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Very Special Prosecutors · Serious Trouble

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[music]
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SPEAKER_00: Hi, it's Ken White.
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SPEAKER_00: And it's Josh Barrow.
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SPEAKER_00: And this is Serious Trouble.
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SPEAKER_00: Ken,
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SPEAKER_00: why don't we start this week with this Cornell sexual assault case that has been all
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SPEAKER_00: over the headlines.
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SPEAKER_00: First, there was a civil lawsuit brought by a former student at Cornell alleging
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SPEAKER_00: a gang rape at the hands of a substantial number of members of a then fraternity on
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SPEAKER_00: the Cornell campus back in 2024.
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SPEAKER_00: And so one of the things that people have immediately reacted with,
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SPEAKER_00: having seen this lawsuit with a number of very sordid claims in it,
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SPEAKER_00: is, well, why wasn't there a criminal prosecution here?
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SPEAKER_00: And we got a surprisingly detailed statement from the District Attorney
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SPEAKER_00: of Tompkins County,
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SPEAKER_00: New York,
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SPEAKER_00: where Cornell is located,
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SPEAKER_00: basically defending his own decisions and explaining why he felt
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SPEAKER_00: that there was no criminal case to be brought, at least at the time, in 2024.
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SPEAKER_00: And there's been a lot of outrage about that.
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SPEAKER_00: But I want to start by talking about the response that we got from
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SPEAKER_00: the district attorney,
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SPEAKER_00: Matthew Van Houten,
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SPEAKER_00: who has now been removed from this case by the governor of New York,
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SPEAKER_00: who's appointed a special prosecutor.
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SPEAKER_00: But he was basically saying that,
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SPEAKER_00: you know,
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SPEAKER_00: despite the very upsetting claims that were made in this civil lawsuit,
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SPEAKER_00: that the case,
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SPEAKER_00: as it was described to him in 2024,
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SPEAKER_00: even if the allegations were all true,
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SPEAKER_00: did not constitute a violation of the law of the state of New York.
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SPEAKER_00: I'm wondering what you made of this very detailed defense of a decision not
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SPEAKER_00: to charge that we got there.
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SPEAKER_01: Well, it was very unusual and very surprising.
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SPEAKER_01: It seems to be primarily focused on The reputation and political fortunes of the DA
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SPEAKER_01: and less on the nature of the case and,
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SPEAKER_01: you know,
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SPEAKER_01: the possibility of prosecuting it in the future and,
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SPEAKER_01: you know, not frankly tainting the jury pool.
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SPEAKER_01: The DA's stance is that,
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SPEAKER_01: you know,
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SPEAKER_01: I got this very detailed statement that appeared to show only,
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SPEAKER_01: you know,
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SPEAKER_01: voluntary intoxication, which,
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SPEAKER_01: by the way, doesn't necessarily make a difference for whether or not it's rape.
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SPEAKER_01: So, you know,
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SPEAKER_01: one of the narratives in the complaint is that the victim was sort of induced
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SPEAKER_01: to take ketamine.
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SPEAKER_01: The DA claimed, well, you know, I didn't know that.
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SPEAKER_01: The statement said that anything she took, she took voluntarily.
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SPEAKER_01: Also claims that The statement suggested that all the sexual activity was voluntary.
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SPEAKER_01: But what we find out from,
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SPEAKER_01: you know,
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SPEAKER_01: more investigation from other media is that apparently the police took like two days
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SPEAKER_01: of statements from the victim and then watered that down into their own statement
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SPEAKER_01: that they got her to sign.
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SPEAKER_01: And then they didn't even turn all that over to the DA and that what they gave
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SPEAKER_01: the DA was Omitted some fairly crucial things like an unequivocal statement from
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SPEAKER_01: the victim that she believed that she was incapacitated and couldn't consent,
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SPEAKER_01: an unequivocal statement saying that she believed she was raped and so forth.
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SPEAKER_01: So like a watered down version is what the DA got.
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SPEAKER_01: Now that may be a defense for the DA for why the DA didn't do it if we were
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SPEAKER_01: in some sort of forum where that were really the issue.
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SPEAKER_01: But for the DA to go out and basically pollute the jury pool and tell the jury pool,
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SPEAKER_01: There's this sworn statement where the victim doesn't say these things.
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SPEAKER_01: That is a very questionable decision,
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SPEAKER_01: particularly when it turns out that he doesn't say the other part.
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SPEAKER_01: He doesn't say, oh,
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SPEAKER_01: there's a much longer statement where she gives a lot more details
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SPEAKER_01: that are plausibly a crime, but I didn't get that.
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SPEAKER_01: That's the part that's missing from his statement.
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SPEAKER_01: And the omission of that is very interesting if he is interested in presenting
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SPEAKER_01: the public with a complete narrative that And if he's concerned with now polluting
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SPEAKER_01: the jury pool with a narrative that this person can't be believed.
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SPEAKER_00: So before we talk about the process here,
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SPEAKER_00: I want to ask you,
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SPEAKER_00: you said it doesn't necessarily matter whether the intoxication was voluntary a lot.
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SPEAKER_00: I mean,
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SPEAKER_00: what I've seen here in New York in the coverage of this is there's been a lot
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SPEAKER_00: of arguing in the legislature about whether to change the sexual assault law
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SPEAKER_00: in New York, in part because of my understanding that it does matter.
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SPEAKER_00: Currently, under New York law, whether the intoxication is voluntary or not.
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SPEAKER_00: The way the DA lays out the law is that he basically says that there's
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SPEAKER_00: a few different things that can make a sex act rape in New York.
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SPEAKER_00: One is physical force.
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SPEAKER_00: Another is if someone is drugged without their knowledge in order to induce them
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SPEAKER_00: to participate in a sex act they wouldn't otherwise.
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SPEAKER_00: And then the third is an incapacity standard that is a very high bar,
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SPEAKER_00: that someone essentially has to be unconscious.
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SPEAKER_00: In order to have been raped on grounds of incapacity.
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SPEAKER_00: And so, you know,
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SPEAKER_00: going back,
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SPEAKER_00: I mean, ironically, Andrew Cuomo was one of the advocates of changing this law.
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SPEAKER_00: There was,
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SPEAKER_00: you know,
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SPEAKER_00: a lot of fighting over this a few years ago in New York to broaden the standards so
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SPEAKER_00: that someone who is voluntarily intoxicated could make a rape claim
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SPEAKER_00: on those grounds.
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SPEAKER_00: But is the DA wrong when he says that,
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SPEAKER_00: you know,
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SPEAKER_00: if you voluntarily drink and take ketamine and then do something
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SPEAKER_00: that you wouldn't otherwise have consented to,
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SPEAKER_00: that that cannot be grounds for a criminal charge of rape in New York?
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SPEAKER_01: To clarify,
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SPEAKER_01: what I mean is that not that it doesn't matter for the particular type of charge
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SPEAKER_01: about drugging someone to commit rape,
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SPEAKER_01: but that whether the intoxication is voluntary or involuntary doesn't matter
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SPEAKER_01: the assessment of whether you're too intoxicated to consent.
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SPEAKER_01: And you're right that the standard in New York is fairly high,
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SPEAKER_01: but if you're just looking at an accusation this person couldn't consent,
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SPEAKER_01: then just as to that issue alone,
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SPEAKER_01: But so my understanding was that to say that I was incapacitated
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SPEAKER_00: Regardless of the reason the intoxication led to the incapacity,
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SPEAKER_00: that the level of incapacity would have to be higher than the level
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SPEAKER_00: of incapacity she claimed to have experienced in the statement.
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SPEAKER_00: That was the DA's argument about why he could not charge.
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SPEAKER_01: Yes, but the DA also emphasized a bit
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SPEAKER_01: about allegedly her being voluntarily incapacitated, which seemed an odd choice.
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SPEAKER_01: You're right that New York probably has a higher level of incapacity requirement
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SPEAKER_01: to negate consent than other states.
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SPEAKER_01: But the total package is that it really seems like a statement by the DA
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SPEAKER_01: that is far more focused on being defensive and refuting sort of a backlash against
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SPEAKER_01: the DA than it is about preserving the ability to investigate and possibly prosecute
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SPEAKER_01: the case.
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SPEAKER_00: Yeah.
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SPEAKER_00: So, I mean,
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SPEAKER_00: one of the things when I saw this statement from the DA,
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SPEAKER_00: you know,
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SPEAKER_00: one of the things I was wondering is, you know, exactly what is he up to here?
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SPEAKER_00: Giving great detail about why they did not bring charges in 2024.
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SPEAKER_00: And then he also said,
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SPEAKER_00: now that we have new information, I'm going to reopen a grand jury investigation.
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SPEAKER_00: I'm going to take this before a grand jury and we will see what an appropriate charge is.
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SPEAKER_00: And, you know,
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SPEAKER_00: the thing that I was wondering,
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SPEAKER_00: looking at that statement is, is this a genuine attempt to bring new charges?
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SPEAKER_00: Or is it,
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SPEAKER_00: you know,
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SPEAKER_00: what we sometimes see in,
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SPEAKER_00: you know,
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SPEAKER_00: politically sensitive,
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SPEAKER_00: you know,
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SPEAKER_00: cases involving police and that sort of thing,
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SPEAKER_00: where basically you go through the exercise of going through Yeah.
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SPEAKER_01: Well, so
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SPEAKER_00: he claims that he,
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SPEAKER_00: even at the time that he issued that statement,
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SPEAKER_00: that he was unaware of the new information, that he learned of that.
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SPEAKER_00: I mean, maybe he should have asked before to put the statement out.
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SPEAKER_01: Well, exactly.
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SPEAKER_01: So particularly when you're dealing with something that's already going to get
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SPEAKER_01: a huge amount of press and it's incredibly volatile,
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SPEAKER_01: under traditionally a very contentious issue,
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SPEAKER_01: it really seems like a very unprofessional type of thing to do.
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SPEAKER_00: And so now he's been removed from this case.
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SPEAKER_00: The governor of New York has appointed a special prosecutor
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SPEAKER_00: who will be Letitia James, the attorney general of the state of New York.
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SPEAKER_00: What do you make of the prospect of trying to charge this case now?
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SPEAKER_01: Well, so a few things.
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SPEAKER_01: It's always harder to charge a case after time has passed.
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SPEAKER_01: Rape cases are very difficult in our culture.
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SPEAKER_01: There are a lot of people who think,
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SPEAKER_01: you know,
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SPEAKER_01: you see a lot of people commenting on this saying,
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SPEAKER_01: well, why did she get drunk around guys?
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SPEAKER_01: Why did she go into a frat house if she was drunk?
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SPEAKER_01: What did she expect?
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SPEAKER_01: And that is an undercurrent of attitude that exists in American society as one of
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SPEAKER_01: the barriers to successfully prosecuting rape cases.
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SPEAKER_01: So that makes it very hard.
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SPEAKER_01: But I think the thing about the governor appointing Letitia James is
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SPEAKER_01: the governor knows that Letitia James will not be cowed From bringing charges
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SPEAKER_01: because of public attitude if she thinks that that's warranted.
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SPEAKER_01: You know,
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SPEAKER_01: she's very aggressive and she will bring it and do her best to put on the trial,
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SPEAKER_01: which is it kind of gets around the sort of timidity on rape issues,
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SPEAKER_01: on sexual assault issues that you see from some DAs.
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SPEAKER_01: And this is weird because you and I have talked about how DAs are generally on
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SPEAKER_01: the average willing to roll the dice and see what happens, right?
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SPEAKER_01: Even if it seems like a weak case, usually they're willing to do it.
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SPEAKER_01: The big exception there is in sexual assault.
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SPEAKER_01: They tend to internalize and shrink away from social attitudes about rape
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SPEAKER_01: and therefore be unwilling to prosecute cases that they think,
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SPEAKER_01: you know, people won't buy this.
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SPEAKER_01: So I think this appointing Letitia James,
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SPEAKER_01: I think,
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SPEAKER_01: gets around that social problem and has someone who's willing to take a fairly bold
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SPEAKER_01: and aggressive stance in presenting it to a jury.
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SPEAKER_01: Now, getting it past a jury is another matter entirely because of that same set
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SPEAKER_01: of social attitudes.
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SPEAKER_01: I mean, the truth is,
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SPEAKER_01: you know,
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SPEAKER_01: the victim could and apparently did consent to have sexual activity with,
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SPEAKER_01: you know,
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SPEAKER_01: more than one person and then change her mind,
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SPEAKER_01: withdraw her consent,
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SPEAKER_01: you know,
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SPEAKER_01: be Willing to have sexual contact with one or two people,
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SPEAKER_01: but not with three or more.
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SPEAKER_01: All that she has a perfect right to do.
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SPEAKER_01: But given social attitudes about these things and sort of,
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SPEAKER_01: you know, Puritan type stuff, that can be tough to sell to a jury.
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SPEAKER_01: But again, what you need is a prosecutor who is willing to try.
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SPEAKER_01: And that certainly seems to be something that Letitia James is willing to do.
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SPEAKER_00: Well, I mean,
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SPEAKER_00: aside from societal attitudes, I mean,
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SPEAKER_00: it looks to me like there's going to be some additional evidentiary problems here,
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SPEAKER_00: which is that,
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SPEAKER_00: you know,
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SPEAKER_00: the statement that the DA references was signed by the alleged victim two years ago
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SPEAKER_00: in at least certain Material respects differs from the claims that are
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SPEAKER_00: in her recently filed civil lawsuit.
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SPEAKER_00: I mean, for example,
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SPEAKER_00: there's a series of sexual encounters that are described over a number of hours.
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SPEAKER_00: But at least as the DA characterizes her science statement from 2024,
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SPEAKER_00: which we haven't seen in full yet,
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SPEAKER_00: but presumably will if this goes toward trial,
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SPEAKER_00: is that,
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SPEAKER_00: you know,
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SPEAKER_00: he describes that,
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SPEAKER_00: you know,
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SPEAKER_00: she was invited to engage in a threesome,
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SPEAKER_00: which she remembered she agreed to and in fact remembered being excited about.
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SPEAKER_00: And that she was, you know, quote unquote, pretty okay with having this threesome, etc.
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SPEAKER_00: And then in the recent civil lawsuit,
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SPEAKER_00: the same section of the incident is described and she says that she was forced
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SPEAKER_00: into various sexual intercourse at that exact same phase of it.
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SPEAKER_00: So I assume that statement comes into evidence at the trial and is
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SPEAKER_00: a challenging fact for obtaining a conviction, right?
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SPEAKER_00: Because here you have a statement from the alleged victim saying something different
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SPEAKER_00: about that than what she's saying today.
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SPEAKER_01: Sure.
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SPEAKER_01: Anytime there's an inconsistent prior statement, that's a problem.
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SPEAKER_01: It's even more of a problem if it's a sworn statement.
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SPEAKER_01: But what the facts seem to be coming out are that the statement was drafted by
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SPEAKER_01: the police and it was drafted by the police after a couple of days of interviews
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SPEAKER_01: that resulted in a much larger set of claims by her and facts by her.
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SPEAKER_01: And so that her narrative is likely going to be I said all this stuff to them for two days.
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SPEAKER_01: They just diluted it all down to a six-page statement, gave to me, and I signed it.
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SPEAKER_01: So to the extent the six-page statement is inconsistent, that's a problem.
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SPEAKER_01: It's not as much of a problem if she can say that I told the police so much more
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SPEAKER_01: and they just diluted it down and I signed it.
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SPEAKER_01: If there's a record that she She made consistent statements during those two days.
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SPEAKER_01: Then I think that is kind of an explanation for the sign statement or it takes some
13:02
SPEAKER_01: of the teeth out of it.
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SPEAKER_01: But it's a bad thing for a prosecution if a bunch of it is going to focus
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SPEAKER_01: on exactly how this prior statement got made and the surrounding circumstances.
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SPEAKER_01: No question.
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SPEAKER_01: That will be an issue.
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SPEAKER_01: But on the other hand,
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SPEAKER_01: if the narrative is,
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SPEAKER_01: you know,
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SPEAKER_01: that she was really Uh,
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SPEAKER_01: really served badly or even betrayed by these police officers who took
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SPEAKER_01: a far more detailed statement,
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SPEAKER_01: uh, that was far more forceful in her beliefs that she couldn't consent.
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SPEAKER_01: And then they sort of watered that down,
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SPEAKER_01: handed her something to sign that looks very bad for the cops.
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SPEAKER_01: And a jury might see, yeah, okay.
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SPEAKER_01: If you're the, uh,
13:41
SPEAKER_01: you know, this,
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SPEAKER_01: this young student and you've gone through this experience and you go
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SPEAKER_01: through this traumatic two days of, Right.
13:48
SPEAKER_01: Right.
14:05
SPEAKER_01: Right.
14:05
SPEAKER_01: And he might even be right about that.
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SPEAKER_00: But the important thing is not whether Matthew Van Houten,
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SPEAKER_00: you know, did his job well or is facing valid criticism in the media.
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SPEAKER_00: I mean, it's,
14:29
SPEAKER_00: you know,
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SPEAKER_00: like we've seen a few of these episodes where like when no one wants to have
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SPEAKER_00: to take credit for an unpopular charging decision, bad things happen.
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SPEAKER_00: I mean, this is this is the origin of the like James Comey,
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SPEAKER_00: Loretta Lynch thing was that no one wanted to have to take responsibility for
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SPEAKER_00: the decision about whether to bring criminal charges or not.
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SPEAKER_00: And James Comey made that big, long statement.
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SPEAKER_00: I think absolutely.
14:49
SPEAKER_00: And the problem is that DAs are famously political and very often have
15:18
SPEAKER_01: Yeah.
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SPEAKER_01: Andrew Fleischman,
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SPEAKER_01: who we've had on the show periodically,
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SPEAKER_01: was a criminal defense attorney down in Georgia, was
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SPEAKER_00: Raising the possibility that not only would
15:50
SPEAKER_00: the alleged victim's original statement come into evidence,
15:52
SPEAKER_00: but the statements by the DA himself could end up in evidence in this case.
15:56
SPEAKER_00: And I gather this is a state law matter.
15:58
SPEAKER_00: There's different rules in different places about that.
16:01
SPEAKER_00: But I assume when I'm looking at why did the governor come in and bring in a special prosecutor?
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SPEAKER_00: I assume they looked at what the DA had done here and reasonably felt
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SPEAKER_00: that it was going to make,
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SPEAKER_00: if they wanted to bring a prosecution,
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SPEAKER_00: that was going to make it more difficult to do.
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SPEAKER_00: I assume that's an additional problematic issue on the ground for Letitia James,
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SPEAKER_00: as she now has the unfortunate job of deciding who to charge here and with what,
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SPEAKER_00: is that that's going to,
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SPEAKER_00: even though the DA is no longer on it,
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SPEAKER_00: that's presumably going to make the prosecution more difficult to do if and
16:32
SPEAKER_00: when they have one.
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SPEAKER_01: Yeah, although I think there's an excellent chance of keeping that out of evidence.
16:36
SPEAKER_01: So Andrew's referring to a hearsay concept called a statement of a party opponent.
16:41
SPEAKER_01: So, you know, generally an out of court statement by somebody is not admissible, right?
16:46
SPEAKER_01: But if it's the prosecution, you can put in the out of court statement of the defendant.
16:52
SPEAKER_01: In a civil case, you can put in the out of court statement of the other party.
16:56
SPEAKER_01: So the thought is,
16:57
SPEAKER_01: is like the DA,
16:59
SPEAKER_01: the other party for purposes of a criminal prosecution,
17:02
SPEAKER_01: so you can throw in the DA's statement.
17:06
SPEAKER_01: And the answer,
17:06
SPEAKER_01: I think,
17:07
SPEAKER_01: is maybe as a matter of hearsay, but I don't think as a matter of relevance.
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SPEAKER_01: So the DA's subjective analysis of why they think the case is good
17:19
SPEAKER_01: or bad is not relevant any more than, you know, Yeah.
17:42
SPEAKER_00: Let's talk about some happenings down in South Florida.
17:45
SPEAKER_00: We talked about Joe DiGenova,
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SPEAKER_00: who came out of retirement to try to help with what they're calling
17:52
SPEAKER_00: the grand conspiracy investigation about how all
17:55
SPEAKER_00: of these nasty Democrats came together and tried to convince people
17:58
SPEAKER_00: that Donald Trump was in line with Russia and how dare they.
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SPEAKER_00: This is being run out of South Florida and they're trying to bring charges before
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SPEAKER_00: the midterms and it hasn't been working very well.
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SPEAKER_00: And Joe DiGenova Who had been a real Trump true believer,
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SPEAKER_00: not only quit,
18:13
SPEAKER_00: but said some bitter stuff about,
18:14
SPEAKER_00: you know, well,
18:14
SPEAKER_00: you know,
18:15
SPEAKER_00: if you try to charge people without evidence, you're going to have problems.
18:18
SPEAKER_00: Now it looks like a bunch of the other attorneys who, again,
18:20
SPEAKER_00: were supposed to be like,
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SPEAKER_00: you know,
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SPEAKER_00: real like,
18:22
SPEAKER_00: you know,
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SPEAKER_00: patriots for the cause here have been leaving because of this thing appearing
18:27
SPEAKER_00: to fall apart.
18:27
SPEAKER_01: Right.
18:28
SPEAKER_01: So remember,
18:28
SPEAKER_01: this is an investigation into 2016 happenings into an alleged conspiracy to thwart
18:37
SPEAKER_01: an election that Trump, you know, won.
18:40
SPEAKER_01: Uh, by unfairly tying him to Russia,
18:42
SPEAKER_01: you know,
18:43
SPEAKER_01: as if he has some sort of close ties,
18:45
SPEAKER_01: like Russian oligarchs would be paying for his son's wedding or something crazy like
18:48
SPEAKER_01: that.
18:49
SPEAKER_01: Anyway, uh, yeah, we, we already lost Joe Genova who noisy quit from it.
18:53
SPEAKER_01: And now apparently depending on the source,
18:56
SPEAKER_01: somewhere between four and eight other attorneys have quit
19:01
SPEAKER_01: from this investigation being run out of Southern District of Florida.
19:06
SPEAKER_01: And, um,
19:07
SPEAKER_01: some of them are, are,
19:09
SPEAKER_01: Smaller and more obscure, but,
19:11
SPEAKER_01: you know,
19:11
SPEAKER_01: at least one of them is a well-known Trump partisan who actually participated
19:18
SPEAKER_01: in some of the 2020, the election was stolen litigation.
19:23
SPEAKER_01: So someone who has been willing in the past to make outrageous claims
19:26
SPEAKER_01: in court apparently is not willing to do it here.
19:30
SPEAKER_01: And the narrative seems to be that DOJ is really trying to interfere to drive
19:38
SPEAKER_01: The timing of indictments to have it done before the midterms and to drive like
19:43
SPEAKER_01: to come down and question them about what they're doing and how, which,
19:47
SPEAKER_01: you know,
19:47
SPEAKER_01: the line prosecutors,
19:49
SPEAKER_01: federal prosecutors famously do not like to be micromanaged like that.
19:53
SPEAKER_01: So they seem to be like saying, you know, we're out.
19:58
SPEAKER_01: We're not going to put up with this.
19:59
SPEAKER_01: Now, I think you have to put it in context.
20:01
SPEAKER_01: I mean, traditionally,
20:03
SPEAKER_01: Trump partisans,
20:04
SPEAKER_01: including within the Department of Justice and the U.S.
20:06
SPEAKER_01: Attorney's Office,
20:08
SPEAKER_01: Have been willing to put their name to some pretty marginal stuff.
20:11
SPEAKER_01: I mean, he got people to put their names to the
20:14
SPEAKER_00: James Comey Seashells prosecution.
20:18
SPEAKER_01: They're going after Don Lemon for reporting on stuff happening in a church.
20:23
SPEAKER_01: There are plenty of people willing to do pretty skeevy things in court,
20:28
SPEAKER_01: but apparently they won't do this.
20:30
SPEAKER_01: And that,
20:31
SPEAKER_01: I think,
20:31
SPEAKER_01: really signals how empty Yeah,
20:34
SPEAKER_01: I mean, I think one of the problems sometimes arises here is that
20:59
SPEAKER_00: Some of these people are true believers in the nonsense conspiracy theories
21:03
SPEAKER_00: that they're spouting.
21:05
SPEAKER_00: And so they believe that the investigation process will find evidence that proves
21:10
SPEAKER_00: the conspiracy theories.
21:11
SPEAKER_00: So they don't necessarily realize that their job was to just make a bunch of stuff up.
21:15
SPEAKER_00: And then they run into trouble when it's not true.
21:19
SPEAKER_01: Exactly.
21:20
SPEAKER_01: Exactly.
21:22
SPEAKER_01: And then they don't want the egg on their faces.
21:25
SPEAKER_01: They don't want this tag to them forever.
21:28
SPEAKER_01: They're ambitious.
21:28
SPEAKER_01: They want to keep finding jobs and keep finding prestige through a better way.
21:34
SPEAKER_01: So, yeah.
21:36
SPEAKER_01: Meanwhile, Senator Marsha Blackburn
21:38
SPEAKER_00: is suing Jack Smith.
21:40
SPEAKER_00: In the news this week for his attendance at a Iowa women's college basketball game
21:46
SPEAKER_00: that was not in Atlanta,
21:48
SPEAKER_00: there were a bunch of senators whose phone records were obtained as part
21:53
SPEAKER_00: of Jack Smith's investigation.
21:54
SPEAKER_00: I should note when we say phone records, these are records of who they spoke with and when.
21:58
SPEAKER_00: It is not recordings or transcripts of the phone calls.
22:02
SPEAKER_00: Lindsey Graham had that thing inserted in a piece of legislation that was going
22:06
SPEAKER_00: to allow him to sue, and he never got to take advantage of that provision himself.
22:10
SPEAKER_00: But now Marsha Blackburn is suing for the disclosure of her phone records,
22:15
SPEAKER_00: which she says is a violation of the speech or debate clause.
22:18
SPEAKER_00: How does that violate the speech or debate clause?
22:20
SPEAKER_00: It's like they can't be arrested for things that they do on the Senate floor.
22:26
SPEAKER_00: How does that protect you from the disclosure of your phone records?
22:28
SPEAKER_00: Yeah.
22:29
SPEAKER_01: No court has said that it does.
22:31
SPEAKER_01: So, again,
22:31
SPEAKER_01: the context here is that Jack Smith was investigating the events of January 6th and
22:39
SPEAKER_01: the events of Trump's attempt to overturn the results of the election in 2020.
22:47
SPEAKER_01: And one of the things he was doing is tracking who Trump was talking to in an effort
22:53
SPEAKER_01: to promote his seri that he eventually charged that Trump was— Corruptly trying
22:59
SPEAKER_01: to influence the Senate to overturn election results.
23:03
SPEAKER_01: And as part of that, he was trying to confirm who talked to who and who did Trump call.
23:07
SPEAKER_01: And so part of that,
23:08
SPEAKER_01: he did an incredibly standard and common investigative technique is
23:13
SPEAKER_01: to get phone records.
23:14
SPEAKER_01: Again, not not.
23:15
SPEAKER_01: And the Republicans have been calling this a phone tap, but it's absolutely not.
23:20
SPEAKER_01: It's sometimes called the pen register or tolls or whatever.
23:23
SPEAKER_01: It just shows who called who, when, for how long.
23:26
SPEAKER_01: What number called what number and how long did the call last?
23:29
SPEAKER_01: And so he got that.
23:31
SPEAKER_01: And he wasn't even investigating the senators.
23:33
SPEAKER_01: There's no indication whatsoever that any of them were ever subject or targets
23:38
SPEAKER_01: of any investigation.
23:39
SPEAKER_01: He's just trying to get really information who is talking to who.
23:43
SPEAKER_01: And so the speech and debate clause prevents you from being sued or prosecuted,
23:49
SPEAKER_01: arguably even investigated,
23:51
SPEAKER_01: for things you did on the floor of Congress in your official job.
23:55
SPEAKER_01: But there's no cases saying that it prevents anyone from subpoenaing a third party
24:01
SPEAKER_01: for records that relate to you.
24:04
SPEAKER_01: And even if it did,
24:05
SPEAKER_01: you would also have to show that the records relate to you doing things
24:10
SPEAKER_01: that are part of your official function.
24:12
SPEAKER_01: Now, arguably,
24:13
SPEAKER_01: if the conversations are about them exercising their official function of voting in
24:18
SPEAKER_01: the Senate to do things, then that would be related to their official function.
24:22
SPEAKER_01: But—
24:29
SPEAKER_01: Yes.
24:29
SPEAKER_01: So that would be the argument that there would be some stuff in there that's
24:32
SPEAKER_01: about their official function.
24:36
SPEAKER_01: But what it's not is an investigation, a prosecution or a civil suit against the senator.
24:41
SPEAKER_01: So no court has said you can't do a third party subpoena.
24:44
SPEAKER_01: And in fact, there are cases suggesting that that's not an issue.
24:49
SPEAKER_01: So, uh, And Blackburn's lawsuit is everything you would expect it to be,
24:54
SPEAKER_01: you know,
24:54
SPEAKER_01: a lengthy political screed,
24:56
SPEAKER_01: as is the fashion with civil and even criminal cases these days.
25:01
SPEAKER_01: And it seems to be mostly a performative thing.
25:04
SPEAKER_01: Although she at least is only asking for nominal damages,
25:06
SPEAKER_00: because like one of the things with that Lindsey Graham provision was
25:09
SPEAKER_00: that it was supposed to allow like a substantial financial payout to the senators
25:12
SPEAKER_00: whose phone records were subpoenaed.
25:14
SPEAKER_00: So she at least seems to not be so bold as to ask for that.
25:18
SPEAKER_01: Well, you know,
25:19
SPEAKER_01: we'll just have to see if there's a United States District Court for the District
25:22
SPEAKER_01: of Hell and maybe we'll still see a clause.
25:27
SPEAKER_00: And then there's one more piece of business that relates to this sort of,
25:30
SPEAKER_00: you know,
25:31
SPEAKER_00: Trump won stuff,
25:32
SPEAKER_00: which is there was a defamation suit that a lawyer named Stefan Passantino brought
25:37
SPEAKER_00: against Andrew Weissman,
25:39
SPEAKER_00: who had been a deputy to Robert Mueller in the Mueller investigation.
25:44
SPEAKER_00: Andrew Weissman went on television and said
25:46
SPEAKER_00: that Passantino had coached Cassidy Hutchinson,
25:48
SPEAKER_00: who had been an aide in the first Trump White House, to lie to Congress.
25:52
SPEAKER_00: And this relates to allegations that Hutchinson herself made about Passantino,
25:55
SPEAKER_00: who she fired as her lawyer.
25:56
SPEAKER_00: She got a new lawyer.
25:58
SPEAKER_00: And she said that Passantino had coached her in certain ways,
26:00
SPEAKER_00: including encouraging her to say that she didn't recall things that she,
26:03
SPEAKER_00: in fact, recalled.
26:05
SPEAKER_00: And what Passantino says is, you know, I never told her to lie.
26:09
SPEAKER_00: And Andrew Weissman was defaming me by saying that I had told her to lie.
26:14
SPEAKER_00: And the court says, well,
26:15
SPEAKER_00: Weisman read this thing that she said you told her to claim not
26:18
SPEAKER_00: to recall things she recalled.
26:19
SPEAKER_00: And that's good enough reason to not be negligent when you go on television
26:23
SPEAKER_00: and say he told her to lie.
26:24
SPEAKER_01: Right, exactly.
26:25
SPEAKER_00: Which sounds right to me.
26:27
SPEAKER_01: It is.
26:28
SPEAKER_01: And this is a motion for judgment on the pleadings,
26:30
SPEAKER_01: which is like a motion to dismiss that just comes later in the case.
26:33
SPEAKER_01: It can only focus on the allegations and the complaint
26:36
SPEAKER_01: and anything that's like admitted or judicially noticeable.
26:39
SPEAKER_01: So that includes The deposition transcript of Cassidy Hutchinson,
26:44
SPEAKER_01: that it's undisputed that Weissman was relying on.
26:46
SPEAKER_01: And in that,
26:47
SPEAKER_01: she says that he told her,
26:49
SPEAKER_01: basically, she says, well, I'm going to talk about what happened in this limo ride.
26:54
SPEAKER_01: And he says, no, no, stay away from that.
26:55
SPEAKER_01: Don't talk about that.
26:56
SPEAKER_01: And she says things like,
26:58
SPEAKER_01: you know,
26:58
SPEAKER_01: I remember the event and some stuff about it, and I just don't remember everything.
27:01
SPEAKER_01: And he says words to the effect that, you know, just say you don't remember.
27:06
SPEAKER_01: And, you know, at one point she complains to him, I think I'm lying when I say that.
27:10
SPEAKER_01: He says, no, no, that's not true.
27:11
SPEAKER_01: So the judge said very correctly that you can interpret all this stuff reasonably
27:17
SPEAKER_01: as coaching her to lie.
27:19
SPEAKER_01: And to the extent it's undisputed,
27:21
SPEAKER_01: Weissman relied on this depot transcript to make his characterization.
27:25
SPEAKER_01: That's not negligent.
27:26
SPEAKER_01: That's actually a perfectly reasonable basis to accuse him of coaching her to lie.
27:30
SPEAKER_01: So he loses.
27:31
SPEAKER_01: This is a very dumb lawsuit to bring because it was inevitable that That sooner
27:35
SPEAKER_01: or later, this would be the result.
27:37
SPEAKER_01: And basically,
27:38
SPEAKER_01: you'd have a judicial finding that it's not negligent
27:40
SPEAKER_01: to call Stephan Pasantino someone who coaches people to lie.
27:43
SPEAKER_01: So that's now like public
27:45
SPEAKER_00: record done by him.
27:46
SPEAKER_00: Yeah.
27:47
SPEAKER_00: And if you're concerned about how this damages your professional reputation,
27:49
SPEAKER_00: this would seem to draw more attention to this issue.
27:52
SPEAKER_01: Well, exactly.
27:53
SPEAKER_01: Yeah.
27:55
SPEAKER_00: We have a couple of conflagrations that have happened
27:58
SPEAKER_00: in politically driven Trump era prosecutions.
28:02
SPEAKER_00: Trump II now we're in.
28:04
SPEAKER_00: Let's start with David Hearn,
28:05
SPEAKER_00: that former Olympic canoeist who was charged with wantonly destroying
28:10
SPEAKER_00: the president's beautiful reflecting pool that had that wonderful,
28:14
SPEAKER_00: delightful green color.
28:16
SPEAKER_00: So naturalistic.
28:17
SPEAKER_00: Everyone wants more greenery in Washington, D.C., and then people complain about the algae.
28:21
SPEAKER_00: They can't decide what the hell they want.
28:23
SPEAKER_00: But so David Hearn...
28:26
SPEAKER_00: There will never be justice for Trump here.
28:31
SPEAKER_00: Because not only was this case dismissed,
28:32
SPEAKER_01: they're never allowed to...
28:35
SPEAKER_00: That's it for this week's free episode of Serious Trouble.
28:37
SPEAKER_00: If you want to hear the rest of our conversation about David Hearn going free
28:41
SPEAKER_00: to terrorize reflecting polls all over America.
28:44
SPEAKER_00: And if you want to hear about the ongoing mess related to that Broadview Six case
28:49
SPEAKER_00: in Chicago, Sherri Mecklenburg says she's been made into the Fall Woman.
28:52
SPEAKER_00: And really, this is all the politicals.
28:54
SPEAKER_00: Andrew Boutros trying to do Donald Trump's bidding.
28:56
SPEAKER_00: That's how she got in trouble.
28:59
SPEAKER_00: We have a breakdown on that.
29:01
SPEAKER_01: We also look at Anthropic.
29:02
SPEAKER_00: We also talk about Candace Owens, who faces yet another deficit.
29:17
SPEAKER_00: And for $6 a month or $60 a year,
29:19
SPEAKER_00: you can become a paying subscriber,
29:21
SPEAKER_00: part of our community,
29:22
SPEAKER_00: joining us in our discussions in the comments section,
29:24
SPEAKER_00: hearing, of course, every full episode.
29:26
SPEAKER_00: We'd love to have you.
29:27
SPEAKER_00: Thanks.