[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]



 


                                 


 
                  HEARING ON THE WEAPONIZATION OF THE
                           FEDERAL GOVERNMENT

=======================================================================

                                HEARING

                               BEFORE THE

   SELECT SUBCOMMITTEE ON THE WEAPONIZATION OF THE FEDERAL GOVERNMENT

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             SECOND SESSION

                               __________

                         TUESDAY, JULY 9, 2024

                               __________

                           Serial No. 118-89
                           
               
                               __________

         Printed for the use of the Committee on the Judiciary
         
         
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]  
         


               Available via: http://judiciary.house.gov
               
               
                         ______

               U.S. GOVERNMENT PUBLISHING OFFICE 
 56-300                WASHINGTON : 2024
             
               
               
               
               
               
                       COMMITTEE ON THE JUDICIARY

                        JIM JORDAN, Ohio, Chair

DARRELL ISSA, California             JERROLD NADLER, New York, Ranking 
MATT GAETZ, Florida                      Member
ANDY BIGGS, Arizona                  ZOE LOFGREN, California
TOM McCLINTOCK, California           SHEILA JACKSON LEE, Texas
TOM TIFFANY, Wisconsin               STEVE COHEN, Tennessee
THOMAS MASSIE, Kentucky              HENRY C. ``HANK'' JOHNSON, Jr., 
CHIP ROY, Texas                          Georgia
DAN BISHOP, North Carolina           ADAM SCHIFF, California
VICTORIA SPARTZ, Indiana             ERIC SWALWELL, California
SCOTT FITZGERALD, Wisconsin          TED LIEU, California
CLIFF BENTZ, Oregon                  PRAMILA JAYAPAL, Washington
BEN CLINE, Virginia                  J. LUIS CORREA, California
KELLY ARMSTRONG, North Dakota        MARY GAY SCANLON, Pennsylvania
LANCE GOODEN, Texas                  JOE NEGUSE, Colorado
JEFF VAN DREW, New Jersey            LUCY McBATH, Georgia
TROY NEHLS, Texas                    MADELEINE DEAN, Pennsylvania
BARRY MOORE, Alabama                 VERONICA ESCOBAR, Texas
KEVIN KILEY, California              DEBORAH ROSS, North Carolina
HARRIET HAGEMAN, Wyoming             CORI BUSH, Missouri
NATHANIEL MORAN, Texas               GLENN IVEY, Maryland
LAUREL LEE, Florida                  BECCA BALINT, Vermont
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina
Vacancy

                                 ------                                

            SELECT SUBCOMMITTEE ON THE WEAPONIZATION OF THE
                           FEDERAL GOVERNMENT

                        JIM JORDAN, Ohio, Chair

DARRELL ISSA, California             STACEY PLASKETT, Virgin Islands, 
THOMAS MASSIE, Kentucky                  Ranking Member
ELISE M. STEFANIK, New York          STEPHEN LYNCH, Massachusetts
MATT GAETZ, Florida                  LINDA SANCHEZ, California
KELLY ARMSTRONG, North Dakota        DEBBIE WASSERMAN SCHULTZ, Florida
W. GREGORY STEUBE, Florida           GERRY CONNOLLY, Virginia
DAN BISHOP, North Carolina           JOHN GARAMENDI, California
KAT CAMMACK, Florida                 SYLVIA GARCIA, Texas
HARRIET HAGEMAN, Wyoming             DAN GOLDMAN, New York
WARREN DAVIDSON, Ohio                JASMINE CROCKETT, Texas
RUSSELL FRY, South Carolina            

               CHRISTOPHER HIXON, Majority Staff Director
              CAROLINE NABITY, Chief Counsel for Oversight
         AARON HILLER, Minority Staff Director & Chief of Staff
           CHRISTINA CALCE, Minority Chief Oversight Counsel
                            C O N T E N T S

                              ----------                              

                         Tuesday, July 9, 2024

                           OPENING STATEMENTS

                                                                   Page
The Honorable Jim Jordan, Chair of the Select Subcommittee on the 
  Weaponization of the Federal Government from the State of Ohio.     1
The Honorable Stacey Plaskett, Ranking Member of the Select 
  Subcommittee on the Weaponization of the Federal Government 
  from the Virgin Islands........................................     3

                               WITNESSES

Bradley A. Smith, Professor of Law, Chair, Capital University Law 
  School
  Oral Testimony.................................................     6
  Prepared Testimony.............................................     8
Jonathan Fahey, Partner, Holtzman Vogel, PLLC
  Oral Testimony.................................................    21
  Prepared Testimony.............................................    00
The Hon. John H. Wilson, Former Criminal Court Judge, Bronx and 
  Kings County
  Oral Testimony.................................................    32
  Prepared Testimony.............................................    34
Shanlon Wu, Former Federal Prosecutor, Current CNN & MSNBC 
  Contributor
  Oral Testimony.................................................    46
  Prepared Testimony.............................................    48

          LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

All materials submitted for the record by the Select Subcommittee 
  on the Weaponization of the Federal Government are listed below    82

Materials submitted by the Honorable Jamine Crockett, a Member of 
  the Select Subcommittee on the Weaponization of the Federal 
  Government from the State of Texas, for the record
    An article entitled, ``NYPD Announces April 2024 Citywide 
        Crime Statistics,'' May 7, 2024, New York Police 
        Department
    An article entitled, ``NYPD Announces May 2024 Citywide Crime 
        Statistics,'' Jun. 5, 2024, New York Police Department
Materials submitted by the Honorable Stacey Plaskett, Ranking 
  Member of the Select Subcommittee on the Weaponization of the 
  Federal Government from the Virgin Islands, for the record
    The Merchan Judicial Ethics Opinion, New York Courts, Opinion 
        23-54, May 4, 2023
    An article entitled, ``Judge in Trump criminal hush-money 
        case can stay, New York ethics panel signals,'' Jun. 12, 
        2023, Reuters
    An article entitled, ``Complaint dismissed against Trump 
        hush-money judge who donated to Biden,'' May 17, 2024, 
        Reuters
    An article entitled ``Judge in Trump's hush money trial did 
        not bar campaign finance expert from testifying for 
        defense,'' May 21, 2024, AP News Fact Check

                                APPENDIX

A statement from the Honorable Sylvia Garcia, a Member of the 
  Select Subcommittee on the Weaponization of the Federal 
  Government from the State of Texas, for the record

                 QUESTIONS AND RESPONSES FOR THE RECORD

Questions to Shanlon Wu, Former Federal Prosecutor, Current CNN & 
  MSNBC Contributor, submitted by the Honorable Sylvia Garcia, a 
  Member of the Select Subcommittee on the Weaponization of the 
  Federal Govern-ment from the State of Texas, for the record
    No response at the time of publication


                  HEARING ON THE WEAPONIZATION OF THE



                           FEDERAL GOVERNMENT

                              ----------                              


                         Tuesday, July 9, 2024

                        House of Representatives

   Select Subcommittee on the Weaponization of the Federal Government

                       Committee on the Judiciary

                             Washington, DC

    The Committee met, pursuant to notice, at 10:29 a.m., in 
Room 2141, Rayburn House Office Building, the Hon. Jim Jordan 
[Chair of the Subcommittee] presiding.
    Members present: Representatives Jordan, Issa, Gaetz, 
Armstrong, Steube, Bishop, Cammack, Hageman, Davidson, Fry, 
Plaskett, Lynch, Wasserman Schultz, Goldman, and Crockett.
    Chair Jordan. The Subcommittee will come to order. Without 
objection, the Chair is authorized to declare a recess at any 
time. We welcome everyone to today's hearing on the 
Weaponization of the Federal Government. The Chair recognizes 
the gentleman from Ohio, Mr. Davidson, to lead us in the Pledge 
of Allegiance.
    All. I pledge allegiance to the Flag of the United States 
of America, and to the Republic for which it stands, one 
Nation, under God, indivisible, with liberty and justice for 
all.
    Chair Jordan. Again, I want to thank everyone for joining 
us. We apologize for the delay. The Democrats have an important 
caucus they are at or conference they are at, and we had some 
technical difficulties here. The Chair will now recognize 
himself for an opening statement.
    Alvin Bragg's prosecution of President Trump is lawfare at 
its worst. The New York County District Attorney's Office began 
investigating President Trump in 2018. The Southern District of 
New York months later concluded its investigation into the 
payments by Michael Cohen and determined no charges should be 
brought against President Trump. While this was going on, Alvin 
Bragg was running for the job. While on the campaign trail, Mr. 
Bragg boasted about the number of times he had already sued 
President Trump. In January 2021, Mr. Bragg said, ``I am the 
candidate in the race who has the experience with Donald 
Trump.'' He said that it would be hard to argue with the fact 
that any case against President Trump would be the most 
important, most high-profile case. Mr. Bragg won and took 
office in January 2022. A few weeks after taking office, he 
told one of his prosecutors, Mark Pomerantz, ``He could not see 
a world in which he would indict President Trump and call 
Michael Cohen as a prosecution witness.'' That is right. After 
campaigning on going after the former President, Bragg gets 
into office and realizes the case against President Trump is 
ridiculous. That is why the Southern District of New York 
didn't bring it. That is why his predecessor, Cy Vance, didn't 
bring it. Why did Bragg change his mind? Mark Pomerantz, 
Special Assistant District Attorney, resigned in protest and he 
and his fellow Assistant District Attorney, Carey Dunne, leaked 
their resignation letter to The New York Times. After that, the 
left began the pressure campaign on Alvin Bragg and suddenly 
the zombie case was resurrected.
    One of the first things Alvin Bragg did was hire Matthew 
Colangelo, a top official in the Biden Justice Department who 
had a history of taking on President Trump and his family's 
businesses. It is also interesting to note who Mr. Colangelo 
listed as his references when he applied for the job at the 
Justice Department. He listed Tom Perez, former DNC Chair, and 
Jeff Zients, who is now President Biden's Chief of Staff. That 
is right, head of the DNC and the Biden White House Chief of 
Staff, those were his references. That is the guy who went to 
work to be the lead prosecutor on the case against President 
Trump. Alvin Bragg, Matthew Colangelo picked their target, 
searched for a crime, and then they prosecuted President Trump.
    The partisan DA that campaigned on going after President 
Trump whose newly hired lead prosecutor for the case also had a 
history of taking on President Trump, also had their case in 
front of the partisan judge, the judge who donated to President 
Biden, who imposed a gag order on President Trump, who told the 
jury they didn't need to reach a unanimous decision and 
prevented one of our witnesses today, Mr. Smith, an expert on 
campaign finance, from giving real testimony to the court.
    Today, Mr. Smith will be given an opportunity to tell 
Congress and tell the country what he wasn't permitted to tell 
the court, what he wasn't permitted to tell the jury. Remember, 
Bragg and Colangelo bootstrapped charges that are normally 
misdemeanors to some underlying crime to make the charges a 
felony. What was the underlying crime? Prosecutors didn't 
reveal that until after the trial began.
    Mr. Colangelo, in his opening statement, accused President 
Trump of violating the Federal Elections Campaign Act. The 
problem is a plain reading of that act doesn't support the 
indictment or the verdict. As Mr. Smith stated,

        Allowing this prosecution to go forward and the ultimate jury 
        decision threaten the enforcement procedures established by 
        Congress under the act and stressed the meaning of the statute 
        in such a way as to threaten due process of law.

    Although Judge Merchan wouldn't permit the leading expert 
on campaign finance to provide this testimony, he did let 
someone else speak in the court on this issue and others, 
Michael Cohen. Michael Cohen, a convicted perjurer, someone 
even his former lawyers said you couldn't trust, Michael Cohen 
who lied to Congress, lied to the FBI, and lied to the court. 
It is not often you have a witness that can lie to all three 
branches of Government and then become the star witness in the 
prosecution of a former President. That is exactly what took 
place in New York.
    It is clear Manhattan District Judge Juan Merchan's 
decisions, guided by political bias, unfairly prejudiced the 
outcome of the trial, and violated President Trump's due 
process rights. Bragg's prosecution of President Trump with the 
help of Judge Merchan opened the door for politically motivated 
prosecutions, and it will not be easy to undo the damage that 
has already been done.
    As we have seen, other ambitious prosecutors have followed 
Bragg's lead and pursued politically motivated indictments 
against the former President. Rather than debate political 
opponents on substance, the Democrats' strategy to win the 2024 
election is through the use of partisan lawfare tactics. These 
politically motivated local prosecutions raise substantial 
Federal interest and potential collusion between Federal and 
State authorities and that is precisely why we are here today. 
Alvin Bragg's prosecution of President Trump was personal. It 
was based on politics, and it was wrong.
    I now recognize the Ranking Member for an opening statement 
and then we will get to our witnesses.
    Ms. Plaskett. Thank you, Mr. Chair. Good morning. Thank you 
to our witnesses for being here. I would especially like to 
thank witness, former U.S. Federal Prosecutor, and former 
United States Department of Justice Attorney Shan Wu; my 
colleagues. Thank you to the American people watching around 
the country for joining another hearing of the Congressional 
Committee to undermine American independence and to defend 
Donald Trump.
    From the early days of our Nation's formation, our Founding 
Fathers were very clear. The upkeep of democracy requires 
constant proactive maintenance. In his letters to fellow 
Founding Father and his political opponent, John Taylor, then 
former President John Adams wrote: ``Democracy has never been 
and never can be so durable as aristocracy or monarchy.'' 
Remember, democracy never lasts long. It soon wastes, exhausts, 
and murders itself. There never was a democracy yet that did 
not commit suicide. Those passions are the same in all men, 
under all forms of government, when unchecked produce the same 
effects of fraud, violence, and cruelty. American democracy has 
always been a question of progress, not finality. Democracy has 
been given to us with the blood, sweat, tears, and efforts of 
Americans who came before us, who struggled long and hard to 
build and protect every democratic institution we have. Indeed, 
our country's dark past, the very foundation of our economic 
juggernaut in the world, is premised on a sick institution 
called slavery that some now want to even erase. This democracy 
that our ancestors struggled to bring us all into, these 
rights, some of which some Americans do not even have all, are 
fragile.
    Remember that the great Republic of Rome was destroyed. 
Greece was destroyed. Germany of the early 20th century 
destroyed. Spain. These great empires are gone. Human history 
is laden with examples of great nations, republics, and 
democracies that were once beacons of human progress and 
eventually destroyed by hubris, autocrats, and the rabid 
ambitions of an empowered few. Falls do not happen overnight, 
but the signs are there if you want to see them. Those 
republics, those democracies slowly, but surely, rights are 
stripped away.
    My fellow Americans, that is happening here in this 
country. The right for a woman to choose what to do with her 
body, stripped away in 15 States. Immigrant children being 
stripped away from their families. The gains of Blacks for fair 
representation, voting rights, recognition of the historic lack 
of creating an even playing field stripped away. Slowly, but 
surely, the structures, the laws, and the institutions intended 
to make the Nation great have been and continue to be eroded, 
not to mention the souls of the human race and minorities being 
eroded every day by injustices.
    We have a blueprint that we can see how that is being done. 
Project 2025 plans to upend structures, institutions, and the 
basic rights that are supposedly been afforded to Americans to 
make it great. It is a playbook for Donald Trump's second term 
and a plan for the destruction of America as we know it. 
Despite flashy headlines printed over American flags and the 
likes of obnoxious men who give loud speeches about their love 
for making America great again, Project 2025 delivers no such 
thing. Project 2025 will slowly, but surely strip away our 
rights.
    I have asked for a hearing about Project 2025, because I 
believe it is a dire warning to us all individuals and others 
around him desire to Weaponize the Government for their own 
empowerment. It will rip our experts out of agencies to be 
replaced by sycophant political appointees. It will strip women 
of even more healthcare access and rights. It will further 
dehumanize undocumented immigrants and punish their family 
members even those who are American citizens for daring to be 
associated with them. They will restrict free speech in schools 
to only allow far right approved agendas and curriculum. It 
will erode our freedoms all under the vague guise of making 
America great.
    Yes, because it is a grand Republican plan, Project 2025 
calls for severe cuts to Medicare and Social Security. I am not 
just saying that. The authors of Project 2025 are saying that. 
Here is a video outlining that.
    [Video plays.]
    Ms. Plaskett. Playing patriotic music, claiming to love 
freedom, demonizing every group in the Nation that is not like 
you, will not protect you and your civil rights. The Project 
2025 playbook is a plan to give Donald Trump the powers of a 
dictator just as he wants. That is the plan. This is the man 
who threatened to send the Department of Justice after 
political opponents. Trump even sent his lawyers to the Supreme 
Court to argue that he should have criminal immunity even if he 
uses the military to assassinate someone who simply disagrees 
with him. We heard his Secretary of Defense say that he asked 
the military to shoot people because they were protesting. Yes, 
that is what his Defense Secretary said on TV and there are 
recordings of it. This is the man who jokes about being a 
dictator just for a day and teases the idea of a third term for 
U.S. Presidents. This is a man who wants to implement sycophant 
loyalty tests. He is a man who fire every employee in every 
agency who upholds their pledge to serve their country over the 
President. Donald Trump is a clear and present danger to the 
continuation of American democracy as we know it.
    We are using this Congressional Committee for the third 
time to attack a State level felony conviction of a former 
President by a jury of his peers. Republicans on this Committee 
have used $20 million of Federal taxpayer dollars to deliver 
Trump more power and attack his rivals. They are threatening 
public servants far outside their legal jurisdiction and even 
threatening private citizens who dare not to give Trump what he 
wants. The reign of Lord Trump has already begun, and he isn't 
even in a second term.
    It is vital we remember our Founding Fathers principles and 
that we see Project 2025 for what it is, a Republican plan to 
slowly, but surely strip away rights. This is about freedom 
versus fascism. I beg every American watching don't be fooled 
by plastic patriotism. Don't be fooled by those rhetorically 
referring to freedom without the substance to back it up 
without any care for all people's rights. True understanding of 
freedom comes from respecting the sacrifices of our ancestors, 
our democratic institutions, and a robust rule of law. Our 
country is not and has never been perfect, but our country is 
great, and it is our duty to keep it that way. Our country has 
never shied away from improving our flaws, but what is being 
promoted is a distraction. It is counterproductive and 
threatens years, decades, and centuries of progress. Let's keep 
moving forward. Let's not go back to the dark times. I yield 
back.
    Chair Jordan. The gentlelady yields back. Without 
objection, all other opening statements will be included in the 
record. We will now introduce today's witnesses.
    The Honorable Brad Smith is the Josiah H. Blackmore II and 
Shirley M. Nault Professor of Law at the Capital University Law 
School. Professor Smith previously served as commissioner on 
the Federal Elections Commission, including a term as Chair.
    Mr. Jonathan Fahey is a partner at Holtzman Vogel. He is a 
former prosecutor having served for 17 years in the U.S. 
Attorney's Office for the Eastern District of Virginia. Mr. 
Fahey also served in various positions at the Department of 
Homeland Security, including as Acting Director of U.S. 
Immigration and Custom Enforcement.
    The Honorable John Wilson is a former judge having served 
on the Bronx County Civil Court and Kings County Criminal Court 
for 10 years. Judge Wilson also previously served as a 
prosecutor in the Bronx County District Attorney's Office and 
in private practice. Following his departure from the bench, 
Judge Wilson served as Chief Prosecutor for the Standing Rock 
Reservation in Fort Yates, North Dakota.
    Mr. Shan Wu is an attorney focusing on white collar defense 
in cases involving college students. He previously served as a 
Federal prosecutor and is counsel to former Attorney General 
Janet Reno. He also works as a contributor for CNN and MSNBC. 
We welcome our witnesses and thank them for appearing today.
    We will begin by swearing you in. Would you please rise and 
raise your right hand? Do you swear or affirm under penalty 
perjury that the testimony you are about to give is true and 
correct to the best of your knowledge, information, and belief 
so help you God?
    Let the record reflect that the witnesses have answered in 
the affirmative. Thank you. Please be seated. Please know your 
written testimony will be entered into the record in its 
entirety. Accordingly, we ask that you summarize your testimony 
in approximately five minutes. We are going to just move right 
down the line like we introduced you. We will start with 
Professor Smith and go right down and finish with Mr. Wu.
    So, Mr. Smith, you are recognized for five minutes.

                 STATEMENT OF BRADLEY A. SMITH

    Mr. Smith. Thank you, Chair Jordan, Ranking Member 
Plaskett. In the written testimony today, I explain at length 
why the convictions of Donald Trump in New York in May because 
they relied in the end on alleged violations of the Federal 
Election Campaign Act, or FECA, were incorrect as a matter of 
law and I discuss some of the errors of law made by prosecutors 
and judges in the case.
    To quickly summarize, the payments that were made to Stormy 
Daniels were not under current law and should not be as a 
matter of policy treated as campaign expenditures and thus, 
Michael Cohen's brief fronting of the money which was repaid to 
him shortly thereafter does not constitute an illegal 
contribution. Moreover, the prosecution theory that the 
defendant Trump had to engage in a vast conspiracy because of a 
desperate desire to hide Storm Daniels' allegations from the 
public and thus ignore campaign finance laws simply makes no 
sense because even had they treated these as campaign 
expenditures which again I think they were correct not to do 
so, nothing would have come out before the election. As I 
explained under the reporting schedules, nothing would have 
been reported until after the election and the idea that 
illegality was needed is simply laughable.
    In fact, Donald Trump and the Trump for President campaign 
had plenty of cash to pay for the Daniels nondisclosure 
agreement as of October 27, 2016. They did not need Michael 
Cohen to front them money for that purpose. Further, even 
assuming the expense was a campaign expenditure, no public 
disclosure of the expense would have been required until 20 
days after the election and repeatedly, the prosecution 
emphasized that the main desire of Trump was to hide this 
information until after the election.
    As a practical matter then, having Michael Cohen front the 
money for the nondisclosure agreement between Mr. Trump and 
Stormy Daniels could have no influence on the 2016 election, 
despite the repeated claims by the prosecution that that was 
the core of the case. This undercuts the entire theory of the 
case offered by the prosecution.
    This is explained in my written testimony. I would be happy 
to answer question son that as we go forward, but right now I 
just want to emphasize that this New York prosecution is 
something that is a very bad precedent, let's just put it that 
way. Not only because it threatens the rule of law, and 
generally, we have not short--in our defense of democracy we 
have not been willing to shortchange procedures of law, but 
because it also threatens the bipartisan campaign enforcement 
system established by Congress. If allowed to stand, any State 
could do what New York has done. That is, pass a law making it 
a felony to try to influence an election by unlawful means. 
Then the State Court could effectively try defendants for those 
alleged violations of FECA.
    Remember, in the Trump case, there was no finding by the 
Department of Justice that Trump had violated the law and they 
decided not to pursue it. There is no finding by the Federal 
Election Commission that Trump had violated the law. They also 
decided not to pursue it. No Federal body had found violations 
here. Effectively, the State was simply making up the law and 
enforcing Federal law in a partisan--elected judges, elected 
prosecutors, unlike the nonpartisan, bipartisan system set up 
by the Federal Election Campaign Act.
    The Members of this Committee, and there are several who 
live in States that are dominated by the opposing party at a 
State level might want to take heed of that possibility that 
this game can be played in many different ways. One can run the 
risk of being prosecuted for violating FECA even though the FEC 
found no wrongdoing.
    It should be pointed out here that Judge Merchan during the 
case took great pains to make sure that the jury was not 
informed that neither the Department of Justice nor the Federal 
Election Commission had decided not to pursue allegations 
against Mr. Trump, but at the same time allowed in repeatedly 
statements by the prosecutors and by witness Michael Cohen, 
stating that he had clearly violated the law and there was no 
doubt about that and thus implying that Mr. Trump had done so 
as well.
    It is worth noting in the end that it is ripe for this 
Committee, I guess I would say this, it is ripe for this 
Committee to take up this issue because it is a Federal issue, 
not only of due process, but of that enforcement of the statute 
and we could have a tremendous amount of chaos and every 
Federal campaign will be governed essentially by whatever one 
can get a State judge and a State jury to do. That is not how 
the Federal Election Campaign Act was set up and that is not 
how this should be pursued.
    So, I hope that this body will recognize that this is 
clearly a Federal issue and not only are there major 
constitutional questions about due process, but again, it may 
even be something where some legislation is necessary to make 
sure that State Prosecutors cannot try this again. Thank you.
    [The prepared statement of Mr. Smith follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 
    
    
    Chair Jordan. Thank you, Professor.
    Mr. Fahey, you are recognized for five minutes. Make sure 
you have your mic on and pull it close.

                  STATEMENT OF JONATHAN FAHEY

    Mr. Fahey. Thank you. Good morning, Chair Jordan, Ranking 
Member Plaskett, and Members of the Committee. I thank you for 
the opportunity to testify here today.
    My name is Jonathan Fahey, and I am an attorney with the 
law firm of Holtzman and Vogel. I am in private practice now, 
but I spent most of my 25 years as an attorney, as a 
prosecutor, both as a State and Federal prosecutor. The reason 
I went to law school was because I wanted to be a prosecutor. I 
didn't want to be a law firm lawyer or anything else. I wanted 
to be a prosecutor and the reason for that is my mom, when I 
was growing up, my mom was an Assistant Commonwealth's Attorney 
in Arlington County, Virginia, and then she was eventually 
elected to the Commonwealth's Attorney as a Democrat in 
Arlington and later appointed by President Clinton to be the 
United States Attorney for the Eastern District of Virginia.
    I learned from my mom--I would go to court. I would 
sometimes watch trials and things like that, but I learned from 
her about the importance of being a prosecutor in terms of what 
it means to the public in terms of public safety, but I also 
learned what it meant to administer justice, to be fair when 
you are entrusted with so much power, how you administer that 
reflects not only on the person that is the subject of that, 
but as the whole community, how we treat the accused, how we 
treat the most vulnerable victims. I learned from her that 
being a prosecutor really wasn't a partisan job. It was a 
public safety job. It was a speaking for victim's job. That is 
the way it had really been in Virginia where I live and most of 
the country up until about 10 years ago. I say that because you 
could go through the country and you could see prosecutors that 
are Democrats, prosecutors that are Republicans, but they 
really approached the job the same way until recently.
    I began my career after law school, after clerking in State 
Court, I became a State Prosecutor in Fairfax County. There, I 
served under Bob Horan, who was an elected Democrat, and he had 
been the Commonwealth's Attorney for probably 30 years or so at 
that point. I had the opportunity to prosecute cases anywhere 
from the lowest level misdemeanor cases to the most violent 
felons. Again, I learned a lot of lessons there, but the most 
important lesson I learned as you are entrusted with so much 
power from the position, from the community, and how you 
administer that power is what is most important. You don't 
prosecute people because you don't like them, or you have some 
other ulterior motive. You prosecute them because they violated 
a law, and you are treating people equally regardless of the 
political motivations or political parties or anything else 
they might have.
    I went over from the Commonwealth Attorney's Office to the 
U.S. Attorney's Office in the Eastern District of Virginia 
where I served for 17 years. I served under multiple 
administrations from George W. Bush, Obama to President Trump. 
Also, what I learned there, no matter who was within that 
office, people were professional. I had a chance to work with 
the most talented attorneys I have ever worked with and one 
thing during that tenure, people's political--whatever their 
political leanings were, you rarely knew other than maybe 
outside of work. While I was there, the opportunity to 
prosecute drug traffickers, gang members, fraudsters, other 
types of crimes, I also had the opportunity to prosecute--to 
train younger prosecutors on how to prosecute cases, ethics, 
things of that nature.
    The reason I go into my background, and I know the time is 
short is the reason I am here today I would say, is because of 
the progressive prosecutor movement funded by these outside 
groups. This started about 10 years ago, these progressive 
prosecutors being elected through funding from outside groups 
as mostly in Democrat jurisdictions. They defeated incumbent 
Democrats, and the movement basically is sort of the underlying 
premise was the entire system was unjust, therefore, the 
prosecutor can do whatever they want. You saw that in 
Philadelphia. You see it in Chicago which, incidentally, I 
think had 100 plus people shot over the weekend. You see it in 
L.A., other places, and essentially what these prosecutors have 
done is to institute what they would call criminal justice 
reform. They would go into office, and they would nullify any 
laws they did not like. That seems somewhat benign in some 
respects, but the problem with it, as you see with Alvin Bragg, 
which I will get into briefly at the end of my five minutes 
here, but Alvin Bragg has taken this--he was a progressive 
prosecutor in New York. He ran on this progressive prosecutor, 
I guess, as a progressive prosecutor, and when he got into 
office, his main theme was deciding not to prosecute cases, 
basically not prosecuting any misdemeanors whatsoever, reducing 
misdemeanors to felonies, and reducing serious felonies to 
lesser felonies.
    So, all his theme for running, his in-office practice has 
led to New York the last two years has the highest crime rate 
on the big seven crimes in the last 20 years. He has taken this 
a step further because again, it is somewhat benign to say I 
won't prosecute trespassing, but this sort of opened the door 
for the political prosecution of Donald Trump which, as we have 
seen, now it has taken from not prosecuting to identifying the 
political opponent and prosecuting them for political reasons.
    I will talk to somewhat in my testimony hopefully about the 
reasons behind the prosecution, the errors in the case, and how 
the immunity decision affects the case and I thank you for your 
time and I look forward to your questions. I apologize for 
going a little bit over.
    [The prepared statement of Mr. Fahey follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 

    
    Chair Jordan. That is fine, Mr. Fahey.
    Thank you. Judge, you are recognized for five minutes.

               STATEMENT OF JUDGE JOHN H. WILSON

    Judge Wilson. The Members of the House Judiciary Committee, 
thank you for the opportunity to appear before you to discuss 
the criminal trial of former President Donald Trump held before 
Judge Juan Merchan in New York County Supreme Court Criminal 
Term earlier this year.
    As you may be aware, I served as a criminal court judge for 
both Kings County and Bronx County, New York City from 2005-
2014. For five years of my term, I served as a Night Court 
Arraignment Judge in Kings County where I was designated an 
Acting Supreme Court Justice. Before my election to the bench 
in 2004, I served as an Assistant District Attorney in Bronx 
County and as a Criminal Defense Attorney. Although I never 
tried a felony case as a judge, I tried a number of felony 
cases as defense counsel including homicides, child 
molestation, drug sales, et cetera. I was involved in all 
phases of criminal litigation for approximately 30 years. I 
have sat in all three seats, prosecutor, defense counsel, and 
judge. I do not personally know Judge Juan Merchan, but I am 
intimately familiar with the New York County Supreme and 
Criminal Court, having spent most of my career in those 
courtrooms.
    Based on my experience, I can tell you in no uncertain 
terms that former President Trump did not receive a fair trial 
from Judge Juan Merchan. In fact, if the Court of Appeals is 
fair, and I believe the Court will be fair based on a reversal 
of Harvey Weinstein's illegal conviction, Donald Trump's 
conviction is a sure reversal, a reversal that will be premised 
on the fundamental errors committed by Judge Juan Merchan.
    If I may be blunt, Donald Trump was railroaded, and Juan 
Merchan was the driver of that train. For the purpose of this 
statement, I would like to concentrate on the most glaring 
problems presented by Judge Merchan's conduct of this trial. I 
believe the following:
    (1) The indictment is legally insufficient, and Judge 
Merchan should have dismissed the indictment before trial. In 
my book, ``The Making of a Martyr: An Analysis of the 
Indictments of Donald Trump,'' I wrote in my review of the New 
York County indictment revealed that Donald Trump was accused 
of causing a false entry to be made in his business records for 
the purpose of concealing or committing another crime. What 
other crime? The indictment does not say. Simply put, how was 
former President Trump to prepare a defense if he is not 
informed of the other crime he intended to commit or conceal 
when he allegedly falsified his business records? Judge Merchan 
was obligated to dismiss an indictment that failed to identify 
the underlying crime.
    (2) The failure to dismiss the indictment led to charges 
being added during trial that were not included in the 
indictment. In doing so, former President Donald Trump was not 
given a fair chance to prepare a defense to these added 
charges, thus, depriving him of his right to prepare a defense. 
This was a violation of Donald Trump's right to fundamental 
fairness and notice of the charges he faced prior to trial. 
Further, the jury instructions given by Judge Merchan were 
illegal and they included these additional charges and allowed 
for a nonunanimous verdict. A nonunanimous verdict is 
unprecedented in any felony trial in American jurisprudence and 
recently, the U.S. Supreme Court reiterated the necessity for a 
unanimous jury verdict in the case of Erlinger v. United 
States.
    (3) Judge Juan Merchan made unconstitutional prejudicial 
rulings that impacted Donald Trump's ability to present a 
defense and that he allowed the prosecutor to use civil 
penalties and uncharged sexual assault charges against Donald 
Trump where he had testified in his own defense. This deprived 
the former President of his right to present evidence in his 
own defense and was the very basis for the Court of Appeals 
reversal of the conviction of Harvey Weinstein earlier this 
year.
    (4) Judge Merchan should have recused himself from 
presiding over this matter, based on the appearance of 
impropriety and having contributed to political campaigns 
regardless of the amount, and based on his daughter's political 
activities, regardless of the ethics opinions he received which 
absolved him of any actual unethical activity.
    There are, of course, other appellate issues which exist in 
this case: Allowing the prosecution to claim Federal election 
law violations without presenting any evidence to support those 
allegations, not allowing the defense to present the witness 
regarding Federal election law after allowing the prosecution 
to make the aforementioned statements; and allowing Stormy 
Daniels to testify, knowing that the prejudicial effect of her 
testimony outweighed any probative value are several.
    It is my belief, however, that the ones that I have 
outlined are the strongest issues to be presented on appeal. 
Therefore, it is my considered opinion, based on my years of 
legal training and experience, that former President Donald 
Trump did not receive a fair trial. Judge Juan Merchan failed 
in his obligation to be fair and impartial, that Judge Merchan 
committed a series of errors that necessitate a reversal of 
this conviction.
    To be direct, I do not believe anyone can reasonably State 
that former President Trump received a fair trial in New York 
County Supreme Court from Judge Juan Merchan. Thank you for 
your attention. I will be happy to answer your questions.
    [The prepared statement of Judge Wilson follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 

    Chair Jordan. Thank you, Judge.
    Mr. Wu, you are recognized for five minutes.

                    STATEMENT OF SHANLON WU

    Mr. Wu. Thank you. Good morning, the Members of the 
Subcommittee, and thank you, Chair Jordan and Ranking Member, 
Ms. Plaskett, for inviting me here today.
    My name is Shan Wu. I'm the child of immigrants from China 
who came here seeking freedom and to avoid political 
persecution under the communist government there. They came 
here as graduate students, and after the communist revolution, 
they were stranded here and made a life here.
    Luckily for me, they did come here because they didn't know 
each other in China. So, they met here, and they had me. They 
instilled in me a great love for family, despite the fact that 
I had no extended family growing up, as well as a very strong 
sense of public service.
    My father served under two New York City Mayors as a New 
York City Human Rights Commissioner, and his example of public 
service led me to attend law school, and then, later, to become 
a Federal prosecutor, where I served as an Assistant U.S. 
Attorney for 10 years, and had the privilege in the last year 
of the Clinton Administration to serve as counsel to then-
Attorney General Janet Reno.
    From that particular position, where my portfolio included 
liaisoning, for the Office of Pardon Attorney, overseeing 
various criminal issues, as well as briefing the Attorney 
General on a number of daily issues that would arise in the 
Justice Department, it gave me very much of a bird's eye view 
of the kinds of issues and the approach that the Department 
takes as, what is appropriately calling them, the ``Nation's 
law firm.''
    It is through this lens that I give you my personal opinion 
today, which does not reflect the opinions of my law firm, 
McGlinchey Stafford, or any other entities. The view that I 
have of the recent conviction of the former President in the 
Manhattan DA, Alvin Bragg's case, where he was convicted of 34 
felony counts; and also, my impressions of the recent 
Presidential immunity decision by the Supreme Court, and 
whether or not that affects the verdict in that case in any 
way, and last, my views that there is a growing shadow, a 
threat to American democracy, presented by many of the former 
President's views, as well as the way that those views are 
expressed in certain types of writings, such as the Plan for 
Presidential Transition, known as ``Project 2025.''
    In particular, because of my experience at the Justice 
Department, I would highlight some of the issues with these 
plans as they relate to the Justice Department. When I was at 
the Justice Department, I found that there was enormous value 
in the career employees there. They were the heart and soul of 
the Department, the conscience, as well as the institutional 
wisdom there.
    I remember on an almost daily basis, when there were thorny 
issues, new issues that came up, that Mr. Reno, the Attorney 
General, would always want to know what the ``take'' was from 
career civil servants there. It was not just the more famous 
ones, such as David Margolis or Jack Keeney, who served for 
decades at the Department, but the rank-and-file people who 
were unsung hero's who always provided their best advice.
    That advice is important because they, as career employees, 
their tenures cut across Administrations. They weren't simply 
put in there by the latest Administration, and therefore, they 
did not always reflect the political views, or even the policy 
goals, of the new Administration. In that sense, they supplied 
a very healthy buffer zone to make sure that whatever new 
policy ideas would be measured against what the Department had 
done in the past and what their experience told them was wise 
for the Department.
    To me, that gives the institution both a sense of integrity 
as well as steadiness. That kind of steadiness and integrity is 
what allows the American people to have confidence in their 
institutions.
    My parents were cutoff from their families, but they stayed 
here, and they stayed because of the great love of the freedoms 
that this country has tried to give all its people. As I see 
the current climate today, one of my concerns is that those 
freedoms are endangered by an increasing trajectory toward 
authoritarianism, autocracy, and even dictatorship types of 
tendencies.
    My testimony is prepared in writing as well, and, of 
course, I am very happy to answer any questions.
    [The prepared statement of Mr. Wu follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 

    Chair Jordan. We will now proceed under the five-minute 
rule.
    The Chair recognizes the gentleman from Ohio for five 
minutes.
    Mr. Davidson. I thank all our witnesses. I thank the Chair 
for holding this meeting.
    In my eight years in Congress--I came in June 2016--we have 
seen an unprecedented amount of weaponized government. We have 
seen it abused in every way imaginable. This isn't a new 
phenomenon. As Bastiat recognized,

        When law and morality contradict each other, the citizen has 
        the cruel alternative of either losing his moral sense or 
        losing his respect for the law.

    Frankly, the radicals are counting on it. We've seen the 
IRS go after religious and conservative nonprofits; the ATF go 
after law-abiding gun collectors; prolife grandmothers sent to 
prison for years for peaceful protests here in Washington, DC; 
parents targeted for speaking up at school board meetings; and 
fintech companies targeted and debanked because they posed a 
threat to the status quo. The list goes on.
    The American Bar Association estimates that there are some 
400,000 potential crimes that agencies can prosecute that exist 
between the Federal Code and mountains of politicized 
rulemakings and regulations--hopefully, thinned out by the 
recent Chevron deference decision and the administrative law 
judge decision, and some other good ones over the past two 
weeks.
    The average American likely commits something that can be 
construed by a corrupt prosecutor as a Federal crime. What 
happened to President Trump can happen to any American who has 
the audacity to upset someone in a powerful position. That's 
not supposed to happen in the United States of America.
    Western civilization is based on the rule of law and that 
this law must be both impartially administered and fairly 
adjudicated. Kangaroo court spectacles, such as what we 
witnessed in New York, are fundamentally an attack on and 
perversion of the rule of law and its foundation in our 
society.
    The list of abuses to railroad President Trump is obscene 
and outrageous but calling it that is an understatement. Let's 
be clear. Alvin Bragg campaigned openly on his persecution of 
President Trump. This was clearly a political act, and that is 
the only reason this case was designed and executed against the 
current administration's political enemy.
    Professor Smith, has there ever been a citizen not named 
Donald Trump that has been prosecuted with these same crimes 
anywhere in America?
    Mr. Smith. Well, it depends on what one considers the 
crime. For example, they'll say, ``Well, lots of people are 
prosecuted for false records under New York law.'' What they're 
not prosecuted for is for false records covering up a crime 
under New York law that makes it illegal to violate some 
unnamed law to influence an election. No, I have never seen 
anything like that.
    Mr. Davidson. Has anyone ever successfully paid a hush 
money settlement to anyone and counted it as a campaign 
expense?
    Mr. Smith. Well, not that I know of, and I think common 
sense would tell us that paying for a nondisclosure agreement, 
or any kind of legal settlement, is not, based on things done 
outside of office, like 10 years before you were a candidate, 
is not a campaign expense. We wouldn't want it to be, because 
if you think about it, that will mean that candidates could use 
their campaign funds for exactly that kind of payment.
    Mr. Davidson. It would be a horrible precedent.
    Mr. Smith. Right, yes.
    Mr. Davidson. Every day we see headlines coming out of New 
York City, illegal immigrants, all kinds of cases, and some of 
you in your opening statements highlighted how, Mr. Fahey 
highlighted, in particular, how Alvin Bragg ran on this 
progressive platform as a prosecutor.
    As a former prosecutor, in your career, if you were never 
bound by the Sixth Amendment, if you could turn any action 
retroactively into a crime, if you could bias a jury by 
whatever means you wanted to, is there a single citizen in 
America who would be safe from a politicized prosecution?
    Mr. Fahey. I don't really think so. If you really targeted 
someone and looked for a way to charge them, I don't want to 
say there--I'm sure there's some people that could not be, 
theoretically, but there are so many people that would be 
vulnerable to being prosecuted if somebody is targeting them 
for political reasons, or whatever reasons. That's really 
what's scary about this.
    Your point with Alvin Bragg with--it's funny that, on one 
hand, he runs on not prosecuting the law, and then, all of a 
sudden, on this case, it's this is the most aggressive stance 
that's ever been taken probably on these sorts of--
    Mr. Davidson. Clearly, not the rule of law and--
    Mr. Fahey. Right. Crime is going through the roof. Seven, 
yes, the seven biggest felonies the last few years are the 
highest years since 1906. So, it's like he's not prosecuting 
the law equally or against other people and more serious 
criminals.
    Mr. Davidson. Yes. Thank you.
    Look, Judge Wilson, you referenced it in your statements 
about the precedent and the Court's recognition in Andres v. 
The United States. As early as 1898, the Court said that a 
defendant enjoys a, quote,

        Constitutional right to demand that his liberty should not be 
        taken . . . except by the joint action of the court and the 
        unanimous verdict of a jury of 12 persons.

    Now, I thank Chair Jordan for holding this vital hearing 
today. What we are witnessing is an unprecedented attack on the 
rule of law and a weaponization of our criminal justice system, 
and it's a shame.
    I yield back.
    Chair Jordan. The gentleman yields back.
    The gentleman from Massachusetts is recognized for five 
minutes.
    Mr. Lynch. Thank you, Mr. Chair, and thank you to the 
Ranking Member. I appreciate the attendance of our witnesses 
this morning.
    I've served on the Oversight Committee here in Congress, 
which is the principal investigatory Committee in this House, 
for over 20 years. I have to admit I cannot point to a single 
case during my tenure--and we have had Republican and 
Democratic leadership--where the Chair has blatantly and 
persistently interfered with a State criminal proceeding, as I 
have seen it interfere in the case of the People of the State 
of New York v. Donald Trump.
    Even before New York District Attorney Alvin Bragg 
announced a 34-count felony indictment against the former 
President in April 2023, Chair Jordan, joined by other 
Republican Committee Chairs, had already sent a letter to 
District Attorney Bragg demanding his testimony before 
Congress. It also warned him of the, quote, ``serious 
consequences,'' of pursuing criminal charges against Donald 
Trump.
    Over the next year, in the midst of ongoing State criminal 
proceedings, Chair Jordan proceeded to send nearly a dozen 
frivolous investigatory letters and subpoena threats to current 
and former employees of the New York District Attorney's 
Office.
    On top of that, he listed a series of documents that--and 
this was an ongoing criminal trial in the State of New York at 
the time--asking for all documents and communications between 
and among the New York County District Attorney's Office, all 
documents and communications received by certain employees, all 
documents and communications referring or relating to the New 
York City District Attorney's receipts and other use of Federal 
funds. Clearly, trying to intimidate the New York District 
Attorney's Office and dissuade them from their prosecution of 
Donald Trump.
    Mr. Wu, as a Federal prosecutor and a criminal defense 
attorney, what is the danger in having Congress, which is a 
legislative body, use those type of threats against an ongoing 
criminal prosecution in State Court?
    Mr. Wu. Congressman, what the danger is that it greatly 
destroys the integrity of the criminal prosecution. The idea 
that a legislative body, which is inherently politically based, 
is looking at a criminal prosecution which is meant to 
independently assess evidence of criminality during the 
pendency of that case is extremely destructive and quite 
dangerous for the integrity of the system.
    Mr. Lynch. Mr. Wu, on top of that, over 25 Republican 
Members actually went to the courthouse, sat in the courtroom, 
to support the defendant in that case.
    The nonpartisan Brennan Center for Justice recently 
reported that Congressional efforts to compel the production of 
nonpublic information about a specific case from a local 
prosecutor, or otherwise meddle in their investigation, quote, 
``crosses the line to political interference that threatens the 
rule of law.'' Would you agree with that assessment?
    Mr. Wu. I would agree with that. Also, I think the presence 
of those Members at the trial, while they certainly have a 
First Amendment right to be there, I think it also injected a 
great deal of political atmosphere into that case.
    Mr. Lynch. Mr. Wu, the Brennan Center has also warned that 
Congressional interference in the New York case is reflective 
of a, quote, ``worrying trend that threatens to intensify.''
    Can you talk about the impact of this trend on State and 
Federal prosecutions?
    Mr. Wu. I think, as we discussed before, the trend 
indicates that the district attorneys in those States, as well 
as Federal prosecutors, feel that they aren't free to actually 
follow the evidence; they aren't free to actually follow the 
law, but that they're going to be criticized; they're going to 
be the subject of political leverage if they actually do their 
job. I think that really undermines the integrity of our 
criminal justice system.
    Mr. Lynch. Thank you very much.
    What are the ramifications for this, especially following 
the Supreme Court's decision on Presidential Immunity? Do you 
think there are implications for that as well?
    Mr. Wu. The Supreme Court's decision on immunity I think 
very much indicates this Court's direction toward overly 
empowering the Office of the President. I don't know exactly 
how it may trickle down to other kinds of prosecutions, but, 
certainly, in my view, their extremely overbroad opinion, 
frankly, would obviate the purpose of this Subcommittee, which 
is the weaponization of the justice system against a President 
is impossible under their view because the President can do 
anything he wants.
    Mr. Lynch. Thank you.
    Mr. Chair, my time has expired, and I yield back.
    Chair Jordan. The gentleman yields back.
    The gentleman from California is recognized.
    Mr. Issa. Thank you.
    Mr. Wu, I'm going to stay with you. Every day, Members of 
Congress are subpoenaed on behalf of defendants in prison, 
people that have griefs/gripes against the government, and the 
President receives far more than one a day. Would you suggest 
that he should have to go to those places, show up, and be 
deposed just because somebody wants to depose the President and 
says they have a basis?
    Mr. Wu. I, obviously, there's a general policy reason not 
to--
    Mr. Issa. OK. So, the fact is that the Supreme Court's 
decision on limited immunity or immunity from prosecution and 
immunity from having to show up and be distracted from the work 
of the President is for a good purpose, and only in rare cases, 
such as Bill Clinton's case of a civil suit, specifically, 
about actions before he was President, has the Court ever said 
it doesn't fit there, right?
    Mr. Wu. I think that's exactly the problem you point out, 
is it's so rare that there was no need for them to--
    Mr. Issa. Well, let's just get back to rare. There was a 
need. They made a decision that still stands today, that Bill 
Clinton could be deposed as to his specific State actions prior 
to being President, but they ruled, clearly, that the President 
cannot be distracted from that.
    I'm going to switch to Mr. Smith. I'm going to let him 
drink his water.
    You said, as a prosecutor--I'll go to you and Judge 
Wilson--that this was not a fair trial, that it violated the 
rules that we count on for the admission of evidence. Is that 
correct? You both saw that in this case?
    Mr. Fahey. Yes, if I may go first? I think the most glaring 
thing was somewhat of the--some of the Stormy Daniels 
testimony, which the implication from her testimony was that 
she was sexually assaulted by President Trump, which is, in any 
respects, so unfairly prejudicial relative to the primary--
    Mr. Issa. So, the judge, clearly, let evidence in that--
    Mr. Fahey. That was surprising to me, one, that the 
prosecutors didn't know that ahead of time, that this was going 
to come out, and it wasn't vetted ahead of time. So, that's the 
most glaring example that I--
    Mr. Issa. So, as a prosecutor, something that you dedicated 
your career to, there is a sense of balance. If you get in your 
unfair twisting, you normally expect the judge to, at least at 
minimum, allow the defendant to present witnesses in response 
to that or to offset. It is pretty unheard of that they only 
let you hit the guy and no one answer back?
    Mr. Fahey. Right. That part of its concerning, yes, and 
when you think about it, when we would prosecute cases, 
generally, defendants had far more leeway, because it was like 
they're the ones, that they're in jeopardy. They're going to 
jail, or whatever. So, even if they didn't have necessarily the 
most viable defense, it was rare to have a judge cut them off 
on it.
    That's what just seems so striking. On one hand, it's the 
most extreme evidence allowed against President Trump, which is 
hard to justify, and then, not allowing some sort of at least 
explanation--
    Mr. Issa. Yes, then, as my time's running out, but, yes or 
no, if I could, isn't that kind of imbalance very often exactly 
what a prosecutor doesn't want to see, because it leads to a 
high probability of a case being reversed based on not being 
fair? In other words, if you deny the defendant, you have a 
jeopardy of, in fact, getting a perfectly good conviction 
overturned because you didn't give them the proper opportunity 
for defense; didn't give them the charges in advance; didn't 
give them the evidence that you held? Is that right?
    Mr. Fahey. Yes, and it goes to question the motivation for 
this case. Was it just to get the initial conviction--
    Mr. Issa. Now, let's go to the motivation with Mr. Smith. 
You were denied the ability to answer a great many questions. 
So, hopefully, you'll be able to answer the ones you want to 
here today.
    Have you, in your history with the FEC, have you ever seen 
the FEC take State charges and link them to an FEC violation to 
get a felony, and then, take it to the Federal Court and charge 
somebody?
    Mr. Smith. No.
    Mr. Issa. So, the Federal Government doesn't grab State 
cases to make something that is normally a fine and make it a 
crime, correct?
    Mr. Smith. No, it does not.
    Mr. Issa. OK. So, if you had a situation in which--and this 
is an ``if'' because it didn't happen--but if you had a 
situation in which somebody took their own money and used it, 
and then, did not declare it, is that usually--in other words, 
failure to file--is that usually something that you would bring 
them up at the FEC and refer them for criminal felony charges?
    Mr. Smith. It would be extremely rare that it would be 
referred for a criminal charge. You'd have to show clear 
intent--
    Mr. Issa. So, in this case, specifically, the FEC made a 
decision that what they pulled to, in addition to State, to 
make this a crime that they could charge a felony on, is 
something that not only normally wouldn't happen, but in this 
case, specifically, was looked at and didn't happen. The FEC 
declined to prosecute because there wasn't a case here, right?
    Mr. Smith. They not only declined to refer it to Justice 
for criminal charges, but they declined to bring civil charges 
themselves, which is what you'd normally do if you decided it 
was an error or something.
    Mr. Issa. So, it wasn't even worth a fine, much less a 
criminal prosecution?
    Mr. Smith. Right.
    Mr. Issa. Thank you. I yield back.
    Chair Jordan. The gentleman yields back.
    The gentlelady from Florida is recognized.
    Ms. Wasserman Schultz. Thank you, Mr. Chair.
    When Donald Trump's Supreme Court overturned Roe v. Wade, 
millions of Americans lost the right to make their own 
healthcare decisions. Since Trump did this, 14 States enacted 
extreme abortion bans, wreaking havoc on the lives of American 
women and families. It happened in my home State of Florida and 
more States will follow suit.
    Now, Trump's team has a detailed blueprint for what his 
next four years--God forbid--would look like called Project 
2025. It's 900 pages of legal and administrative assaults on 
our freedoms, rights, and progress.
    Mr. Wu, you're very familiar with Trump's Project 2025 and 
have a deep legal background. I want to ask you some rapid-fire 
questions. So, if you could just start off with yes or no.
    These current abortion bans, including one in my home State 
of Florida, are ruining women's economic security. Would 
Project 2025 make those economic hardships worse for American 
women?
    Mr. Wu. Yes, I believe so.
    Ms. Wasserman Schultz. We know Trump abortion bans keep 
women in abusive relationships. Would Project 2025 make those 
horrible situations even worse?
    Mr. Wu. Yes.
    Ms. Wasserman Schultz. These Trump abortion bans 
disproportionately already vulnerable populations, especially 
low-income and communities of color. Would legal assaults on 
abortion rights in Project 2025 inflict even more harm on these 
communities?
    Mr. Wu. Yes.
    Ms. Wasserman Schultz. Thank you. Mr. Wu, I want to discuss 
what Project 2025 would mean for women who face medical 
pregnancy issues. Trump's abortions bans have already caused 
irreversible damage to women's health across the country with 
women having to turn septic and get close to death before a 
doctor can legally perform a life-saving abortion despite 
earlier intervention being medically warranted. The bottom 
line, Trump's abortion bans have led to inflicting unnecessary 
brutal pain and harm to women including preventable deaths. 
That is not some Democratic talking point. That is directly 
from doctors.
    A majority of OB/GYNs stated that when Trump overturned Roe 
v. Wade, it increased maternal deaths and discourages doctors 
from even going into the field. In a survey 70 percent of 
providers believe it has also worsened existing racial and 
ethnic inequalities. This comes from the men and women who 
actually care for their patients, doctors who took an oath to 
do no harm. Legal hurdles are causing harmful health outcomes.
    Mr. Wu, do you think that innocent women, women truly 
trying to receive necessary healthcare will be unfairly 
criminalized by Project 2025?
    Mr. Wu. Yes, I do. In particular, some of the language in 
the Project 2025 documents such as the phrase ``abortion 
tourism'' I find to be deeply offensive. Women do not take 
vacations to have abortions.
    Ms. Wasserman Schultz. I agree that it is deeply offensive 
and dangerous to use language like that. Project 2025 is an 
explicit 900-page playbook for a second Trump term and it is 
clear that it targets women. Trump's Project 2025 lays out 
plans to make sure that abortion is not considered healthcare. 
It aims to get the FDA to reverse its decades-long approval of 
the abortion drug mife-
pristone to get it off the market.
    The Trump plan calls for defunding Planned Parenthood and 
excluding it from Medicaid, which is how millions of women get 
preventative screenings and other vital healthcare unrelated to 
abortions. We know the same extreme anti-choice groups that 
helped craft Trump's Project 2025 would also try to exclude 
some forms of emergency contraception from no-cost coverage and 
gut access to IVF.
    Trump's Project 2025 blueprint even calls on the CDC to 
increase, quote, ``abortion surveillance,'' including requiring 
States to submit invasive privacy-violating data and 
information about patients who receive abortions. This creates 
a modern day ``Handmaid's Tale.'' These dangerous alarming 
policies will ensure that women are second-class citizens. Its 
extreme MAGA goals will cause suffering and in some instances 
death.
    Mr. Wu, as a legal analyst with extensive experience as a 
Federal prosecutor, can you explain some of the dangers 
American women face by criminalizing abortion like this?
    Mr. Wu. Well, immediately what happens is they're being 
forced to choose between their health versus being prosecuted, 
which is a terrible situation no one should ever have to face.
    The point that you make, Congresswoman, with regard to the 
surveillance, I think that's extremely dangerous. That is a 
weaponization of healthcare statistics to use those statistics 
to further criminal punishment of innocent women who are simply 
seeking to protect their own health and to further decisions 
that really should just be between them and their doctors.
    Ms. Wasserman Schultz. Well, I am glad that in this 
Committee we are finally exposing what the real weaponization 
of government is, was under former President Trump and would be 
again.
    Last, as my time expires in the next 30 seconds, isn't this 
working toward a complete and total national abortion ban? 
Isn't that what Project 2025 makes clear the goal is if former 
President Trump were reelected again?
    Mr. Wu. I think it does. It sets out a blueprint to get at 
that goal through numerous ways.
    Ms. Wasserman Schultz. Thank you very much.
    I yield back the balance of my time.
    Chair Jordan. The gentlelady yields back.
    Professor Smith, in your opening--or excuse me, in your 
written testimony you said that the lead prosecutor Matthew 
Colangelo in his opening statement to the court accused 
President Trump of violating the Federal Election Campaign Act. 
The FEC didn't bring charges, I think you said a couple times. 
Is that true?
    Mr. Smith. That's correct.
    Chair Jordan. The Department of Justice didn't bring 
charges?
    Mr. Smith. That's correct.
    Chair Jordan. If President Trump's campaign had paid for 
it; it wouldn't have been reported until after the election. Is 
that right?
    Mr. Smith. That is correct.
    Chair Jordan. Did President Trump's campaign have the money 
to pay for it?
    Mr. Smith. Yes, they had plenty of money.
    Chair Jordan. They had like 7-8 million bucks still on hand 
on election day. Right?
    Mr. Smith. Yes.
    Chair Jordan. Certainly, President Trump had the money to 
pay for it. He is not--
    Mr. Smith. He'd already spent over $60 million.
    Chair Jordan. Yes, they had already done that. Was it a 
political contribution?
    Mr. Smith. No, I do not believe so for the reasons stated. 
I can elaborate on those now, but it's--
    Chair Jordan. Not only do you not believe so, but their 
star witness did not believe so. Michael Cohen said, ``he was 
working clear back in 2011 to deal with this''--Ms. Daniels 
making the allegations and wanting to make this public and he 
was doing it for other reasons. Isn't that correct?
    Mr. Smith. Yes, they had been concerned about Daniels for a 
long time and kept her quiet.
    Chair Jordan. So, the obligation wasn't caused by President 
Trump's candidacy for President of the United States, is that 
right?
    Mr. Smith. No. No, it was not.
    Chair Jordan. OK. Mr. Fahey, in your written testimony you 
said one of the most alarming aspects of the case is that ``the 
fraud''--quote, ``fraud''--``did not involve anyone losing 
money or being harmed in any way.'' To the extent that the 
ledger entries were inaccurate, they were entered into the 
books of a private company that understood what they were for. 
It is unheard for a fraud case to be brought where no losses 
were suffered. So, there weren't any losses in this case at 
all, were there?
    Mr. Fahey. Yes, that's what makes this so remarkable and 
just--yes, I can't even imagine someone bringing a fraud case 
to the United States Attorney's Office where nobody lost money, 
there were no victims, and no one was worse off at the end of 
it. It just makes it laughable even before you get to steps 2 
through probably 20 that make this case really absurd to have 
been brought to begin with.
    Chair Jordan. It wasn't a contribution. If it was a 
contribution, it would not have been reported until after the 
election. No one suffered any losses and yet they bring this 
charge against President Trump. I find that just amazing. If 
that is not political motivation, I don't know--because what 
other motivation could there be?
    Mr. Fahey. It's really almost inarguable at this point that 
the motivation for this case was political. It's really--I've 
never heard a serious argument that it should have been 
prosecuted otherwise--I know Mr. Wu might have one, but I 
haven't heard that--because it seems political from the 
inception all the way to the end.
    Chair Jordan. Yes. Wasn't a contribution. Wouldn't have 
been reported even if it was, if they paid that out of the 
campaign. No one suffered loss. Yet, there was some kind of 
conspiracy to impact an election.
    That is not the worst of it. The worst of it is they didn't 
tell the defendant what the crime was he was being charged 
with. Isn't that right, judge?
    Judge Wilson. That's correct. Right from the indictment he 
was--Donald Trump was charged with falsifying business records. 
To elevate that crime to a felony he had to be concealing or 
committing other crimes.
    Chair Jordan. When did the defendant in this trial, in this 
case, learn what he was being charged with?
    Judge Wilson. At the end of the trial.
    Chair Jordan. At the end of the trial. That is not supposed 
to happen in America, is it, judge?
    Judge Wilson. No, that is illegal.
    Chair Jordan. So, not only did he not know what he was 
being charged with, at the end of the trial when he learned 
what it was, the judge also told the jury, oh, you don't have 
to be unanimous in finding what we just discovered the charge 
actually was.
    Judge Wilson. That is an extraordinarily egregious error to 
tell a jury they don't have to be unanimous. I might add, by 
the way, those charges, the three additional ones, were never 
specified. They are described generally so we don't know what 
exactly the jury thought was the illegality that was committed 
by Donald Trump. We have a very in-specific verdict.
    Chair Jordan. Campaign finance experts say it wasn't a 
contribution. Even if it was a contribution, if they treated it 
as--paid it out of the campaign, it wouldn't have been reported 
until after the election, so there is no conspiracy to 
influence the election. No one suffered any harm or fraud in 
the initial case, the former prosecutor tells us. The judge 
tells us that the defendant didn't know what he was charged 
with until the end of the trial and the judge gave instructions 
to the jury--never mind the fact the judge should have recused 
himself, which you point out in your written testimony, the 
judge didn't tell the jury--or told the jury you don't have to 
be unanimous. The real thing here is the opportunity cost.
    You raised this in your testimony, Mr. Fahey.
    The opportunity cost. When Alvin Bragg did the Day One 
memo, says we are not going to charge--all these felonies, we 
are going to bring them down to misdemeanors and let the bad 
guys roam the streets of New York. How that squares with what 
happened here, that to me is the real issue. That is the issue 
that most Americans see like we are going to do this to the 
former President of the United States, meanwhile take felony 
charges against really bad guys on the street and bring them 
down to misdemeanors? That is the opportunity cost here, I 
believe, in Manhattan. You get the last word, Mr. Fahey.
    Mr. Fahey. Yes, exactly. When you're letting carjackers out 
on bail or illegal immigrants that assault police officers 
aren't getting prosecuted, but this is the way you're using 
your time, in addition to the fact you run on a soft on crime 
policy and then you take the most creative aggressive approach 
to this crime, it's hard to argue it's anything other than a 
political motivation.
    Chair Jordan. The Chair now recognizes the gentlelady from 
Texas.
    Ms. Crockett. OK. I got a lot of ground to cover. I do want 
to clarify, Mr. Fahey, when you consistently talk about NY--or 
New York crime, you are speaking in an opinionated stance. You 
are not speaking from a place of fact, correct?
    Mr. Fahey. No, I'm speaking from a place of facts. There's 
a New York--
    Ms. Crockett. OK. Well, let me clarify for you.
    Thank you so much. I am reclaiming my time. Let me clarify 
for you that NYPD puts out reports and in April, it said 
overall indexed crime across New York City dropped another 4.9 
percent. As it relates to May the report says overall indexed 
crime across New York City dropped another 2.4 percent. In the 
June's report hasn't come out.
    I would ask for unanimous consent to enter this into the 
record.
    Chair Jordan. Without objection.
    Ms. Crockett. Now, moving on, I just go level set because I 
feel as if some people don't understand how government works 
and I don't know how they got to Congress.
    So, Mr. Wu, I am going to need you to help me out because I 
don't know that I trust that other people will know the answers 
to these questions.
    First, how many branches of government do we have?
    Mr. Wu. Three.
    Ms. Crockett. Three? OK. Sounds good. So, can you name them 
for me?
    Mr. Wu. Legislative, Judiciary, and Executive.
    Ms. Crockett. Very good. OK. So, currently, I think that I 
serve in the Legislative Branch. Would you agree?
    Mr. Wu. I agree.
    Ms. Crockett. OK. Fine. Can you tell me, when somebody goes 
to court such as a criminal convicted of 34 felony counts, 
State Court in New York, would that be the Legislative people 
or Judicial people?
    Mr. Wu. Well, it's really the Executive that's prosecuting 
and then it's within the Judiciary to run the trial properly.
    Ms. Crockett. OK. Very good. So, Judiciary. So, typically 
if someone has an issue with what happens in court, do they 
then somehow hop from State Court all the way to the Federal 
Legislative Branch or is there a different process in which you 
are supposed to be able to explain any issues you may have?
    Mr. Wu. The process would be the Judicial Appellate process 
holding aside the issue of State versus Federal.
    Ms. Crockett. Oh, interesting. OK. All right. So, normally 
people don't get convicted on a State level and somehow end up 
litigating the issue on the Federal level in the Legislative 
Branch, is that correct?
    Mr. Wu. Yes.
    Ms. Crockett. OK. All right. So, something is different 
about what is going on today. I just wanted to clarify because 
I thought I was living in the upside down for a second.
    Now, I want to move on and talk about how someone is 
prosecuted currently because under Project 2025, we will get 
there, there will be a different way to prosecute people. 
Currently, it is my understanding--and I only kind of went to 
law school, passed a couple of bar exams, and practiced on the 
State and Federal levels. Just clarify for me, when someone 
goes in to be prosecuted is it say the President of the United 
States that somehow becomes the State prosecutor in New York?
    Mr. Wu. Oh, absolutely not.
    Ms. Crockett. Absolutely not. Because he is the Executor, 
huh? That is that other Branch?
    Mr. Wu. Correct.
    Ms. Crockett. OK. All right. So, you have this prosecutor. 
In this case, it is Alvin Bragg who was duly elected, correct?
    Mr. Wu. Correct.
    Ms. Crockett. Not appointed by the President, correct?
    Mr. Wu. Right.
    Ms. Crockett. Duly elected by the citizens in his 
jurisdiction, right?
    Mr. Wu. Right.
    Ms. Crockett. So, he is elected. Usually there is some sort 
of an investigation that takes place, correct?
    Mr. Wu. Prior to his election or--
    Ms. Crockett. No, no, no. With a case. I am sorry.
    Mr. Wu. Yes.
    Ms. Crockett. I have moved on.
    Mr. Wu. Yes, correct. Yes.
    Ms. Crockett. All right. So, the very first part of a case 
is that we go through an investigation. After that 
investigation then the prosecutor usually has what we would 
consider to be some sort of prosecutorial discretion as to 
whether or not they want to go forward, correct?
    Mr. Wu. Correct.
    Ms. Crockett. All right. Then, they use that discretion. 
Then when it is somebody that is facing a felony amount of 
time, which is usually in most States over a year, then they 
have to present it to a grand jury. Is that right?
    Mr. Wu. That's right.
    Ms. Crockett. Now, a grand jury is comprised of citizens, 
correct?
    Mr. Wu. Correct.
    Ms. Crockett. U.S. citizens from that area, correct?
    Mr. Wu. Right.
    Ms. Crockett. OK. So, they have to come to the conclusion 
that they are going to issue what we call a true bill, correct?
    Mr. Wu. Correct.
    Ms. Crockett. All right. So, then we have an indictment. 
Then there are pretrial motions, there are pretrial hearings, 
all kinds of stuff, right?
    Mr. Wu. Right.
    Ms. Crockett. All right. Then ultimately, depending on 
where you are, you have the opportunity to say, hey, I want a 
jury trial, correct?
    Mr. Wu. Correct.
    Ms. Crockett. A jury trial is comprised of U.S. citizens 
again, right?
    Mr. Wu. Right.
    Ms. Crockett. OK. Very good. All right. So, can you tell me 
so far if all this took place in the case in New York?
    Mr. Wu. Yes, it did.
    Ms. Crockett. Oh, OK. OK. All right. So, you get to trial. 
Now, when you show up to trial and you are facing a felony 
amount of time, as a defendant are you not entitled to an 
attorney?
    Mr. Wu. Yes, you are.
    Ms. Crockett. Your attorney is allowed to pick the jury. 
They are allowed to present evidence. Ultimately, it is a jury 
of your peers who decides whether or not you are guilty or not, 
correct?
    Mr. Wu. Correct. The picking--
    Ms. Crockett. In this case 30--
    Mr. Wu. The picking has the judge involved, too.
    Mr. Crockett. In this case, they found him guilty not once, 
not twice, not three times, not four, not five, not six--I 
could keep going on, but 34 counts were given. So, the opinions 
of these people who were not jurors is not what we do in this 
country. In this country we have a system in which jurors 
decide who is found guilty. If you have a problem with that, 
you go to the Appellate Court, which the last time I checked--
    Chair Jordan. The time of the gentlelady is expired.
    Ms. Crockett. --he was raising money so that he could go 
the Appellate Court and appeal his decision. They will have the 
final say so. Thank you so much.
    Chair Jordan. Yes, they will. The gentlelady yields back 
and the gentleman from North Dakota is recognized.
    Mr. Gaetz. Thank you--
    Ms. Plaskett. Mr. Chair, if I may, just a quick--I just 
wanted to say as just a point of personal privilege, Linda 
Sanchez is not with us today and she is at the funeral for her 
Legislative Director Chandler Mason who served this body and 
served this country for a number of years. I just want to say 
on behalf of, I believe, all of us here that we extend 
condolences to her family, to the office of Congresswoman 
Sanchez and pray for God to give them comfort during this time 
for the untimely death of Ms. Mason.
    Chair Jordan. No, well said and I appreciate bringing that 
attention. I should have--this is my oversight. I should have 
said something about our colleague. Mr. Massie, Mr. Davidson, 
and I and our--
    Ms. Plaskett. Yes.
    Chair Jordan. --Polly and Lisa and I had a chance to go 
down and visit with Thomas a week ago Sunday. He is doing as 
good as you can under these difficult, difficult circumstances. 
His wife Rhonda was an amazing person. So, to both Members of 
this Committee.
    Ms. Plaskett. Yes.
    Chair Jordan. Thank you for bringing that up.
    Ms. Plaskett. Thank you.
    Chair Jordan. The gentleman from North Dakota is recognized 
for five minutes.
    Mr. Gaetz. Thank you, Mr. Chair. I very much appreciate the 
questioning from my friend from Texas. She is one of the few 
other people that has actually practiced criminal defense and 
public defense. As somebody that has done that for a very long 
time I appreciate that very much.
    I never did practice in New York. I also have practiced in 
Federal Court, and I have practiced in State Court and passed 
several bar exams as well.
    Judge Wilson, what is the statute of limitations on a 
misdemeanor in New York.
    Judge Wilson. One year.
    Mr. Gaetz. The business case is a misdemeanor, correct?
    Judge Wilson. The underlying crime, the falsified business 
records, yes, that's a misdemeanor charge.
    Mr. Gaetz. So, the only way to get to a felony is by 
committing--or is by concealment of another crime?
    Judge Wilson. Correct.
    Mr. Gaetz. Each one of those crimes has a specific element?
    Judge Wilson. That's right.
    Mr. Gaetz. You have to prove--to get a conviction at trial 
you have to prove every element of the crime beyond a 
reasonable doubt, right? That is just traditionally how this 
works?
    Judge Wilson. That is the right way to do it.
    Mr. Gaetz. So, in the indictment did they put the 
underlying crime?
    Judge Wilson. No, they did not. They only described it as 
other crimes.
    Mr. Gaetz. OK. In the jury instructions did they put the 
specific underlying crime?
    Judge Wilson. No, the falsifying business records was 
described in the jury instructions. There was some brief 
description of the New York State election law violation, but 
there was no description given of the three--choice of three 
crimes. There was a description given of falsifying business 
records, which was pretty ironic, because it was falsifying 
business records to falsify business records.
    Mr. Gaetz. So, that is also a misdemeanor, right?
    Judge Wilson. That should be, yes.
    Mr. Gaetz. So, you have two plus two equals six. Like if 
you commit two misdemeanors you get to the felony statute of 
limitations, which they had to get or they could have never 
brought the case?
    Judge Wilson. That's correct, but there's some more 
question marks regarding the statute of limitations. It's not 
cut and dried because the time that Donald Trump spent out of 
New York could be used to toll the statute of limitations. That 
was the ruling in the Court of Appeals Harvey Weinstein case. 
He argued that the time that he spent out of California should 
not have tolled it--out of New York, that is, in California, 
should not have tolled the time limitations. The Court of 
Appeals ruled against him on that issue. So, that's how they 
get around the statute of limitations problem in this case.
    Mr. Gaetz. So, was the election law case a Federal election 
law or a State election law underlying crime?
    Judge Wilson. Seemed like it was charged both when we got 
to the jury instructions. There's a violation of New York 
election law charge, but then there's one--among the three 
charges underlying is an unspecified violation of Federal 
election law.
    Ms. Gaetz. Then the third one was tax violation, right?
    Judge Wilson. Also, unspecified.
    Mr. Gaetz. So, do all three of those underlying crimes have 
significantly different elements of the crime?
    Judge Wilson. That is correct.
    Mr. Gaetz. Were any of the elements of those crimes listed?
    Judge Wilson. No. Not at all.
    Mr. Gaetz. So, this is important, and it might not be as 
robust or anything, but when you defend a client in court, if 
you don't know what the elements of the crime you are 
defending, how do you mount a defense?
    Judge Wilson. You can't. That's the very issue of 
fundamental fairness that I referenced. You as a defendant are 
entitled to know what the charges are against you so that you 
can defend against those charges. Donald Trump was never made 
aware of what the extent of the charges were against him until 
the end of the trial.
    Mr. Gaetz. The elements of the crime go in the jury 
instructions. Traditionally, that is how it works. Federal 
Court, State Court, North Dakota State Court, and Minnesota. I 
have been in all these different jurisdictions. You actually 
get the elements of the underlying crime, correct?
    Judge Wilson. Anytime that I instructed a jury I instructed 
them what the elements of the crime were.
    Mr. Gaetz. Instead in this case they got a grab bag?
    Judge Wilson. They got a choice of three when it came to 
the underlying crimes. We don't even know which ones they 
chose, so we don't know whether or not they could have been 
unanimous on those three or not. That's another failing of the 
jury instructions.
    Mr. Gaetz. So, not only did we have not the elements of the 
crime, but we had three different crimes with three vastly 
different elements of the crimes?
    Judge Wilson. All unspecified.
    Mr. Gaetz. None of them in the indictment? The elements of 
the crimes weren't in the bill of particulars. Last, hearing I 
had the bill of particulars waved at me like it was some kind 
of magic document that flew in here with its own cape.
    Judge Wilson. So, the statement of facts only describes a 
series of allegations, a series of actions that it's believed 
that Donald Trump took. None of them describe any criminal 
activity. None of them describe any--they don't describe any 
elements of any crime.
    Mr. Gaetz. That is why you believe, as do I, that when this 
goes on appeal there is going to be significant legal issues to 
argue that the jury never actually got them put in front of 
them?
    Judge Wilson. I have very little doubt that this matter 
will be reversed on appeal and based on these issues.
    Mr. Gaetz. Because I have actually been pretty--I believe 
jury trials are still the best way to determine guilt and 
innocence. I just believe juries are only as good as the 
information put in front of them.
    With that, I yield back.
    Chair Jordan. The gentleman yields back.
    The gentleman from New York is recognized.
    Mr. Goldman. Thank you, Mr. Chair. I am happy we are 
bringing up the appeal in this case because this Committee has 
focused for a year-and-a-half on a Fifth Circuit case, has 
brought before us as a witness the lawyer for that case twice 
to argue that the Biden Administration had censored, improperly 
censored social media companies. I am surprised we haven't yet 
heard about the ultimate decision on appeal by the Supreme 
Court which dismissed the case. So, it is pretty fascinating to 
me that we don't have followup on the appeals of a case that we 
are so excited about the appellate process when the Supreme 
Court dismissed it.
    Mr. Fahey, I want to just touch on a couple things you said 
before I move into the crux of my questioning. Am I right that 
I heard you say that it is unheard of to bring a fraud case 
without losses to individual victims?
    Mr. Fahey. I cannot think of a situation where that's 
occurred. I'm not saying it hasn't--
    Mr. Goldman. So, you are saying that every book and records 
case has losses to victims?
    Mr. Fahey. I'm saying every fraud case that I was involved 
in, either prosecuting or knowing about, usually had somebody 
that was harmed.
    Mr. Goldman. This was a books and records charge, yes?
    Mr. Fahey. Well, I think it's based on a fraud case, that 
somebody committed fraud on their books and records, yes.
    Mr. Goldman. A fraud in the books and records?
    Mr. Fahey. Yes, I think they put--I think the allegation is 
there were incorrect or fraudulent entries in the books or the 
records. Yes.
    Mr. Goldman. Right. So, you are saying that every single 
book and record fraudulent entry, which is a false entry, has 
loss to individual victims? Is that your testimony?
    Mr. Fahey. That's not at all my testimony. I said fraud 
cases are generally not prosecuted without victims and--
    Mr. Goldman. That is true. Murder cases are not generally 
prosecuted without victims, too, but we are talking about books 
and records here.
    Mr. Fahey. OK.
    Mr. Goldman. Are you familiar with the term ``fraud on the 
market''?
    Mr. Fahey. No. Not really.
    Mr. Goldman. OK.
    Mr. Fahey. Other than you just saying it.
    Mr. Goldman. You should look into that.
    You should look into--let me give you another example of a 
fraud case that doesn't have a loss to an individual victim, 
which would be any insider trading case.
    Mr. Fahey. So, other than they--
    Mr. Goldman. I don't--
    Mr. Fahey. --would have potential victims and other people 
harmed, this is a case where there's--
    Mr. Goldman. Well, go look up fraud on the market. There 
are no individual victims with losses and yet those cases are 
charged all the time.
    Mr. Fahey. There's an overall harm in those cases.
    Mr. Goldman. We are focused here on the weaponization of 
the government as usual. I am just struck by the fact that we 
have a Republican Majority that is accusing other people of 
weaponizing government when let's look at what this Committee 
and this Republican Majority has done. My colleague Ms. 
Crockett ably went through the separation of powers.
    Mr. Wu, were you aware that this Committee held a hearing 
with Robert Costello as a witness who was the former attorney 
of Michael Cohen?
    Mr. Wu. Yes.
    Mr. Goldman. That hearing was during the trial?
    Mr. Wu. Yes.
    Mr. Goldman. OK. So, do you think that this was an 
appropriate way of trying to elicit testimony to impeach a 
witness in a trial in a Congressional hearing?
    Mr. Wu. No, I think it interferes with the trial.
    Mr. Goldman. Now, interestingly when he was here, I 
suggested that he go testify in the trial. He did. That is the 
appropriate place for where he should be, right?
    Mr. Wu. Exactly.
    Mr. Goldman. Mr. Trump's attorney had an opportunity to 
cross-examine him, did he not?
    Mr. Wu. Yes.
    Mr. Goldman. Trump's attorney had I believe three days of 
cross-examination of Michael Cohen, did he not?
    Mr. Wu. Yes, I think that's right.
    Mr. Goldman. Ultimately, the jury heard all that, right?
    Mr. Wu. Yes.
    Mr. Goldman. All the other evidence and decided unanimously 
that he was guilty.
    Mr. Wu. That's right.
    Mr. Goldman. Are you aware of the number--about two dozen 
Members of the House Republican Party writing an amicus brief 
to a district judge about the Hunter Biden case?
    Mr. Wu. Yes.
    Mr. Goldman. So, let me just get this straight: We have 
legislators, elected officials trying to intervene in an 
ongoing criminal case. Is that what happened?
    Mr. Wu. That's what it sounds like.
    Mr. Goldman. They are proud of it, by the way. They are so 
excited and take credit for undermining Hunter Biden's plea 
agreement by interfering in that case. That is the misuse of 
official authority and weaponization of this Committee, this 
body.
    What Donald Trump has vowed to do is weaponize the 
Department of Justice to go after his political rivals, a 
revenge and retribution tour. The notion that this Committee is 
accusing Democrats of weaponizing the fire department, when 
then President of the United States did not intervene in the 
prosecution of his own son--give me a break.
    Why don't you focus on taking care of your own party and 
your own weaponization and stop projecting where it doesn't 
exist? I yield back.
    Chair Jordan. We appreciate the gentleman--well, the 
gentleman from North Carolina is recognized for five minutes.
    Mr. Bishop. Thank you, Mr. Chair.
    Mr. Wu, do you think that in American history State Court 
criminal justice processes have ever been perverted or 
corrupted for political objectives to affect matters of Federal 
politics such as the course of legislation or the composition 
of Congress or the control of the Presidency?
    Mr. Wu. I'm not sure of a specific instance like that. 
There has been a general feeling that some of the State Court 
processes have been unfair or biased. That was for example a 
reason for some of the civil right legislation.
    Mr. Bishop. Sure. Yes, even in the post-Civil War era, 
right?
    Mr. Wu. Sure.
    Mr. Bishop. So, I think I have distinct images of that 
having occurred. rocesses that appear to be ordinary can be 
used to political effect in such cases, right?
    Mr. Wu. Sure.
    Mr. Bishop. Even in totalitarian regimes, totalitarian 
systems of government are a favorite tactic, isn't it, the show 
trial?
    Mr. Wu. Indeed, it is.
    Mr. Bishop. Is there a legitimate Federal Government 
interest in preventing that where it occurs?
    Mr. Wu. Well, there's some jurisdictional limits on what 
the Federal Government can do there. If it's a State trial, 
they'd have to come in after the fact to examine whether 
there's been some--
    Mr. Bishop. Well, let me ask you this way: Was there a 
legitimate Federal interest when Congress acted, as we just 
made reference to, in the post-Civil War Civil Rights Acts?
    Mr. Wu. Yes, those legislative--
    Mr. Bishop. They were designed to prevent that kind of 
misuse, right?
    Mr. Wu. I don't know that they were designed specifically 
for the court system misuse, but I think they were designed to 
correct injustices.
    Mr. Bishop. You don't think they were designed to correct 
misuses and abuses of the court system, the State Court system?
    Mr. Wu. No, that's not what I said. It includes that, but 
not--
    Mr. Bishop. So, you would agree with me that they were 
designed for that very purpose?
    Mr. Wu. Not only for that purpose.
    Mr. Bishop. Right, sir?
    Yes. No, I certainly agree. It wasn't only for that 
purpose, but it was included.
    How should Congress identify the misuse of State Court 
procedures where it is happening?
    Mr. Wu. Certainly, they can do investigations, hold 
hearings, but they should be after the fact of prosecutions, 
not during the prosecutions.
    Mr. Bishop. So, let me just ask a couple--would evidence of 
that include overt public vows by candidates for prosecutorial 
office to target a candidate or prospective candidate for 
Federal office?
    Mr. Wu. That's certainly something that can be part of the 
fact finding, yes.
    Mr. Bishop. What about the institution of charges for 
transparent political motivations, especially in the sense that 
the event charged is not regularly or ever charged against 
others engaged in similar conduct? Would that be possible 
evidence of such a problem?
    Mr. Wu. That's a little bit tougher because the 
prosecutorial discretion wall is pretty thick on that, but it's 
certainly something that could be inquired into.
    Mr. Bishop. How about State legislative renewal of expired 
statutes of limitations aimed at such a political target? Would 
that be possibly evidence of such conduct?
    Mr. Wu. Again, I don't know whether it's evidence, but it 
seems like something that Congress could ask about.
    Mr. Bishop. What about judicial assignment processes 
resulting in folks with apparent partisan bias being appointed 
or ending up administering a trial against just a target? Would 
that be such evidence?
    Mr. Wu. I think that's a little bit of a conclusory 
question there, but certainly the process for determining 
judicial selections appointments--I think that's something 
legitimately looked at.
    Mr. Bishop. How about contriving jury instructions or 
administering a trial to deny the target fundamental fairness 
and due process anticipating that correction of that would be 
delayed until after the political impact has run its course in 
an election? Would that be evidence that Congress should be 
concerned about?
    Mr. Wu. I think that's more an issue for appeal of the 
particular conviction. Again, respectfully I feel there's a 
little bit of a conclusory aspect to that question.
    Mr. Bishop. So, you think so long as the appeal will 
eventually set things right the fact that a State perverts its 
processes to achieve a political result to play out in an 
intervening election that is OK? Congress shouldn't worry about 
that at all, is that right?
    Mr. Wu. I think the appeal needs to run its course first. 
Then if Congress has concerns about the case overall, they're 
free to look into it.
    Mr. Bishop. All right. I yield back.
    Chair Jordan. The gentleman yields back.
    The gentlelady from--or the Ranking Member is recognized.
    Ms. Plaskett. Thank you. Thank you, Mr. Chair.
    Mr. Wu, did you conclude your thoughts on that subject?
    Mr. Wu. Yes, I did.
    Ms. Plaskett. OK, thank you. I just wanted to give you time 
if you needed it. Thank you for your analysis of what has 
happened in the court case in New York.
    Judge Wilson, it is good to see you here. I just wanted to 
give a shout-out to a fellow Bronx District Attorney alum as 
well.
    Judge Wilson. Thank you.
    Ms. Plaskett. I did want to State for the record this 
discussion about homicides in New York City and the lack of 
prosecutorial action by the District Attorney in the County of 
New York, that Mr. Bragg's first year in office, shootings in 
Manhattan declined by 20 percent, homicides declined by 16 
percent. The data from the NYPD shows that the rates of 
virtually every index of crime are lower in Manhattan for the 
first quarter of 2024 than they were at the same time last 
year.
    So, while we may not like him having prosecuted former 
President Trump, I think it is false to say, based on the data, 
that Manhattan is suffering from a rise in violent crime. That 
is not, in fact, factually the case. Would we like to see it 
further? As a born and raised New Yorker, of course. What it is 
not right now is a place with a crime spree.
    One of the things that I talked about earlier today was 
Project 2025. I have shared with the Chair my concern about 
this plan and the fact that this I believe fits squarely within 
the tenets of this Committee to have a discussion about it, to 
go to those individuals, the authors of this plan.
    Over a thousand pages have been written that make up the 
Project 2025 by the Heritage Foundation, which they and its 
authors State is the plan for day one after a Trump second term 
presidency.
    Mr. Wu, looking at Trump's playbook, that playbook being 
Project 2025, which is authored by individuals that are within 
his prior Administration, how would it hurt Americans if these 
proposals were made into law?
    Mr. Wu. I think one way that I have touched on is the 
removal or decimation of the career civil servants I think is 
very dangerous. Also, some of the other examples. The idea of 
removing the General Counsel at the FBI, to replace that with a 
political appointee's counsel, again, you lose the experience 
in the context of that position.
    Similarly, trying to do away with the 10-year term for the 
FBI Director, which is there to ensure that they can be in 
place over the course of different administrations. I think all 
those, particularly at the Justice Department, would gravely 
hurt the integrity and steadiness of the Department.
    Ms. Plaskett. I agree. Having been a political appointee in 
the Bush administration at the Department of Justice working 
under the Deputy Attorney General Larry Thompson, and then 
under James Comey, who could have fared without a David 
Margolis having been in that office? Being someone who had been 
there since the time of Kennedy. He came in as an honors 
graduate from law school and provided consistency across the 
board to multiple administrations.
    Under Project 2025, this individual did not--if David--an 
individual like David Margolis had not passed the loyalty test, 
would he still have that position?
    Mr. Wu. No.
    Ms. Plaskett. ``One of the key tenets is also to defeat the 
anti-American left,'' that is a quote. Trump has promised to 
root out liberal prosecutors. Individuals on this Committee 
have used the power of Congress to go after anyone who dares to 
indict Trump on crimes and publicly attack judges who rule 
against Trump or his defense team.
    Does this look like a fair and impartial system of justice 
to you?
    Mr. Wu. No, it doesn't. I think it undermines the 
democracy.
    Ms. Plaskett. As a former Federal Prosecutor for many 
years, was it your experience that prosecutors in liberal 
jurisdictions approached the criminal justice system with an 
anticonservative bias?
    Mr. Wu. No, it was not.
    Ms. Plaskett. What was your experience?
    Mr. Wu. My experience was that Federal Prosecutors around 
the country tended to be very independent-minded. Sometimes 
they would but heads with what they call main Justice. I pretty 
much never have seen an instance that I would identify as a 
politically motivated Federal Prosecution.
    Ms. Plaskett. Thank you. I am not going to go into blocking 
financial aid for American college students if the states 
permit kids like Dreamers to access in-State tuition, getting 
rid of school lunch programs, summer school summer programs, 
taking aim at free speech and free thinking in American 
universities, aim at renewable energy, and what will make 
American women second-class citizens by taking them closer to a 
national abortion ban and restricting access healthcare and 
abortion drugs across the market.
    This, again, Mr. Chair, I believe is a document that we, 
along with others throughout Congress, need to take a closer 
look at. I yield back.
    Chair Jordan. The gentlelady yields back. The gentleman 
from Florida is recognized.
    Mr. Steube. Thank you, Mr. Chair.
    Joe Biden's DOJ has utilized their power and weaponized the 
Justice System to go after his political opponent. From 
Florida, courts in Georgia, courts in New York. The farce that 
occurred in New York is a pathetic and sad abuse of the legal 
system by a rogue democratic prosecutor and an obviously biased 
judge.
    As Judge Wilson aptly noted in his testimony, President 
Trump was railroaded, and Judge Merchan drove the train. Not 
only did Judge Merchan seek to silence President Trump from 
informing the world about the judge's own conflicts of interest 
in the case, but he made sure to effectively muzzle President 
Trump's key expert witness, Professor Bradley Smith, on a 
central element of the case.
    Professor Smith, you correctly pointed out in your 
testimony that the District Attorney's theory of the case 
revolved around a State law that prohibits promoting a 
political candidacy by unlawful means. In this case, the 
prosecution alleged that the unlawful means resulted from a 
violation of the Federal Election Campaign Act. Is that 
correct?
    Mr. Smith. That is correct.
    Mr. Steube. You were once the Chair of the Federal Election 
Commission, is that correct?
    Mr. Smith. That is correct.
    Mr. Steube. Given your obvious status as an expert in 
campaign finance law, can you explain why the definition of an 
expenditure is so important to the case?
    Mr. Smith. Yes. The definition of this expenditure, if you 
just read the statute, says anything for the purpose of 
influencing the election. So, a normal person might hear that 
and say well, why did they make that expenditure.
    If you read further into the statute, the provisions 
regarding personal use, and if you read the FEC's regulations 
and its explanation of those regulations, it is clear what they 
mean is for the purpose of a Federal--of influencing an 
election. It is not the subjective motivation of the spender; 
it is an objective motivation.
    So, setting up a campaign headquarters, hiring a campaign 
manager, buying TV ads, printing bumper stickers, whatever else 
you do that is for the purpose of running a campaign.
    The mere fact that you do something that might be helpful 
to your campaign, like taking a weight loss program so you look 
better on the campaign trail, buying a house in New York so you 
can run for U.S. Senate from New York, settlement complaints 
against your business in your private life, sealing your 
divorce records, those are not things that arose from your 
campaign. Those are things that people sometimes do anyway, and 
those would not be campaign expenditures.
    Mr. Steube. Were you allowed to provide any of that context 
to the jury through expert testimony?
    Mr. Smith. No.
    Mr. Steube. What is your expert opinion of the instructions 
that Judge Merchan gave to the jury regarding the Federal 
Election Campaign Act?
    Mr. Smith. Well, I think the judge's instructions were 
clearly wanting. All he gave them was those bare bones, if this 
is for the purpose of influencing the election, you have got a 
problem.
    Again, this has been noted in this hearing, he repeatedly 
allowed witness Michael Cohen, who is no expert in campaign 
finance law, and the prosecutors to State that there had 
clearly been a violation.
    I would note that had I testified, of course I would not 
have testified specifically to what the law is. I would have 
testified to the reporting system that would have shown that 
there was no advantage to not reporting this as a campaign 
expenditure to the contributions system, which would have shown 
that Mr. Trump could have clearly paid this without any 
ramifications had he wanted to do so.
    I would have talked about how the FEC in practice had in 
many cases found that certain things that look like, again, for 
the purpose of were not found to be for the purpose of a 
campaign and let the jury do with that what they will.
    Mr. Steube. Judge Merchan allowed Michael Cohen, who has no 
expert qualifications in this field whatsoever, to provide the 
jury with information on a campaign finance law, but he 
prevented you from giving substantive expert testimony on the 
Federal Election Campaign Act.
    Mr. Smith. He did, and then he advised the jury, now you 
can't use that to consider Mr. Trump guilty. That is only for 
context. Which is sort of like saying to the jury or sort of 
like saying to you, for the rest of this hearing, I don't want 
any of you to think about a yellow Minibus by Volkswagen. That 
is all you are going to think about for the rest of the hearing 
is a yellow VW van.
    It kind of flagged it to the jury's attention that Cohen 
had pleaded guilty in this case under I think tremendous 
pressure, because he was facing years and years in prison for 
tax violations. So, he pleaded guilty to the campaign thing and 
basically got a much lighter sentence.
    Mr. Steube. In the beginning of questioning by Chair 
Jordan, you talked about how we wouldn't want nondisclosure 
agreements of things that happened before a campaign to be 
campaign expenses. Can you just expand on that?
    Mr. Smith. Right. You don't want Members of Congress to pay 
for their personal peccadilloes from the year before or 
allegations of such--I think we should credit those just as 
allegations--using campaign funds.
    You don't want a person to use campaign funds and say, gee, 
this is something really embarrassing to me that happened in my 
past. I would like to seal that up, even though it is not 
relevant, it is not something that you created from your 
campaign.
    It is the ticket for abuse. This was why the law 
specifically listed a number of things, like for example, you 
can't pay for a country club membership, even if the reason you 
have it is to raise money for your campaign. Because it is 
something that people do even if they are not running for 
office, and we don't want campaign funds paying for that.
    Mr. Steube. Thank all of you for being here today. I yield 
back.
    Ms. Plaskett. Mr. Chair, I ask--
    Chair Jordan. The gentleman yields back. The gentlelady is 
recognized.
    Ms. Plaskett. I ask unanimous consent to enter into the 
record a May 21, 2024, AP News Fact Check article entitled 
``Judge in Trump's Hush Money Trial Did Not Bar Campaign 
Finance Expert for Testifying to Defense.''
    The judge stated that Mr. Smith's testimony was limited in 
scope of the testimony that he could not give instructions to 
the jury on what the law was, and that it was the defense 
attorneys that decided not to put him on the stand.
    Chair Jordan. Without objection. Mr. Smith addressed that 
in his written testimony.
    The gentleman from Florida is recognized.
    Mr. Gaetz. So, Mr. Smith, following up on Mr. Steube's 
question, I want to understand the precedent here. So, if a 
candidate for Federal office wanted to use campaign money now 
to make a hush money payment, could they point to what has 
occurred in this New York litigation and say well, I guess I 
can go use my donor money to make a hush money payment?
    Mr. Smith. I suppose they could, at least unless Judge 
Jackson is correct, and we will have to wait for that 
overturning on appeal. Yes--
    Mr. Gaetz. Yes, so well, I guess I want to ask the question 
if an Appellate Court does not in some way deal with what has 
been laid before the country, could we see people collecting 
money from donors, lobbyists, and PACs and then using it to 
make hush money payments?
    Mr. Smith. Yes, and you could do almost anything else. You 
could say, for example, I would really like to go to the Super 
Bowl this year, I think I will take a couple donors along, and 
buy your Super Bowl tickets and your whole trip to the Super 
Bowl because it is for the purpose of influencing your 
campaign.
    Mr. Gaetz. So, in the prosecution to preserve our 
democracy, we have now green light potentially the most 
expansive abuses of campaign funds ever.
    Mr. Smith. Well put.
    Mr. Gaetz. All right, I have to test the limits of this. I 
do not like wearing ties. I would never wear a tie. I am told 
that when people vote for a Congressman, they like to see them 
wearing a tie in their advertisements.
    So, does this now mean that when I go to Ross and buy a 
tie, that I should use my campaign credit card, because 
otherwise I am not really a tie person?
    Mr. Smith. If you took seriously the subjective standard 
that was given to the jury as the instruction, yes, it would 
mean it. If you took the objective standard that appears in the 
statute, no, you couldn't.
    Mr. Gaetz. So, in the absence of some appellate review 
here, and this is why we have Appellate Courts, to try to 
resolve these things, do we not unleash like this confusion and 
then this opportunity for fraud? Because here is how this will 
go: Politicians will then simply use the gray area to enhance 
their own personal lifestyles through their campaign funds, 
right?
    Mr. Smith. That is correct. One thing we should remember is 
that the Federal Election Campaign Act was elected, or enacted 
against a background in which Members could just pocket the 
campaign funds. That was part of the whole idea, you are not 
going to be able to do that anymore.
    Mr. Gaetz. Well, thank goodness for the good prosecutors in 
New York who have unlocked the greatest potential for campaign 
fraud in the history of the campaign finance system.
    Judge Wilson, I just want to ask you a precise question. 
Was there ever a case where you were presiding over where you 
had a family member economically benefit from the notoriety of 
the case?
    Judge Wilson. No, never.
    Mr. Gaetz. You sure you don't want to take some more time 
on that and think about it?
    Judge Wilson. I don't need more time, I know that for a 
fact.
    Mr. Gaetz. Well, if that had ever arisen, would you have 
allowed a family member to make money off the notoriety of a 
case?
    Judge Wilson. I would have recused myself from the case.
    Mr. Gaetz. Well, it is just interesting, because we had 
Attorney General Garland, who was spent a good amount of time 
on the bench, and I asked him the same question. He said that 
he wouldn't answer it because it was obviously a reference to 
what had gone on in New York.
    I thought he could, might have answered it. When you look 
at what happened in New York, does it concern you that the 
judge in that case seemed to have a family member who was 
economically leveraging the notoriety of the case?
    Judge Wilson. It greatly concerned me, but not so much from 
the perspective of the ethical violation that would be 
apparent, because that judge did get an ethical opinion from 
the Judicial Ethics Committee in New York that exonerated him 
from any wrongdoing in listening to the case when his daughter 
was benefiting.
    What I was concerned about was the appearance of 
impropriety. When I sat on the bench, sometimes I would get a 
report from Probation or some other organization, and they 
would hand it to me in an envelope.
    I made certain to open that envelope and show everybody 
that it was a report that I was looking at. Because I didn't 
want there to be the appearance of impropriety that I am 
receiving an envelope from someone in the courtroom.
    The concept is the same here. If you are presiding over a 
case where your daughter is benefiting and where you have made 
political contributions, in small amounts, but it is irrelevant 
the amount. You made contributions to the political opponent of 
the defendant before you. These are the very essence of the 
appearance of impropriety.
    I feel strongly that Judge Merchan should have recused 
himself on that basis.
    Mr. Gaetz. Just simple as can be, Mr. Chair, a 
straightforward answer to a straightforward question. I wish we 
could have gotten that from the Attorney General. I yield back.
    Chair Jordan. The gentleman yields back.
    Ms. Plaskett. Mr. Chair, I ask unanimous consent to enter 
into the record articles that discuss the ruling of the New 
York Advisory Committee on Judicial Ethics, which Judge Merchan 
took the judicious step of raising the issue with them about 
recusal, seeking guidance on whether he would have to recuse 
himself on the case in which the Committee ruled that there was 
no basis for recusal.
    Mr. Gaetz. Mr. Chair, I will object, pending just where 
were the articles from?
    Ms. Plaskett. I will give you a copy of those.
    Mr. Gaetz. Yes, yes, as soon as we have those, I will 
withdraw my objection.
    Ms. Plaskett. Thank you.
    Chair Jordan. The gentlelady from Florida is recognized.
    Ms. Cammack. Thank you, Mr. Chair.
    I actually want to followup on my colleague from Florida 
and his line of questioning. As Representative Gaetz pointed 
out, the judge's daughter significantly profited from this case 
to the tune actually of $93 million raised for her Democrat 
clients, clients that include a Member of this Committee, 
Representative Goldman, I should point out and put on the 
record.
    Also, Authentic Campaigns of which Lauren Merchan, the 
daughter of the judge, she runs this firm, Authentic Campaigns, 
and was paid nearly $12 million for her work this cycle for her 
Democrat colleagues--clients. Including 9.7 million by the 
Biden-Harris campaign.
    Now, I know that there has been a tremendous amount of 
discussion today about the severe irregularities of the case, 
some of the things surrounding jury instructions. I want to 
talk about the financial motivations for the DA and the judge.
    So, Judge Wilson, you just said that he got a waiver from 
Judicial Ethics Committee. You were pointing out how just the 
appearance of any impropriety, it is to be taken very 
seriously.
    Can you talk about the Judicial Ethics Committee, who makes 
up that Committee? What are some of the processes that they 
would use? Would they consider the $93 million or her clients 
or a direct, immediate relative that is benefiting financially 
from this case?
    Judge Wilson. If you are asking me who makes up the 
committee, it is a combination of lawyers and judges who are 
selected by the Appellate Division of New York to hear issues 
that judges bring to them, asking whether or not they can 
ethically in particular circumstances. I myself availed myself 
of that Committee on several instances.
    When it comes to whether or not they should consider the 
amount of the contributions, I actually think the amount of the 
contributions are irrelevant, because, as you recall, I said 
Judge Merchan shouldn't have made any contribution in any small 
amounts to political campaigns.
    That is based on a prohibition of judges being involved in 
political activities, except if they are in a window period 
during their own campaign. At that time, then a judge's 
campaign may make a contribution to another campaign or to 
another political organization. That is a strict requirement 
that it only be during an election when such a campaign is 
made.
    No, it doesn't matter so much what the amount of money that 
was being made. It matters that this is someone of first degree 
of relationship to the judge who is profiting from activities 
that oppose the defendant before that judge.
    Even if he had an ethics opinion exonerating him, saying it 
is OK, your daughter is not a witness and none of her interests 
are being tried here, so the Ethics Committee thought it was 
just fine, there is still an appearance of impropriety--
    Ms. Cammack. Right.
    Judge Wilson. That is of great concern to the public in 
general. That is what a judge wants to avoid when you are 
hearing a case. You don't want people to feel that your 
integrity and that your impartiality is being impacted.
    Ms. Cammack. Is compromised, right. Which--
    Judge Wilson. That is what happened here.
    Ms. Cammack. The judge himself had given contributions. I 
think you pointed out very appropriately that it doesn't matter 
if it was a large or a small contribution. The judge in this 
case, Judge Merchan, he contributed to a political action 
committee called Stop Republicans.
    That is inappropriate, correct? Especially overseeing the 
case of the Republican nominee on the ticket, correct?
    Judge Wilson. He should have known better than to make 
those contributions while a sitting judge.
    Ms. Cammack. Right. I see our Democrat witness, Mr. Wu, you 
are shaking your head. I am glad that you agree with us that 
this is a tremendous question mark on the integrity of this 
trial. I also want to talk a little bit about DA Bragg.
    Now, I pointed out in our previous hearing that DA Bragg 
raised $850,000 in campaign contributions immediately on the 
announcement of the 34 counts.
    Mr. Fahey, have you seen any other prosecutors run this 
similar arc of campaigning on getting a particular person, and 
then using it subsequently to raise campaign cash?
    Mr. Fahey. Not that I can think of. There might be somebody 
that has done it before. I think the DA or State's Attorney in 
Atlanta is doing something similar with that case, using that 
as a campaign case or a case against Trump.
    Other than those, I don't know of any. It is certainly 
possible, but you know, $800,000 for a DA's race is enormous. I 
know in your circles it is not, but those type of races usually 
very low dollar amounts.
    Ms. Cammack. So, it is safe to say that there is financial 
motivation in the campaigns by multiple different DAs and 
politicians to ``get Trump,'' correct?
    Mr. Fahey. At least a political financial motivation, not 
necessarily personal.
    Ms. Cammack. Correct. Thank you. My time has expired, I 
yield.
    Chair Jordan. The gentlelady yields back, the gentlelady 
from Wyoming is recognized.
    Ms. Hageman. I think there are a few things that should be 
cleared up today. First, we are not a democracy, we are a 
republic. I think it is extremely important to remember that 
and to understand our form of government.
    I also think that this is one of the reasons why people 
dislike politicians. We all know what is happening here. We 
know that Alvin Bragg's prosecution of President Trump is 
Exhibit A of the left's by-any-means-necessary lawfare campaign 
against President Trump.
    Alvin Bragg's prosecution of President Trump opened a 
dangerous Pandora's box of politically motivated prosecutions 
of political opponents, and Manhattan District Judge Juan 
Merchan's decisions, guided by political bias, unfairly 
prejudiced the outcome of the trial and violated President 
Trump's due process rights.
    Anyone with a lick of sense knows that those statements are 
actually--cannot be refuted. We all watched what happened 
during the course of the trial.
    Professor Smith, have you ever been retained as an expert 
to testify on campaign finance matters prior to the case 
against President Trump?
    Mr. Smith. Yes.
    Ms. Hageman. OK, and briefly, what was the nature of those 
cases? What issues or Federal laws did you testify with regard 
to?
    Mr. Smith. All those were other cases, in which, I was 
asked to testify about past experience with Federal campaign 
finance laws, customs in campaigns, how they pay for things. 
There were maybe as many as four. I don't like to do expert 
witness work and I don't normally do it.
    In none of those that you have mentioned testify, in none 
of those did I end up testifying because the cases settled, 
because one is still pending, or because in one other case the 
judge decided that this would be testimony that would go to the 
law.
    Ms. Hageman. Can you briefly describe your qualifications 
to provide such expert testimony?
    Mr. Smith. Well, as has been mentioned, I served as a 
commissioner on the Federal Election Commission, including a 
term as Chair. I have written one book specifically on campaign 
finance and served as co-author on two others on campaign 
finance and election law.
    I have been at one point cited as one of the most cited 
scholars in the field of election law. A recent book from the 
University of Chicago Press suggested that I have had more 
influence on campaign finance than any other scholar in the 
last 40 or 50 years or something like that. I have devoted my 
life to this, this is what I do.
    Ms. Hageman. You are qualified to testify about Federal 
campaign finance laws, Mr. Smith.
    Mr. Smith. This is what I do, yes.
    Ms. Hageman. Would you also agree that campaign finance law 
is a complex area and one where a lot of Americans who may have 
to sit on a jury would benefit from expert witness testimony to 
understand the alleged crimes that they are being asked to 
decide?
    Mr. Smith. Extremely so. At one point, Justice Scalia, when 
he was serving on the Supreme Court, actually said during the 
middle of oral argument, he says, ``This law is so complex, I 
can't figure it out.''
    Ms. Hageman. So, Professor Smith, to the best of your 
knowledge, is Michael Cohen a campaign finance law expert?
    Mr. Smith. Not to my knowledge and not what I have seen.
    Ms. Hageman. Well, yet Judge Merchan allowed him to testify 
during the course of the Trump trial, didn't he?
    Mr. Smith. Yes, in theory for other purposes, but 
nonetheless you had him repeatedly saying this violated the 
law--that violated.
    Ms. Hageman. So, Judge Merchan commented when ruling to 
limit the scope of any testimony that you would provide that,

        There is no question that this would result in a battle of the 
        experts, which will only serve to confuse and not assist the 
        jury.

    From the standpoint of someone who practiced as a trial 
attorney for 34 years, I find that to be an extremely bizarre 
statement, because that, in fact, is the situation anytime you 
have a case where expert testimony is needed.
    In fact, I worked on a case called Nebraska v. Wyoming at 
one point, and Wyoming had over 25 expert witnesses, in 
everything from hydrology to ag engineering to economics to 
fluvial geomor-
phology, to all these things, and Nebraska had something 
similar. Yet, the judge, including the U.S. Supreme Court, was 
not excluding expert witnesses simply because there was going 
to be a battle of the experts.
    Is that your experience as well?
    Mr. Smith. That is. I would point one thing. I mentioned 
earlier that there were a number of things I would have 
testified to that would not have gone to legal conclusions, but 
rather testifying about customs, practices, about simply 
reporting dates under the law. It appeared from the judge's 
rulings that even this, that kind of testimony would not have 
been allowed.
    Ms. Hageman. He wasn't going to allow you to testify to 
those things, but he allowed Mr. Cohen to sit up there and say 
President Trump violated Federal election laws, didn't he?
    Mr. Smith. Yes.
    Ms. Hageman. Professor Smith, going on, do you believe that 
the court committed a reversible error by allowing Mr. Cohen to 
testify about alleged campaign--or election violations?
    Mr. Smith. I think it was erroneous, and I am not even sure 
what the standard--not being a criminal law guy--what the 
standard of review is for that kind of error. Sometimes if it 
is abuse of discretion, courts give trial judges a lot of 
leeway. It doesn't mean that the decision wasn't right--wasn't 
wrong.
    Ms. Hageman. Judge Wilson, do you believe that Judge 
Merchan committed a reversible error in excluding Mr. Smith, 
but allowing Mr. Cohen to testify on these issues?
    Judge Wilson. In and of itself, that may not be enough to 
secure a reversal of the conviction. There is a concept in 
appellate law, a cumulative error.
    What I believe we have seen in the Trump trial is a series 
of errors, one piled on the other, cumulative errors, that when 
you put them all together show that Donald Trump did not have a 
fair trial and that his conviction should be reversed.
    Ms. Hageman. I am absolutely convinced that his conviction 
will be reversed. I also believe that Judge Merchan was well 
aware of that when he made the decisions during the course of 
the trial that he did. I found his decisions to be egregious 
reversible errors on so many different levels.
    Thank you all for being here today, and with that, I yield 
back.
    Chair Jordan. The gentlelady yields back. The gentleman 
from South Carolina--
    Ms. Plaskett. Mr. Chair, before that--
    Chair Jordan. The young lady, the Ranking Member is 
recognized.
    Ms. Plaskett. I just, for Mr. Gaetz and for your purposes, 
I have an article from Reuters regarding Judge and trial, as 
well as the actual opinion of the Judicial Advisory Group of 
May 4, 2023, and will make a copy for him.
    Chair Jordan. OK. Without objection.
    The gentleman from South Carolina is recognized.
    Mr. Fry. Thank you, Mr. Chair.
    It's been a bad week for Democrats. Not only is the border 
wide open, not only does Main Street feel the pressure of 20 
percent inflation, but we saw a pretty tragic debate 
performance by the Commander-in-Chief. In fact, Democrats this 
week are discovering new tunnels on the way to and from the 
Capitol in which to hide from the media. So, they are now 
talking about things like Project 2025 and things to distract 
the American people from what they're really seeing, which is a 
country that is not doing well under his leadership. It is a 
total distraction.
    Let's recap some of the main players we have here today.
    Alvin Bragg used a novel legal theory to bootstrap a 
misdemeanor allegation as a felony by alleging that records 
were falsified to conceal a second crime. Alvin Bragg is a 
pioneer of sorts, but in all the wrong ways. When you look at 
what he's done, he's paved the way for rogue district attorneys 
to campaign on and get elected to prosecute politically--
political enemies or political opponents.
    Then, we have Judge Merchan, who's a top Democrat donor; 
his daughter worked for Kamala Harris, and even urged a Trump 
organization CFO to be a government witness against President 
Trump. When President Trump requested he recuse himself, Judge 
Merchan said no. He performed an examination of his own 
conscience, which he found that he can rule fairly and that it 
would not be in the public interest if he recused himself from 
the case. A total farce. The left has really stacked the deck 
on this trial.
    Judge Wilson, why should Judge Merchan--we talked about 
this a second, but we're going to wrap up here--why should 
Judge Merchan have recused himself from hearing the case 
against President Trump?
    Judge Wilson. A judge has an obligation to be fair and 
impartial and to appear fair and impartial. Now, Judge Merchan 
has the right to rely on the ethics opinions that he received. 
He asked the question; he got the answer. That isn't the end of 
the analysis.
    The judge has to, also, avoid the appearance of 
impropriety. In hearing the case, after having made political 
contributions and having a daughter, first degree relationship 
to the judge, profiting from attacking the subject of the trial 
that the judge is presiding over, has the appearance of 
impropriety.
    Mr. Fry. Judge, have you ever asked, have you ever asked 
specifically, a potential witness to be a witness in a case, or 
have you let the prosecutors and the defense counsel pick 
those, their own set of witnesses?
    Judge Wilson. I leave that to the prosecution and the 
defense. The prosecution has the burden of proof. They decide 
what witnesses they want to put forward to prove their case, 
and the defense, then, has the ability to present whatever 
witnesses they want.
    Sometimes witnesses will be irrelevant, cumulative; there 
will be other reasons they'll not testify, in general, the 
prosecution and defense are the ones that pick the witnesses.
    Mr. Fry. So, if a judge were to do that--and in this case, 
Judge Merchan--to ask a former Trump CFO to be a witness in a 
case, that would be improper, is that correct?
    Judge Wilson. That's out of the ordinary. It's not always 
improper for a judge to suggest a witness, but judges don't 
call witnesses in 99.99 percent of cases.
    Mr. Fry. Judge, you talked about this earlier, kind of a 
parade of errors that--what was the legal term that you used?
    Judge Wilson. Cumulative, these are cumulative errors.
    Mr. Fry. So, would the inability of Judge Merchan to recuse 
himself, would that be part of a stack that could be used as--
by a Court of Appeals to reverse the decision?
    Judge Wilson. I believe so.
    Mr. Fry. What other grounds for appeal do you think are 
evident, in your mind, on this particular case?
    Judge Wilson. Well, I go right back to the indictments, and 
Appellate Courts like to rule on things that are pretty clear. 
A clear error is usually the basis that an Appellate Court will 
find and not go into a lot of other questionable issues. Courts 
like to decide things simply in most cases.
    Here, the indictment was facially insufficient right from 
the beginning, and it would have been a simple matter for Judge 
Merchan to dismiss that indictment and to give the prosecutor 
leave to re-present that indictment to get a sufficient one, to 
give the defendant proper notice of the charges that the 
defendant was facing.
    That was not done in this case, and that led directly to 
the next significant error, which was not notifying the 
defendant of those additional charges until he was already at 
trial, and many of them not being notified, many of those 
charges not being, not being present until the jury 
instructions themself.
    Mr. Fry. Then, the jury instructions, of course, were 
wrong, too. It was a 55-page set of jury instructions that were 
incredibly confusing to an average juror.
    Judge Wilson. Yes, as well as to lawyers, for that matter, 
because I heard that comment more than once, that many didn't 
know what those jury instructions meant.
    Mr. Fry. Thank you, Judge. Appreciate your time.
    With that, Mr. Chair, I yield back.
    Chair Jordan. The gentleman yields back.
    The Chair recognizes the Ranking Member for closing 
questions and comments.
    Ms. Plaskett. I really don't have any questions at this 
time.
    I just would, again, ask my plea to you, Mr. Chair, for us 
to have a hearing, discussion, interview with the authors of 
Project 2025. It is a clear weaponization plan by its authors 
against the American people, should Donald Trump become 
President again.
    I yield back.
    Chair Jordan. The gentlelady yields back.
    Judge, the burden is supposed to be on the judge, right, 
the burden if he's going to recuse?
    Judge Wilson. Yes. The judge is the one that makes that 
final determination as to whether or not they should recuse 
themself.
    Chair Jordan. You cite in your written testimony Rule 
103(e)(1) of the Chief Administrative Judge for the State of 
New York, is that right? It's pretty clear.
    Judge Wilson. It is.
    Chair Jordan. ``A judge shall''--``shall''--``A judge shall 
disqualify himself or herself in a proceeding in which the 
judge's impartiality might be reasonably questioned.''
    It can't get any clearer. Anyone with a reasonable mind 
says, if your daughter is in the business of making millions of 
dollars for Democrat candidates whose whole career, most of 
their career has been attacking President Trump, that might be 
something that a reasonable person, a reasonable person would 
question your impartiality? Is that clear?
    Judge Wilson. That is why I've emphasized the appearance of 
impropriety here. It is something that can't be ignored in the 
analysis of whether or not a judge should recuse themself in--
    Chair Jordan. OK. The final question is, why do you think 
the judge, the court, allowed an indictment that wasn't 
specific about the charge, the crime that President Trump was 
being charged with? Why would he do that?
    Judge Wilson. Well, that gets more into my political 
opinion than my legal opinion. If you want my political 
opinion--
    Chair Jordan. Well, of course I do.
    Judge Wilson. It sounds to me like Judge Merchan had his 
marching orders and he moved forward with what was expected of 
him.
    Chair Jordan. So, if you're a judge who won't recuse 
yourself when your daughter is in the business of making 
millions of dollars from people who've attacked President 
Trump, you might understand why he's winning to allow an 
indictment that you're not supposed to allow move forward. 
President Trump, who's the defendant, does not know what he's 
being charged with until the end of the trial.
    Judge Wilson. That is all correct.
    Chair Jordan. Yes. Back to where we started, lawfare at its 
finest--or at its worst. I would say at its worst.
    I want to thank all of you for being here today and for 
your expert testimony. We appreciate that.
    With that--oh, I've got to read something special here.
    This concludes today's hearing. We thank all our witnesses 
for appearing before the Subcommittee.
    Without objection, all Members will have five legislative 
days to submit additional written questions for the witnesses 
or additional materials for the record.
    Without objection, the hearing is adjourned.
    [Whereupon, at 12:34 p.m., the Subcommittee was adjourned.]

    All materials submitted for the record by Members of the 
Select Subcommittee on the Weaponization of the Federal 
Government can be found at: https://docs.house.gov/Committee/
Calendar/By Event.aspx?EventID=117501.