Latest / Serious Trouble / One Weird Trick

Transcript

One Weird Trick · Serious Trouble

• 0:08
  SPEAKER_01: Hi, it's Ken White.
• 0:10
  SPEAKER_01: And it's Josh Barrow, and this is Serious Trouble.
• 0:12
  SPEAKER_01: Ken, did you get your free money this week?
• 0:15
  SPEAKER_00: I did not get my free money, Josh, and honestly, I'm more than a little annoyed about it.
• 0:19
  SPEAKER_01: You missed out on the glitch that,
• 0:22
  SPEAKER_01: like,
• 0:22
  SPEAKER_01: you could apparently just go to any Chase bank and get money out of the ATM even if
• 0:27
  SPEAKER_01: you didn't have the money in your account.
• 0:29
  SPEAKER_01: It was some sort of technical error.
• 0:31
  SPEAKER_00: Oh,
• 0:31
  SPEAKER_00: that is completely different than the free money I was thinking about,
• 0:34
  SPEAKER_00: but I'm sure we'll talk about that type of free money to podcasters later in the episode.
• 0:38
  SPEAKER_00: Yes.
• 0:39
  SPEAKER_00: Yes.
• 0:39
  SPEAKER_00: The Chase glitch,
• 0:42
  SPEAKER_00: an example of basically there being nothing new under the sun,
• 0:45
  SPEAKER_00: promoted,
• 0:46
  SPEAKER_00: of course,
• 0:47
  SPEAKER_00: on TikTok.
• 0:48
  SPEAKER_01: On TikTok, where else?
• 0:50
  SPEAKER_01: Yeah, so there was not actually free money, of course.
• 0:53
  SPEAKER_01: I assume that most listeners saw this on the news or on the internet this week.
• 0:58
  SPEAKER_01: There was one of the dumber TikTok trends that has happened in the course of TikTok,
• 1:03
  SPEAKER_01: which is that people discovered that at Chase Bank,
• 1:07
  SPEAKER_01: although really you could do this at any bank pretty much,
• 1:10
  SPEAKER_01: If you deposit a check into your account,
• 1:12
  SPEAKER_01: you can then withdraw cash right away,
• 1:15
  SPEAKER_01: not necessarily up to the full amount of the check,
• 1:16
  SPEAKER_01: but some substantial amount of cash you can get out based on the fact that you put
• 1:20
  SPEAKER_01: a check in.
• 1:21
  SPEAKER_01: And you can write anything you want on a check.
• 1:24
  SPEAKER_01: And so people were discovering,
• 1:26
  SPEAKER_01: hey,
• 1:26
  SPEAKER_01: I can just write myself a check for $50,000,
• 1:29
  SPEAKER_01: put it in the ATM,
• 1:31
  SPEAKER_01: take several hundred,
• 1:32
  SPEAKER_01: several thousand dollars out,
• 1:33
  SPEAKER_01: whatever.
• 1:34
  SPEAKER_01: and then I have the money.
• 1:36
  SPEAKER_01: And people were discussing this as some sort of,
• 1:38
  SPEAKER_01: quote unquote,
• 1:39
  SPEAKER_01: glitch,
• 1:40
  SPEAKER_01: as though we're a technical error,
• 1:41
  SPEAKER_01: when really it's just the fact that when you deposit a check to the bank,
• 1:44
  SPEAKER_01: you're making a representation that you've received what you understand to be a
• 1:48
  SPEAKER_01: valid check that is going to clear,
• 1:50
  SPEAKER_01: and the bank is lending you the money in advance of that check clearing.
• 1:55
  SPEAKER_01: And if you do that fraudulently, that's just a crime.
• 1:58
  SPEAKER_01: That's fraud.
• 1:58
  SPEAKER_00: Right.
• 1:59
  SPEAKER_00: It's not a glitch.
• 2:00
  SPEAKER_00: It's bank fraud.
• 2:01
  SPEAKER_00: And they've been prosecuting it forever.
• 2:05
  SPEAKER_00: I prosecuted some some check kiting rings back in the 90s.
• 2:09
  SPEAKER_00: I mean, this is a really known thing.
• 2:12
  SPEAKER_00: This is just not to get in my old man ranting mode here,
• 2:15
  SPEAKER_00: Josh,
• 2:15
  SPEAKER_00: but this is just another example of kids thinking they invented everything,
• 2:19
  SPEAKER_00: even if it was happening,
• 2:20
  SPEAKER_00: you know,
• 2:21
  SPEAKER_00: generations ago.
• 2:23
  SPEAKER_01: So back in the 90s, you'd write a check and then you'd stick it in the ATM, which would scan the check?
• 2:27
  SPEAKER_00: Well, usually you had to hand it to a clerk.
• 2:31
  SPEAKER_00: You'd take the omnibus downtown and go into the bank.
• 2:36
  SPEAKER_00: No.
• 2:36
  SPEAKER_00: Yeah, there were some ATMs then, too.
• 2:38
  SPEAKER_00: But you would deposit it anyway,
• 2:40
  SPEAKER_00: and then you would take advantage of that time before it was determined to be fraudulent,
• 2:45
  SPEAKER_00: and you'd take advantage of the float.
• 2:46
  SPEAKER_00: Or you'd do it in a chain where you do a bogus deposit into one account, then write a check out of that.
• 2:52
  SPEAKER_00: And so on and just deal with the amount of time it took for the banks to sort things out.
• 2:57
  SPEAKER_00: And it's just fraud.
• 2:58
  SPEAKER_00: Making a false representation to a bank to get money out of it is bank fraud.
• 3:02
  SPEAKER_00: It's illegal federally.
• 3:03
  SPEAKER_00: It's illegal in every state.
• 3:05
  SPEAKER_00: It's been prosecuted for ages, even when no ATMs or anything high tech was involved.
• 3:11
  SPEAKER_00: It's a very old crime.
• 3:14
  SPEAKER_00: And what's new is, you know, actually getting a whole bunch of people to think they've discovered it.
• 3:20
  SPEAKER_00: And, you know, there are pictures of people lined up outside Chase ATMs.
• 3:25
  SPEAKER_00: And I just don't understand how they think this is going to turn out well for them.
• 3:28
  SPEAKER_00: Now, I realize I'm dealing here with a population that eats Tide Pods if they're told to on TikTok.
• 3:34
  SPEAKER_00: So,
• 3:35
  SPEAKER_00: I mean,
• 3:36
  SPEAKER_00: yeah,
• 3:36
  SPEAKER_00: we're not trying to exactly swindle the student body of MIT,
• 3:42
  SPEAKER_00: but you would think they would realize that there's no such thing as free money.
• 3:46
  SPEAKER_00: Right.
• 3:47
  SPEAKER_01: And so I've been wondering what exactly is going to happen here because you've had
• 3:50
  SPEAKER_01: all these news stories sort of explaining this,
• 3:53
  SPEAKER_01: you know,
• 3:53
  SPEAKER_01: please don't do this.
• 3:54
  SPEAKER_01: This is a crime.
• 3:55
  SPEAKER_01: Right.
• 3:56
  SPEAKER_01: This is not some windfall that came to you.
• 3:59
  SPEAKER_01: And by the way,
• 4:00
  SPEAKER_01: generally,
• 4:00
  SPEAKER_01: if there's a bank error in your favor and a whole bunch of money shows up in your
• 4:05
  SPEAKER_01: account that's not yours,
• 4:06
  SPEAKER_01: generally,
• 4:07
  SPEAKER_01: you're not allowed to just take that money out and spend it.
• 4:10
  SPEAKER_01: The bank is eventually going to come looking for that.
• 4:12
  SPEAKER_01: And if you say, oh, I thought it was my money, they're going to say give it back.
• 4:14
  SPEAKER_01: So this is not a sort of free money that exists.
• 4:18
  SPEAKER_01: But so before that was explained to people, a whole bunch of people did this.
• 4:22
  SPEAKER_01: I've been wondering what's actually going to happen to them.
• 4:24
  SPEAKER_01: I mean, you know, Chase has its statement out saying correctly, this is fraud.
• 4:28
  SPEAKER_01: Is it likely that there's actually going to be generally prosecutions of the people
• 4:31
  SPEAKER_01: who went along with this TikTok trend and took money out in this way?
• 4:35
  SPEAKER_00: I think most of them are just going to find themselves with big negative balances
• 4:38
  SPEAKER_00: owing money and depending on how much money they took out.
• 4:44
  SPEAKER_00: I doubt that they will get prosecuted unless it was a really significant amount or
• 4:49
  SPEAKER_00: they did it with multiple accounts or something like that.
• 4:51
  SPEAKER_00: Although they –
• 4:53
  SPEAKER_00: They may do one or two prosecutions just for the deterrent effect and because it's
• 4:58
  SPEAKER_00: hilarious to take out a few of these people.
• 5:01
  SPEAKER_00: But yeah, people always think they've come up with some way to get free money.
• 5:06
  SPEAKER_00: And it's never free.
• 5:08
  SPEAKER_00: If it's too good to be true, it's going to be bank fraud.
• 5:12
  SPEAKER_01: What should you do if you or one of your loved ones participated in this TikTok phenomenon?
• 5:17
  SPEAKER_00: Well, my sense would be that you can always have more children.
• 5:22
  SPEAKER_00: So cut them out.
• 5:27
  SPEAKER_00: So I think you would just hunker down,
• 5:30
  SPEAKER_00: try to find a way to pay back into Chase the money that you took out that you
• 5:34
  SPEAKER_00: didn't have.
• 5:35
  SPEAKER_00: And if there's no loss, it's much less likely to go criminal even locally.
• 5:42
  SPEAKER_00: But also I would say do not take legal or financial advice from TikTok.
• 5:48
  SPEAKER_00: But that's just me.
• 5:50
  SPEAKER_01: What about legal or financial advice from Jacob Wohl?
• 5:52
  SPEAKER_00: Okay, well, that's even worse.
• 5:56
  SPEAKER_00: Yes.
• 5:57
  SPEAKER_00: About a billion people sent us a story.
• 6:00
  SPEAKER_01: Yes.
• 6:00
  SPEAKER_01: So,
• 6:00
  SPEAKER_01: you know,
• 6:01
  SPEAKER_01: friends of the show know that we've been watching for years for incompetent
• 6:06
  SPEAKER_01: fraudster Jacob Wohl,
• 6:09
  SPEAKER_01: who I'm trying to remember what his first appearance even was.
• 6:13
  SPEAKER_01: I can always what I can think about is him and his sidekick,
• 6:16
  SPEAKER_01: Jack Berkman,
• 6:17
  SPEAKER_01: holding that press conference in Berkman's driveway in northern Virginia with a
• 6:22
  SPEAKER_01: poster that said Elizabeth Warren Cougar.
• 6:24
  SPEAKER_01: Right.
• 6:46
  SPEAKER_01: They'll get called for jury duty and they'll get tax liens or whatever.
• 6:50
  SPEAKER_01: And so they've faced criminal prosecutions, also some civil penalties in cases related to that.
• 6:56
  SPEAKER_01: And I've been wondering what these guys are doing for a living given that they have
• 6:59
  SPEAKER_01: significant legal expenses and they're not currently in prison.
• 7:03
  SPEAKER_01: It seems we have an answer to that, which is that they started a company called Lobbymatic.
• 7:06
  SPEAKER_01: Yeah.
• 7:08
  SPEAKER_01: And I kind of love one aspect of this,
• 7:10
  SPEAKER_01: which is that it's a perfect,
• 7:12
  SPEAKER_01: plausible example of some bullshit that could come out of the AI bubble.
• 7:17
  SPEAKER_01: So it's a company that harnesses AI to implement lobbying strategies.
• 7:23
  SPEAKER_01: And they each used a pseudonym because no one wants to do business with Jack
• 7:27
  SPEAKER_01: Berkman or Jacob Wohl right now.
• 7:28
  SPEAKER_00: Right.
• 7:29
  SPEAKER_01: And they put up a website saying they had big,
• 7:31
  SPEAKER_01: legitimate customers like,
• 7:33
  SPEAKER_01: I forget what it is,
• 7:34
  SPEAKER_01: Lockheed Martin or whatever.
• 7:35
  SPEAKER_01: Right.
• 7:36
  SPEAKER_01: And they actually managed to sign up some clients and hire some employees for this
• 7:41
  SPEAKER_01: AI-driven lobbying service.
• 7:44
  SPEAKER_00: Now, is that illegal?
• 7:45
  SPEAKER_00: Well, it depends on what representations they made.
• 7:48
  SPEAKER_00: So,
• 7:49
  SPEAKER_00: yeah,
• 7:49
  SPEAKER_00: I guess the concept at its core is just what if you asked ChatGPT to write your
• 7:54
  SPEAKER_00: lobbying letters to whatever senator for you?
• 7:57
  SPEAKER_00: It's no more or less bullshit or worthless than any other AI pitch you're getting these days.
• 8:03
  SPEAKER_00: But I think that the tricks are here that they're using aliases,
• 8:07
  SPEAKER_00: that they had a website that represented that a whole bunch of big name companies
• 8:13
  SPEAKER_00: had hired them to do lobbying with them.
• 8:15
  SPEAKER_00: And it turned out almost all of those were invented, if not all of them were invented.
• 8:21
  SPEAKER_00: So that would be a false representation.
• 8:23
  SPEAKER_00: So if they took in money from anybody –
• 8:26
  SPEAKER_00: or tried to take in money from anybody based on false representations about what
• 8:31
  SPEAKER_00: the company did,
• 8:32
  SPEAKER_00: what it could do,
• 8:33
  SPEAKER_00: what their connections were,
• 8:35
  SPEAKER_00: what their assets were,
• 8:36
  SPEAKER_00: then,
• 8:36
  SPEAKER_00: yeah,
• 8:37
  SPEAKER_00: that could be straight up wire fraud or mail fraud.
• 8:40
  SPEAKER_00: And interestingly, I looked it up.
• 8:43
  SPEAKER_00: They are still on probation.
• 8:44
  SPEAKER_00: They're still on their two-year term of probation out of Ohio for the voting robocallings.
• 8:53
  SPEAKER_00: case there.
• 8:54
  SPEAKER_00: In my experience,
• 8:55
  SPEAKER_00: probation officers do not like it when you're on probation and you start using an
• 9:00
  SPEAKER_00: alias to solicit money from people for a fake company.
• 9:03
  SPEAKER_00: That's the sort of thing that gets your probation yanked.
• 9:06
  SPEAKER_00: And I am sure that these guys screwed this up in some way that's criminal.
• 9:11
  SPEAKER_00: I mean,
• 9:12
  SPEAKER_00: the way it came out apparently is the way it usually does with them,
• 9:14
  SPEAKER_00: which is that they acted like dicks towards the people they hired.
• 9:18
  SPEAKER_00: And so those people ratted them out.
• 9:21
  SPEAKER_00: And so those people are coming forward with how bogus this whole thing is,
• 9:25
  SPEAKER_00: all the lies they were telling,
• 9:26
  SPEAKER_00: how they were misrepresenting what they were doing,
• 9:28
  SPEAKER_00: how it wasn't serious.
• 9:30
  SPEAKER_00: My favorite part,
• 9:30
  SPEAKER_00: Josh,
• 9:31
  SPEAKER_00: of the whole story is like when they're going in to be interviewed,
• 9:35
  SPEAKER_00: these big places where they're pitching their robo company and like,
• 9:39
  SPEAKER_00: at building security they'll get asked for id and since you know he's using an
• 9:43
  SPEAKER_00: alias jacob will have to pretend he's on a phone call or he left something in his
• 9:47
  SPEAKER_00: car or something like that so yeah um if the feds want to i'm sure they could find
• 9:54
  SPEAKER_00: a way to turn this into federal wire fraud but you know after a certain point it's
• 9:59
  SPEAKER_00: just like you know kicking a puppy you wonder if there's if there hasn't been a
• 10:02
  SPEAKER_00: significant amount of loss whether they'll bother
• 10:05
  SPEAKER_01: Well, although, I mean, the point of the criminal justice system is to deter crime, right?
• 10:10
  SPEAKER_01: Like,
• 10:11
  SPEAKER_01: it seems like the system overall has failed at either convincing Jacob Wohl and
• 10:17
  SPEAKER_01: Jack Berkman that an honest and legitimate way of life is the best way to get ahead.
• 10:23
  SPEAKER_01: It has also failed to incapacitate them.
• 10:25
  SPEAKER_01: They're not in prison and the conditions of the probation that they're on has not been effective yet.
• 10:29
  SPEAKER_01: getting them to stop committing crimes.
• 10:31
  SPEAKER_01: So,
• 10:31
  SPEAKER_01: you know,
• 10:31
  SPEAKER_01: I mean,
• 10:32
  SPEAKER_01: you say,
• 10:32
  SPEAKER_01: you know,
• 10:32
  SPEAKER_01: it feels like kicking a puppy,
• 10:34
  SPEAKER_01: but it seems to me to hear both like,
• 10:35
  SPEAKER_01: you know,
• 10:36
  SPEAKER_01: the prior punishments didn't work.
• 10:39
  SPEAKER_01: And also,
• 10:39
  SPEAKER_01: it's like it's making a mockery of the government's efforts to get people to stop
• 10:43
  SPEAKER_01: committing crimes,
• 10:44
  SPEAKER_01: which seem like reasons to prosecute,
• 10:46
  SPEAKER_01: even if it might be too minor a matter on its own for defendants who did not have,
• 10:52
  SPEAKER_01: you know,
• 10:52
  SPEAKER_01: a whole bunch of other nonsense they've been doing.
• 10:54
  SPEAKER_00: Yeah,
• 10:54
  SPEAKER_00: but Josh,
• 10:55
  SPEAKER_00: on the other hand,
• 10:55
  SPEAKER_00: I mean,
• 10:56
  SPEAKER_00: yes,
• 10:56
  SPEAKER_00: there would be a deterrent value to going after that,
• 10:59
  SPEAKER_00: but their existence has sort of a value,
• 11:01
  SPEAKER_00: too.
• 11:02
  SPEAKER_00: It's sort of a morality play thing, okay?
• 11:04
  SPEAKER_00: There are these stock characters, the criminal stooge, constantly fumbling from one thing to another.
• 11:10
  SPEAKER_00: No one wants to look a bumbling fool.
• 11:12
  SPEAKER_00: No one wants to be Jacob Wall or Jack Berkman,
• 11:15
  SPEAKER_00: no matter how many times they skate on these things,
• 11:18
  SPEAKER_00: because they just look like fools.
• 11:20
  SPEAKER_01: I'm not sure that's true.
• 11:22
  SPEAKER_01: I don't know.
• 11:23
  SPEAKER_01: I mean,
• 11:23
  SPEAKER_01: in our era of reality television fame,
• 11:26
  SPEAKER_01: I think there's a version of sort of,
• 11:31
  SPEAKER_01: you know,
• 11:31
  SPEAKER_01: any kind of notoriety is desirable because at least people are talking about me.
• 11:36
  SPEAKER_01: I mean, I think you see this in George Santos.
• 11:40
  SPEAKER_01: I think that there are some people who – let's be real.
• 11:42
  SPEAKER_01: There's a lot of people who don't have high opportunity cost here,
• 11:47
  SPEAKER_01: whose alternative is not to have some rewarding experience on the fringes of
• 11:53
  SPEAKER_01: politics in some legitimate manner.
• 11:56
  SPEAKER_01: And so Jacob Wohl's options are that he can do this or he can be working at a car wash somewhere.
• 12:03
  SPEAKER_01: Like I can see a lot of people thinking it's more fun to do this,
• 12:09
  SPEAKER_01: especially since it looks like he keeps getting in trouble.
• 12:12
  SPEAKER_01: But we talk about the big boy federal felony, but he hasn't even been sent to jail.
• 12:16
  SPEAKER_00: No, that's true.
• 12:18
  SPEAKER_00: And maybe sooner or later it just has to happen because it'll be hilarious when it does.
• 12:23
  SPEAKER_00: But I do think that,
• 12:25
  SPEAKER_00: yes,
• 12:26
  SPEAKER_00: to some people,
• 12:27
  SPEAKER_00: to total losers who have nothing going for them,
• 12:30
  SPEAKER_00: then maybe there's some appeal to this.
• 12:31
  SPEAKER_00: Although it doesn't seem like they're making a lot of money doing this stuff.
• 12:35
  SPEAKER_00: It seems like they're kind of scraping by.
• 12:37
  SPEAKER_00: It seems like kind of a hand-to-mouth existence.
• 12:40
  SPEAKER_00: But maybe that is appealing to some people.
• 12:42
  SPEAKER_00: But you also get the current value of,
• 12:46
  SPEAKER_00: you know,
• 12:46
  SPEAKER_00: I don't want everyone laughing at me across the country and mocking me and
• 12:51
  SPEAKER_00: ridiculing me.
• 12:52
  SPEAKER_00: That's the way normal people would react.
• 12:54
  SPEAKER_01: It's interesting when you talk about them just scraping by because we – over the
• 12:57
  SPEAKER_01: years as we've discussed these incompetent rat fuckers,
• 13:00
  SPEAKER_01: we've talked about Jack Berkman who – I mean Jacob Wohl starts this whole saga as
• 13:05
  SPEAKER_01: some teenage kid in his Trumpy father's basement in the Inland Empire.
• 13:10
  SPEAKER_01: Jack Berkman,
• 13:11
  SPEAKER_01: in theory,
• 13:12
  SPEAKER_01: was an established lobbyist on Capitol Hill who was decades older than Jacob Wohl.
• 13:16
  SPEAKER_01: And a question I would ask repeatedly is, who are his clients?
• 13:19
  SPEAKER_01: Who are the people who are hiring Jack Berkman to advance their interests on Capitol Hill?
• 13:32
  SPEAKER_01: Relatively small business people who needed some sort of representation on the Hill.
• 13:37
  SPEAKER_01: Berkman was more willing to give them the time of day than a real established lobbyist.
• 13:40
  SPEAKER_01: And eventually they'd figure out that Berkman wasn't doing anything useful.
• 13:44
  SPEAKER_01: But in the meantime, he'd collect fees and he'd be on to the new clients.
• 13:47
  SPEAKER_01: And that's the broad problem with fraudsters, right?
• 13:49
  SPEAKER_01: As you know,
• 13:50
  SPEAKER_01: eventually people figure out that you're committing a fraud,
• 13:52
  SPEAKER_01: but there's always a pool of new marks out there.
• 13:54
  SPEAKER_01: I mean,
• 13:54
  SPEAKER_01: I think possibly one bit of accountability that we are seeing here is that Berkman
• 13:59
  SPEAKER_01: now needs to operate under an alias.
• 14:00
  SPEAKER_01: I assume that to the extent that he had a quote-unquote legitimate business,
• 14:03
  SPEAKER_01: which is to say a business in which he at least wasn't committing crimes by doing useless,
• 14:08
  SPEAKER_01: expensive things for his clients,
• 14:09
  SPEAKER_01: that business may have been disrupted by what was going on here.
• 14:12
  SPEAKER_01: And if this is a plan B for Jack Berkman,
• 14:14
  SPEAKER_01: it's not as good as his plan A.
• 14:16
  SPEAKER_01: But for Jacob Wohl,
• 14:17
  SPEAKER_01: I think we're looking at plan A.
• 14:19
  SPEAKER_01: Right.
• 14:19
  SPEAKER_00: Well, yeah, it's true.
• 14:21
  SPEAKER_00: It doesn't seem like he's got a promising future ahead of him at this point.
• 14:27
  SPEAKER_00: He's got a little bit of baggage.
• 14:29
  SPEAKER_00: But, you know, this one may amuse some AUSA someplace enough to say, sure, what the hell?
• 14:35
  SPEAKER_00: This is adorable.
• 14:36
  SPEAKER_00: Let's give it a shot.
• 14:40
  SPEAKER_00: I mean,
• 14:40
  SPEAKER_00: the funny thing with presumably that would have to be it would be in the District
• 14:43
  SPEAKER_00: of Columbia,
• 14:43
  SPEAKER_00: right?
• 14:44
  SPEAKER_00: Well, it depends on where they made the false representations.
• 14:46
  SPEAKER_00: If they traveled to businesses and other places, it could be in any of those jurisdictions.
• 14:52
  SPEAKER_00: If they, you know, money was sent from those places, anything like that.
• 14:56
  SPEAKER_00: You know, the wire fraud and mail fraud statutes are incredibly flexible.
• 15:01
  SPEAKER_00: The one I feel bad for, Josh, the one I'm worried about is Jack Berkman's dachshund.
• 15:07
  SPEAKER_00: I love dachshunds, Josh.
• 15:08
  SPEAKER_00: They're adorable little dogs.
• 15:09
  SPEAKER_00: And,
• 15:09
  SPEAKER_00: you know,
• 15:10
  SPEAKER_00: you see him in the background of the press conferences whenever they're going to
• 15:13
  SPEAKER_00: try some of their incompetent rat fucking.
• 15:15
  SPEAKER_00: And I just wonder how he's getting along.
• 15:17
  SPEAKER_00: I just wonder if anyone's looking out for his interests.
• 15:20
  SPEAKER_01: It's always the dog gets the short straw here.
• 15:21
  SPEAKER_00: Yeah, it is, right?
• 15:29
  SPEAKER_01: Let's talk about these Russia-related – well,
• 15:31
  SPEAKER_01: one is a new indictment,
• 15:32
  SPEAKER_01: and then there's another case that's actually just going to trial.
• 15:35
  SPEAKER_01: These are both federal prosecutions about Russian efforts to intervene in U.S.
• 15:43
  SPEAKER_01: politics broadly.
• 15:44
  SPEAKER_01: And so this first one is about a – it's an indictment of some Russians who are abroad in Russia.
• 15:51
  SPEAKER_01: We're unlikely to actually have a trial, but the government has put out this indictment document.
• 15:55
  SPEAKER_01: Laying out how there was this scheme by these former executives at Russia Today to
• 16:00
  SPEAKER_01: funnel $10 million to right-wing web video influencers in the United States through
• 16:05
  SPEAKER_01: a company called Tenet Media.
• 16:07
  SPEAKER_01: Tenet Media is run by Lauren Chen and Liam Donovan.
• 16:10
  SPEAKER_01: Amusingly, by the way, there's two Liam Donovans.
• 16:13
  SPEAKER_01: who are both very broadly in the center-right.
• 16:16
  SPEAKER_01: There's a Liam Donovan who's a lobbyist figure,
• 16:20
  SPEAKER_01: sort of a very establishment Republican,
• 16:23
  SPEAKER_01: talks a lot on Twitter.
• 16:25
  SPEAKER_01: That is not the Liam Donovan who's been indicted here.
• 16:27
  SPEAKER_01: There's a different Liam Donovan.
• 16:29
  SPEAKER_01: So if you're yelling at LP Donovan on Twitter, please stop.
• 16:33
  SPEAKER_01: It's the other guy.
• 16:35
  SPEAKER_01: But so anyway,
• 16:36
  SPEAKER_01: Lauren Chen and the other Liam Donovan to whom she's married run this company that
• 16:41
  SPEAKER_01: hires conservative right-wing influencers like Tim Pool and Dave Rubin.
• 16:46
  SPEAKER_01: And it cut deals with them to pay surprisingly large sums of money to them for putting out web videos.
• 16:52
  SPEAKER_01: And then the indictment alleges that there were – the Russians provided certain
• 16:55
  SPEAKER_01: input encouraging them to talk about certain topics.
• 16:58
  SPEAKER_01: And one key thing in here is that there's no allegation that the video folks like
• 17:04
  SPEAKER_01: Dave Rubin and Tim Pool,
• 17:05
  SPEAKER_01: there's no indication that they knew this money was coming from Russia.
• 17:08
  SPEAKER_01: But it sure as hell looks like Lauren Chen and Liam Donovan knew that the money was coming from Russians.
• 17:15
  SPEAKER_00: Right.
• 17:15
  SPEAKER_00: The indictment says explicitly that the talent didn't know that it was coming from
• 17:21
  SPEAKER_00: Russia and they were deceived.
• 17:23
  SPEAKER_01: Right.
• 17:23
  SPEAKER_01: But so one of the big questions I have about this indictment is,
• 17:27
  SPEAKER_01: you know,
• 17:27
  SPEAKER_01: when you have these indictments that are of Russians in Russia who are never going
• 17:31
  SPEAKER_01: to be available to U.S.
• 17:33
  SPEAKER_01: prosecutors to prosecute, the purpose of these indictments is what it's messaging.
• 17:38
  SPEAKER_01: Is it are they going to be able to recover financial assets?
• 17:41
  SPEAKER_01: What is the government actually after doing here?
• 17:43
  SPEAKER_00: Well, a few things.
• 17:44
  SPEAKER_00: First of all,
• 17:45
  SPEAKER_00: it's raising awareness about Russia trying to influence American politics,
• 17:52
  SPEAKER_00: how they're using money to do it,
• 17:55
  SPEAKER_00: and how that should be a matter of concern,
• 17:57
  SPEAKER_00: how our Justice Department is on top of it.
• 18:00
  SPEAKER_00: So that's
• 18:01
  SPEAKER_00: very typical sort of propaganda.
• 18:03
  SPEAKER_00: It's, you know, the law enforcement showing us all the stuff it's doing.
• 18:06
  SPEAKER_00: It may be something where they can get to assets to the extent these Russians have
• 18:11
  SPEAKER_00: assets in the United States or they used particular,
• 18:14
  SPEAKER_00: you know,
• 18:16
  SPEAKER_00: websites or accounts or anything like that.
• 18:18
  SPEAKER_00: It could be a way to get those, even if we never get the actual Russians here.
• 18:23
  SPEAKER_00: And in a way,
• 18:25
  SPEAKER_00: there's kind of no downside because there's no risk that it's going to go badly in
• 18:30
  SPEAKER_00: a trial or something the way that it sometimes happens if you do a Foreign Agents
• 18:35
  SPEAKER_00: Registration Act case,
• 18:36
  SPEAKER_00: as we saw over the last couple of years.
• 18:38
  SPEAKER_00: Sometimes they get acquittals.
• 18:40
  SPEAKER_00: So it's kind of a safe bet to get a lot of the same oomph as if you'd actually put somebody in jail.
• 18:47
  SPEAKER_00: There's also possibility that they're not done yet.
• 18:50
  SPEAKER_00: So,
• 18:50
  SPEAKER_00: you know,
• 18:50
  SPEAKER_00: you were asking why haven't they gone after Chen or Donovan when the indictment
• 18:56
  SPEAKER_00: very strongly leans into an accusation that they knew that the money was coming
• 19:01
  SPEAKER_00: from Russia.
• 19:02
  SPEAKER_00: I mean, it's basically goofing on them about how much they knew it was coming from Russia.
• 19:06
  SPEAKER_01: Including when one of their Russian contacts didn't show up for some web meeting,
• 19:09
  SPEAKER_01: they Googled time in Moscow.
• 19:11
  SPEAKER_01: Right.
• 19:12
  SPEAKER_01: Even though the pretense had been what they were telling the various web talents
• 19:17
  SPEAKER_01: like Benny Johnson,
• 19:18
  SPEAKER_01: if you want to call him a talent,
• 19:20
  SPEAKER_01: is that he was some Western European businessman they'd created some false identity for.
• 19:25
  SPEAKER_01: It's clear that Chen and Donovan knew that these were Russians they were dealing with.
• 19:29
  SPEAKER_00: Right.
• 19:30
  SPEAKER_00: So they're doing that.
• 19:31
  SPEAKER_00: They're having incriminating emails, all this type of thing.
• 19:35
  SPEAKER_00: They might be cooperating.
• 19:37
  SPEAKER_00: They might be next heading to the chopping block and they're looking for other
• 19:42
  SPEAKER_00: theories or something like that.
• 19:44
  SPEAKER_00: It could be that there's some complications as to them.
• 19:48
  SPEAKER_00: So there's a defense.
• 19:50
  SPEAKER_00: There's an exclusion there.
• 19:52
  SPEAKER_00: for the requirement to register as the agent of a foreign principal that applies
• 19:57
  SPEAKER_00: when you're a legitimate news or press association.
• 20:01
  SPEAKER_00: Okay, now it has a number of sub-requirements that I don't think are met here.
• 20:06
  SPEAKER_00: It has to be like it's not owned,
• 20:09
  SPEAKER_00: directed,
• 20:09
  SPEAKER_00: supervised,
• 20:10
  SPEAKER_00: controlled,
• 20:10
  SPEAKER_00: subsidized,
• 20:11
  SPEAKER_00: or financed by the foreign country.
• 20:13
  SPEAKER_00: And I think several of those would be the case here.
• 20:15
  SPEAKER_00: That would mean the exemption doesn't apply.
• 20:18
  SPEAKER_00: But maybe they just didn't want to litigate this
• 20:21
  SPEAKER_00: uh that kind of defense and maybe they don't want to get into the whole political
• 20:25
  SPEAKER_00: uh appearance that they're going after you know conservative media people they
• 20:30
  SPEAKER_00: don't want to have that fight they kind of get some of the benefit of dunking uh in
• 20:36
  SPEAKER_00: a kind of humiliating way on conservative media figures uh without actually having
• 20:41
  SPEAKER_00: them have a defense
• 20:43
  SPEAKER_00: Because,
• 20:43
  SPEAKER_00: you know,
• 20:44
  SPEAKER_00: right now all these people,
• 20:45
  SPEAKER_00: Tim Pool and Dave Rubin,
• 20:46
  SPEAKER_00: all these people are saying,
• 20:47
  SPEAKER_00: I had no idea and no one ever tried to influence my content,
• 20:53
  SPEAKER_00: which is just another way of saying,
• 20:55
  SPEAKER_00: well,
• 20:55
  SPEAKER_00: you know,
• 20:56
  SPEAKER_00: Vladimir Putin looked at the stuff I put out and he was like,
• 20:58
  SPEAKER_00: this is perfect.
• 20:59
  SPEAKER_00: No notes.
• 21:00
  SPEAKER_00: I don't have to make any suggestions.
• 21:02
  SPEAKER_00: This is the way to undermine America.
• 21:04
  SPEAKER_00: Perfect.
• 21:04
  SPEAKER_00: Well done.
• 21:05
  SPEAKER_00: But yeah, I don't think the Justice Department is above doing a little dunking on its critics like that.
• 21:12
  SPEAKER_01: When you suggest that Chen and Donovan could be cooperating,
• 21:15
  SPEAKER_01: to what end would you give a cooperation agreement to both of the conspirators who
• 21:19
  SPEAKER_01: are on U.S.
• 21:19
  SPEAKER_01: soil when the other defendants you're looking at are people you can't actually get in a courtroom?
• 21:25
  SPEAKER_00: Well,
• 21:25
  SPEAKER_00: you might do that if they have something juicy for you,
• 21:28
  SPEAKER_00: if they can lead you to other people in the media establishment who –
• 21:35
  SPEAKER_00: perhaps knew that they were taking Russian money,
• 21:37
  SPEAKER_00: if they can lead you to other outlets that were taking Russian money or something
• 21:42
  SPEAKER_00: like that.
• 21:43
  SPEAKER_00: So it's only one possibility, Josh.
• 21:45
  SPEAKER_00: I think it's more likely they just decided it's a big,
• 21:49
  SPEAKER_00: particularly during an election,
• 21:52
  SPEAKER_00: the appearance of the Department of Justice prosecuting conservative media
• 21:57
  SPEAKER_00: companies would just be too politically controversial.
• 22:00
  SPEAKER_00: So they could do it after the election.
• 22:03
  SPEAKER_00: So that would be a perfectly,
• 22:06
  SPEAKER_00: logical type of move is to go out,
• 22:08
  SPEAKER_00: you know,
• 22:09
  SPEAKER_00: get the benefit of the deterrence from going after the foreign people,
• 22:12
  SPEAKER_00: wait till after the election and then go after them then.
• 22:15
  SPEAKER_01: And then the charges here, they're not just FARA.
• 22:17
  SPEAKER_01: They're also money laundering.
• 22:19
  SPEAKER_01: And am I understanding this correctly that those basically describe the same
• 22:23
  SPEAKER_01: offense that the foreign agents were making these payments to influence US politics
• 22:31
  SPEAKER_01: and that the money laundering is that they concealed the fact that the purpose of
• 22:34
  SPEAKER_01: those payments was to influence US politics?
• 22:36
  SPEAKER_01: Yeah.
• 22:36
  SPEAKER_00: Josh, money laundering is incredibly broad.
• 22:39
  SPEAKER_00: Remember,
• 22:39
  SPEAKER_00: money laundering is like if there's a crime that's listed in the money laundering statute,
• 22:43
  SPEAKER_00: and to my surprise,
• 22:45
  SPEAKER_00: Foreign Agent Registrations Act is,
• 22:47
  SPEAKER_00: then if you use any money and you get it from that crime,
• 22:52
  SPEAKER_00: or you use the money to promote the crime or further the crime or conceal the crime,
• 22:58
  SPEAKER_00: or if you do anything with the money to conceal that it came from the crime,
• 23:02
  SPEAKER_00: then that's money laundering.
• 23:03
  SPEAKER_00: So any transaction at all.
• 23:05
  SPEAKER_00: So here,
• 23:06
  SPEAKER_00: just the $10 million being paid to this media company for this FARA conspiracy is
• 23:14
  SPEAKER_00: money laundering because it's a transaction with money to promote the particular crime.
• 23:19
  SPEAKER_00: That's why I say,
• 23:20
  SPEAKER_00: you know,
• 23:20
  SPEAKER_00: the only safe thing to do is like sprint away from the money,
• 23:23
  SPEAKER_00: because as soon as you do absolutely anything with it,
• 23:25
  SPEAKER_00: you've committed money laundering.
• 23:28
  SPEAKER_01: And so one thing that occurs to me is if they were eventually to charge Lauren Chan
• 23:32
  SPEAKER_01: and Liam Donovan,
• 23:34
  SPEAKER_01: does the money laundering make it easier for that charge to stick?
• 23:37
  SPEAKER_01: Because, I mean, you could have this argument about whether, you know, they as U.S.
• 23:42
  SPEAKER_01: persons
• 23:44
  SPEAKER_01: fall within that media exemption to FARA.
• 23:47
  SPEAKER_01: But the Russians are certainly subject to FARA in any case.
• 23:51
  SPEAKER_01: And because they engaged in the financial transactions with the Russians,
• 23:55
  SPEAKER_01: they were laundering the money as regards FARA as the Russians as foreign agents
• 23:59
  SPEAKER_01: without even having to show that they themselves were foreign agents,
• 24:02
  SPEAKER_01: right?
• 24:04
  SPEAKER_00: Yeah,
• 24:04
  SPEAKER_00: but it's sort of self-evident from the way they describe the Russians that they are
• 24:08
  SPEAKER_00: foreign agents.
• 24:09
  SPEAKER_00: That's the core of the allegation.
• 24:11
  SPEAKER_00: But you're right that Chen and Donovan would have arguments and defenses that they
• 24:16
  SPEAKER_00: wouldn't because they'd say,
• 24:17
  SPEAKER_00: we're actually running a legit media show here.
• 24:20
  SPEAKER_00: I mean, look, we've got Tim Pool.
• 24:23
  SPEAKER_00: So –
• 24:27
  SPEAKER_00: So I don't think the defense works, given the emails you have from them.
• 24:32
  SPEAKER_00: But I think what they would say is,
• 24:34
  SPEAKER_00: OK,
• 24:35
  SPEAKER_00: you know,
• 24:36
  SPEAKER_00: I don't know how they get around the requirement that they not be subsidized or
• 24:39
  SPEAKER_00: financed by the foreign money,
• 24:41
  SPEAKER_00: which is a requirement for that exemption.
• 24:43
  SPEAKER_00: But, you know, Josh, all this really brings up one much bigger and more important question.
• 24:48
  SPEAKER_01: Yes.
• 24:48
  SPEAKER_01: What's that, Ken?
• 24:50
  SPEAKER_00: Where's our goddamn money?
• 24:51
  SPEAKER_00: I mean,
• 24:52
  SPEAKER_00: look,
• 24:53
  SPEAKER_00: do you think that I cannot undermine the United States of America better than Tim
• 24:58
  SPEAKER_00: fucking Poole?
• 25:00
  SPEAKER_00: Josh, we went to Harvard.
• 25:02
  SPEAKER_00: We are part of a rich heritage of undermining this country's democracy.
• 25:08
  SPEAKER_00: Where is our money?
• 25:09
  SPEAKER_01: I mean, that's a funny thing to me about this scheme.
• 25:13
  SPEAKER_01: And it's an interesting comparison to the next scheme that we're about to talk about.
• 25:17
  SPEAKER_01: Which is – $10 million is a lot of money for a small media company in the United States.
• 25:25
  SPEAKER_01: And $100,000 for the production of a weekly video is a lot of money to one of these content creators.
• 25:31
  SPEAKER_01: As you note,
• 25:32
  SPEAKER_01: the indictment doesn't make clear that they're like telling Tim Pool what to rant
• 25:37
  SPEAKER_01: about in a given week.
• 25:38
  SPEAKER_01: And Tim Pool would have been someone that people were watching on YouTube,
• 25:42
  SPEAKER_01: whether or not they were shoveling a bunch of money at him.
• 25:46
  SPEAKER_01: So it doesn't strike me as an especially cost effective influence operation.
• 25:51
  SPEAKER_01: It's not clear to me how the money actually increased Russian influence in the
• 25:55
  SPEAKER_01: United States,
• 25:55
  SPEAKER_01: or at least it's not made clear by the indictment.
• 25:58
  SPEAKER_00: Well,
• 25:59
  SPEAKER_00: I think that the Russian sensibility apparently is just sort of sowing bad feelings
• 26:03
  SPEAKER_00: and dissent and chaos is to their advantage.
• 26:08
  SPEAKER_00: And, you know, the branding here is heterodox.
• 26:11
  SPEAKER_00: Yes, that's the branding is, you know, we are a heterodox media company.
• 26:15
  SPEAKER_00: We have, you know,
• 26:17
  SPEAKER_00: other opinions other than the mainstream.
• 26:19
  SPEAKER_00: They seem to think that that sort of thing is good for them.
• 26:22
  SPEAKER_00: But the Russians have always thrown out,
• 26:24
  SPEAKER_00: even back in the Soviet days,
• 26:25
  SPEAKER_00: a lot of money to a lot of weirdos who didn't necessarily clearly show how they
• 26:31
  SPEAKER_00: were going to help the Russians.
• 26:33
  SPEAKER_00: I think their sense is just that having that influence,
• 26:36
  SPEAKER_00: having the channels open to be able to influence is something that can be
• 26:39
  SPEAKER_00: beneficial to them.
• 26:41
  SPEAKER_01: And so another one of those channels,
• 26:42
  SPEAKER_01: this is the trial that's about to start in the middle district of Florida in the
• 26:47
  SPEAKER_01: Tampa Bay area.
• 26:49
  SPEAKER_01: There are four left-wing political activists associated with the African People's
• 26:53
  SPEAKER_01: Socialist Party,
• 26:54
  SPEAKER_01: with the Uhuru movement.
• 26:56
  SPEAKER_01: who are charged with being Russian agents.
• 26:59
  SPEAKER_01: The indictment in this case describes how there was a Russian who developed an
• 27:04
  SPEAKER_01: ongoing relationship with one of these activists and then through that activist
• 27:07
  SPEAKER_01: with the others,
• 27:08
  SPEAKER_01: brought the guy to Russia a couple of times,
• 27:12
  SPEAKER_01: made
• 27:12
  SPEAKER_01: In contrast to the quite large payments to the right-wing video influencers made
• 27:16
  SPEAKER_01: pretty small payments,
• 27:17
  SPEAKER_01: a few thousand dollars here and there to finance certain protest activities,
• 27:22
  SPEAKER_01: flying them to San Francisco to protest a social media company that was trying to
• 27:27
  SPEAKER_01: restrict Russian efforts to put content up on social media networks.
• 27:32
  SPEAKER_01: And so here it looks like the influence that they're buying is small because who
• 27:37
  SPEAKER_01: cares what someone who gets 18 percent of the vote in a St.
• 27:40
  SPEAKER_01: Petersburg city council election says.
• 27:44
  SPEAKER_01: But in this case, you have charges not just against Russians but actually against these Americans.
• 27:48
  SPEAKER_01: And this case is going to trial for them accepting these small amounts of money in
• 27:53
  SPEAKER_01: support of their political activities that in certain cases aligned with Russia's agenda.
• 27:58
  SPEAKER_01: Right.
• 27:58
  SPEAKER_00: Right, and here it's very much coming from the left.
• 28:03
  SPEAKER_00: So if they were trying to influence from right-wing people in the newer case in Florida,
• 28:09
  SPEAKER_00: these are kind of classic leftists,
• 28:11
  SPEAKER_00: rather small scale,
• 28:13
  SPEAKER_00: and it more resembles sort of the classic –
• 28:16
  SPEAKER_00: accusations during the McCarthy era that the civil rights movement is all just a front for the Russians.
• 28:24
  SPEAKER_00: Because some of the stuff these people are doing are sort of meat and potatoes, left-wing advocacy.
• 28:30
  SPEAKER_00: There's civil rights stuff in there, there's local government stuff.
• 28:33
  SPEAKER_00: And yeah, then they start mixing in some stuff like stop
• 28:36
  SPEAKER_00: wasting America's money to promote war in Ukraine and let the Russians go to the
• 28:45
  SPEAKER_00: Olympics and all this type of stuff.
• 28:46
  SPEAKER_00: But it is kind of small potatoes.
• 28:49
  SPEAKER_00: So it does kind of make you wonder about what the Russian strategy is,
• 28:53
  SPEAKER_00: whether it's – is it really about influence or is it about having sort of –
• 28:58
  SPEAKER_00: Influence in the sense that I have a message, I need to get it out and I need it to be influential?
• 29:02
  SPEAKER_00: Or is it influence in the sense of we have these connections and channels through
• 29:06
  SPEAKER_00: which we can put out ideas and promote them and that type of thing?
• 29:11
  SPEAKER_01: Well,
• 29:11
  SPEAKER_01: I mean there seems to be broadly one of the Russian objectives is to increase the
• 29:15
  SPEAKER_01: amount of dissension and chaos in American politics.
• 29:17
  SPEAKER_01: And so I think that their view is that fringe groups of any kind to increase their
• 29:23
  SPEAKER_01: voice decreases the organization of the American government and weakens the US,
• 29:27
  SPEAKER_01: etc.,
• 29:28
  SPEAKER_01: I'm interested in the prosecutorial choice here, though, the use of resources on this case.
• 29:33
  SPEAKER_01: Now,
• 29:33
  SPEAKER_01: I mean,
• 29:34
  SPEAKER_01: obviously,
• 29:34
  SPEAKER_01: I guess the idea is you want to discourage Americans from participating in Russian
• 29:40
  SPEAKER_01: influence schemes or at least discourage them from doing so without registering
• 29:43
  SPEAKER_01: under the Foreign Agents Registration Act.
• 29:46
  SPEAKER_01: It strikes me that I don't know what how effectively you get deterrent value out of
• 29:50
  SPEAKER_01: this fairly low profile trial of these very low profile people in Florida.
• 29:54
  SPEAKER_00: I do think that that's a fair criticism.
• 29:56
  SPEAKER_00: I mean,
• 29:56
  SPEAKER_00: in this case,
• 29:57
  SPEAKER_00: there's this set of defendants who are the we're never going to get them there in Russia.
• 30:02
  SPEAKER_00: You know,
• 30:03
  SPEAKER_00: the lead Russian agent and some FSB guys who are never going to show up and never
• 30:08
  SPEAKER_00: going to see the inside of a courtroom trial.
• 30:11
  SPEAKER_00: You know,
• 30:11
  SPEAKER_00: they might catch a bullet in Russia if things go the wrong way for them,
• 30:14
  SPEAKER_00: but they're not going to get prosecuted here in America.
• 30:17
  SPEAKER_00: But yeah,
• 30:17
  SPEAKER_00: these are small potatoes activists who,
• 30:20
  SPEAKER_00: you know,
• 30:20
  SPEAKER_00: need the Russians to support them to fly to San Francisco for a protest.
• 30:26
  SPEAKER_00: They're not getting rich.
• 30:27
  SPEAKER_00: They're getting, you know, small numbers of votes in local elections.
• 30:31
  SPEAKER_00: They're not really creating substantial chaos there.
• 30:36
  SPEAKER_00: They're just sort of part of the background noise of standard American politics.
• 30:40
  SPEAKER_00: So it does seem like small potatoes,
• 30:42
  SPEAKER_00: but sometimes the government goes after the small potatoes because they're easy cases.
• 30:49
  SPEAKER_00: They probably said a lot of stupid things on tape or in emails.
• 30:54
  SPEAKER_00: It's straightforward.
• 30:55
  SPEAKER_00: They get the deterrent effect.
• 30:56
  SPEAKER_00: And, you know, we've always talked about how the feds love their easy, straightforward cases.
• 31:01
  SPEAKER_00: And this may just be one.
• 31:04
  SPEAKER_00: It does kind of look like, you know, punching down to some extent.
• 31:08
  SPEAKER_00: But this was all during the Biden administration.
• 31:09
  SPEAKER_00: This is not like some Trumpian Justice Department looking to screw left wing politicians.
• 31:17
  SPEAKER_00: activists.
• 31:18
  SPEAKER_00: And even if it were, they're not high enough profile to be screwed.
• 31:22
  SPEAKER_00: So I think it's just more kind of business as usual.
• 31:26
  SPEAKER_00: You know, we'll take the easy small case rather than the complicated big case.
• 31:30
  SPEAKER_01: Do you assume that the case is easy even though that they are relatively
• 31:35
  SPEAKER_01: low-profile defendants who don't have the sort of high-powered lawyers that Greg
• 31:39
  SPEAKER_01: Craig had,
• 31:39
  SPEAKER_01: for example,
• 31:40
  SPEAKER_01: when the former Obama White House counsel who was acquitted in a high-profile FARA case?
• 31:46
  SPEAKER_01: I mean the defenses that they have available saying,
• 31:49
  SPEAKER_01: well,
• 31:50
  SPEAKER_01: I didn't know this money was Russian and I was out there saying things that I
• 31:53
  SPEAKER_01: personally believed myself.
• 31:55
  SPEAKER_01: And the broad difficulty of proving the FARA offenses that has been a problem for
• 32:02
  SPEAKER_01: the government in high-profile cases.
• 32:03
  SPEAKER_01: I mean, do you assume that we're going to get convictions in this case?
• 32:06
  SPEAKER_00: I don't assume, and we haven't seen yet what the evidence is.
• 32:11
  SPEAKER_00: But I start usually from the principle that the feds wouldn't be doing a trial if
• 32:17
  SPEAKER_00: it weren't for some reason absolutely necessary,
• 32:20
  SPEAKER_00: which it isn't.
• 32:21
  SPEAKER_00: Or if they didn't have strong evidence.
• 32:24
  SPEAKER_00: So usually if they're going after these small potatoes and if that is going to be
• 32:29
  SPEAKER_00: the visible trial that where you see the case play out,
• 32:33
  SPEAKER_00: it usually means they've got a ton of like recorded statements or emails or texts
• 32:38
  SPEAKER_00: or that sort of thing that are highly incriminating.
• 32:40
  SPEAKER_00: And, you know, yeah.
• 32:41
  SPEAKER_00: And the defense might be in effect sort of a nullification thing.
• 32:44
  SPEAKER_00: It's like, oh, sure.
• 32:45
  SPEAKER_00: OK, so technically they knew it came from Russia, but they weren't trying to promote Russia.
• 32:49
  SPEAKER_00: They were just trying to do their nutty political stuff.
• 32:51
  SPEAKER_00: you know, a kind of jury nullification theory.
• 32:53
  SPEAKER_00: But we'll see.
• 32:55
  SPEAKER_00: We'll see how it plays out.
• 32:56
  SPEAKER_00: I mean,
• 32:57
  SPEAKER_00: FARA is one where the government loses more often than they do in other areas
• 33:02
  SPEAKER_00: because the sort of the intent requirement to knowing you're promoting this other
• 33:07
  SPEAKER_00: country can be tricky.
• 33:09
  SPEAKER_00: But I don't think the government would have done it.
• 33:12
  SPEAKER_00: The DAs would, you know, roll the dice, sort in front of the jury, see what happens.
• 33:16
  SPEAKER_00: Feds aren't like that.
• 33:17
  SPEAKER_00: If they're doing it, they are confident in their quantum of evidence.
• 33:26
  SPEAKER_01: Finally,
• 33:26
  SPEAKER_01: this week,
• 33:26
  SPEAKER_01: we have a couple of updates on criminal proceedings related to Donald Trump in New York.
• 33:32
  SPEAKER_01: There's this ongoing effort to move the trial to federal court.
• 33:35
  SPEAKER_01: I don't understand.
• 33:36
  SPEAKER_01: I mean, you know, this is the trial is completed.
• 33:38
  SPEAKER_01: What would it even mean to move it to federal court at this point?
• 33:41
  SPEAKER_00: In theory,
• 33:42
  SPEAKER_00: you can remember that this is something that came up in Georgia with the RICO
• 33:46
  SPEAKER_00: prosecution there,
• 33:47
  SPEAKER_00: that there's this federal statute that allows certain times federal agents,
• 33:55
  SPEAKER_00: federal employees to have state prosecutions of them removed to federal court if
• 33:59
  SPEAKER_00: it's about crime.
• 34:01
  SPEAKER_00: If they were in the course of their federal duties when they did the alleged state crime.
• 34:06
  SPEAKER_00: And I think what's happening here is just that, you know, that went absolutely nowhere for Trump before.
• 34:11
  SPEAKER_00: But that was before the Supreme Court's immunity ruling,
• 34:14
  SPEAKER_00: which kind of had some SCOTUS bloviation about what is or isn't within the scope of
• 34:20
  SPEAKER_00: the president's responsibilities.
• 34:22
  SPEAKER_00: And I think that that Trump is thinking or his lawyers are thinking more accurately
• 34:27
  SPEAKER_00: that that decision was.
• 34:30
  SPEAKER_00: has created some ambiguity on this question of what is or isn't within the president's responsibilities.
• 34:36
  SPEAKER_00: And should we get a redo of that analysis of whether or not it should be removed to federal court?
• 34:41
  SPEAKER_00: I don't think it works unless they manage to appeal it in the federal courts up to
• 34:48
  SPEAKER_00: the Supreme Court,
• 34:49
  SPEAKER_00: in which case all bets are off.
• 34:51
  SPEAKER_01: My recollection was that Trump made an 11th hour effort before the trial to remove
• 34:55
  SPEAKER_01: the case to federal court and they lost because he hadn't made the motion for that
• 34:59
  SPEAKER_01: early enough.
• 34:59
  SPEAKER_01: But it wasn't an analysis of the merits of whether he could go to federal court.
• 35:03
  SPEAKER_00: That's correct.
• 35:04
  SPEAKER_00: But I think the theory here would be that now he is doing it based on new law.
• 35:08
  SPEAKER_00: Supreme Court's come out with this new Supreme Court decision that redraws the
• 35:13
  SPEAKER_00: boundaries of what is an official presidential act,
• 35:17
  SPEAKER_00: and that changes the analysis.
• 35:19
  SPEAKER_00: And therefore, the court should look at this new law to determine if it applies.
• 35:23
  SPEAKER_01: And then as we tape today, there are attorneys in a courtroom in Washington, D.C.
• 35:29
  SPEAKER_01: before Judge Tanya Chutkan,
• 35:30
  SPEAKER_01: who's having her first hearing in that case over the January 6 related matters and
• 35:35
  SPEAKER_01: Donald Trump first hearing in nearly a year.
• 35:38
  SPEAKER_01: And they're
• 35:39
  SPEAKER_01: Arguing about a schedule,
• 35:40
  SPEAKER_01: basically trying to figure out there's been this superseding indictment that is
• 35:43
  SPEAKER_01: intended to clean up the indictment in this case to remove evidence that might be
• 35:47
  SPEAKER_01: foreclosed by the Supreme Court decision on presidential immunity.
• 35:51
  SPEAKER_01: And now they need to discuss how they're going to handle pretrial motions.
• 35:54
  SPEAKER_01: Is it basically they're acting like it's the normal run up to a normal trial?
• 35:59
  SPEAKER_00: Now, remember the context here.
• 36:01
  SPEAKER_00: The Supreme Court issued this immunity decision,
• 36:04
  SPEAKER_00: ambiguous,
• 36:05
  SPEAKER_00: difficult to interpret,
• 36:07
  SPEAKER_00: and set the case back down to determine what parts of this indictment against
• 36:12
  SPEAKER_00: Donald Trump are precluded by presidential immunity and what parts aren't.
• 36:17
  SPEAKER_00: Since then, Jack Smith, special counsel,
• 36:20
  SPEAKER_00: has issued a superseding indictment that sort of cleans up the issue.
• 36:24
  SPEAKER_00: It threw out some of the theories that were most clearly covered by presidential
• 36:28
  SPEAKER_00: immunity under the Supreme Court's decision.
• 36:31
  SPEAKER_00: Things like the theory that Trump was threatening the Department of Justice to
• 36:37
  SPEAKER_00: investigate bogus election fraud claims or else he'd fire people because that's the
• 36:42
  SPEAKER_00: core of his ability to hire and fire.
• 36:45
  SPEAKER_00: or evidence about what White House staff told him,
• 36:48
  SPEAKER_00: because that goes to the core of him getting advice from his underlings.
• 36:52
  SPEAKER_00: So Jack Smith returned the superseding indictment with this narrower set of wrongdoing.
• 36:57
  SPEAKER_00: And now the time comes for Judge Chutkan to decide whether or not under the
• 37:02
  SPEAKER_00: standards the Supreme Court articulated,
• 37:04
  SPEAKER_00: to put it generously,
• 37:06
  SPEAKER_00: whether or not the rest of it is precluded by presidential immunity.
• 37:10
  SPEAKER_00: So with that in mind,
• 37:13
  SPEAKER_00: the parties appeared before Judge Chutkan and they were somewhat jovial at first
• 37:20
  SPEAKER_00: until it became very clear that they were coming from very different directions.
• 37:24
  SPEAKER_00: Trump's attorneys do not want a full briefing, a full exposition of these cases.
• 37:30
  SPEAKER_00: issues before the election.
• 37:32
  SPEAKER_00: They don't want the special counsel filing detailed briefs.
• 37:36
  SPEAKER_00: Here are all the things Donald Trump did,
• 37:38
  SPEAKER_00: and here's why they're outside of immunity just before the election.
• 37:42
  SPEAKER_00: And they asked her to consider that.
• 37:44
  SPEAKER_00: And
• 37:46
  SPEAKER_00: Judge Shutkin, as is her pattern, was having none of that.
• 37:49
  SPEAKER_00: She said that they said, you know, we're dealing with the election to the president of the United States.
• 37:54
  SPEAKER_00: And Judge Shutkin said, no, we're dealing with a four count criminal indictment.
• 37:57
  SPEAKER_00: That's what's before me.
• 37:59
  SPEAKER_00: So they were asking the whole thing to be put off until after the election.
• 38:04
  SPEAKER_00: She's not going to do that.
• 38:05
  SPEAKER_00: Here's the next thing Trump's lawyers wanted to do.
• 38:07
  SPEAKER_00: And this is actually a very clever gambit.
• 38:09
  SPEAKER_00: You have to hand it to them.
• 38:11
  SPEAKER_00: They suggested that she just look at one issue, and that is what Trump did or said to Mike Pence.
• 38:18
  SPEAKER_00: So remember,
• 38:19
  SPEAKER_00: one of the special counsel's theories is that Trump tried to influence corruptly
• 38:25
  SPEAKER_00: Mike Pence to refuse to certify the vote outcome in the Senate.
• 38:30
  SPEAKER_00: And the special counsel theory is that's completely outside Trump's authority or responsibilities.
• 38:38
  SPEAKER_00: Trump's theory is that,
• 38:39
  SPEAKER_00: no,
• 38:39
  SPEAKER_00: it's within the ambit of what the president can do to talk to the vice president.
• 38:44
  SPEAKER_00: And Trump's lawyers are saying, look—
• 38:45
  SPEAKER_00: It's undisputed that the special counsel still put that evidence in front of this new grand jury.
• 38:50
  SPEAKER_00: Why don't we just decide if that's immune?
• 38:52
  SPEAKER_00: And if it is, the whole thing gets thrown out.
• 38:54
  SPEAKER_00: And the bottom line being that's less for Judge Chutkan to decide.
• 38:59
  SPEAKER_00: And then we don't get that exposition of all those other nasty things Trump did just before an election.
• 39:04
  SPEAKER_00: The downside of that,
• 39:05
  SPEAKER_00: as the prosecutors vociferously argued,
• 39:08
  SPEAKER_00: is then you have this going up and down to the Supreme Court problem where,
• 39:12
  SPEAKER_00: well,
• 39:12
  SPEAKER_00: sure,
• 39:13
  SPEAKER_00: if that goes all the way up and the Supreme Court says,
• 39:16
  SPEAKER_00: no,
• 39:17
  SPEAKER_00: that's not immune,
• 39:18
  SPEAKER_00: then we still have to decide about the rest of this stuff.
• 39:20
  SPEAKER_00: We should decide it all at once.
• 39:22
  SPEAKER_00: Judge Chutt can seem to be broadcasting.
• 39:25
  SPEAKER_00: That's what she would decide.
• 39:27
  SPEAKER_00: The other thing they were talking about was a motion to dismiss on the same theory
• 39:33
  SPEAKER_00: that Judge Cannon used in Florida.
• 39:35
  SPEAKER_00: That is,
• 39:36
  SPEAKER_00: Trump wants to argue that just as Judge Cannon decided that Jack Smith was
• 39:42
  SPEAKER_00: wrongfully appointed in violation of the Constitution.
• 39:46
  SPEAKER_00: The prosecutor's position is that he's defaulted on this.
• 39:48
  SPEAKER_00: He didn't make the argument timely.
• 39:50
  SPEAKER_00: Judge Chutkan seems inclined to just let him make the argument.
• 39:55
  SPEAKER_00: But she also said,
• 39:57
  SPEAKER_00: I've read Judge Cannon's decision and I do not find it persuasive,
• 40:00
  SPEAKER_00: which is federal judge for that bitch is crazy.
• 40:04
  SPEAKER_00: So I think likely where Judge Shutkin comes out on all this is she's going to let
• 40:09
  SPEAKER_00: Trump make the argument that Jack Smith was wrongfully appointed and then rejected
• 40:15
  SPEAKER_00: and that she is going to want a thorough briefing probably starting before the election.
• 40:20
  SPEAKER_00: that is going to address all the theories in the superseding indictment,
• 40:23
  SPEAKER_00: that she's not going to take the request from Trump either to delay this till after
• 40:28
  SPEAKER_00: the election so these nasty issues don't get discussed,
• 40:31
  SPEAKER_00: and that she's also not going to split the baby and let them just address one issue
• 40:36
  SPEAKER_00: at a time.
• 40:37
  SPEAKER_00: She's going to do what most federal judges wanting to move a case forward would do,
• 40:42
  SPEAKER_00: which is to ask them to thoroughly brief all the issues,
• 40:45
  SPEAKER_00: decide everything,
• 40:45
  SPEAKER_00: and send it all up to the circuit.
• 40:48
  SPEAKER_01: Well, we'll be watching.
• 40:48
  SPEAKER_01: Ken, thank you for speaking with me, as always.
• 40:51
  SPEAKER_00: Thank you, Josh.
• 40:52
  SPEAKER_00: And to any Russians out there, you know, I'm just saying the lines are open.
• 40:59
  SPEAKER_01: I mean,
• 40:59
  SPEAKER_01: you know,
• 40:59
  SPEAKER_01: the pro move here would be like we could take the money and then we could just register,
• 41:03
  SPEAKER_01: right?
• 41:04
  SPEAKER_01: Yeah.
• 41:05
  SPEAKER_01: There's nothing illegal about being a foreign agent so long as you're a registered foreign agent.
• 41:09
  SPEAKER_00: Yeah, I think that's the move that gets you stabbed with an umbrella on the street, though, Josh.
• 41:14
  SPEAKER_00: I'm not sure if I'm interested in that.
• 41:17
  SPEAKER_01: Serious Trouble is created and produced by Very Serious Media.
• 41:20
  SPEAKER_01: That's me and Sarah Faye.
• 41:21
  SPEAKER_01: Jennifer Swannick mixed this episode.
• 41:22
  SPEAKER_01: Our theme music is by Joshua Mosier.
• 41:24
  SPEAKER_01: Thanks for listening, and we'll be back with more soon.
• 41:26
  SPEAKER_01: See you next time.