i'm steve hilton, see you next sunday when "the next revolution" will be televised. . mark: hello america. i'm mark levin. this is "life, liberty & levin." we have two great guests, bradley smith, how are you my friend? great to see you, gregg jarrett, good to see you. >> good to be here. mark: briefly, everybody knows who you guys are, we're going to do this anyway, just in case. you were commissioner at the federal election commission, starting in 2000. you were chairman at one point. you graduated from harvard law school, and you were confirmed

to the fec in 2000. prior to your appointment, you were professor of law at capitol university in columbus, ohio. you taught election law, you spent your whole life studying, teaching and around election law, is that correct? >> yes. mark: writeings on campaign finance, other election issues, and this is important that we get your background in here. they've appeared in the yale law journal, university of pennsylvania law review, georgetown law journal, the harvard journal of legislation, cornelle journal of law and public policy and other academic journals. have you founded the institute for free speech and you're a prefer again at capital university. gregg jarrett, you graduated from university of california hastings college of law, 1980. you worked as a defense attorney for several years in san francisco. you taught law as an adjunct professor at new york law school and lectured at other

law schools, and have you written a fantastic "new york times" best-seller, number one, the russian hoax, the illicit scheme to clear hillary clinton and frame donald trump. so i need you gentlemen here for a reason. we're going to dig into what's going on, and i want to start with you, brad smith. people tell us federal election laws are arcane, they are arcane. too damn many of them. but that said, people want them. they keep demanding less money, less money in politics. i want to ask you a question, if there's an individual when makes a payment from their own pocket or from their own company, or they direct their private lawyer to make a payment whom they later reimburse even if they don't reimburse, also from the same funds, to enter into a non-disclosure agreement with an individual, a non-disclosure agreement with an individual, involving alleged activity that

preceded this individual's candidacy for any federal office. is that a campaign contribution? >> short answer there is no. mark: and why not? >> well, it's not because it doesn't arise out of the campaign, and the key thing that you said there, mark, is that this happened before the campaign was going on. the events that give rise to it. and under the federal election campaign act, anything one spends to campaign is expenditure on one part of the law, but the law contains other clauses that focus on what are not campaign expenditures and what is called personaluous, and you can't convert campaign funds to personal use. what the court and the statute says clearly, the fec said in regulation says if something is not an expense that arises directly out of campaign, for example, you rent office for campaign headquarters, you hire a campaign manager, you pay for

tv ads, print up bumpers and bumper stickers, those are things you're doing because you're running for office. but the fact that something helps your campaign doesn't make it a campaign expense. i decide i'd look better on the campaign trail if i had teeth whitened. not a campaign expense. i want a new suit, not a campaign expense. takes something more relevant to what's going on, as you alluded to the trump payments to women who alleged affairs and so on. i'm a successful businessman and decide i want to run for office. i've got all the lawsuits against me as businessmen do against companies and so on, these are a bunch of b.s., no merit to them, but i don't want them out there. i don't want people asking me about them, settle my lawsuits, tell my lawyer. i can't pay the settlements with campaign funds, that's not a campaign expenditure, the obligation didn't arise out of my running for office.

that's the long answer. the short answer is no, paying somebody to be quiet for something that was done or alleged done years before is not a campaign expense. mark: gregg, obviously i'm talking about the district of new york, two of the pleads are campaign violations, have you media types saying if he pled to a crime, that means that donald trump is an unindicted co-conspirator, is that correct? >> turns criminal law on its head. he pled guilty to a noncrime. people actually do that all the time in a plea bargain agreement in which, you know, the prosecutors say you're going to spend the next 50 years behind bars but if you plead to what we want you to plead to, yeah, we'll let you

out in two or three years, you have a life to see your kids and wife. people oftentimes plead guilty to things they didn't do or noncrimes because that's what prosecutors want them to do. i've always objected to flipping witnesses and so forth under pressure because it's nothing more than bribery and extortion. in this particular case, i talked to two or three different election law experts, one of and spent most of his career at the department of justice doing election law and he laughed and he said, cohen pled guilty to two noncrimes. he said there's no possible way that what he did and what trump did is criminal. so this is what prosecutors wanted. they wanted something in this plea deal that would implicate donald trump, and that to me is unconscionable and fundamentally wrong on the law. mark: and think of this, what

kind of precedent this would set. the prosecution says it influenced the campaign, as you point out. there's a thousand things that influence a campaign on a positive way. maybe i want to buy $5,000 suit, with my own money. there's a lot of things. maybe i want to buy an old used chevy and trade in my brand-new cadillac so it looks better in the campaign, that positively influences the campaign. let me ask you something, members of congress, we know this as a matter of fact, settled ethics complaints involving sexual harassment. they created this slush fund with taxpayer dollars, to quiet the accusers. non-disclosure agreements, if you will. hush money, we can use the same phrase. they didn't want the constituents to know? many of them running for re-election as incumbents,

they're using tax dollars, it influences the campaign. why aren't they indicted? >> well, we know why they're not indicted, right? we don't want to indict them. it's a good example of things that influence the campaign, and worth noting that under the fec's regulations, if you're an incumbent officeholder, you're presumed to be running for re-election, you are all presumed to be candidates unless they announced they're not seeking re-election. they would be candidates and this is something they probably did to influence their future campaign or their perception as officeholders. one thing that's worth adding, mark, i hear this from people all the time and other election law lawyers or former commissioners say yes, it was to influence the election. but the fec and regulations specifically rejected the idea that even as to whether it was primary to influence the election or not, in choosing the test that has to be obligation that was created for

the election, in other words, they didn't want to get into the question of trying to guess did they do this primarily for the election or primarily for personal purposes, and very specific about that in the regulations, and i think that's a very important point that people need to keep in mind, and that was done actually to make it more objective and actually to prevent candidates from using campaign funds for personal use. but that's the flipside, and i tell people imagine if you're a lawyer for the trump campaign, another provision seems to say i can't pay with campaign funds, somebody is going to get them coming or going, that's part of the problem. mark: so if you're a lawyer for the trump campaign, the coming trump campaign, you would do pretty much what donald trump did. no campaign money, consult your private lawyer, and enter into these non-disclosure agreements. gregg, let me ask you, this isn't the real issue people

were paid under the non-disclosure agreements and violated the non-disclosure agreements? i don't see them giving the money back. >> i think you are absolutely right. i think it's malpractice for the attorney for stormy daniels to say go ahead and talk while the case is pending as to whether or not it's a valid and enforceable non-disclosure agreement. so it's stunning to me. but to bradley's point, not everything that benefits a candidate is considered to be a campaign expense. professor smith wrote that in one of his op-eds, and he's absolutely right. if there is a dual purpose or a secondary purpose, it's not a campaign expense, and moreover, the media rushed and said, oh, cohen pled guilty, the president must be guilty. that's utter nonsense. first of all, under the campaign -- federal campaign election act and other related

laws that criminalize violations, there has to be knowledge. you have to show that there was a knowing and deliberate violation of the law in order for it to be criminal. well, most candidates don't know the election law. heck, a lot of lawyers don't understand election laws. this gentleman, former commissioner, the federal election commissioner, chairman, he knows election law. he may be just about the only one in america who really truly knows it. so you couldn't criminalize what trump did if it wasn't properly accounted for as an advance or reimbursement. that is a civil penalty, the equivalent of jaywalking $500 fine but certainly not a crime. mark: i did a search. didn't take me long. of all the federal candidates

who have been charged and convicted of violating these laws. i can't find a single one. are you aware of a single one? >> for this kind of scenario? mark: this scenario? >> no. the most high profile would be john edwards, folks remember supporters were paying funds, money it a woman, reilly hunter i believe was her name whom he had affair and illegitimate child. now it's worth noting. the u.s. attorney indicted him. they went to trial on it. the u.s. attorney thought there was a case. the jury did not convict, he was acquitted on some charges and i think a hung jury. shows tremendous difficulty. quick little anecdote. talk about the law and obscure, antonin scalia, reasonably good lawyer said the campaign finance law is so complex, i can't figure it out.

you have a supreme court justice can't figure it out, you see the problems people have with it on a daily basis. mark: the reason i'm bringing it up now, weeks and weeks after all the fanfare is because, and i want to get into this when we come back, this is what happens, it's hit and run. and i want to slow things down so we can unravel things that happen before we get into the next thing which is a daily recitation that wears out the voter, that wears out the american people of a trump violation of a law, a trump ethical violation, or a trump something or other, and i just feel that this program, slow the process down a little bit and go back and unravel some of what has taken place. ladies and gentlemen, don't forget, most week nights you can join me on levin tv. you go to crtv.com/mark, crtv.com/mark or 844-levin tv.

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corporate contribution. is there such a crime? >> there's not, it's last-minute for a corporation to contribute money to a campaign, and it's illegal for corporate officer to approve such a contribution, but michael cohen no, crime for causing the corporation to make the contribution, and i think this shows causes that are dubious at best. and to pick up what gregg was saying, the loan violation, they probably could have made a longer list regarding medalians and they had the campaign clauses in there which we all agree are phony. so why do they do that? >> well, this is all part of the ongoing scheme, i call it in my book, the illicit scheme to damage, destroy, frame

donald trump with things he didn't do. you know, the media has certainly been complicit in this, at every turn they have convicted trump in the court of public opinion without evidence. you know, for the longest time, collusion, the mere utterance of the word constituted a crime, nobody in the media ever looked it up, if they had, they would have found it only exists in antitrust law and other potential crimes are inapplicable. conspiracy to fraud the government and so ohas no application, if you read the supreme court decision. i lay it all out in my book and disabuse this media narrative, the president is guilty of colluding with russia because a couple of junior campaign volunteers had a conversation with a russian. one entire chapter, it's not a crime to talk to a russian, and

i explained it in great detail, but you know try to get that through the thick skulls and the bias of the mainstream media, and it's a herculean effort, because they just don't want to consider anything that is diverse from their narrative that trump is guilty of a wide variety of crime simply because he's donald trump. mark: so they're really doing this because they concede they can't indict a sitting president. they finally read the two memos from the department of justice for whom these people work. >> right. mark: they must comply with the policies of the department of justice. so they're trying to build this impeachment case. >> yes. mark: so mueller kicks it off to the southern district and the audience should understand, that doesn't mean they're not in communication, that doesn't

mean they don't collaborate and collude with each other, perhaps mueller wanted the campaign issue raised in the district of new york. that's possible. why wouldn't they? if their goal is to produce this report for impeachment. let me ask you this, do prosecutors normally produce reports and send them into the department of justice or speak in a courtroom? >> well, they generally speak in a courtroom, and they let their charges do the talking. mark: now why is that? so people have the right to defend themselves? >> that is correct, everybody's presumed innocent until proven guilty. but that's not the way this special counsel and his team of part sans are going about the investigation of donald trump. i think you're absolutely right. mueller understands he can't indict a sitting president, so he's doing something else. he's going write a report. the law, notwithstanding, and

the facts notwithstanding, he will put something i predict in his report that will give democrats in congress some hook, something to hang their hat on for articles of impeachment against the president. i think it will be completely specious and unfounded because i think mueller demonstrated that he is virulently biased against donald trump. he should have recused himself from the beginning, never taking the case because of multiple conflicts of interest. rosenstein, his boss -- mark: i want to get to him. i definitely want to get to him but want to ask you a question, bradley smith, which is this, this report that they produce, isn't the president in a bind here like no citizen in the country. if you cannot indict a sitting

president and they write this report for the deputy attorney general of the united states, as the acting attorney general of the united states, the president has no legal way to defend himself. he has to defend the office of the president against what could be a rogue indictment. he has to fight that for the office of the presidency. for separation of powers and so forth, and yet as an individual citizen, he can't go to court. he can't fight the allegations. isn't this a strange situation where a report is written and it's given to the department of justice which will then be pressured to give it to congress when you have an inferior employee at the department of justice basically writing an impeachment report? don't you find odd? >> this really goes to the whole idea of special counsels and the way that we use special counsels and essentially have you somebody whose job it is to shadow this president and all

of his associates and find -- see if you can find crimes to pin on him. i think it's odd. i'm not sure it's unprecedented in the way special counsels have worked. i think it shows the danger of the sort of special counsel approach to governing this idea that we're going to kind of find a crime and we'll make it all fit later. mark: and find a crime and make it all fit later. there is one thing different, there was no crime when the special counsel was appointed. isn't that a violation of department of justice policy? >> it's completely a violation. this was illegitimate appointment of the special counsel. if you look closely at the federal regulations, it requires statement of a specific crime look at the authorization order appointing mueller. there is no specific statement of a crime. don't just take my word for it.

former attorney general michael mccasey was a top federal judge before he was attorney general pointed it out repeatedly as have other federal prosecutors, this has always been an investigation, mark, in search of a crime, which is backwards, under the law and the regulations. mark: and this in part is due to the fact that this was a counterintelligence investigation that swung into a criminal investigation, counterintelligence investigation for the fisa court and so on are not criminal investigation, so he swings it into a criminal investigation and when we come back, i want to talk about the he, rosenstein, rod rosenstein. why is there a conflict of interest? why did he make this appointment? why is he still overseeing this investigation? we'll be right back. today, 97% of employers agree

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new developments in the allegations of sexual misconduct against supreme court nominee brett kavanaugh. a woman who wrote a confidential letter going public with her story in the "washington post." the 51-year-old college professor said kavanaugh tried to force himself on her in the 80 kavanaugh denies the allegations. i'm lauren green, now back to "life, liberty & levin.". mark: welcome back. gregg jarrett, let's talk about rod rosenstein, deputy attorney general of the united states for these purposes, the acting attorney general of the united states because jeff sessions recused himself, and he appoints a special counsel to investigate russian collusion and interference related to the trump campaign. donald trump fires jim comey. jim comey says, after he's

fired, that he pushed for a special counsel and in his book tour he says he needs to be credited with triggering that event. >> right. mark: rosenstein appoints mueller. >> right. mark: i'm a little confused about this as i assume the american people are. rosenstein wrote an extensive memo to the attorney general who passed it onto the president of the united states, and in that memo he cites former attorneys general, former deputies attorneys general, former attorney, former whatever at the department of justice and beyond, condemning comey for what he did in hillary clinton's case in the press conference, right? >> right. mark: well if he's appointing mueller to investigate, among other things, the firing of comey, is that not a conflict of interest? >> a major disqualifying conflict of interest that is actually mandatory under federal regulations.

it says shall disqualify yourself. not maybe or should or perhaps, shall. and yet with impunity, rod rosenstein has ignored the conflict of interest, and it's really quite astonishing. i think most law professors, ethics are confounded by his refusal. we know that robert mueller, the special counsel, has already interviewed rod rosenstein. his boss, as a witness in this case. you know, an employee is a special counsel interviewing the boss who's a witness who's presiding over the case. federal regulations say you cannot be a prosecutor and a witness in the same case. fundamental ethics, legal ethics, the stuff for which you are suspended or disbarred.

it makes you wonder what rosenstein is up to. i believe, and i argue in a book that james comey stole government documents, which is potentially criminal, and then leaked them to unauthorized individuals for the sole purpose of appointing his longtime friend, partner and ally, robert mueller who may be motivated to go after trump in retribution for the firing of his good friend james comey, and rod rosenstein is in this, they are thick as thieves and find it very interesting that rosenstein who is in legal jeopardy for signing off on the fisa warrant without proper evidence, has been obstructing the efforts of congress in disclosing information and documents which they are legally entitled to have. mark: let me ask you, brad

smith, about the appointments clause of the constitution. constitution has an appointments clause, and to sum it up basically, if you're a principal officer, if you seek to be a principal officer in the executive branch in the president of the united states, he is to nominate the individual, and that person typically gets hearings, maybe not, has to be confirmed by the united states senate. that's the way the frameers wanted it. so we have this special counsel, we have a ruling 30 years ago in a supreme court case, morrison v. olson, the want in court statute, and the court overruled with the great antonin scalia dissenting and provided certain elements in the test, that it's constitutional because the independent counsel is an inferior employee who reports to superior who oversees the case, and there are specific things that this individual is

investigating. so it's not like, say, a u.s. attorney or assistant attorney general of the united states. all of whom are principal officers, all of whom have to be confirmed by the senate upon nomination of the president of the united states. is this case not a little different than morrison v. olson, you have a special counsel appointed, as gregg says, without specific criminal statutory purpose. more of a general investigator, who has gone in many directions. gone into the eastern district of virginia. gone into manhattan, chasing the manhattan madam or whatever. he pretty much has free reign, signed off by the deputy attorney general of the united states, but even a u.s. attorney depending what cases they get involved in, that has to be signed off by main justice, too. is he not? you may disagree with me, is he not more akin to a u.s. attorney, this special counsel than an inferior prosecutor?

if you disagree, say so. >> the say goes into the decision of morrison v. olson, the case where antonin scalia made his wonderful life, this wolf comes to us in wolf's clothing, talking about how bad the statute is. i think what this shows is how bad that decision was because a superior officer, principal officer has authority to set policy and broad discretion and inferior officer does not. but mueller doesn't really report to anybody. he reports to rod rosenstein, but in fact as you point out, he's got a roving brief that seems unlimited to go in almost any direction he wants, and so i don't know if i want to say that this is directly different from morrison v. olson, it may show morrison v. olson, a, is a bad decision, and b, that the -- and want you to get a constitutional claim out of

this, but supervisors are not doing the job in reining him in. it would be if you have lower level official in the department of agriculture running around the country doing things nobody said hey, you can't keep doing that. that's how i tend to look at it. it shows a problem the constitutional and statutory problem with special counsels. >> don't forget, every week, most week nights you can watch me on levin tv, levin tv. i hope you sign up and join us. call 844-levin tv. 844-levin tv. or go to crtv.com/mark. we'll be right back. this is a story about mail and packages. and it's also a story about people and while we make more e-commerce deliveries to homes than anyone else in the country, we never forget... that your business is our business the united states postal service. priority: you and i don't add up the years. but what i do count on is boost®.

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president to do something, to testify about obstruction. to testify and perhaps create a perjury situation. couple of questions. if, in fact, as you suggest, mr. mueller is an inferior employee, does an inferior employee of the department of justice have the power constitutionally to force his boss, the president of the united states, to appear before a grand jury or to appear in person for an interview? what do you think? >> i would say no. an inferior officer does not have the legal right or the constitutional right to question a president over exercising his constitutional authority. in, for example, firing james comey, the fbi director, and moreover as to the issue of

collusion, whatever that amorphous crime is that is nowhere in the criminal code, you have no legal right or basis or justification for questioning the president of the united states about a noncrime, i think mueller has come to the realization, he knows if he were to slap the subpoena with a president, the president would move in a motion to quash and that mueller would lose in the federal courts. he might win in district court but in front of the united states district supreme court, mueller knows he would lose. which is now why he's relenting to a few questions in writing of the president about what he may or may not know about collusion, but no questions about obstruction of justice. mark: the president has never appeared before a federal grand jury. bill clinton negotiated an out

when he was subpoenaed to appear in front of a federal grand jury by ken starr's group, and turned out to be a disaster because he was lying. what is your take on this? a president cannot be indicted while in office. if a president has the power to exercise his rights to fire an individual, and let's say he's presented with a subpoena, what does he do? >> well, he fights it, he can fight it on a number of ground, including executive privilege grounds, the basic point that gregg's made and you made is that the theory is right, the attorney general or a special prosecutor, in theory operating under the attorney general's supervision cannot indict or summon his own boss who's the president. there is a point worth making that's ignored. people are saying are you saying the president broke the

law in the answer is no, the president can be prosecuted for the crimes once he leaves office. if there were crimes committed, the president can be held accountable. i think mostly experts agree that the statute of limitations were told that he's president and can't be indicted. i think it does flow, if he can't be indicted, he can't be forced to testify in front of a grand jury. mark: it's important for the audience to understand, donald trump is not making these rules, these are the rules in existence, the constitution has been in existence, he's dealing with it. one of the things he has to deal with is protect the office of the presidency, and the department of justice memos say what you gentlemen just said, which is -- in fact they go further, which is even if the statute of limitation runs, so be it. there are things that you have to weigh when you are dealing with the president of the united states. he's not one of a thousand judges, he's not one of 535 members of congress, he's not a

lower level civil officer. he's the only president we have. the only person who's voted on by the entirety of the people, and comes up every four years, so they can remove him, and congress has power as well. and that's just the way it is. so a president has to defend the office of the pdz, he has to defend the constitution generally, even though it will be said as you watched the senate judiciary committee hearings, they go on is he above the law, above the law? it hurts him as an individual citizen, as we said, he doesn't get his day in court and most individual citizens don't have a special counsel chasing him, family and businesses and ghosts from the past the way that he does. so are we saying, then, that a subpoena should not issue, if mr. mueller is following the constitution, yes or no? >> the subpoena should not issue. if he's following the

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. mark: gregg jarrett, the special counsel is this broad

authority, and he's chasing down the manhattan whatever, he's in the eastern district of virginia. he's got roger stone targeted, but there is russian collusion, why isn't he investigating it? >> the collusion, if we can ever use that term, certainly collaboration was with hillary clinton and a foreigner, christopher steele, a british spy who used russian sources to be used in opposition research and to spy on the trump campaign. now, her payment to the foreigner establishes that information as a thing of value which would be a valuation of federal campaign election laws, and in egregious cases, it could be criminal, but i find it astonishing that the president is being investigated over something that is not even

remotely collusion and yet hillary clinton's actions, democratic national committee, their efforts, which to me is a violation of a law, is not being investigated. mark: and mr. mueller has frequently gone to rod rosenstein to get his area of investigation broadened and all kinds of things. why do you think he hasn't done it in this case? >> because he's biased and he doesn't want to do anything but focus on donald trump. this is the mentality of people in government. this is why they undertook a scheme to clear hillary clinton, even though she violated the law, and then they're doubling down, they doubled down frame donald trump for things he didn't do. that doesn't fit their purpose. mark: brad smith, on the election law issue, i'm just curious, gregg raises the

point, okay, they spent money for this dossier, they washed it through a law firm, through fusion gps, it includes giving money to a former british spy who is gaining information accurately or not from russians and so forth. does that raise a campaign issue? >> it's not illegal to pay a foreign citizen for your campaign or for example, you can buy your cell phones from a british cell phone company or paper from a canadian paper company. it's not illegal to pay a british spy for something valuable. mark: is it reportable? >> it would be reported. they reported it as legal fees to the law firm. that's questionable whether that complies, i would say the requirements are vague there. it does raise the interesting question, there is a huge focus on trump when the one organization we know was

clearly, quote, colluding, as gregg points out it's not a crime. hired a british spy to talk to russians to get dirt on trump. mark: and this information ends up in a fisa court, and for the life of me, i don't understand where the fisa judges are. you practice in federal court. i have too, you have, too. if i were a federal judge and knew that the information presented to me had material holes in it, and they wasn't told the truth and i wasn't told all the information, and i put my name on a federal warrant, and i'd want to hold somebody in contempt and hold a hearing to find out what the hell took place. we'll be right back.

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will (music throughout) mark: we talked about a lot of things but what is your take away here?

>> one problem is the refusal of democrats to accept the results of the last election but it goes further than that. great many of them look at trump and see a person they feel is despicable and i understand why they see that therefore he must have committed a crime. you take this arcane complex finance laws and start saying something has to fit. this is a real problem for the rule of law when you decide there's a crime committed and now we have to find a statute that fits. >> the crimes i believe are committed by the permit of justice and fbi. they used fabricated evidence to spy on american citizens in the campaign. that, to me, is a variety of felonies, abuse of power and the people who signed on to those warrant applications were committing perjury. so, there needs to be a serious legitimate investigation of the people who perpetrated a fraud on the fisa court to spy on the

trump campaign. mark: i want to thank you both. brad, wonderful discussion. god bless you. see you next time on "life, liberty and levin". [applause] . harris: this is "town hall america." we are in the beautiful see of phoenix, in the great state of arizona. i'm harris faulkner. we are just about seven weeks away from one of the most consequential midterm elections in our nation's history. the people with me now and fellow arizonans will vote on november 6th for a senate candidate who will help determine the balance of power in washington, d.c., and the vote could have a big impact on the future of the trump presidency. we're here because arizona is at the epicenter of a critical and contentious issue facing the nation today. you