Legal Expert on Fox News Breaks Down Where Trump ‘Crossed The Line’ from Exercising Free Speech to Criminal Conspiracy


Fox News host and former Republican congressman Trey Gowdy brought on two former prosecutors on Sunday night to discuss the charges against former President Donald Trump and Trump’s emerging defense.

Gowdy began by asking Elliot Felig, a former Manhattan prosecutor, about the role Mike Pence may play at Trump’s trial. “Looks like the former Vice President Mike Pence, might be a star witness for the prosecution, whether he wants to be or not. What do you make of that?” Gowdy asked.

“Yeah, that was a huge part of the indictment that if I’m the prosecutor on this case, I would lean heavily into this moment where Donald Trump allegedly said to Mike Pence, the problem is you were ‘too honest,’” began Felig, adding:

If I’m the prosecutor, I would hit that hard in my summation, because logically speaking, when would you say to someone, you’re too honest to do this unless you knew deep down the thing you were asking them to do was in fact, dishonest? Now, look, Donald Trump can go out at rallies and say Mike Pence is a RINO or a communist or, you know, knock yourself out, say that all day long. But good luck to the trial lawyer who has to stand up in front of a jury and say, ladies and gentlemen of the jury, Mike Pence is not someone who takes the oath to tell the truth seriously.

Godwy then turned to former U.S. Attorney Brett Tolman and asked, “What makes this criminal fraud as opposed to just the normal political fraud?”

Tolman replied that he was concerned the indictment doesn’t clearly argue criminal intent and focuses too heavily on criminalizing advice Trump received from his lawyers.

“All right, Eliot, Brett raises a good point. I mean, bad facts make for a tough law. I mean, that’s an old adage from our days in law school. And these are, I don’t say they’re bad facts, certainly interesting facts. You have fake electors, you have a pressure campaign on the vice president. You have calls to state election officials and you have January 6th — what happened at the Capitol. Eliot, Is it possible that something can be an awful, awful day for the country but still not meets the elements, as Brett noted, of a criminal statute?” Gowdy followed up.

“Sure. That certainly can be the case. The problem with the free speech argument is, look, Donald Trump wouldn’t be under indictment if he had had 50 or 100 or a thousand rallies where he simply said falsely, by the way, that the election was stolen or that there was widespread fraud, even though there’s no evidence of that, he wouldn’t be under indictment if he had just done that,” Felig replied, adding:

Where they crossed the line was when they had these fake electors gather in state capitols after the secretaries of state and the governors had signed certifications that Biden had won the state.

If I can make an analogy, Trey, I can come on your show and say I’m the real Trey Gowdy. I can run around the streets of New York or South Carolina and say I’m the real Trey Gowdy. But if I go home and I print out a fake driver’s license or a fake birth certificate, and I walk into your bank and I say, I’m Trey Gowdy and I’m here to take out all my money, then I’ve crossed the line into fraud, into forgery, into maybe an attempted grand larceny. I don’t think there was a good faith basis for electors to sign fake certificates or false certificates saying that they were duly elected and duly certified. And I don’t think there’s a good faith basis for saying to Mike Pence, you should take those certificates rather than the real ones.

Watch the full clip above via Fox News.

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Alex Griffing is a Senior Editor at Mediaite. Send tips via email: Follow him on Twitter: @alexgriffing