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Information Overload · Serious Trouble

• 0:00
  [music]
• 0:08
  SPEAKER_00: Hi, it's Ken White.
• 0:10
  SPEAKER_00: And it's Josh Barrow, and this is Serious Trouble.
• 0:13
  SPEAKER_00: So, Ken, more charges for James Comey?
• 0:17
  SPEAKER_00: Maybe?
• 0:17
  SPEAKER_00: It's procedurally weird what has happened here in addition to,
• 0:21
  SPEAKER_00: you know, everything's been substantively weird with this Comey stuff.
• 0:24
  SPEAKER_00: But regarding something that happened almost precisely 10 years ago,
• 0:28
  SPEAKER_00: there is what the government purports is a charge filed against James Comey
• 0:33
  SPEAKER_00: about leaking information to the New York Times.
• 0:35
  SPEAKER_00: But there's no indictment.
• 0:37
  SPEAKER_00: So, like, how does that work?
• 0:39
  SPEAKER_00: It kind
• 0:39
  SPEAKER_01: of doesn't.
• 0:40
  SPEAKER_01: This is a new set of kind of criminal charges.
• 0:45
  SPEAKER_01: These ones are not, you know, bivalve crustacean or other aquatic life related.
• 0:53
  SPEAKER_01: So this time they filed an information charging him
• 0:59
  SPEAKER_01: with disclosing national defense information unlawfully under 18 U.S.C.
• 1:05
  SPEAKER_01: 793.
• 1:06
  SPEAKER_01: And this is about a story that is Literally old news.
• 1:10
  SPEAKER_01: It's accusing him of leaking information to Charlie Savage at the New York Times.
• 1:16
  SPEAKER_00: In 2016.
• 1:17
  SPEAKER_00: So this is in the context of,
• 1:18
  SPEAKER_00: you know, people will remember James Comey was in the news a little bit in 2016.
• 1:21
  SPEAKER_01: Right.
• 1:22
  SPEAKER_01: Getting up to stuff.
• 1:23
  SPEAKER_01: And this is something that the first Trump administration looked at,
• 1:27
  SPEAKER_01: considered charging, took a pass on.
• 1:29
  SPEAKER_01: It's been controversial before.
• 1:31
  SPEAKER_01: What's bizarre about this is that they hit this 10-year statute of limitations, okay?
• 1:39
  SPEAKER_01: Under the Internal Security Act, which,
• 1:42
  SPEAKER_01: you know,
• 1:43
  SPEAKER_01: very ominously named law,
• 1:45
  SPEAKER_01: there's a 10-year statute of limitations for charges
• 1:49
  SPEAKER_01: about leaking national defense information.
• 1:53
  SPEAKER_01: And so they come up to that deadline and,
• 1:57
  SPEAKER_01: you know,
• 1:58
  SPEAKER_01: in a flurry to go after Comey for something new,
• 2:01
  SPEAKER_01: their last two attempts not going well,
• 2:04
  SPEAKER_01: they file an information So remember,
• 2:06
  SPEAKER_01: information,
• 2:07
  SPEAKER_01: when you charge someone,
• 2:08
  SPEAKER_01: normally you do it by complaint,
• 2:10
  SPEAKER_01: which is,
• 2:11
  SPEAKER_01: you know,
• 2:11
  SPEAKER_01: a magistrate judge signs off on it,
• 2:13
  SPEAKER_01: and we'll be hearing another story about the significance of that in a few minutes,
• 2:16
  SPEAKER_01: or you do an indictment that a grand jury returns.
• 2:19
  SPEAKER_01: And information is just an accusation by the prosecutor, not reviewed or approved by anything.
• 2:25
  SPEAKER_01: Normally,
• 2:26
  SPEAKER_01: it's restricted to cases that are infractions or Low misdemeanors where
• 2:32
  SPEAKER_01: the person doesn't have the right to a jury trial because otherwise they have
• 2:36
  SPEAKER_01: a right to indictment by grand jury.
• 2:37
  SPEAKER_00: Don't we also often talk about informations that are filed alongside an indictment?
• 2:42
  SPEAKER_00: I feel like sometimes when there's a speaking indictment,
• 2:44
  SPEAKER_00: we talk about that there's an information but that doesn't stand by itself.
• 2:48
  SPEAKER_01: Well, I mean,
• 2:49
  SPEAKER_01: you often see an information when someone has agreed to plead guilty pre-indictment
• 2:53
  SPEAKER_01: and it's done that way where the first time they show up in court is with
• 2:56
  SPEAKER_01: a plea agreement and information because they're waiving grand jury.
• 3:00
  SPEAKER_01: But here they did it and immediately they let Comey know what was going on.
• 3:05
  SPEAKER_01: Comey immediately filed a motion to unseal the case and to dismiss.
• 3:10
  SPEAKER_01: And the federal judge in the case has, in fact, unsealed the matter.
• 3:16
  SPEAKER_01: So we can now see that they filed this information.
• 3:19
  SPEAKER_01: The motion to dismiss is interesting because it turns
• 3:21
  SPEAKER_01: on everyone's favorite obscure statutory interpretation.
• 3:26
  SPEAKER_01: And that is...
• 3:28
  SPEAKER_01: The reason the government did it is that they want to put a pin in the statute of limitations.
• 3:34
  SPEAKER_01: They want to toll it so that they can say, well,
• 3:36
  SPEAKER_01: we filed it timely and then later we may come back and indict and we're allowed
• 3:41
  SPEAKER_01: to do that.
• 3:42
  SPEAKER_01: And there are some cases in some circuits that say that if the government files
• 3:48
  SPEAKER_01: an information within the statute,
• 3:50
  SPEAKER_01: then it has satisfied the statute of limitations and it can later come back.
• 3:55
  SPEAKER_01: And get a grand jury indictment,
• 3:57
  SPEAKER_01: which strikes me as a terrible way to run a railroad,
• 3:59
  SPEAKER_01: but some courts have said that.
• 4:01
  SPEAKER_01: I do know, Josh,
• 4:01
  SPEAKER_01: that they seem to have hallucinated one of the cases in their brief saying that,
• 4:06
  SPEAKER_01: a Ninth Circuit case, but I will let that go.
• 4:08
  SPEAKER_01: I could not find the case.
• 4:10
  SPEAKER_00: But if that's the case, the judge, I assume, is going to smack them around for that, right?
• 4:14
  SPEAKER_00: We have another AI story later today.
• 4:16
  SPEAKER_00: They don't tend to like it when that happens.
• 4:18
  SPEAKER_01: No, although there are far worse things going on here.
• 4:21
  SPEAKER_01: So the issue is this.
• 4:23
  SPEAKER_01: So there's this law, 18 U.S.C.
• 4:26
  SPEAKER_01: 3282, that says, unless otherwise provided by law, no one should be prosecuted.
• 4:33
  SPEAKER_01: For any offense,
• 4:35
  SPEAKER_01: unless the indictment is found or any information is instituted
• 4:39
  SPEAKER_01: within five years next after such offense.
• 4:43
  SPEAKER_01: So that's the language they rely on to say that we can do an indictment or an information.
• 4:48
  SPEAKER_00: You said five years, Ken.
• 4:49
  SPEAKER_01: Yeah, I know.
• 4:50
  SPEAKER_01: The problem is that they're also relying to extend that on a different law that says
• 4:55
  SPEAKER_01: that an indictment for 793,
• 4:58
  SPEAKER_01: an indictment for any violation of the law,
• 5:03
  SPEAKER_01: Maybe found at any time within 10 years after the violation has been continued.
• 5:08
  SPEAKER_01: So notice there, it doesn't say information or indictment, it only says indictment.
• 5:11
  SPEAKER_01: No, it does not.
• 5:12
  SPEAKER_01: So the question is, which controls?
• 5:14
  SPEAKER_01: And the government says, oh,
• 5:15
  SPEAKER_01: clearly indictment,
• 5:17
  SPEAKER_01: there is a term of art to mean indictment or information like is in the other law.
• 5:22
  SPEAKER_01: And Comey's lawyers, Patrick Fitzgerald, is saying, no, no, that's not how this works.
• 5:27
  SPEAKER_01: That's not how any of this works because the specific generally controls over the general.
• 5:31
  SPEAKER_01: And so when you have A statute extending law that limits it to indictment,
• 5:36
  SPEAKER_01: you should read it literally and say only if it's an indictment.
• 5:40
  SPEAKER_01: So this is going to be part of the question,
• 5:42
  SPEAKER_01: whether or not they have successfully told this 10-year statute of limitations
• 5:48
  SPEAKER_01: when they only filed an information.
• 5:50
  SPEAKER_01: And you might ask, why do they only file information?
• 5:53
  SPEAKER_01: Well,
• 5:54
  SPEAKER_01: probably because they've been having bad luck in front of grand juries in general
• 5:59
  SPEAKER_01: and also with Comey in particular,
• 6:01
  SPEAKER_01: and they were afraid
• 6:03
  SPEAKER_00: That if they went to the grand jury at
• 6:04
  SPEAKER_00: the last minute scrambling around, they were
• 6:06
  SPEAKER_01: not going to get an indictment.
• 6:08
  SPEAKER_01: And that would clearly be not meeting the statute of limitations.
• 6:12
  SPEAKER_01: Anyway, it's a big embarrassment because it is a bizarre way to do things.
• 6:16
  SPEAKER_01: The getting the information rather than
• 6:18
  SPEAKER_01: an indictment strongly suggests they thought they had a very weak case.
• 6:23
  SPEAKER_01: And indeed,
• 6:24
  SPEAKER_01: the case has been evaluated as very weak before,
• 6:27
  SPEAKER_01: which is why they didn't go on it in the first Trump administration.
• 6:30
  SPEAKER_01: And the judge clearly does not think much of it because even though
• 6:34
  SPEAKER_01: the government was saying,
• 6:35
  SPEAKER_01: you know,
• 6:36
  SPEAKER_01: you can't unseal this judge because it will alert all
• 6:39
  SPEAKER_01: the people Comey's been conspiring with, the judge said no and unsealed it.
• 6:43
  SPEAKER_00: Well, the government didn't object to the unsealing.
• 6:46
  SPEAKER_00: They have this sort of like hand wave at the end.
• 6:48
  SPEAKER_00: They're like, well,
• 6:49
  SPEAKER_00: we have reasons why we think it should be sealed,
• 6:51
  SPEAKER_00: but it's ultimately to the court's discretion.
• 6:53
  SPEAKER_00: And if you would like to let us brief more, we can talk more about it.
• 6:55
  SPEAKER_00: It almost looked to me like the government had run out of pages or something
• 6:58
  SPEAKER_00: and didn't want to spend the time on the sealant.
• 7:00
  SPEAKER_01: Well, maybe they saw the handwriting on the wall,
• 7:03
  SPEAKER_01: but the original motion to seal,
• 7:07
  SPEAKER_01: because they asked for it to be sealed in the first instance,
• 7:09
  SPEAKER_01: suggested they were concerned about,
• 7:12
  SPEAKER_01: you know,
• 7:12
  SPEAKER_01: all the conspirators lurking out there just waiting to help Comey drop more stuff
• 7:18
  SPEAKER_01: to Charlie Savage.
• 7:20
  SPEAKER_01: So anyway, I think not surprisingly, Comey's lawyers have a much better interpretation of this.
• 7:29
  SPEAKER_01: It's going to be really difficult getting this case off the ground.
• 7:32
  SPEAKER_01: It's going to have the same selective prosecution problems that the Seashells case has.
• 7:40
  SPEAKER_01: And it's just more desperation kind of flailing around by the administration trying
• 7:46
  SPEAKER_01: to go after Trump enemies.
• 7:48
  SPEAKER_00: So Judge Trevor McFadden here,
• 7:49
  SPEAKER_00: he did the unsealing and sort of basically said,
• 7:52
  SPEAKER_00: well, the government doesn't oppose it, so I'm going to unseal.
• 7:54
  SPEAKER_01: Right.
• 7:55
  SPEAKER_00: He hasn't ruled yet on the dismissal.
• 7:56
  SPEAKER_00: I guess the government's position is we haven't indicted James Comey yet,
• 7:59
  SPEAKER_00: so there's nothing to dismiss?
• 8:01
  SPEAKER_01: Exactly.
• 8:01
  SPEAKER_01: They say that there's no standing to challenge it,
• 8:04
  SPEAKER_01: and it's premature because we can't prosecute him without an indictment,
• 8:09
  SPEAKER_01: and we don't have an indictment.
• 8:10
  SPEAKER_01: We only have an information.
• 8:11
  SPEAKER_01: Therefore, he can't file any motions, which is sort of comically bad.
• 8:15
  SPEAKER_01: It's kind of saying, well, judge,
• 8:18
  SPEAKER_01: you can only file motions in a legitimate prosecution, and this clearly isn't one.
• 8:22
  SPEAKER_01: So, you know, in a motion.
• 8:25
  SPEAKER_01: It's sort of like it proves a little too much.
• 8:28
  SPEAKER_00: I mean, like the filings have a V in them, right?
• 8:31
  SPEAKER_00: Yeah.
• 8:31
  SPEAKER_00: Doesn't that mean there's a case?
• 8:33
  SPEAKER_01: Well, the notion that the government has accused you of a crime in a formal filing
• 8:37
  SPEAKER_01: and you can't challenge it is ludicrous.
• 8:41
  SPEAKER_01: So and by the government's interpretation,
• 8:46
  SPEAKER_01: I guess they could just,
• 8:47
  SPEAKER_01: you know,
• 8:47
  SPEAKER_01: put a pin in it by charging you information,
• 8:49
  SPEAKER_01: just let it sit for years and And,
• 8:52
  SPEAKER_01: you know, you couldn't do anything until they indicted you without looming over you.
• 8:56
  SPEAKER_00: Yeah.
• 8:57
  SPEAKER_00: Which would sort of defeat the purpose of a statute of limitations.
• 9:00
  SPEAKER_01: Well, exactly.
• 9:00
  SPEAKER_01: It would.
• 9:01
  SPEAKER_00: Yeah.
• 9:02
  SPEAKER_01: Speaking of the Comey family.
• 9:03
  SPEAKER_00: Yes.
• 9:03
  SPEAKER_00: James Comey's daughter,
• 9:04
  SPEAKER_00: Maureen,
• 9:05
  SPEAKER_00: who was unceremoniously fired from her position as an AUSA in the Southern District
• 9:10
  SPEAKER_00: of New York, sued saying that she'd been wrongfully terminated.
• 9:13
  SPEAKER_00: And she got a ruling from Judge Jesse Furman in New York saying, yes,
• 9:18
  SPEAKER_00: Maureen Comey was wrongfully terminated,
• 9:20
  SPEAKER_00: although she Interestingly, there's not that much relief here.
• 9:23
  SPEAKER_00: She gets some back pay until she got another job.
• 9:26
  SPEAKER_00: But presumably,
• 9:28
  SPEAKER_00: if you're a prominent day USA,
• 9:30
  SPEAKER_00: you can make more money doing whatever you're doing in the private sector.
• 9:33
  SPEAKER_00: So it's not really like the key thing was that she had financial damages from losing her job.
• 9:38
  SPEAKER_00: She also got a declaratory ruling that her firing was unlawful.
• 9:43
  SPEAKER_00: So I guess, is there any meaningful teeth Well, the thing is...
• 10:00
  SPEAKER_01: Generally,
• 10:01
  SPEAKER_01: in employment law,
• 10:02
  SPEAKER_01: there's this big reluctance towards reinstatement because the thought is
• 10:07
  SPEAKER_01: that you're going to create a toxic environment by forcing somebody back into
• 10:12
  SPEAKER_01: a circumstance they were fired from.
• 10:14
  SPEAKER_01: So the preference is generally towards money damages rather than forcing people back
• 10:19
  SPEAKER_01: into their job.
• 10:20
  SPEAKER_01: And that's particularly too true in kind of positions like this that involve
• 10:25
  SPEAKER_01: a fair amount of discretion and power and possibly...
• 10:29
  SPEAKER_01: Rightly so.
• 10:30
  SPEAKER_01: But she gets money.
• 10:32
  SPEAKER_01: And, you know,
• 10:32
  SPEAKER_01: in her next job,
• 10:33
  SPEAKER_01: when she,
• 10:33
  SPEAKER_01: you know,
• 10:34
  SPEAKER_01: uploads her resume on a deed,
• 10:35
  SPEAKER_01: she can click the little box that says, yes,
• 10:38
  SPEAKER_01: I was previously fired,
• 10:39
  SPEAKER_01: but a court found that the Trump administration did it wrongfully.
• 10:43
  SPEAKER_01: And so what the judge said here is it pretty much demolished the government's bad arguments.
• 10:49
  SPEAKER_01: So this was done on dueling motions for judgment on the pleadings.
• 10:54
  SPEAKER_01: So basically,
• 10:55
  SPEAKER_01: she sued,
• 10:56
  SPEAKER_01: the government answered,
• 10:57
  SPEAKER_01: and federal court,
• 10:58
  SPEAKER_01: when you answer the You have to specifically admit or deny each
• 11:04
  SPEAKER_01: and every factual allegation in the complaint.
• 11:06
  SPEAKER_01: So you wind up with kind of a record of what they say is true or not true with some specificity.
• 11:11
  SPEAKER_01: And the judge said based on what they admitted was true,
• 11:15
  SPEAKER_01: under the law we don't need to do any discovery because this shows
• 11:18
  SPEAKER_01: that she was wrongfully fired.
• 11:20
  SPEAKER_01: The Department of Justice's arguments are first of all that There's a statute
• 11:25
  SPEAKER_01: that allows the attorney general to fire any AUSA, and that should control.
• 11:29
  SPEAKER_01: And Judge Furman says no because the
• 11:37
  SPEAKER_01: civil service statutes come after that law
• 11:40
  SPEAKER_01: and modify it and limit whether or not you can fire AUSAs just on a whim.
• 11:48
  SPEAKER_01: Then the government has their Article 2 argument.
• 11:51
  SPEAKER_01: Remember,
• 11:52
  SPEAKER_01: this administration is very big on firing federal prosecutors just citing Article 2
• 11:58
  SPEAKER_01: in sort of the ultimate smug federalist douchebag argument.
• 12:03
  SPEAKER_01: And the judge says, no, Article 2 does not prohibit limits on firing inferior officers.
• 12:10
  SPEAKER_01: It is.
• 12:12
  SPEAKER_01: It prevents Congress from putting limits on
• 12:15
  SPEAKER_01: the president firing superior officers like the Secretary of State or
• 12:19
  SPEAKER_01: the Attorney General or possibly even the U.S.
• 12:23
  SPEAKER_01: Attorney, although that's obviously in dispute right now.
• 12:27
  SPEAKER_01: But absolutely,
• 12:28
  SPEAKER_01: Congress can limit the president's ability
• 12:31
  SPEAKER_01: to simply summarily fire inferior officers in the United States.
• 12:37
  SPEAKER_00: Well, and also the president can't fire officers who work at unique and special institutions.
• 12:41
  SPEAKER_00: They're in a long historical tradition going back to the first bank of the United States.
• 12:44
  SPEAKER_01: Yes, large adult sons of our banks are exempt.
• 12:49
  SPEAKER_01: And what I particularly like
• 12:50
  SPEAKER_01: about Judge Furman's argument here is he digs really deep into the sort of
• 12:56
  SPEAKER_01: the federalist unitary executive fever swamp and all the arguments about why
• 13:01
  SPEAKER_01: the president should be able to fire everyone.
• 13:03
  SPEAKER_01: And he digs up.
• 13:05
  SPEAKER_01: You know, the Morrison case about special prosecutors and says, look at this dissent.
• 13:10
  SPEAKER_01: Even fucking Scalia thought that you could put limits on firing inferior officers.
• 13:15
  SPEAKER_01: That's how crazy you are.
• 13:17
  SPEAKER_01: You're more crazy than Scalia, which I thought was a nice touch.
• 13:21
  SPEAKER_01: So, yeah, the bottom line is, no, this court says you cannot simply fire AUSAs for politics.
• 13:28
  SPEAKER_00: What about which AUSAs you can hire in your neck of the woods in Los Angeles?
• 13:33
  SPEAKER_00: There is no U.S. attorney for the Central District of California.
• 13:36
  SPEAKER_00: Bill Asaley,
• 13:37
  SPEAKER_00: who used to be a Trumpy member of the California State Assembly,
• 13:41
  SPEAKER_00: was named as interim U.S. attorney, and there were challenges over that.
• 13:46
  SPEAKER_00: And so their solution was to make him first assistant.
• 13:49
  SPEAKER_00: U.S. Attorney,
• 13:50
  SPEAKER_00: so the deputy to the position that doesn't exist so that he's effectively running
• 13:53
  SPEAKER_00: the office.
• 13:54
  SPEAKER_00: And he's been doing that for a while in a way that confused me because it's like,
• 13:59
  SPEAKER_00: you know, they were able to get rid of Alina Habba and Lindsey Halligan.
• 14:03
  SPEAKER_00: And like a fungus, Bill Assaylee does not go away.
• 14:07
  SPEAKER_00: But I guess now that because of what you described there,
• 14:10
  SPEAKER_00: there's some disagreement among courts about how this process works for who runs
• 14:14
  SPEAKER_00: a U.S.
• 14:14
  SPEAKER_00: attorney's office when no one's confirmed,
• 14:16
  SPEAKER_00: that Bill Assaylee may no longer be able to be his own deputy?
• 14:20
  SPEAKER_01: Right.
• 14:20
  SPEAKER_01: So Bill is a big Trump elbow thrower.
• 14:24
  SPEAKER_01: He says a lot of crazy pro-Trump things.
• 14:26
  SPEAKER_01: And if there's a talking point, he will make it for the administration.
• 14:31
  SPEAKER_01: They tried to get around this by naming him as first assistant,
• 14:35
  SPEAKER_01: which you can't do as a way to get around the statute.
• 14:39
  SPEAKER_01: Numerous courts have said that.
• 14:41
  SPEAKER_01: Then my favorite part,
• 14:42
  SPEAKER_01: they said, okay,
• 14:43
  SPEAKER_01: he's actually,
• 14:44
  SPEAKER_01: his title is special attorney,
• 14:49
  SPEAKER_01: which reminds me of a first-year law school professor who was Yeah.
• 15:15
  SPEAKER_01: Because all your arguments are nonsense.
• 15:18
  SPEAKER_01: It doesn't matter what they call you.
• 15:20
  SPEAKER_01: You're not the U.S. attorney.
• 15:22
  SPEAKER_01: The judge has declined to dismiss the cases,
• 15:25
  SPEAKER_01: which has generally been the practice of the judges granting these orders,
• 15:28
  SPEAKER_01: finding that this person was improperly appointed,
• 15:31
  SPEAKER_01: but that doesn't prevent the cases from going forward.
• 15:35
  SPEAKER_01: The exceptions were in the Comey case because Lindsey Halligan personally obtained
• 15:41
  SPEAKER_01: the indictment.
• 15:42
  SPEAKER_01: But if the person is just a figurehead like here, Then they're not dismissing the cases.
• 15:47
  SPEAKER_01: And Judge Sebright is letting them file a motion to stay this pending appeal.
• 15:52
  SPEAKER_01: He'll probably grant it, stay it.
• 15:55
  SPEAKER_01: But he's saying, you know, no, you can't be in these cases.
• 15:57
  SPEAKER_01: And it's quite humiliating to Bill, who is, well,
• 16:02
  SPEAKER_01: regarded as what he is in the wider criminal justice community of
• 16:07
  SPEAKER_01: the Central District.
• 16:09
  SPEAKER_01: And so, you know,
• 16:12
  SPEAKER_01: more I want to talk about a couple of cases in Washington on
• 16:15
  SPEAKER_01: the ill-fated revenge tour.
• 16:27
  SPEAKER_00: That, you know,
• 16:28
  SPEAKER_00: goes well beyond James Comey,
• 16:30
  SPEAKER_00: all of the,
• 16:30
  SPEAKER_00: you know,
• 16:31
  SPEAKER_00: settling the Trump's grievances about the 2016 campaign and
• 16:35
  SPEAKER_00: the way he was investigated in his first term.
• 16:38
  SPEAKER_00: So first of all,
• 16:39
  SPEAKER_00: Cassidy Hutchinson,
• 16:40
  SPEAKER_00: who listeners might remember as a former Trump White House staffer from
• 16:45
  SPEAKER_00: the first term who gave some dramatic testimony related to January 6th.
• 16:50
  SPEAKER_00: They're upset about things that she said,
• 16:51
  SPEAKER_00: including that she claimed that when Trump was in the presidential limo
• 16:55
  SPEAKER_00: on January 6th,
• 16:56
  SPEAKER_00: that he became irate,
• 16:58
  SPEAKER_00: learning that he couldn't go to the U.S.
• 16:59
  SPEAKER_00: Capitol, that he said, I'm the effing president, take me up to the Capitol now.
• 17:04
  SPEAKER_00: And so they've wanted to indict her for perjury, for saying these things.
• 17:10
  SPEAKER_00: And they took this to the grand jury and they got a no bill.
• 17:14
  SPEAKER_01: Notably,
• 17:15
  SPEAKER_01: this wasn't Jeanine Pirro, who,
• 17:16
  SPEAKER_01: of course,
• 17:17
  SPEAKER_01: is quite practiced at getting no bills,
• 17:19
  SPEAKER_01: but They had for some reason transferred this over,
• 17:23
  SPEAKER_01: given it to the Harmeet Dillon,
• 17:25
  SPEAKER_01: who is currently the chief of the civil rights section,
• 17:29
  SPEAKER_01: which is no longer really a civil rights section.
• 17:32
  SPEAKER_00: Is this a civil rights case?
• 17:33
  SPEAKER_01: It is not.
• 17:34
  SPEAKER_01: And as true believer of Trumpers, you'll find.
• 17:38
  SPEAKER_01: But she got it no billed.
• 17:40
  SPEAKER_01: I think the thing is, Cassidy Hutchison just comes off as kind of pathetic.
• 17:44
  SPEAKER_01: So remember,
• 17:45
  SPEAKER_01: we had that case involving her attorney,
• 17:48
  SPEAKER_01: You know,
• 17:48
  SPEAKER_01: and kind of conservative activist Stephan Pasatino,
• 17:51
  SPEAKER_01: who sued Andrew Weissman,
• 17:54
  SPEAKER_01: who had reported that Stephan Pasatino coached her to lie before Congress
• 17:59
  SPEAKER_01: and his defamation case got dismissed because the transcripts of her deposition,
• 18:04
  SPEAKER_01: what she described, sounded very much like being coached to lie, right?
• 18:08
  SPEAKER_01: But she comes off as sort of like someone that has things done too, not someone who does things.
• 18:15
  SPEAKER_01: And...
• 18:16
  SPEAKER_01: I think that probably came through,
• 18:18
  SPEAKER_01: that she was just sort of like,
• 18:20
  SPEAKER_01: you know,
• 18:21
  SPEAKER_01: in the wrong place at the wrong time,
• 18:22
  SPEAKER_01: observing things,
• 18:23
  SPEAKER_01: being manipulated,
• 18:25
  SPEAKER_01: you know,
• 18:26
  SPEAKER_01: trying to be used as a pawn by Congress,
• 18:28
  SPEAKER_01: trying to be used as a pawn by conservatives,
• 18:31
  SPEAKER_01: you know, abused by this lawyer, and kind of comes off as a pathetic figure.
• 18:36
  SPEAKER_01: And that's probably what the grand jury reacted to.
• 18:38
  SPEAKER_00: Well, I mean, also, again, I mean,
• 18:40
  SPEAKER_00: we don't know exactly what 23 people get put on a grand jury in Washington, D.C.,
• 18:44
  SPEAKER_00: but I,
• 18:44
  SPEAKER_00: you know,
• 18:44
  SPEAKER_00: I There have to be a lot of people who are,
• 18:47
  SPEAKER_00: you know,
• 18:48
  SPEAKER_00: aware of the broad news context around this stuff that presumably come in with
• 18:52
  SPEAKER_00: a certain amount of skepticism about cases that are,
• 18:54
  SPEAKER_00: you know, obviously of direct interest to the president.
• 18:57
  SPEAKER_01: Yes.
• 18:58
  SPEAKER_01: Yeah.
• 18:58
  SPEAKER_01: Another failure by the administration.
• 19:01
  SPEAKER_01: Not quite as convoluted or as embarrassing as the next one.
• 19:04
  SPEAKER_00: Right.
• 19:04
  SPEAKER_00: So this has to do with Hunter Biden's laptop system.
• 19:08
  SPEAKER_00: There were a
• 19:38
  SPEAKER_00: Is that a charge?
• 19:40
  SPEAKER_01: No, it's not.
• 19:40
  SPEAKER_01: There are a couple of weird things about this.
• 19:42
  SPEAKER_01: First, they get charged by complaint with lying to Congress, and they allegedly lied in 2023.
• 19:49
  SPEAKER_01: So as the magistrate judge points out,
• 19:52
  SPEAKER_01: the first thing is it's weird that they do this by complaint after so much time.
• 19:56
  SPEAKER_01: Why not go straight to an indictment?
• 19:58
  SPEAKER_01: The second thing that's weird is that for some reason,
• 20:02
  SPEAKER_01: the government schedules a preliminary hearing.
• 20:05
  SPEAKER_01: So remember, you've got a right to be indicted by grand jury on federal felony charges.
• 20:11
  SPEAKER_01: And 99 times out of 100,
• 20:14
  SPEAKER_01: what happens is if they charge you first by a complaint,
• 20:18
  SPEAKER_01: then a preliminary hearing gets scheduled because that's the deadline by which
• 20:23
  SPEAKER_01: the government has to make a probable cause showing in the open in court
• 20:29
  SPEAKER_01: with your chance to challenge it.
• 20:30
  SPEAKER_01: They've already made a probable cause showing in the complaint to
• 20:33
  SPEAKER_01: the magistrate judge, but now they have to do it out in the open.
• 20:36
  SPEAKER_01: But 99 times out of 100, they indict before that.
• 20:40
  SPEAKER_01: That establishes probable cause.
• 20:41
  SPEAKER_01: The preliminary hearing is taken off calendar.
• 20:43
  SPEAKER_01: There are many reasons you don't want a preliminary hearing.
• 20:46
  SPEAKER_01: One of them is that you give the defense a free shot at your key witnesses
• 20:50
  SPEAKER_01: to impeach them,
• 20:52
  SPEAKER_01: maybe to destroy their credibility,
• 20:54
  SPEAKER_01: to find out stuff you don't want them to find out, all this type of thing.
• 20:57
  SPEAKER_01: So it's very, very rare.
• 20:59
  SPEAKER_01: The government purports to file an amended complaint, adding on obstruction of justice charges.
• 21:20
  SPEAKER_01: But the thing is,
• 21:20
  SPEAKER_01: a complaint, again,
• 21:21
  SPEAKER_01: is something you go to the magistrate judge,
• 21:23
  SPEAKER_01: you show them an affidavit showing probable cause,
• 21:26
  SPEAKER_01: and the magistrate judge signs it.
• 21:28
  SPEAKER_01: That's what makes it a complaint.
• 21:30
  SPEAKER_01: An amended complaint the magistrate judge has not seen,
• 21:33
  SPEAKER_01: that is not approved, is not a complaint at all.
• 21:37
  SPEAKER_01: So magistrate judge Zia Faruqi,
• 21:39
  SPEAKER_01: who some listeners might remember from From saying a lot of things that he felt
• 21:45
  SPEAKER_01: during the January 6th prosecutions.
• 21:48
  SPEAKER_00: Yes.
• 21:48
  SPEAKER_01: Basically saying, you know, what is this shit?
• 21:51
  SPEAKER_01: What are you doing here?
• 21:53
  SPEAKER_01: That's not a complaint.
• 21:54
  SPEAKER_01: You can't do that.
• 21:55
  SPEAKER_01: And the government apparently has been saying, well,
• 21:57
  SPEAKER_01: we figured we could present it to you in court and get it signed then,
• 22:00
  SPEAKER_01: which also is not the way it works.
• 22:02
  SPEAKER_01: Faruqi says you're just trying to put shit into the public record accusations
• 22:06
  SPEAKER_01: and disguise it as a complaint when it's not a complaint.
• 22:10
  SPEAKER_01: And then they had the first day of the preliminary hearing
• 22:13
  SPEAKER_01: and Farouk throws out this purported amended complaint.
• 22:17
  SPEAKER_01: But also you've got the government's lead witness says in substance that,
• 22:23
  SPEAKER_01: you know,
• 22:24
  SPEAKER_01: the day after Trump made a bunch of noise about doing more investigations of
• 22:29
  SPEAKER_01: the election,
• 22:31
  SPEAKER_01: Kash Patel came in and told us to do this investigation,
• 22:35
  SPEAKER_01: this lying investigation of these two FBI agents.
• 22:38
  SPEAKER_01: And I was concerned it was political.
• 22:39
  SPEAKER_00: Mm-hmm.
• 22:41
  SPEAKER_01: As a defense lawyer, they say, oh, thank you.
• 22:43
  SPEAKER_01: No further questions.
• 22:45
  SPEAKER_00: Yeah.
• 22:46
  SPEAKER_01: So it's a bit of a disaster.
• 22:48
  SPEAKER_01: And the question is, why are they doing it this way?
• 22:51
  SPEAKER_01: Why are they doing it in such an incompetent way?
• 22:54
  SPEAKER_01: Unless, I mean,
• 22:55
  SPEAKER_01: the most likely scenario is they they're concerned that they're not going to get
• 22:59
  SPEAKER_01: a true bill from a grand jury and they don't want that.
• 23:03
  SPEAKER_00: I mean, it's interesting looking at this set of cases because they've been sloppy
• 23:08
  SPEAKER_00: the entire last two years,
• 23:09
  SPEAKER_00: but I think they've been sloppier in the last few weeks than they were previously.
• 23:14
  SPEAKER_00: And, you know, some of that, you know, is like that 10 years.
• 23:17
  SPEAKER_00: I think they're going to have grand jury trouble versus they just weren't ready.
• 23:22
  SPEAKER_00: But in any case, it seems like they're trying to get stuff done before the election.
• 23:25
  SPEAKER_00: And the weird question about that is why?
• 23:27
  SPEAKER_00: Like, you know, they'll still control the Department of Justice after the election.
• 23:46
  SPEAKER_00: There seems to be this thought that I think the president has and some other people
• 23:50
  SPEAKER_00: in his political operation have that it's like politically important
• 23:54
  SPEAKER_00: to produce these indictments before the election because there's a bunch
• 23:57
  SPEAKER_00: of voters out there whose key issue is that they want to see Trump's NSA.
• 24:00
  SPEAKER_00: I don't believe that's true.
• 24:16
  SPEAKER_00: You're probably voting anyway.
• 24:19
  SPEAKER_00: But whether or not it's stupid to believe that,
• 24:21
  SPEAKER_00: my sense is that the president does believe that and that that would be part of why,
• 24:24
  SPEAKER_00: for example,
• 24:25
  SPEAKER_00: we talked a few weeks ago about the fighting between Joe DiGenova and
• 24:30
  SPEAKER_00: the attorney general and Joe DiGenova taking too long trying to actually find
• 24:34
  SPEAKER_00: the grand conspiracy against the president.
• 24:37
  SPEAKER_00: Right.
• 24:37
  SPEAKER_00: Whereas,
• 24:38
  SPEAKER_00: you know,
• 24:38
  SPEAKER_00: Attorney General Blanche understands that,
• 24:40
  SPEAKER_00: like, he just wants to see people hauled into court.
• 24:44
  SPEAKER_00: But for whatever reason,
• 24:45
  SPEAKER_00: there seems to be an idea that it's particularly important that people be hauled
• 24:48
  SPEAKER_00: into court before the election,
• 24:50
  SPEAKER_00: even though I don't think that that makes sense,
• 24:52
  SPEAKER_00: even from like a totally cynical political perspective for the president.
• 24:56
  SPEAKER_01: Well, I agree with you.
• 24:57
  SPEAKER_01: I don't think there's any indication it moves the ball in terms of the election.
• 25:02
  SPEAKER_01: The question is, who thinks it does, if anyone?
• 25:05
  SPEAKER_01: So your theory, I guess, is that somebody does, maybe it's Trump.
• 25:10
  SPEAKER_01: I wonder whether it is more primal than that.
• 25:13
  SPEAKER_01: And it's really not about even Trump thinking it's going to improve the election chances.
• 25:18
  SPEAKER_01: It's just about Trump wanting blood in wanting retaliation, public retaliation.
• 25:24
  SPEAKER_01: It's about narcissistic injury and Trump wanting very vivid public attacks on his enemies.
• 25:32
  SPEAKER_01: And this is the way to control him as he gets increasingly erratic and uncontrollable.
• 25:37
  SPEAKER_00: Yeah, although I think Trump was narcissistic and out for blood six weeks ago, too.
• 25:42
  SPEAKER_00: And these people are nonetheless behaving a bit differently than they were a few weeks ago.
• 25:46
  SPEAKER_01: Yeah, but I mean, he seems to be kind of on a bit of a tear, even for Trump.
• 25:51
  SPEAKER_01: It's unknowable.
• 25:52
  SPEAKER_01: This is not normal behavior by anyone involved.
• 25:55
  SPEAKER_01: So whatever it is,
• 25:57
  SPEAKER_01: it's deeply embarrassing and just eons out of the norm for federal prosecutions.
• 26:05
  SPEAKER_00: Speaking of deeply embarrassing,
• 26:07
  SPEAKER_00: we have a bunch of civil cases to talk about that are maybe even more embarrassing
• 26:12
  SPEAKER_00: than what was on our criminal docket this week.
• 26:16
  SPEAKER_00: Should we start with Hassan Piker?
• 26:18
  SPEAKER_00: Yes.
• 26:18
  SPEAKER_00: And Scott Jennings?
• 26:19
  SPEAKER_00: Yes.
• 26:21
  SPEAKER_00: I always like when I get to send a case to Kennedy, he goes, I hate all of them.
• 26:27
  SPEAKER_00: That's it for this week's free episode of Serious Trouble.
• 26:30
  SPEAKER_00: We have a lot more on our docket this week.
• 26:32
  SPEAKER_00: You heard our criminal docket.
• 26:34
  SPEAKER_00: There's a lot of interesting, bizarre, stupid civil cases going on right now.
• 26:39
  SPEAKER_00: We have an update on the golf course where Judge Ana Reyes has issued
• 26:42
  SPEAKER_00: that preliminary injunction saying,
• 26:44
  SPEAKER_00: you know,
• 26:44
  SPEAKER_00: I tried to do this the easy way, but we can do it the hard way if you want.
• 26:48
  SPEAKER_00: Donald Trump is going to have to sit for that BBC deposition by December
• 26:52
  SPEAKER_00: if he doesn't want that case dismissed.
• 26:53
  SPEAKER_00: And we also have updates in the Emmanuel and Brigitte Macron versus Candace Owens case.
• 26:58
  SPEAKER_00: And also we have a Hassan Piker, Scott Jennings.
• 27:02
  SPEAKER_00: That is going to cause him some problems.
• 27:05
  SPEAKER_00: We talk about that.
• 27:07
  SPEAKER_00: Matt Taibbi.
• 27:20
  SPEAKER_00: Poor Matt Taibbi lost his defamation suit against Owen Higgins and now appears
• 27:25
  SPEAKER_00: to be likely to be on the hook for almost $180,000 in attorney's fees.
• 27:28
  SPEAKER_00: So we have some what not to do lessons there from Matt Taibbi.
• 27:32
  SPEAKER_01: If you want to hear all of that, go to serioustrouble.show.
• 27:34
  SPEAKER_00: For $6 a month or $60 a year, you can become a paying subscriber, get every full episode.
• 27:39
  SPEAKER_00: We'd love to have you.
• 27:40
  [music]