s a quick relief in the appellate system, and that we don’t have to race to the nine justices to get relief. But listen, Mark’s right. This is a once in a lifetime prosecution. And it needs to be stopped. And so if that’s the only option to stop it, I think we’ll try it.

HH: Well, the cleanest way is if Judge Merchan himself takes the offramp the Supreme Court gave him in the two cases, Trump V. United States and Erlinger.

TB: That’s right. That’s right.

HH: I’m coming back on the air to talk with Mr. Blanche to talk about the Florida ruling yesterday by Judge Cannon, who is being, I think, in a way that is obscene, assailed by critics for what is a clear application of very valid legal theory, one that persuaded me long ago and one that persuaded the judge yesterday. Stay tuned.

— – – – –

HH: I continue my conversation with Todd Blanche, lead lawyer for the former President in Manhattan and in New York yesterday, big win for Team Trump in Florida, Judge Cannon dismissing everything that Jack Smith brought as an indictment, because Jack Smith was improperly before the court. He is not an inferior officer. He’s not been confirmed by the United States Senate. This was a surprise and a shock to people like my friend, Ruth Marcus of the Washington Post. But I’ve been arguing this forever. I teach Con Law, Todd Blanche, and this is obvious to me that unlike David Weiss, who’s a U.S. Attorney, and unlike Robert Hur, who is a U.S. Attorney and otherwise appointed appropriately and confirmed by the Senate, Jack Smith has no business in front of anyone bringing anything arguing that he’s independent of Merrick Garland. How surprised were you? And how satisfied are you with Judge Cannon’s ruling yesterday?

TB: I am, yesterday was a phenomenal day for the rule of law, in my view, for President Trump, for his family, for Walt Nauta, for Carlos, you know, the other defendants that were charged. Surprise is definitely the wrong word. Judge Cannon is a thoughtful, smart judge. She’s done, every step of the way, she’s been careful. She’s listened to everybody. She’s criticized soundly in the media because she takes her time and is thoughtful, which is extremely, not only unfair, but absurd, frankly. And you’re right. The argument here is so basic that it almost belies common sense when you think about the other result, which is that a private citizen, in this case Jack Smith, is given the power to take away somebody’s liberty, the power to sign indictments. And he’s not been nominated by the president. He has not been confirmed by the Senate. And we have a United States Constitution. And the United States Constitution says you cannot do that. And so while it seems almost obvious that there’s other courts that have gone the other way, if you read her 93-page opinion, it is a gem. I think it’s really, really thoughtful. It makes sense. It follows the law. And yesterday was just one of the, it was a great day for all kinds of reasons, obviously, with the Vice President being announced and coming off of Saturday, which was a horrible day. But I got to call President Trump yesterday morning and deliver the news. And it’s just, it’s amazing. But you know, we can talk about it all you want. It’s right. Her decision is right.

HH: Oh, it’s correct. I want to play for you, last night, Joe Biden was asked by Lester Holt about the decision by Judge Cannon. And he responded this way, cut number 25:

LH: In some other developing news today, if I can. Judge Cannon dismissed the documents case, as you may have heard, in Mar-A-Lago. Can I first get your reaction to that?

JB: I’m not surprised. It comes from the immunity decision in the Supreme Court ruled on, and Clarence Thomas in his dissent said that independent prosecutors appointed by the Attorney General aren’t legit. That’s the basis on which this judge moved to dismiss. And, but, I had an independent prosecutor look at me. They spent months on my going through, and I was totally cooperative. In and out of my house, I remember, I don’t know, the last time in there were like ten, twelve agents in my house for nine hours unaccompanied going through every single thing I had. That’s appropriate. And they looked at me and concluded I didn’t do a damn thing wrong. But my generic point is that it’s, well, well, the basis upon which the case was thrown out, I find specious, because I don’t agree with Clarence Thomas in his dissent.

HH: Mr. Blanche, that is so preposterous. I will note for the audience Clarence Thomas concurred. He did not dissent. I will also note for the audience that Robert Hur, the special counsel, and by the way, an appropriately-appointed special counsel, did not bring charges against President Biden because he was, “an well-meaning elderly man with a poor memory.” We have a minute to the break. What do you think?

TB: I mean, yes, I agree with you. Moreover, President Trump cooperated as well, and he was not being, no matter what anybody says, he was not being difficult or obstructive. And by the way, if anybody thinks that Judge Cannon wrote a 93-page opinion because of what Justice Thomas said in his concurrence, they haven’t read it. So certainly, Justice Thomas’ concurrence is consistent with her ruling, but she ruled that way because it’s consistent with the law, not the…

HH: Will you stand by, Mr. Blanche, I’m going to continue to talk with you. Don’t go anywhere. Todd Blanche of www.blanchelaw.com, you’ll want to read his bio, but he was an AUSA in the SDNY, and has been with Wilmer Cutler and Cadwalader. The man knows what he’s talking about. Stay tuned, America.

— – – – –

HH: I am back now with Todd Blanche, President Trump’s lead lawyer in New York and in Florida. Mr. Blanche, I wrote for the Washington Post that Mr. Merchan, Judge Merchan, should never have taken this case given the appearance of impropriety, given his donations. Will that be part of our appeal in the New York appeals system, and then eventually the federal appeals system if you fail, if he does not do the provident thing and dismiss this case in light of Trump V. United States and Erlinger V. United States?

TB: Absolutely. Absolutely. We made two separate motions asking Judge Merchan to recuse himself. I’ve practiced law for over 20 years. I was a federal prosecutor for almost a decade, a supervisor for four years. I’ve been a defense attorney for 10 years. And you know, it’s not just about whether there’s an actual conflict, which I believe there is an actual conflict. But it’s also the appearance. And you have a courthouse full of judges. It’s not as if he’s the only judge. And I very much feel very strongly and passionately about the motions that we’ve filed about his conflict. And he didn’t agree with us, and of course, if there needs to be an appeal, which hopefully there never will be, that’s going to be one of the most significant complaints that he have to the first department and federal court if it gets to that.

HH: I think it’s a mortal lock for any number of reasons, including failure to specify the second crime in the indictment. I’ve been practicing since 1983. I am retired from the act of practice. I still teach Constitutional Law. I’ve never seen an indictment not specify a crime, and I’m not, I’ve defended exactly one criminal defendant. You and I do different things. I was an administrative lawyer. Have you ever seen an indictment not specify the crime with which the defendant is charged?

TB: No, and look, it’s not only that the indictment failed to specify, they wouldn’t articulate it until the trial started. So when you talk about a fair process, you’re talking about, putting aside he’s the former President of the United States of America, putting aside the fact you’re talking about conduct that happened in 2016, 2017, you’re still taking somebody’s liberty. And so the idea that you wouldn’t tell President Trump in the indictment, but then also wouldn’t tell him in a bill of particulars, wouldn’t tell him in any kind of motion practice, walked into trial Day One, and learned that the three separate theories that the People were going with, is, look, history will judge, and that’s what we all live with. But living through it right now, it’s not something I would have ever, I’ve never seen it, and I certainly never did it as a prosecutor.

HH: Last question for you, Mr. Blanche. I think Andy McCarthy’s the best commentator out there, but there’s some awfully terrible ones on a variety of networks. And I think they’re poisoning. Andy said it yesterday. Lawfare is killing the United States. Are you representing the President in front of Judge Chutkan?

TB: Yes, I am.

HH: Do you expect Judge Chutkan to take note of both the events, the tragic events on Saturday with the murder of one and the wounding of two, the wounding of the president, the attempt to kill him, and postpone all of this until after the election, and if necessary, read very carefully Judge Cannon’s, which does not bind her. Judge Cannon does not bind Judge Chutkan. But do you expect her to slow down and take her time in light of recent developments?

TB: I really hope so. Look, she’s going to get jurisdiction back. The mandate will issue in a few weeks, early August. And there’s a lot of choices that everybody involved has to make – Judge Chutkan and Jack Smith. And I hope that the right thing is done here. You’re completely right about Andy, but you’re completely right about a lot of others out there that want, still want nothing more than to see President Trump go down before the election. And that’s not who we are as a country. That’s not the way the justice system is supposed to work. That’s not the way it’s ever worked before. And we can still right this ship. And hopefully, Saturday was a wake-up call to everybody that if you want to beat President Trump, then take your message to the voters and tell them to vote. You should not use the court system, and that’s what they’ve done. That’s what this administration has done, and you can’t deny it. And you can’t deny it. You look at the indictment now in D.C. Most of that indictment is filled with information that is not allowed to be used, given the Supreme Court’s decision of two weeks ago. What are they going to do about that? They should do the right thing. Do the right thing.

HH: Mr. Blanche, can I keep you for 10 more minutes? I know it’s early. I know you’ve got to get to work. But can I keep you for 10 more minutes?

TB: Absolutely.

HH: All right, I’ll be right back after we come back to the network. I want the entire network to hear this live what he’s saying. Stay tuned, America.

— – – – –

HH: Todd Blanche has agreed to stay with me. Mr. Blanche is President Trump’s lead lawyer and a very good one at that. Mr. Blanche and I were talking off-air, and I want the entire country to hear it live about the stakes in the D.C. case which will go back to Judge Chutkan in a matter of weeks. She has a complicated evidentiary procedure laid out for her by the Supreme Court in the Trump V. United States decision. It would take weeks, and it would impact the presidential election in ways terrible. And after the assassination attempt, it is time for Jack Smith, and especially, and this is what I wanted to get to you on the air. Merrick Garland controls Jack Smith. There is no way that after one reads Trump V. United States, the unitary executive is defended, that he is not controlled. Do you expect Merrick Garland to wake up and take control of this out-of-control proceeding, Mr. Blanche?

TB: I hope, I really hope so. And Saturday, you’re right, was a wake-up call. But the Supreme Court’s decision two weeks ago was a wake-up call. What’s been happening since that time and the reaction is a wake-up call. You have an indictment against a former president of the United States in Washington, D.C., most of which is now filled with information that should have never been presented to the grand jury, should have never been part of a charge against a former president. And you’re right that the Attorney General can stop this today. President Biden can stop this today. Jack Smith can stop this today. There is leadership that can all do the right thing if they choose to lead. And I really hope they do. It would be the right thing for this country. You’re right. The amount of work that has to happen now that the Supreme Court has ruled in the D.C. case is extraordinary. The entire indictment is based off of immunized communications and conduct by President Trump. And instead of, I would, they have an opportunity. They do. The Attorney General, Jack Smith, Biden, President Biden himself can say enough is enough, and we’re going to walk away. And I hope they do it.

HH: All right, my very last question, Mr. Blanche. I’ve had this conversation with two former United States Attorneys and with the former deputy counsel to the President. And none of us know the answer. The grand jury proceedings were full of immunized, after Trump V. United States, it’s very clear that the grand jury proceedings are tainted. Does Jack Smith, even if he is, or a new U.S. Attorney, if they comply with Trump V. United States, or Merrick Garland himself, do they have to start over with a grand jury and not present the grand jury? Or can they simply strike counts in the indictment in D.C.? Nobody I’ve asked that to really knows the answer to that. What do you think?

TB: So look, I’ve looked at the law very carefully, and it’s complicated, because it’s allowed. You can introduce tainted evidence or inadmissible evidence to a grand jury a little bit. It happens all the time. You know, a judge later makes a decision that something’s going to be suppressed. That doesn’t mean that the whole case is thrown out. But if the grand jury process was so tainted, and was so infected with inadmissible evidence, then certainly, you can make a motion to say the whole thing has to get kicked. And I will tell you this. I think that you know, to those that like to read briefing, I can expect you’ll see such a motion if Jack Smith doesn’t on his own go back and present that case to another grand jury or just walk away, which is what he should do.

HH: Todd Blanche, I appreciate your long time this morning with me. I think President Trump is very well represented, and I wish you luck in the weeks ahead on the benefit of the President, but also for the country that you succeed in New York, you succeed in D.C, and that the Appeals Court in the 11th Circuit uphold Judge Cannon’s ruling. Todd Blanche, thank you for joining me this morning.

TB: Thank you, and keep doing what you’re doing. It’s a great show, and I’m honored to be on it today, so thank you.

HH: Thank you.

End of interview.

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