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Immune Response · Serious Trouble

• 0:08
  SPEAKER_00: Hi, it's Ken White.
• 0:10
  SPEAKER_00: And it's Josh Barro, and this is Serious Trouble.
• 0:13
  SPEAKER_00: Ken, we're taping this episode.
• 0:14
  SPEAKER_00: It's 12.54 p.m.
• 0:16
  SPEAKER_00: Eastern on Tuesday, February 6th.
• 0:19
  SPEAKER_00: And we're taping at this time for a specific reason.
• 0:21
  SPEAKER_00: We normally tape in the morning on Tuesdays.
• 0:23
  SPEAKER_00: I mean, the day varies, but most often it's Tuesday, and it's usually in the morning.
• 0:27
  SPEAKER_00: We decided that we should tape in the afternoon today, and why did we decide that?
• 0:31
  SPEAKER_01: We decided that because I speculated maybe the DC Circuit Court of Appeals would rule this morning at 10 a.m.
• 0:37
  SPEAKER_01: Eastern on Trump's immunity appeal.
• 0:40
  SPEAKER_01: And I thought that if we delayed, we could thwart destiny itself.
• 0:46
  SPEAKER_01: and prevent us from being overtaken by events.
• 0:49
  SPEAKER_00: So indeed we got this ruling and it's not that Ken is clairvoyant.
• 0:53
  SPEAKER_00: There's like a couple of times a week that they issue these rulings and so Ken made a very well-educated guess that it would happen on a Tuesday or a Friday that time of day and that's what happened here.
• 1:04
  SPEAKER_00: And a lot of people have been complaining in the lead-up to this that the appeals court was taking a long time and you know it took them only a little bit less than a month
• 1:12
  SPEAKER_00: to put out this 57 page opinion.
• 1:14
  SPEAKER_00: Is that, did they, did they slow walk this?
• 1:17
  SPEAKER_01: No, this was rocket fast by standards of any normal appeal.
• 1:22
  SPEAKER_01: And let's just point out, you know, it's a historically significant and important decision.
• 1:26
  SPEAKER_01: So it takes some time.
• 1:28
  SPEAKER_01: During that month, people were speculating that the, you know, the one Republican appointee on the panel was delaying it, was going to insist on writing the opinion or something like that.
• 1:39
  SPEAKER_01: But what we got instead is a unanimous per curiam, meaning not attributed to any particular judge,
• 1:46
  SPEAKER_00: Yeah, so that's the headline here.
• 1:50
  SPEAKER_00: Donald Trump is not immune from prosecution on these charges because of his having served as president.
• 1:57
  SPEAKER_00: And they have a number of arguments about why he's not immune.
• 2:01
  SPEAKER_00: But first, there's one that they rejected.
• 2:03
  SPEAKER_00: Everyone was really interested in this Midland cement issue, right?
• 2:07
  SPEAKER_01: No, Josh, no one but you.
• 2:09
  SPEAKER_00: No one but me was interested in the Midland Cement issue.
• 2:12
  SPEAKER_00: Midland Cement, which was a company that was involved in some legal action back in the day.
• 2:18
  SPEAKER_00: There was this question of did there need to be an explicit statutory guarantee of the right not to be tried in order to even be able to appeal it at this point?
• 2:26
  SPEAKER_00: And there was an argument that that was the answer that was yes.
• 2:28
  SPEAKER_00: The judges said, no, that's not the reason that Trump shouldn't have his appeal heard and get a victory on this.
• 2:35
  SPEAKER_01: Right, this was the somewhat boring procedural appealability issue.
• 2:39
  SPEAKER_01: Could he appeal this denial of his motion to dismiss immediately because it falls into this special category of times when you have a right
• 2:50
  SPEAKER_01: not to be tried, not just a right to win.
• 2:52
  SPEAKER_01: And there is that case in Midland Cement where the Supreme Court, possibly using language a little flexibly, said that only happens when there's an explicit right not to be tried.
• 3:03
  SPEAKER_01: And the D.C.
• 3:04
  SPEAKER_01: Circuit, this is one of those moments where my ability to keep up the audience's suspension of disbelief about how the law works,
• 3:11
  SPEAKER_01: is a little bit strained because the court says, yeah, well, they said that, but I'm not sure they really meant that.
• 3:17
  SPEAKER_01: And in later cases have suggested that was just sort of a stray word thrown in there.
• 3:21
  SPEAKER_01: They didn't really mean it has to be explicit.
• 3:24
  SPEAKER_01: It can be analogous to something else that's explicit.
• 3:27
  SPEAKER_01: And so bottom line is, yes, we find that Donald Trump can appeal
• 3:35
  SPEAKER_00: If you said that it had to be an explicit right, then there's a whole line of qualified immunity decisions that the Supreme Court has made that would be incorrect, right?
• 3:41
  SPEAKER_00: Because there's no explicitly statutory created right to qualified immunity, right?
• 3:46
  SPEAKER_01: Right.
• 3:46
  SPEAKER_01: And well, there are a number of judge created doctrines that would be under scrutiny.
• 3:51
  SPEAKER_01: So this is a law being made somewhat sausage like.
• 3:54
  SPEAKER_01: And yeah, but they found that all their other precedents suggested, yes, it was immediately appealable.
• 4:00
  SPEAKER_00: So that wasn't the reason that Trump loses here.
• 4:02
  SPEAKER_00: And yet they got to the substance of the matter and they said presidents may be tried for these sorts of offenses.
• 4:08
  SPEAKER_00: What was the logic there?
• 4:10
  SPEAKER_01: Well, not only did they say that, they said it pretty forcefully and per curiam.
• 4:15
  SPEAKER_01: So part of the delay on a thing like this sometimes is getting everyone on board with your language and having it be unanimous.
• 4:23
  SPEAKER_01: You know, there have been famous cases in history
• 4:25
  SPEAKER_01: Like Brown v. Board of Education, where judges have really reached over backwards to craft an opinion where they can get as many people on board as possible.
• 4:33
  SPEAKER_01: And I think that likely happened here.
• 4:35
  SPEAKER_01: What they say is this, that nothing in the history of the doctrine of separation of powers, nothing in any of the case law, nothing in logic suggests that a president should be immune from prosecution
• 4:49
  SPEAKER_01: Out of Office.
• 4:51
  SPEAKER_01: They suggest there may be some range of purely discretionary functions that would be immune from prosecution.
• 4:58
  SPEAKER_01: And I suspect that's something where the Constitution specifically delegates to the president the power to make a decision.
• 5:04
  SPEAKER_01: And that may be like pardoning somebody.
• 5:07
  SPEAKER_01: But in general, for things where it's not discretionary, where it's whether or not they follow the law,
• 5:15
  SPEAKER_01: They are not immune from prosecution and they're subject to the same laws as anyone else.
• 5:21
  SPEAKER_01: What I found interesting is how they used a discussion of whether or not presidents have acted like they're immune.
• 5:28
  SPEAKER_01: So they point out what we talked about before.
• 5:31
  SPEAKER_01: that President Ford pardoned Richard Nixon, which wouldn't be necessary under Trump's theory, pointed out that Bill Clinton entered into what amounted to a plea agreement of giving up his law license in exchange for not being prosecuted, which again, wouldn't be necessary under this, and most amusingly, that at the impeachment trial, Alan Dershowitz argued that one of the reasons you don't have to impeach is you can always be prosecuted later.
• 5:59
  SPEAKER_01: So, this is just examples that, you know, this is a new theory and no one's acted like it's true before.
• 6:08
  SPEAKER_00: Well, and they bring this up not simply as a gotcha, but they're arguing basically, they're doing various balancing tests trying to figure out, you know, what bad things will happen if you do allow these prosecutions and if you don't allow the prosecutions.
• 6:19
  SPEAKER_00: And one of the arguments is that if presidents are afraid that they can be prosecuted by
• 6:23
  SPEAKER_00: for Serious Trouble
• 6:46
  SPEAKER_01: Right, that's one of the arguments they make about this fear of the chill, the parade of horribles.
• 6:52
  SPEAKER_01: They also point out that in their view, the need for nobody to be above the law and the need to enforce federal law outweighs that fear of chill.
• 7:02
  SPEAKER_01: And finally, and perhaps, to me, the least persuasive argument, they say, well, you know, federal prosecutors are bound to be, you know, ethical and
• 7:12
  SPEAKER_01: with Ken White and Josh Barro.
• 7:34
  SPEAKER_00: And again, you know, the unanimous decision from a panel that has one Republican and two Democratic appointees.
• 7:41
  SPEAKER_00: Does that tell us anything about what the Supreme Court is likely to do?
• 7:44
  SPEAKER_00: I mean, I guess the first question before the Supreme Court is going to be, you know, should we should we take this case at all?
• 7:51
  SPEAKER_00: Does the fact that you got unanimity on this panel, is that a suggestion that Supreme Court is not going to bother to look at it?
• 7:56
  SPEAKER_01: It's
• 8:14
  SPEAKER_01: is relatively judicially conservative.
• 8:17
  SPEAKER_01: It doesn't reach a lot of questions not before the court.
• 8:20
  SPEAKER_01: It doesn't reach questions like, well, what about a state prosecution?
• 8:25
  SPEAKER_01: It doesn't reach other things that it doesn't have to.
• 8:28
  SPEAKER_01: So I think all those factors weigh in favor of the Supreme Court not taking it, just letting this be the law.
• 8:35
  SPEAKER_01: But, you know, anyone's guess with the current Supreme Court, whether they have four votes, which is what they would need to get cert.
• 8:43
  SPEAKER_00: I mean, there seemed to be a pattern while Trump was president, the Supreme Court seemed to want to have its hands on many of the Trump related actions that went through the courts, even when there weren't circuit splits or other circumstances where you might normally accept the Supreme Court to take things up and they would do them in a very expedited fashion.
• 9:00
  SPEAKER_00: Since he left office, they've treated him more like a normal
• 9:03
  SPEAKER_00: litigant and have been less interested in giving him sort of special, it's not even special treatment, the special consideration at the Supreme Court.
• 9:12
  SPEAKER_00: And so I'm wondering if that cuts in favor of the idea that Supreme Court says, you know, we don't really need to touch this.
• 9:18
  SPEAKER_00: It's kind of a political nightmare if we do.
• 9:21
  SPEAKER_00: Let's just let the appeals court ruling stand.
• 9:24
  SPEAKER_01: Yeah, but I mean, I think you have some sort of Trump
• 9:28
  SPEAKER_01: Part 2.
• 9:51
  SPEAKER_01: Seeing them as sort of the swing votes on this point.
• 9:53
  SPEAKER_00: Is there an element of, you know, this is an important issue.
• 9:57
  SPEAKER_00: It has, you know, it involves these fundamental concerns about separation of powers and impunity and those sorts of things.
• 10:02
  SPEAKER_00: Is there a sense in which the court might just decide, you know, this is so important that we really do need to rule on it?
• 10:08
  SPEAKER_01: Yes, but that tendency is lessened if the decision they're reviewing is sensible, well-written, judicially conservative, and doesn't do anything wild.
• 10:20
  SPEAKER_00: So let's talk a little bit about the calendar, because obviously what interests a lot of people here, including us, is, you know, when is this trial going to proceed?
• 10:28
  SPEAKER_00: These proceedings have been on pause
• 10:30
  SPEAKER_00: because Judge Chutkan doesn't have the case right now.
• 10:32
  SPEAKER_00: She's waiting for the resolution of this appeal, the question of whether Trump can even be tried in this case.
• 10:38
  SPEAKER_00: And so the appeals court panel, they issued this ruling.
• 10:41
  SPEAKER_00: The ruling is stayed until February 12.
• 10:44
  SPEAKER_00: And furthermore, if Trump files an application for a stay from the Supreme Court pending his petition for them to take up the case, then the stay will continue until the Supreme Court acts on the application for the stay up there.
• 10:58
  SPEAKER_00: This ruling is stated, at least until February 12, Trump is certainly going to try to appeal this to the Supreme Court.
• 11:04
  SPEAKER_00: So how long would it take before the Supreme Court could possibly say, no, we're not even issuing a stay on this, which would presumably be an indication that they're likely not to take the case at all?
• 11:14
  SPEAKER_01: It would be pretty fast.
• 11:15
  SPEAKER_01: I imagine it would be within a couple of weeks, most likely.
• 11:19
  SPEAKER_01: And as you say, the circuit did only stay until the 12th.
• 11:23
  SPEAKER_01: And notably, they did not do so in a way that would allow Trump to delay things by asking for rehearing by the entire circuit, which is one of his typical techniques.
• 11:32
  SPEAKER_01: That's not going to work here to delay things.
• 11:35
  SPEAKER_01: So I think we will get a fairly fast answer from the Supreme Court about whether or not they'll stay it.
• 11:41
  SPEAKER_01: And I do think that that will suggest whether or not they're going to take it on cert.
• 11:46
  SPEAKER_01: Not certainly, but likely.
• 11:49
  SPEAKER_00: And so then, on the other hand, if they do decide to take up the case, what could that calendar look like?
• 11:54
  SPEAKER_01: Well, I imagine it would likely be accelerated.
• 11:57
  SPEAKER_01: The aim would be to get it heard quickly.
• 12:01
  SPEAKER_01: And I mean, the Supreme Court typically issues its last decisions at the end of June.
• 12:05
  SPEAKER_01: So within a matter of months, which leaves then precious little time before the election to have Trump tried, but not impossible given the schedule we've been on before.
• 12:17
  SPEAKER_00: We've also talked, it was a few weeks ago we talked about this, there's another case working its way up to the Supreme Court that has to do with the issue of obstruction of an official proceeding and whether prosecutors have taken too expansive a view of what that charge entails and that could affect the prosecution strategy here with regard to Donald Trump.
• 12:35
  SPEAKER_00: That is also expected to be resolved by June.
• 12:37
  SPEAKER_00: I realize, you know, the delay takes things close up to the election.
• 12:41
  SPEAKER_00: I guess one advantage if you have the delay is you would resolve both of those issues nearly simultaneously.
• 12:45
  SPEAKER_00: And that would give us pretty clear decks to move forward on this prosecution, right?
• 12:49
  SPEAKER_01: It would, although again, it depends on what the Supreme Court decides on that obstruction case, whether or not it undermines one of the main theories of Jack Smith's indictment here, to the extent that it's
• 13:02
  SPEAKER_01: Conspiracy
• 13:23
  SPEAKER_01: Yeah.
• 13:23
  SPEAKER_01: So the bottom line is it is getting increasingly thriller movie.
• 13:30
  SPEAKER_01: The bomb is about to go off.
• 13:32
  SPEAKER_01: Countdown going down type feeling here about whether or not Judge Chutkan can get this to trial before the election.
• 13:39
  SPEAKER_00: Well, I mean, you know, she's been quite adamant about the schedule of the trial does not work around the fact that Donald Trump is busy running for president.
• 13:46
  SPEAKER_00: A lot of people are busy.
• 13:47
  SPEAKER_00: And you don't get to say, you know, my my life is in the way of the fact that I need to stand trial for a criminal offense.
• 13:52
  SPEAKER_00: Right.
• 13:53
  SPEAKER_00: I mean, it would seem to follow from that that a trial that could literally overlap Election Day.
• 13:57
  SPEAKER_00: I mean, she's at least indicated that that's not the sort of consideration that she's taking into account.
• 14:02
  SPEAKER_01: Yeah, and we had to point out if Trump is elected and becomes president again, he can certainly stop the prosecution.
• 14:13
  SPEAKER_01: He can order it dismissed and fire as many people as necessary to have that happen.
• 14:18
  SPEAKER_00: And he can pardon himself.
• 14:20
  SPEAKER_00: Well, that's an open question, right?
• 14:22
  SPEAKER_00: It's an open question.
• 14:23
  SPEAKER_01: But it's it's I think the weight of opinion is that even if it's improper, it may not be judicially reviewable.
• 14:30
  SPEAKER_01: So, he can at least throw a gigantic wrench into any prosecution of him and delay it for years and years and years.
• 14:37
  SPEAKER_00: But this would also, you know, suppose the Supreme Court declines this case.
• 14:41
  SPEAKER_00: And so, you know, we're, you know, somewhere, you know, February 19-ish, Judge Chutkan has the case back.
• 14:48
  SPEAKER_00: It's not going to go to trial on March 4.
• 14:50
  SPEAKER_00: When realistically could that trial start?
• 14:54
  SPEAKER_01: I would guess that's going to bump it at least into May.
• 14:56
  SPEAKER_01: Okay.
• 14:58
  SPEAKER_00: And so you'd have a trial that conceivably would be over before the election, but there would be appeals.
• 15:02
  SPEAKER_00: Yes.
• 15:03
  SPEAKER_00: I assume that as president, I mean, in addition to being able to, you know, he could have the option of pardoning himself, but couldn't he also just decline to defend the appeals?
• 15:10
  SPEAKER_01: He could conceivably direct the Justice Department to confess error.
• 15:15
  SPEAKER_01: But, you know, once it's a judgment,
• 15:18
  SPEAKER_01: The Justice Department loses control over it to some extent.
• 15:22
  SPEAKER_01: The judges decide what happens to it.
• 15:25
  SPEAKER_01: The Justice Department doesn't have free reign to say, we give up, you know, we give up this judgment, we surrender.
• 15:32
  SPEAKER_01: So at that point, it's more likely that he's going to
• 15:36
  SPEAKER_01: Try out that legal controversy we both alluded to is whether or not he can pardon himself.
• 16:06
  SPEAKER_01: Serious Trouble is a production of the Center for Autism and Related Disorders, headquartered
• 16:21
  SPEAKER_01: For instance, I believe California's Proposition 8, the anti-gay marriage proposition.
• 16:27
  SPEAKER_01: Yeah, that's right.
• 16:29
  SPEAKER_01: And other ones like that.
• 16:30
  SPEAKER_01: And in some instances, the judges have appointed someone to take up the side the government's no longer defending.
• 16:37
  SPEAKER_01: There's been litigation trying to force the government to defend.
• 16:40
  SPEAKER_01: It's a mess.
• 16:42
  SPEAKER_00: Yeah.
• 16:43
  SPEAKER_00: Before we move on, in addition to the more interesting arguments about presidential immunity, there was another argument here about double jeopardy, where Trump basically said, I've already been subjected to an impeachment trial, and therefore it's double jeopardy to try me again.
• 16:55
  SPEAKER_00: And apparently that doesn't apply.
• 16:57
  SPEAKER_01: No, it doesn't.
• 16:58
  SPEAKER_01: And because double jeopardy is the right not to put in jeopardy of life and limb, which is referring to being criminally prosecuted where you could be jailed or executed.
• 17:08
  SPEAKER_01: And the court says, as everyone expected, impeachment is not jeopardy of life and limb.
• 17:13
  SPEAKER_01: In addition, because double jeopardy is actually narrower than most people expect it to be, it only kicks in when basically it's the exact same charge as in the prior proceeding.
• 17:25
  SPEAKER_01: They say that these charges are not the same as what Trump was, you know, under impeachment for.
• 17:32
  SPEAKER_01: Josh, there's one other part of the decision I want to call out because I think it's the part that perhaps where this panel tips their hand the most about the substance of the case.
• 17:43
  SPEAKER_01: So there's a part in there where they say former President Trump's alleged efforts to remain in power despite losing the 2020 elections were, if proven, an unprecedented assault on the structure of our government.
• 17:58
  SPEAKER_01: and they say that he had no legitimate role in the electoral college certification.
• 18:02
  SPEAKER_01: So that's kind of a spot where they go a little beyond what was strictly necessary for this to opine that the central theory of Jack Smith's case has value, that Trump doesn't actually have the right automatically as president to go around to do absolutely anything in his role as president to stop certification of the electoral college count and or presumably to
• 18:27
  SPEAKER_01: you know, interfere with vote counting in Georgia or anything like that.
• 18:31
  SPEAKER_00: And so does that have implications for the trial?
• 18:33
  SPEAKER_00: I mean, would a potential argument that the defense might advance here be, you know, this was a valid use of my presidential powers trying to, you know, oversee fair elections in this country and ensure that the vote count was right, blah, blah, blah.
• 18:46
  SPEAKER_00: Are they foreclosing that option for him to argue that?
• 18:49
  SPEAKER_01: So it's probably dicta, meaning a stray comment that does not have binding effect.
• 18:54
  SPEAKER_01: It probably doesn't bind Judge Chutkan, but I'm sure it guides her and I suspect she feels that way already.
• 19:01
  SPEAKER_01: And it's probably an indication of how, if Trump is convicted and raises these other arguments on direct appeal, the type of reception he's likely to get.
• 19:17
  SPEAKER_00: Let's turn down to Georgia and talk about what's going on with this mess involving Fonny Willis and the very large RICO prosecution down there.
• 19:26
  SPEAKER_00: So we had this filing from an attorney from Mike Roman contending that Fonny Willis has a conflict of interest because she's in a romantic relationship with Nathan Wade or has been in a romantic relationship with Nathan Wade, the special prosecutor that she hired from outside government.
• 19:41
  SPEAKER_00: And so she filed a reply to that that had both some legal arguments about, you know, saying this is not a conflict of interest under Georgia law, even if it's true
• 20:03
  SPEAKER_00: and then some factual claims like they didn't start their romantic relationship until after he'd already been hired.
• 20:09
  SPEAKER_00: She claimed that they split their financial expenses approximately equally when they traveled together and that therefore she didn't receive any of the these financial benefits that were alleged but then also argues that you know that even if even if she had it's not a conflict of interest under Georgia law.
• 20:24
  SPEAKER_00: Is that convincing?
• 20:25
  SPEAKER_01: It's a strong brief, Josh, and
• 20:28
  SPEAKER_01: The clarification that they didn't have a relationship when she chose him professionally to do this job does narrow the issue somewhat.
• 20:38
  SPEAKER_01: Assuming it's true.
• 20:39
  SPEAKER_01: Assuming it's true.
• 20:41
  SPEAKER_01: And then from there, you know, the quibbling around about, well, I didn't really have a financial incentive because we split expenses and we traveled together.
• 20:48
  SPEAKER_01: So him getting lots of money doesn't really motivate me.
• 20:51
  SPEAKER_01: That's more a factual dispute.
• 20:54
  SPEAKER_01: The discussion of Georgia law is fairly thorough, and so far unrebutted.
• 21:00
  SPEAKER_01: I think we'll get to that in a minute.
• 21:01
  SPEAKER_01: So I thought it was a strong, about as a strong response as you could expect getting on the merits.
• 21:08
  SPEAKER_01: You know, it's not clear, I think, based on that opposition, whether or not Georgia law does reach this type of a conflict of interest.
• 21:18
  SPEAKER_01: Because in my view, it's clear there is still
• 21:21
  SPEAKER_01: a
• 21:46
  SPEAKER_01: of the case and how long it goes on and how complicated it is and how much work he has to do.
• 21:52
  SPEAKER_01: And that's something that seems to me is an ethical conflict of interest for her.
• 21:56
  SPEAKER_01: But she makes a convincing case that it may not be a legal conflict of interest, at least in Georgia.
• 22:02
  SPEAKER_01: I think she would be in significantly more trouble in some other states.
• 22:06
  SPEAKER_00: Yeah, she basically argues a fee structure for a special prosecutor can only be a conflict of interest if
• 22:11
  SPEAKER_00: if it literally is a fee that's paid directly for the verdict.
• 22:14
  SPEAKER_00: So if you had a contingency fee structure where the special prosecutor is paid for obtaining a conviction, that that's an impermissible conflict of interest.
• 22:21
  SPEAKER_00: If that's the standard, that strikes me as a bizarre standard because obviously the defendants are impacted by matters other than whether they are convicted.
• 22:29
  SPEAKER_00: And if you have conflicts, as you described, that incentivize you to, you know, charge more counts, charge more complicated things, do things that will also make the case more expensive for the defendant to defend, those are all interests of the defendant that are implicated.
• 22:42
  SPEAKER_01: Absolutely.
• 22:43
  SPEAKER_01: And one of our criticisms of this case, Josh, has been for a while that the way it was charged seemed calculated to make it as complicated and lengthy and convoluted and expensive as possible, that it seemed almost charged more for the consistent news value than for the best strategy to obtain a prompt conviction.
• 23:06
  SPEAKER_01: And that illustrates why there's a problem here, because
• 23:08
  SPEAKER_01: The more work that Wade has to do, the more work he'd have an opportunity to do, the more money he would make.
• 23:14
  SPEAKER_01: So absolutely not just the outcome of the case, but how the case is structured, how much work is going to be needed by the special prosecutor absolutely plays into that person's financial interest.
• 23:27
  SPEAKER_01: And if that person is the romantic partner of the person directing the work to them, particularly if that person
• 23:34
  SPEAKER_00: There was a fairly brief response from Roman's attorney basically saying there's a whole bunch of factual claims in here.
• 23:46
  SPEAKER_00: The DA actually appended an affidavit from Nathan Wade that made a bunch of factual claims that are important.
• 23:52
  SPEAKER_00: in terms of, you know, evaluating exactly what happened here.
• 23:56
  SPEAKER_00: And so Roman's attorney basically says, well, you need to have a hearing.
• 24:00
  SPEAKER_00: I need to be able to cross-examine Nathan Wade.
• 24:03
  SPEAKER_00: You can't, you know, you can't just admit an affidavit that he submits that's not subject to cross.
• 24:08
  SPEAKER_00: And so basically saying, well, you know, if this is what the DA has to argue, then we clearly need a hearing with testimony in order to figure out what to do next.
• 24:16
  SPEAKER_01: What apparently happened here from what I understand, Andrew Fleischman, who's an attorney in Georgia who's been on this show and has contributed a lot to this discussion, indicated the judge asked the defense attorney to respond on the issue of whether or not he needed to hold a hearing.
• 24:33
  SPEAKER_01: hearing and she did respond extremely quickly within hours.
• 24:37
  SPEAKER_01: You know this is one of the times when I'm a little hesitant to Monday Morning Quarterback but it seems to me to be a mistake to file a super fast reply that totally fails to address the legal arguments in the opposition.
• 24:48
  SPEAKER_01: It really comes off as conceding almost everything in the legal section of Fannie Willis's opposition about the nature of conflict of interest, the scope of conflict of interest under Georgia law,
• 25:01
  SPEAKER_01: and whether this could conceivably be a conflict of interest, even if completely true the way the defense portrays it.
• 25:07
  SPEAKER_01: So I assume she'll make those arguments at the hearing, but I would be concerned here that she has, in effect, conceded a lot of the DA's key legal arguments by not responding to them.
• 25:21
  SPEAKER_00: And that's even though the judge asked for a response specifically on that hearing issue?
• 25:25
  SPEAKER_01: Yes, I mean, if you're going to make a response and you don't respond to other issues, then that's probably going to be taken as a concession.
• 25:32
  SPEAKER_01: Unless the judge said, I need you to respond on just this issue in three hours, then I'm uncomfortable with the concept of responding just on that issue in three hours and leaving the others unrebutted.
• 25:43
  SPEAKER_01: But you know, she's an experienced practitioner, maybe there's a strategy here we don't see.
• 25:47
  SPEAKER_00: And so the next steps here, this goes before Judge McAfee and he can either he can order that hearing or he could rule that that District Attorney Willis is right on the law and therefore they don't need to inquire about any of these factual questions.
• 26:00
  SPEAKER_00: They won't need a hearing and then the case would just proceed.
• 26:03
  SPEAKER_01: Correct.
• 26:04
  SPEAKER_01: And then the question might be, will this relatively newly constituted supervisory body for DAs in Georgia step in?
• 26:15
  SPEAKER_01: And that seems to be a somewhat open question.
• 26:19
  SPEAKER_00: Ken, is it a good idea to sleep with an attorney who you've hired to prosecute a case for you?
• 26:25
  SPEAKER_01: It is not.
• 26:26
  SPEAKER_01: It is not a good idea.
• 26:27
  SPEAKER_01: No.
• 26:28
  SPEAKER_01: I mean, I would say it's probably a bad idea to have a relationship with people on your
• 26:35
  SPEAKER_01: Serious
• 26:53
  SPEAKER_01: And, you know, we're getting a lot of static over this saying that we're rushing to judgment.
• 26:57
  SPEAKER_01: But even under her version of events, I think it's a terrible, terrible exercise of bad judgment.
• 27:02
  SPEAKER_00: And so how does that as a practical matter affect the prosecution?
• 27:05
  SPEAKER_00: I mean, this prosecution already is so cumbersome on so many dimensions.
• 27:10
  SPEAKER_00: But, you know, if what Judge McAfee says is basically, you know, however we might feel about the, you know, the abstract propriety of this, it's not against Georgia law and there's no action that he needs to take to address it.
• 27:23
  SPEAKER_00: Does that affect her practical ability to prosecute this case?
• 27:27
  SPEAKER_01: Legally, no.
• 27:28
  SPEAKER_01: Practically, it's possible that it would give political cover for that district attorney group to somehow intervene.
• 27:36
  SPEAKER_01: It could give political cover to future people in Georgia if there's, you know, eventually different governors elected or something like that to intervene.
• 27:46
  SPEAKER_01: It gives Trump more talking points, not that he lacks any, and it gives him more political cover to portray the whole thing as, you know, a sinister, corrupt, put-up job.
• 27:57
  SPEAKER_00: Well, and also it undermines the political cover that Brian Kemp has had, the Republican governor who has passed up certain opportunities to try to interfere with this prosecution.
• 28:05
  SPEAKER_00: He and there's no love lost between him and Donald Trump.
• 28:08
  SPEAKER_00: But certainly it makes it makes Brian Kemp's life harder when he has to go to his fellow Republicans and explain why he's not doing anything about this.
• 28:14
  SPEAKER_01: Yeah, exactly.
• 28:15
  SPEAKER_01: It makes I haven't seen he hasn't made any indications that he's going to change his mind.
• 28:20
  SPEAKER_01: But I think you're right.
• 28:21
  SPEAKER_01: It makes his life harder.
• 28:24
  SPEAKER_00: Let's talk about Taylor Swift, Ken.
• 28:26
  SPEAKER_00: You excited to talk about Taylor Swift?
• 28:28
  SPEAKER_01: We found a legal angle here.
• 28:29
  SPEAKER_01: Depending on the scope of the questions, I suppose.
• 28:33
  SPEAKER_00: So, Taylor Swift has a private jet, which, you know, she's a billionaire.
• 28:37
  SPEAKER_00: I'd have a private jet too if I were Taylor Swift.
• 28:40
  SPEAKER_00: And there is this college kid, Jack Sweeney, at the University of Central Florida, who runs social media accounts that track the private jets of certain notable people.
• 28:50
  SPEAKER_00: Famously, he got banned from Twitter for tracking Elon Musk's jet.
• 28:53
  SPEAKER_00: Elon Musk claimed that it led to a stalking incident.
• 28:57
  SPEAKER_00: It wasn't clear that, you know, the stocking incident had anything to do with his private jet travel.
• 29:01
  SPEAKER_00: They weren't that close together in time.
• 29:02
  SPEAKER_00: But in any case, Elon Musk is not the only rich person who doesn't like having his jet movements tracked in an easily discoverable way.
• 29:11
  SPEAKER_00: And so Taylor Swift had attorneys from the firm Venable send a threatening letter to Sweeney basically saying, you know, stop tracking Taylor Swift's jet.
• 29:20
  SPEAKER_00: It's causing her all of this trouble and harassment and we may sue you if you keep doing it.
• 29:26
  SPEAKER_01: Yeah, and this probably is not a threat that has legal merit.
• 29:31
  SPEAKER_01: So all that this guy is doing is aggregating public record information, publicly available information, information that by law is required to be reported and accessible to the public.
• 29:45
  SPEAKER_01: And the First Amendment generally protects that type of thing.
• 29:50
  SPEAKER_01: with Ken White.
• 30:07
  SPEAKER_01: Hey, how many bodyguards then maybe you're getting into some sort of level where in a First Amendment exception but this as it was when Jack Sweeney was doing this with Elon Musk is pretty clearly protected by the First Amendment, but You know as we say you can beat the rap, but you can't beat the ride and when you've got a billionaire with a firm like Venable and and the rule Josh with mega firms is that
• 30:34
  SPEAKER_01: I'm
• 30:56
  SPEAKER_01: Hot and cold running lawyers and can make your life a living hell, no matter what.
• 31:01
  SPEAKER_01: And maybe you'll win someday, but not until we've made your life a living hell.
• 31:04
  SPEAKER_01: So this is an illustration of the problems with the system.
• 31:08
  SPEAKER_01: And one might be somewhat sympathetic to someone like Taylor Swift, who probably gets any number of unhinged threats, and not all of them from the Republican Party.
• 31:18
  SPEAKER_01: But on the other hand, the First Amendment clearly protects this type of activity.
• 31:23
  SPEAKER_00: I see a little bit of a strategic difference here between sending the letter and actually filing a lawsuit.
• 31:28
  SPEAKER_00: I mean, if you send these letters out, I'm sure some people are just like, this isn't worth the trouble, I'll stop.
• 31:33
  SPEAKER_00: If Taylor Swift actually sued this kid, there would be tremendous amounts of media coverage about it.
• 31:38
  SPEAKER_00: I mean, it's a Streisand effect issue, but it's actually one of the most literally similar cases to the Streisand case itself, where she sued over someone who took an aerial photograph of her home, which caused the photograph of the home to be published over and over again.
• 31:52
  SPEAKER_00: If Taylor Swift gets involved in litigation over the tracking of the location of her private jet, I assume that will bring more attention to the location of her private jet going forward.
• 32:01
  SPEAKER_01: Absolutely, but she may have already done that just through this threat.
• 32:05
  SPEAKER_01: Threats getting heavy coverage is just about anything related to her tends to.
• 32:09
  SPEAKER_01: And so she may figure having already triggered the Streisand effect might as well go further with a bogus lawsuit.
• 32:18
  SPEAKER_00: We should note that the letter was sent in December.
• 32:19
  SPEAKER_00: She hasn't filed a lawsuit yet.
• 32:21
  SPEAKER_01: She has not filed one yet and it only hit the news now.
• 32:25
  SPEAKER_01: You know, I would sort of second guess the decision making here to send this threat or at least under this tone.
• 32:32
  SPEAKER_01: I think this would probably be a better opportunity for a sort of pleading, convincing type of communication to Jack Sweeney about, let me tell you some of the security issues we've had.
• 32:44
  SPEAKER_01: Let me tell you about some of the threats she's gotten.
• 32:47
  SPEAKER_01: There's a lot of talk these days about doxing.
• 33:11
  SPEAKER_00: And, you know, when people use the term doxing, they're usually talking about the publication of information that is sensitive and that people don't want out there, but that is not fundamentally secret.
• 33:21
  SPEAKER_00: Things like addresses and phone numbers.
• 33:23
  SPEAKER_00: I mean, Ken, when you were a young adult, they used to publish a book called The White Pages and actually bring it to everybody's house and it had everybody's address and phone number doxed right there in the book.
• 33:31
  SPEAKER_01: It wasn't specifically about me, Josh.
• 33:33
  SPEAKER_01: Let's just make that clear for our younger listeners.
• 33:36
  SPEAKER_00: But is there any legal meaning to the term doxing?
• 33:40
  SPEAKER_00: Are there situations in which you do not have a right to publish information about people that is not secret but that probably wouldn't have been noticed if you didn't share it around?
• 33:49
  SPEAKER_00: Because that seems like what this jet information falls into that category.
• 33:53
  SPEAKER_01: Right.
• 33:53
  SPEAKER_01: So there are increasing number of state and local laws that purport to limit doxing, meaning publication of details like that.
• 34:03
  SPEAKER_01: But generally, they are not surviving First Amendment challenges when they come up, and they will probably continue not to survive
• 34:11
  SPEAKER_01: First Amendment challenges.
• 34:12
  SPEAKER_01: So I don't like the chances here of this happening.
• 34:16
  SPEAKER_01: And speaking of doxing, one of the things that is a likely and probable outcome of the threat letter is every attorney on it getting several million extremely angry emails from 12 year olds.
• 34:30
  SPEAKER_01: So, you know, those are the those are the breaks.
• 34:33
  SPEAKER_00: Well, I think it's probably fortunate for those venerable lawyers, The Washington Post didn't actually publish the threat letter.
• 34:38
  SPEAKER_00: We may see the full threat letter at some point.
• 34:40
  SPEAKER_00: If it becomes public, we will revisit it with a closer reading.
• 34:43
  SPEAKER_00: But so far, it's just a news account of the letter.
• 34:47
  SPEAKER_00: Ken, let's talk about Jack Berkman.
• 34:49
  SPEAKER_00: It's been so long since we've talked about Jack Berkman that I think some listeners might not even know who he is.
• 34:53
  SPEAKER_00: So who is this fucking moron?
• 34:56
  SPEAKER_01: Jack Berkman is technically still and was a lawyer who was sort of the dumb to Jacob Wall's dumber.
• 35:06
  SPEAKER_01: He and Jacob Wall were this team who, you know, made up all these crazy stories about people.
• 35:12
  SPEAKER_01: Remember, they tried to leak the story that Elizabeth Warren had a much younger lover that she leaned into to great effect.
• 35:21
  SPEAKER_01: Yeah, they had a banner that said Elizabeth Warren Cougar.
• 35:25
  SPEAKER_01: Right.
• 35:26
  SPEAKER_01: They tried to leak stories about Jack Smith, about the Mueller and Mueller investigation, all these things, and they've all come to nothing.
• 35:36
  SPEAKER_01: They all turned out to be, you know, generally the people who were the claimed central figures in it backed out or said it wasn't true or said they were coerced or something like that.
• 35:47
  SPEAKER_01: More recently, they've gotten into real trouble for voter fraud.
• 35:52
  SPEAKER_01: They both pled to voter fraud in Ohio, basically for robocalls, trying to deter voters by saying that, you know, if you register to vote, they're going to hook you up for your warrants and that type of thing.
• 36:04
  SPEAKER_01: Clearly directed at the African American community.
• 36:07
  SPEAKER_01: So now Jack Berkman, who is somehow
• 36:13
  SPEAKER_01: Dumber and less dumb at the same time than Jacob Wall has basically agreed to surrender his DC bar license as a result of his plea in Ohio and he also has a huge civil judgment against him for other robocalls so his life is spiraling downward.
• 36:31
  SPEAKER_00: I mean, the remarkable thing about Jack Berkman is, I mean, yes, he was a lawyer.
• 36:34
  SPEAKER_00: He was also a lobbyist.
• 36:35
  SPEAKER_00: And, you know, a lot of people in Washington are both of those things at the same time.
• 36:39
  SPEAKER_00: But it appeared that Jack Berkman's real business, when he was not doing his sideline of, like, coming up with Cougar conspiracies about Elizabeth Warren, he had clients that he registered as that they were paying him.
• 36:51
  SPEAKER_00: And he was going up to Capitol Hill and allegedly, you know, helping them get their agenda enacted, which I can't imagine that Jack Berkman was actually useful.
• 37:00
  SPEAKER_00: Serious Trouble
• 37:10
  SPEAKER_01: Well, you know, it's weird, Josh, you know, the phrase Trump broke that person is popular and it's usually used to criticize or undermine Trump critics.
• 37:20
  SPEAKER_01: But I think it could be equally applied to people who fell into Trump's orbit and burned up in the atmosphere.
• 37:26
  SPEAKER_01: And I think that it's possible that Berkman is one such who just the lure of acting like this and creating these antics, what would
• 37:36
  SPEAKER_01: Serious Trouble is a production of the Center for Autism and Related Disorders, held at
• 37:53
  SPEAKER_00: Finally this week, I'm very excited.
• 37:55
  SPEAKER_00: We're going to end again with the Senate twink.
• 37:57
  SPEAKER_00: Some people were asking, you know, where's the porn coverage?
• 37:59
  SPEAKER_00: Why aren't you talking about porn this week?
• 38:01
  SPEAKER_00: So we do have a porn angle in this week's show.
• 38:03
  SPEAKER_00: The Senate twink, the former legislative correspondent for Senator Ben Cardin, or actually I think he was a legislative aide.
• 38:11
  SPEAKER_00: Sorry, I didn't mean to demote him there.
• 38:13
  SPEAKER_00: He taped himself in flagrante delicto in Hart Center Office Building, room 216, a very large hearing room.
• 38:23
  SPEAKER_00: He got fired for that.
• 38:25
  SPEAKER_00: Apparently, you're not allowed to do that.
• 38:26
  SPEAKER_00: The Capitol Police issued a statement saying that they're done investigating this.
• 38:30
  SPEAKER_00: They're not going to bring any charges.
• 38:32
  SPEAKER_00: And despite the fact that this was a likely violation of congressional policy, they couldn't find any evidence that a crime had been committed here.
• 38:40
  SPEAKER_00: So, you know, someone has some good news this week and the person getting that good news is the Senate twink.
• 38:45
  SPEAKER_01: Yeah, and he hasn't sued for defamation yet.
• 38:49
  SPEAKER_01: Recall that he said that some of the coverage was unfair and inaccurate.
• 38:53
  SPEAKER_01: And that he was considering legal options.
• 38:54
  SPEAKER_01: And he was considering legal options.
• 38:56
  SPEAKER_01: I'm sure he's happy he will not be prosecuted.
• 38:58
  SPEAKER_01: I'm sure the Capitol Police just said, I don't want any part of this.
• 39:02
  SPEAKER_01: Come on.
• 39:03
  SPEAKER_01: Because it would be a circus and sort of a laughingstock.
• 39:06
  SPEAKER_01: And probably this is a sensible allocation of law enforcement resources.
• 39:12
  SPEAKER_00: Well, I mean, it seems like it wasn't, you know, it wasn't clear that there was any particular criminal law that this was against.
• 39:17
  SPEAKER_00: It wasn't indecent exposure because they were the only people in the hearing room and he had, he was an employee and he was allowed to be and even bring guests into the Capitol complex.
• 39:28
  SPEAKER_00: So, you know, not, not every dumb ass thing that you can do that can get you fired from your job.
• 39:31
  SPEAKER_00: They're not always crimes.
• 39:33
  SPEAKER_01: Yeah, exactly.
• 39:34
  SPEAKER_01: The police sometimes just feel as long as you don't do it in the street and frighten the horses that, uh, we don't want to get involved.
• 39:40
  SPEAKER_01: We don't want to do the work.
• 39:42
  SPEAKER_00: The other thing that was noted in the statement from the Capitol Police is that the former congressional staffer exercised his Fifth Amendment right to remain silent and refused to talk to Capitol Police.
• 39:51
  SPEAKER_00: And I just find this amazing here because that means the Senate twink has better judgment than many of the people that we discuss regularly on this show.
• 39:59
  SPEAKER_00: So congratulations, Senate twink, on taking the fifth.
• 40:01
  SPEAKER_00: Yeah, I mean, the second best thing you've taken in the last few months.
• 40:06
  SPEAKER_01: Now I know I don't need to add to my list of times not to talk after you filmed a sex act in the Senate.
• 40:12
  SPEAKER_01: I can just assume people have that already.
• 40:14
  SPEAKER_01: They've got it.
• 40:15
  SPEAKER_00: Yes.
• 40:15
  SPEAKER_00: Yes.
• 40:16
  SPEAKER_00: OK.
• 40:16
  SPEAKER_00: Ken, I think that is a fantastic place to leave it this week.
• 40:19
  SPEAKER_00: Thank you so much for speaking with me.
• 40:20
  SPEAKER_00: Thank you, Josh.
• 40:22
  SPEAKER_00: Serious Trouble is created and produced by Very Serious Media.
• 40:24
  SPEAKER_00: That's me and Sarah Faye.
• 40:26
  SPEAKER_00: Jennifer Swaddock mixed this episode.
• 40:27
  SPEAKER_00: Our theme music is by Joshua Mosher.
• 40:29
  SPEAKER_00: Thanks for listening.
• 40:29
  SPEAKER_00: And we'll be back with more soon.
• 40:31
  SPEAKER_01: See you next time.