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Transcript

‘Esquire’ Is My Middle Name · Serious Trouble

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[music]
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SPEAKER_01: Hi, it's Ken White.
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SPEAKER_01: And it's Josh Barrow, and this is Serious Trouble.
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SPEAKER_01: Ken, I'm excited because we had, you know, the document last week that wasn't a complaint.
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SPEAKER_01: It was full of complaints.
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SPEAKER_01: It was Eric Dieters' dossier about everything that's so terrible about Kimberly Guilfoyle.
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SPEAKER_01: This is the guy who she asked to give her $100,000 to help pay off her Amex card.
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SPEAKER_01: And when that story got to the Wall Street Journal,
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SPEAKER_01: Kimberly Guilfoyle issued various statements,
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SPEAKER_01: including the text messages suggesting that I had asked
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SPEAKER_01: for certain things were fake.
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SPEAKER_01: And the only reason I asked him for money is that he owed me money
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SPEAKER_01: and I just wanted him to repay it.
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SPEAKER_01: And so anyway, he says this is false and furthermore that it's defamatory.
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SPEAKER_01: And now we have the actual lawsuit that he's filed in a court
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SPEAKER_01: in Kentucky suing Kimberly Guilfoyle So it's,
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SPEAKER_01: you know,
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SPEAKER_01: it's a while since we've done one of these stories where the defamation claim is
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SPEAKER_01: that, you know, you falsely denied the thing I accused you of.
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SPEAKER_01: And that's defaming me by calling me a liar.
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SPEAKER_01: Now we have one of those again.
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SPEAKER_00: We do.
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SPEAKER_00: And this is what we now have,
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SPEAKER_00: a genuine complaint formatted like a complaint,
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SPEAKER_00: as contrast to the thing that you and I reviewed last week that he said was
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SPEAKER_00: a complaint,
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SPEAKER_00: but was actually sort of like the stuff I text to my therapist to get more out
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SPEAKER_00: of it.
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SPEAKER_00: So this complaint does claim defamation and breach of contract.
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SPEAKER_00: The defamation is plausible.
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SPEAKER_00: I mean, to say that you're using fake texts And in this factual context that you're
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SPEAKER_00: a blackmailer and that you owe me money is plausibly defamatory.
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SPEAKER_00: So he's got that.
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SPEAKER_00: He's got a breach of contract,
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SPEAKER_00: which seems to be based on the claim that she promised to help him get justice for
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SPEAKER_00: the victims of a doctor named Dr.
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SPEAKER_00: Abubakar Durrani,
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SPEAKER_00: a surgeon who was accused of doing all sorts of Terrible,
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SPEAKER_00: unnecessary surgeries to people and fled the country.
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SPEAKER_00: Apparently Dieters represented some of the victims and she was supposed to help him
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SPEAKER_00: for what she would get a million dollars,
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SPEAKER_00: but she did not help him, according to him.
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SPEAKER_00: Not clear what his damages are on that, but whatever.
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SPEAKER_00: Anyway, it is an odd complaint,
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SPEAKER_00: although very dramatically closer to normality than his prior statement was.
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SPEAKER_00: I'm going to start with a
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SPEAKER_01: venue question.
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SPEAKER_01: I apologize.
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SPEAKER_01: We're in a Kentucky court.
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SPEAKER_01: Isn't there diversity jurisdiction here?
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SPEAKER_01: Kimberly Guilfoyle does not live in Kentucky.
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SPEAKER_01: Neither do her attorneys, Jesse Binall, as far as I know, and David Schwartz.
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SPEAKER_01: Shouldn't we be in federal court?
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SPEAKER_00: I mean, there is diversity jurisdiction.
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SPEAKER_00: Sometimes there are strategic reasons not to go to federal court.
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SPEAKER_00: Federal courts are notoriously,
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SPEAKER_00: let's say,
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SPEAKER_00: tolerant of differences in modes of expression than state courts are,
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SPEAKER_00: or a more cruel person might say, Less tolerant of wackos.
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SPEAKER_00: And so you also really have to be on the ball in federal court.
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SPEAKER_00: If you sue someone in federal court,
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SPEAKER_00: you've got to be ready to move your case forward and follow rules and hit deadlines
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SPEAKER_00: and things like that, whereas you can get away with a lot more in state court.
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SPEAKER_00: So that may well be just his preferred forum.
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SPEAKER_01: But Kimberly Guilfoyle or her attorneys could seek to move it to federal court, right?
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SPEAKER_00: Oh, absolutely.
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SPEAKER_00: And no doubt Dieters knows that on some level.
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SPEAKER_00: But if I were those defendants, I would certainly remove it to federal court.
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SPEAKER_01: So Eric Dieters is pro se here, although he is a lawyer.
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SPEAKER_01: In fact, his middle name is literally Esquire.
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SPEAKER_01: Yes.
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SPEAKER_01: He's Eric E. Dieters because he's Eric Esquire Dieters.
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SPEAKER_01: So I guess I don't know whether that's his name at birth
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SPEAKER_01: and his parents just intended for him to be one of Kentucky's leading attorneys.
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SPEAKER_01: He also has some attachments to this complaint that are funny,
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SPEAKER_01: which isn't surprising given that,
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SPEAKER_01: you know,
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SPEAKER_01: the resume last week that we talked about,
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SPEAKER_01: one of the things it said is that he once sold out a comedy club.
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SPEAKER_01: And so one of the things that he describes in here is how he,
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SPEAKER_01: in 2024, went to some campaign event with Don Jr. and Kimberly Guilfoyle.
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SPEAKER_01: And Don Jr. and Kimberly appeared to be in the process of their breakup.
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SPEAKER_01: And Don Jr. wouldn't even sit or speak near her.
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SPEAKER_01: But then one of the things that he says is that there was some food at
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SPEAKER_01: a craft service table or whatever.
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SPEAKER_01: And Kimberly took it all home with her, which he then says, bizarre.
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SPEAKER_01: He also says that she repeatedly asked him to compliment her in front of Don Jr.
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SPEAKER_01: to help win back his favor, which he also thought was bizarre.
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SPEAKER_01: Are you supposed to attach a bunch of commentary like this to a lawsuit?
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SPEAKER_00: Generally, no.
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SPEAKER_00: It is, particularly in federal court, would not be looked upon favorably.
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SPEAKER_00: Let me also comment that I feel that if you need Eric Dieters to vouch for you
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SPEAKER_00: in your relationship,
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SPEAKER_00: something has gone dramatically wrong in the course of that relationship.
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SPEAKER_00: But yeah, so,
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SPEAKER_00: but I mean,
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SPEAKER_00: Given a little bit of tolerance of weird stuff stapled to the complaint,
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SPEAKER_00: the complaint itself is within the realm of competence.
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SPEAKER_01: So, you know,
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SPEAKER_01: Eric Dieters,
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SPEAKER_01: you know,
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SPEAKER_01: there is this background,
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SPEAKER_01: what he says he hired Kimberly Guilfoyle for originally was lobbying
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SPEAKER_01: about this case.
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SPEAKER_01: This surgeon apparently fled to Pakistan when he faced both civil
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SPEAKER_01: and criminal trouble over these accusations of inappropriate surgeries.
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SPEAKER_01: And so, you know,
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SPEAKER_01: he talks about how there are all these victims and they,
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SPEAKER_01: you know, deserve their payouts.
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SPEAKER_01: Presumably, like, presumably he's awaiting a contingency fee.
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SPEAKER_01: He may also just genuinely care about having this doctor who seems
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SPEAKER_01: to have been indicted and accused
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SPEAKER_00: credibly of some terrible things faces justice for
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SPEAKER_00: the satisfaction of his clients.
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SPEAKER_01: Well, I guess if you have an important issue like that for the federal government,
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SPEAKER_01: you should probably get a better lobbyist than Kimberly Guilfoyle.
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SPEAKER_00: I would say so, or at least one with a lower Amex bill.
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SPEAKER_01: Okay, let's talk about the Ilhan Omar case.
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SPEAKER_01: So her home in Washington, D.C. was raided.
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SPEAKER_01: Her lawyers now say that the feds,
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SPEAKER_01: in the process of doing that raid,
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SPEAKER_01: ignored restrictions that were placed on the search warrant by the magistrate judge
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SPEAKER_01: who approved it.
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SPEAKER_01: Among other things,
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SPEAKER_01: they were supposed to deal with the Office of the General Counsel
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SPEAKER_01: at House Representatives to ensure that they weren't searching for material
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SPEAKER_01: that would be protected by the speech or debate clause.
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SPEAKER_01: And they say that they just didn't do that.
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SPEAKER_01: They have to follow the rules that the judge lays out, right?
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SPEAKER_00: They do.
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SPEAKER_00: And we had already heard reporting on this previously that there had been sort of
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SPEAKER_00: a battle with a magistrate judge over narrowing and restricting the search warrant.
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SPEAKER_00: And, you know,
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SPEAKER_00: even before the era of the Trump DOJ,
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SPEAKER_00: sometimes assistant U.S.
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SPEAKER_00: attorneys react very badly to magistrate judges trying to limit searches,
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SPEAKER_00: but usually not badly as simply ignoring them.
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SPEAKER_00: So if a magistrate judge issues a search warrant subject to conditions,
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SPEAKER_00: then ignoring those conditions puts significant risk that
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SPEAKER_00: the search could be thrown out because you basically ignore
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SPEAKER_00: the conditional permission to do this search,
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SPEAKER_00: especially if the thing that has been seized goes directly to the nature
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SPEAKER_00: of those conditions.
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SPEAKER_00: Here it seems as if The magistrate judge was primarily interested in protecting sort
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SPEAKER_00: of speech and debate clause type material stuff about her role as a member
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SPEAKER_00: of Congress.
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SPEAKER_00: And DOJ probably just thought that's bullshit.
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SPEAKER_00: That has nothing to do with this.
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SPEAKER_00: We don't care, which is a very Trump DOJ type of attitude.
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SPEAKER_00: So Trump DOJ is saying it's not true.
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SPEAKER_00: We did everything we're supposed to.
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SPEAKER_00: But Omar is saying,
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SPEAKER_00: for instance,
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SPEAKER_00: she was supposed to have access to her lawyers in order to Raise assertions
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SPEAKER_00: about speech and debate clause stuff,
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SPEAKER_00: but they held her incommunicado for hours,
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SPEAKER_00: that they didn't notify the House, and so on and so forth.
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SPEAKER_00: So, you know, that could be an additional basis.
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SPEAKER_00: So would they exclude all material from the search or just material
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SPEAKER_00: that would have been excluded pursuant to the judge's orders?
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SPEAKER_00: It's a good question.
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SPEAKER_00: And as you can imagine,
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SPEAKER_00: the law on this is probably going to be maximally favorable to the government
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SPEAKER_00: and minimally favorable to the defendant.
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SPEAKER_00: So I suspect the outcome would be just stuff that's seized in violation.
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SPEAKER_00: However,
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SPEAKER_00: if the judge finds that the misconduct rises to the level
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SPEAKER_00: of outrageous government misconduct,
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SPEAKER_00: you know,
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SPEAKER_00: if you pile it all together,
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SPEAKER_00: things they did,
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SPEAKER_00: then this could contribute to a decision to, for instance, dismiss an indictment.
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SPEAKER_00: Or even to exercise supervisory power to throw out more than just that narrow range
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SPEAKER_00: that was explicitly addressed.
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SPEAKER_01: Yeah.
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SPEAKER_01: There's also,
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SPEAKER_01: you know,
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SPEAKER_01: Mark Wayne Mullen,
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SPEAKER_01: the Secretary of Homeland Security,
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SPEAKER_01: has said this is going to be a RICO case, which,
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SPEAKER_01: you know,
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SPEAKER_01: we've talked a lot about how complex and usually overcomplex RICO cases are.
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SPEAKER_01: That would seem like it's a way around statute of limitations issues,
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SPEAKER_01: how you would have a case now about something that was done in 1995.
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SPEAKER_01: Would the theory be- So if they're alleging that she was using a false date of birth
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SPEAKER_01: at the time,
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SPEAKER_01: I don't know whether it's the same date of birth that she currently has
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SPEAKER_01: on government documents today.
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SPEAKER_01: Would that be the nature of the conspiracy if she's been using the same date
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SPEAKER_01: of birth all along and they contend it's not her accurate date of birth,
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SPEAKER_01: that that would be evidence of an ongoing conspiracy?
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SPEAKER_00: Yes, that would be it.
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SPEAKER_00: So in general,
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SPEAKER_00: if you're charging somebody with a conspiracy,
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SPEAKER_00: then the statute doesn't start to run until the last overt act in support of
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SPEAKER_00: that conspiracy.
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SPEAKER_00: So if the conspiracy is to defraud the United States government by using a fake date
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SPEAKER_00: of birth,
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SPEAKER_00: then I guess you could argue that as long as she's continued to use it,
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SPEAKER_00: The question is, who is she still conspiring with to do that?
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SPEAKER_00: And like presumably the allegation is she is agreed with her father back in 1995
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SPEAKER_00: or whatever, but but.
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SPEAKER_00: You know, who is she agreeing with now?
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SPEAKER_00: What is the conspiracy at this point as opposed to her just continuing to use the birth date?
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SPEAKER_00: And on top of that,
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SPEAKER_00: which is,
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SPEAKER_00: you know,
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SPEAKER_00: seems to be quite of a stretch of a theory to extend the statute of limitations,
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SPEAKER_00: that is the fact that Dropping RICO on top of that is just stupid.
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SPEAKER_00: It is ridiculous because RICO carries in a ton of other requirements
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SPEAKER_00: and complexities that you just don't need to do.
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SPEAKER_00: And this is clearly an example of dumb people using RICO as an emoji
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SPEAKER_00: to signify how upsetting or important or criminal something is.
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SPEAKER_01: So for a conspiracy, you need an agreement between two people and you need an overt act, right?
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SPEAKER_01: Right.
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SPEAKER_00: Yes.
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SPEAKER_00: And so in theory,
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SPEAKER_00: the conspiracy continues as long as there's this ongoing agreement to commit
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SPEAKER_00: a specified federal crime.
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SPEAKER_01: But so it's not enough to show that there was a recent overt act that was pursuant
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SPEAKER_01: to an agreement that was entered into some time ago?
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SPEAKER_00: No, the conspiracy only continues for as long as the agreement among people continues.
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SPEAKER_00: So if somebody dies and you do something years later,
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SPEAKER_00: that doesn't mean the conspiracy is continuing.
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SPEAKER_00: Because for the conspiracy to continue, the conspirators still have to exist.
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SPEAKER_00: So that's why,
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SPEAKER_00: for instance,
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SPEAKER_00: if someone overtly exits a conspiracy or something like that,
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SPEAKER_00: you no longer have more than one person, then you no longer have a conspiracy.
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SPEAKER_00: Right.
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SPEAKER_00: So I think it's quite a stretch.
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SPEAKER_00: And when you add RICO onto it, it's purely ludicrous.
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SPEAKER_01: Yeah.
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SPEAKER_01: I mean, I think,
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SPEAKER_01: you know,
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SPEAKER_01: with a lot of these cases,
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SPEAKER_01: one of the sort of underlying questions is what is the real objective of
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SPEAKER_01: the administration here?
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SPEAKER_01: Is it to obtain an outcome in a court or is it to obtain a process
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SPEAKER_01: that creates both headlines and unpleasantness for the people involved in
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SPEAKER_01: the process?
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SPEAKER_01: And so, you know,
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SPEAKER_01: when you look at A search done in this sloppy way that jeopardizes evidence that
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SPEAKER_01: the administration would theoretically rely on for either a criminal prosecution or
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SPEAKER_01: a civil proceeding related to this.
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SPEAKER_01: I guess part of the question is,
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SPEAKER_01: you know,
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SPEAKER_01: was the deliverable the raid on her house itself or do they,
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SPEAKER_01: you know,
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SPEAKER_01: do they actually think they're going to get to an end result in these proceedings?
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SPEAKER_00: Well, I mean,
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SPEAKER_00: the thing is they have brought awfully stupid cases like the Seashell case
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SPEAKER_00: against James Comey.
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SPEAKER_00: And they have also tried very hard at great length to bring stupid cases like
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SPEAKER_00: the ongoing issues in Florida.
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SPEAKER_00: So I think that it can be a multiple motive type of process,
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SPEAKER_00: but I think there's every indication they are genuinely trying to bring bogus cases.
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SPEAKER_00: Yeah.
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SPEAKER_01: Another remarkable criminal case,
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SPEAKER_01: this one with an indictment against a Democratic public official,
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SPEAKER_01: Louise Lucas,
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SPEAKER_01: who is a long-serving Virginia state senator and who was a leading proponent of
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SPEAKER_01: the effort to do a redistricting in Virginia that would have been favorable
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SPEAKER_01: to Democrats in this election cycle,
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SPEAKER_01: there was a search executed against her marijuana dispensary some months ago,
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SPEAKER_01: and now she's been arrested and charged federally along with certain associates,
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SPEAKER_01: including relatives of hers,
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SPEAKER_01: with RICO conspiracy,
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SPEAKER_01: conspiracy to distribute marijuana,
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SPEAKER_01: money laundering conspiracy, and conspiracy to commit honest services fraud.
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SPEAKER_01: In the previous reports we'd seen about this case,
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SPEAKER_01: there were a couple of interesting facts about it.
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SPEAKER_01: One was that there appears to have been some sort of investigation that started
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SPEAKER_01: during the Biden administration.
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SPEAKER_01: And it was being talked about as a bribery case.
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SPEAKER_01: And so there is this honest services fraud count in this indictment that got brought.
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SPEAKER_01: But it's mostly an indictment about selling marijuana, which is illegal under federal law.
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SPEAKER_01: Now, this was a she had a dispensary that was licensed by the state of Virginia.
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SPEAKER_01: As in many states around the country,
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SPEAKER_01: marijuana is now legal under state law for recreational use.
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SPEAKER_01: And there's been this odd benign neglect by the federal government where
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SPEAKER_01: that remains a crime, but it is generally not prosecuted.
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SPEAKER_01: But here they're charging her as a drug trafficker.
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SPEAKER_00: That's correct.
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SPEAKER_00: So for a while under the Obama administration,
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SPEAKER_00: there was something called the Cole Memorandum with the Department of Justice
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SPEAKER_00: that basically said that the Department of Justice wasn't going
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SPEAKER_00: to do marijuana prosecutions unless it fell into some specified areas.
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SPEAKER_00: And that included distribution to kids.
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SPEAKER_00: It included You know,
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SPEAKER_00: distribution by otherwise criminal networks,
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SPEAKER_00: you know,
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SPEAKER_00: people who are also doing cocaine or meth or whatever,
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SPEAKER_00: and included,
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SPEAKER_00: you know, other types of distribution that are related to existing crime.
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SPEAKER_00: So very narrow.
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SPEAKER_00: Trump, in his first term,
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SPEAKER_00: you know,
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SPEAKER_00: rescinded the coal memorandum,
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SPEAKER_00: said, you know, we're going to prosecute who we're going to prosecute.
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SPEAKER_00: During this term has said,
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SPEAKER_00: basically, and,
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SPEAKER_00: you know, we're even giving prosecutors discretion to go after simple possessions.
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SPEAKER_00: But the fact remains that marijuana cases are very rarely prosecuted, even under Trump.
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SPEAKER_00: And something like this,
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SPEAKER_00: where you are prosecuting a dispensary that is licensed in a state as
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SPEAKER_00: if it is distributing cocaine or something, is incredibly rare.
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SPEAKER_00: Very rarely happens, particularly without any sort of connection to otherwise organized crime.
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SPEAKER_00: So...
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SPEAKER_00: The suggestion of the indictment and the implication of the prior news reports about
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SPEAKER_00: the Biden administration investigation was that she was being somehow compensated
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SPEAKER_00: for pushing within Virginia for laws permitting dispensaries
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SPEAKER_00: to operate more broadly.
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SPEAKER_00: And that is the implication of the honest services fraud claim in this indictment.
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SPEAKER_00: But the rest of it is charging a marijuana dispensary with RICO is kind
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SPEAKER_00: of Completely bizarre and not anything that the Trump administration,
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SPEAKER_00: even the Trump administration has done.
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SPEAKER_00: And it kind of raises the point that if you've got this sort of norm or practice,
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SPEAKER_00: it raises the danger that politically disfavored people will get hit
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SPEAKER_00: by these charges that are almost never done,
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SPEAKER_00: but the federal government reserves the right to do if they feel like it.
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SPEAKER_00: And that's something that That danger has hung over
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SPEAKER_00: the growing marijuana dispensary industry and made it very difficult for it
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SPEAKER_00: to get things like banking services and other services.
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SPEAKER_01: Yeah.
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SPEAKER_01: I assume that at some point in this process,
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SPEAKER_01: there'll be a motion for dismissal on grounds of selective
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SPEAKER_01: and vindictive prosecution.
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SPEAKER_00: I would assume, yes.
17:54
SPEAKER_00: As you know, the whole...
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SPEAKER_00: Honest services fraud thing.
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SPEAKER_00: The Supreme Court has been chipping away against that
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SPEAKER_00: and any federal law permitting you to go after politicians for bribery
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SPEAKER_00: for some time.
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SPEAKER_00: So in a way,
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SPEAKER_00: the right-leaning Supreme Court has made it harder to prosecute her on that type
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SPEAKER_00: of charge.
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SPEAKER_00: But that part of the indictment seems almost like an afterthought to the RICO,
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SPEAKER_00: which the RICO, I mean,
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SPEAKER_00: you could really have done this Even if you wanted to go hog wild and charge
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SPEAKER_00: a dispensary for being a dispensary lawfully in the state,
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SPEAKER_00: you could do it with a drug distribution conspiracy statute or
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SPEAKER_00: with regular distribution conspiracy statutes.
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SPEAKER_00: Doing it with RICO, again,
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SPEAKER_00: strongly appears to be for headlines and to make it maximally shocking
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SPEAKER_00: to stupid people.
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SPEAKER_00: And this kind of gets us, Josh,
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SPEAKER_00: into this whole subject of That's very controversial about is Department
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SPEAKER_00: of Justice supposed to do stuff like this close to an election?
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SPEAKER_01: Right.
18:55
SPEAKER_01: Well, so I was wondering about that because the idea is they're not supposed
18:58
SPEAKER_01: to do these things 60 days before an election.
19:02
SPEAKER_01: But so I guess the first question is which election?
19:05
SPEAKER_01: Virginia legislature and state and also state level officeholders statewide like the governor.
19:11
SPEAKER_01: Those elections are in odd numbered years.
19:13
SPEAKER_01: So we're not within 60 days of Louise Lucas's election or elections for
19:16
SPEAKER_01: the government of the state of Virginia.
19:18
SPEAKER_00: Well, that's kind of a,
19:20
SPEAKER_00: you know,
19:21
SPEAKER_00: what socks to the angels dancing on the head of a pin type of question,
19:24
SPEAKER_00: because there's no written policy.
19:26
SPEAKER_00: There is no written 60-day policy.
19:29
SPEAKER_00: The 60-day norm,
19:31
SPEAKER_00: which is sort of a generally understood norm of the United States Department
19:36
SPEAKER_00: of Justice, is just not a norm.
19:38
SPEAKER_00: It's not a written policy.
19:40
SPEAKER_00: It is an understanding from,
19:43
SPEAKER_00: I guess you would say,
19:43
SPEAKER_00: the emanations and penumbras of Department
19:47
SPEAKER_00: of Justice policy saying you're not supposed to do it deliberately to influence
19:51
SPEAKER_00: an election.
19:52
SPEAKER_00: So that's a policy.
19:53
SPEAKER_00: You're not supposed to time your charges or make statements that are calculated
19:58
SPEAKER_00: to influence the outcome of an election.
20:00
SPEAKER_00: And people's interpretation of that is,
20:03
SPEAKER_00: therefore, let's have a norm of 60 or 90 or whatever days.
20:07
SPEAKER_00: We're not going to drop bombs before an election.
20:11
SPEAKER_00: But it is one that has largely and controversially have been...
20:16
SPEAKER_00: Ignored or broken for years.
20:19
SPEAKER_00: Everything from,
20:20
SPEAKER_00: you know,
20:21
SPEAKER_00: the drop on the declination of Hillary Clinton to stuff relating
20:28
SPEAKER_00: to things being unsealed about the Jack Smith investigation.
20:32
SPEAKER_00: Again and again, it's been broken.
20:34
SPEAKER_00: And Republicans have a credible argument that, you know, the Biden administration broke it too.
20:41
SPEAKER_00: So it is sort of a paper shield at this point.
20:46
SPEAKER_00: Right.
21:00
SPEAKER_01: We talked last week about Judge Honoreas,
21:03
SPEAKER_01: very angry about the removal of trees in this park on the Potomac River
21:09
SPEAKER_01: in Washington, D.C.,
21:10
SPEAKER_01: where the president wants to build
21:12
SPEAKER_01: a Tom Fazio-designed championship golf links course.
21:17
SPEAKER_01: And so now the DOJ asked for her to accuse herself,
21:20
SPEAKER_01: basically saying she was too angry and she demonstrated bias against the government.
21:24
SPEAKER_01: And she also did this, what I think is a very unusual thing, right?
21:28
SPEAKER_01: Where there was a filing in the case from the federal government that she thought was bullshit.
21:32
SPEAKER_01: And she was demanding in the courtroom...
21:35
SPEAKER_01: That the government attorneys who were there who had not signed the thing come in
21:39
SPEAKER_01: and show whether or not they were willing to sign it and possibly subject themselves
21:42
SPEAKER_01: to Rule 11 sanctions for signing a frivolous filing.
21:47
SPEAKER_01: Which, like, can the judge do that
21:49
SPEAKER_00: on the spot?
21:49
SPEAKER_00: It's unusual.
21:50
SPEAKER_00: So first of all, Josh,
21:51
SPEAKER_00: I want to thank you for apologizing for too much golf course content,
21:55
SPEAKER_00: even if you continue to refuse to apologize for too much genitalia content.
21:59
SPEAKER_00: But we'll let that go.
22:01
SPEAKER_00: So...
22:02
SPEAKER_00: Yeah, so it started in the chain of events.
22:05
SPEAKER_00: First there was the motion to recuse because you remember we reported how
22:09
SPEAKER_00: the Trump DOJ,
22:11
SPEAKER_00: you know,
22:11
SPEAKER_00: chopped down 400 trees after giving notice late on Friday
22:15
SPEAKER_00: and Judge Ana Reyes felt duped and that she had told the plaintiffs,
22:20
SPEAKER_00: don't worry, they won't spring that sort of stuff on you.
22:23
SPEAKER_00: And then they did.
22:24
SPEAKER_00: So DOJ filed a motion to recuse,
22:27
SPEAKER_00: which had a very strong flavor of,
22:29
SPEAKER_00: you know, Look at this emotional woman out of control type of vibe.
22:36
SPEAKER_00: She denied it,
22:37
SPEAKER_00: showing rather devastatingly how they had selectively quoted,
22:42
SPEAKER_00: misconstrued, left out stuff that contradicted what they said.
22:45
SPEAKER_00: And basically in her words,
22:47
SPEAKER_00: it's easy to weaponize selective quotations to bring a baseless recusal motion.
22:51
SPEAKER_00: And it was a baseless and ridiculous recusal motion.
22:54
SPEAKER_00: But then what happens is the government has been saying this case has no merit
22:59
SPEAKER_00: Because there's no final agency action.
23:02
SPEAKER_00: Because,
23:02
SPEAKER_00: you know,
23:02
SPEAKER_00: under the Administrative Procedure Act,
23:05
SPEAKER_00: to be able to challenge it,
23:06
SPEAKER_00: there has to be some sort of final agency action,
23:08
SPEAKER_00: not just some sort of preliminary thoughts.
23:11
SPEAKER_00: And DOJ was saying there's no final action.
23:14
SPEAKER_00: There are just some preliminary thoughts by Trump.
23:16
SPEAKER_00: So Trump very obligingly,
23:17
SPEAKER_00: as he always does in these situations,
23:19
SPEAKER_00: puts out a true social statement that we're going to demolish the golf course
23:23
SPEAKER_00: and put up a world-class, you know, no doubt astounding of a vulgar new golf course.
23:29
SPEAKER_00: So on the 19th,
23:31
SPEAKER_00: she brings the DOJ attorneys in who were on the case and asked them
23:35
SPEAKER_00: about this pleading they had just submitted, saying there's no final agency action.
23:41
SPEAKER_01: Meanwhile,
23:41
SPEAKER_01: the president was literally in the Oval Office with renderings of
23:45
SPEAKER_01: the new golf course.
23:46
SPEAKER_00: Right.
23:46
SPEAKER_00: And he's also, by the way, calling her a crazed lunatic and things like that.
23:51
SPEAKER_00: So she, in this very contentious hearing,
23:55
SPEAKER_00: to put it mildly,
23:56
SPEAKER_00: It demands that the federal attorney say,
23:59
SPEAKER_00: which one of you is willing to sign the pleading you filed
24:03
SPEAKER_00: about no final agency action under Rule 11,
24:07
SPEAKER_00: meaning that you're certifying that it's true and accurate and correct?
24:11
SPEAKER_00: Raise your hand if you're willing to do that.
24:12
SPEAKER_00: And so the lead DOJ attorney told them not to, and they couldn't do that and that type of thing.
24:18
SPEAKER_00: And eventually she withdrew the demand.
24:20
SPEAKER_01: By the way,
24:21
SPEAKER_01: Stanley Woodward is the associate attorney general,
24:23
SPEAKER_01: which makes him the third highest ranking official at the DOJ,
24:26
SPEAKER_01: which is too senior to be in court arguing about a golf course, right?
24:30
SPEAKER_00: He is.
24:31
SPEAKER_00: And what DOJ has said is it's necessary to send people like that to protect people.
24:36
SPEAKER_00: The younglings,
24:37
SPEAKER_00: because these evil judges and Democrats are constantly trying to ruin the career
24:42
SPEAKER_00: of these hapless young AUSAs who are just doing their job and blah,
24:46
SPEAKER_00: blah, blah, blah.
24:47
SPEAKER_00: But eventually she backed off of that.
24:50
SPEAKER_00: And I think she just wanted to make the point
24:52
SPEAKER_00: that DOJ is consistently saying stuff that's not true.
24:56
SPEAKER_00: They're lying to courts and none of them will take responsibility or accountability for it.
25:00
SPEAKER_00: So she did it in a rather vivid way.
25:03
SPEAKER_00: But You know,
25:04
SPEAKER_00: nobody in the courtroom,
25:06
SPEAKER_00: no DOJ attorney was willing to sign under penalty of rule 11,
25:11
SPEAKER_00: which is kind of like saying under penalty of perjury,
25:14
SPEAKER_00: that the things in this pleading were true.
25:17
SPEAKER_00: Well, Stanley Woodward directed them not to sign.
25:20
SPEAKER_00: Right.
25:21
SPEAKER_00: That's true.
25:21
SPEAKER_00: You know, directed them not to raise their hands, too.
25:24
SPEAKER_00: But again, this is increasingly the case in these cases of special interest to Donald Trump.
25:31
SPEAKER_00: Or where the things are particularly contentious for them
25:37
SPEAKER_00: to use higher level executives in the Department of Justice
25:42
SPEAKER_00: and not have any line AUSAs or normally responsible people sign the documents
25:49
SPEAKER_00: or support the arguments.
25:50
SPEAKER_01: What are you supposed to do if you're a U.S.
25:52
SPEAKER_01: attorney in the room and the judge makes that demand and the deputy AG says not
25:56
SPEAKER_01: to do it?
25:58
SPEAKER_00: I think you have to say that I have to follow the instructions of my superior.
26:03
SPEAKER_01: Okay.
26:03
SPEAKER_01: So you do not follow the judge's direction regardless of how you feel about the filing itself?
26:08
SPEAKER_00: Well, the judge's direction is who is willing to sign under Rule 11.
26:13
SPEAKER_00: And if your boss says you can't, then that's a basis to say you're not willing to.
26:18
SPEAKER_00: Okay.
26:18
SPEAKER_00: Fair enough.
26:19
SPEAKER_00: So it's not a situation where she ordered them to do it and then they refused.
26:23
SPEAKER_00: She was making a rhetorical point very effectively.
26:26
SPEAKER_01: I've seen a number of people who are not like knee jerk for
26:30
SPEAKER_01: the administration suggesting here that Judge Reyes has not done herself any favors
26:34
SPEAKER_01: with the manner in which she has handled this.
26:37
SPEAKER_01: Do you agree with that?
26:40
SPEAKER_00: No, I understand the argument, but I don't agree with it.
26:43
SPEAKER_00: Here's why.
26:44
SPEAKER_00: I think the administration benefits from everyone treating things as business
26:49
SPEAKER_00: as usual, even when they're manifestly not.
26:52
SPEAKER_00: So when the president of the United States says,
26:56
SPEAKER_00: Directly says that I'm going to demolish this golf course,
27:00
SPEAKER_00: even as the Department of Justice has said there's no decision about demolishing
27:04
SPEAKER_00: the golf course.
27:05
SPEAKER_00: And the President of the United States is saying the judge is a lunatic for objecting to that.
27:10
SPEAKER_00: That is not a normal set of events.
27:12
SPEAKER_00: And it's appropriate for a judge to react to it as something other than a normal set of events.
27:18
SPEAKER_00: So the Department of Justice and the people who are attacking Judge Reyes,
27:21
SPEAKER_00: I think to a large extent,
27:23
SPEAKER_00: are wanting everything to be Smooth and polite and normal federal court procedure as
27:29
SPEAKER_00: if everyone is obeying the rules and telling the truth
27:32
SPEAKER_00: and following federal court's orders.
27:35
SPEAKER_00: And they're manifestly not.
27:37
SPEAKER_00: So I think it is a significant misunderstanding of the situation to focus on
27:43
SPEAKER_00: the tone the judge is using.
27:44
SPEAKER_01: Well, but I mean,
27:45
SPEAKER_01: isn't the way that you would handle the fact that this is not a normal situation
27:49
SPEAKER_01: that you would issue a preliminary injunction that you might not otherwise issue?
27:52
SPEAKER_01: I mean,
27:54
SPEAKER_01: Judge Reyes herself has talked about how because she received certain assurances
27:58
SPEAKER_01: from the government about how they would be communicative about things,
28:01
SPEAKER_01: that she didn't issue written orders that she could have.
28:03
SPEAKER_01: I mean, I think that that's an escalation that's available to the judge.
28:08
SPEAKER_00: It is,
28:08
SPEAKER_00: but also the judge has the power and obligation to supervise the courtroom and
28:13
SPEAKER_00: the processes before her.
28:15
SPEAKER_00: And when the United States Department of Justice is saying things that are not true,
28:21
SPEAKER_00: are making false representations to the court,
28:24
SPEAKER_00: there appears to be no mechanism to get anyone higher up at Department
28:27
SPEAKER_00: of Justice engaged and responding to that fact,
28:30
SPEAKER_00: then I think it's appropriate to call that fact out very strongly in court.
28:35
SPEAKER_00: And I think the sort of, oh,
28:37
SPEAKER_00: You know,
28:37
SPEAKER_00: she should have done it a more polite,
28:39
SPEAKER_00: old fashioned way is kind of missing the point.
28:42
SPEAKER_01: We've got a couple of cases out in the country.
28:46
SPEAKER_01: Involving really weird courtroom behavior,
28:48
SPEAKER_01: one about a district attorney and one about a federal judge who both seem
28:55
SPEAKER_01: to have sort of lost it.
28:56
SPEAKER_01: And so I think it's sort of interesting to look at what you do in a situation when
29:00
SPEAKER_01: an officer of the court is not all there.
29:02
SPEAKER_01: Let's start with this New Mexico Supreme Court case.
29:04
SPEAKER_01: They're trying to disbar a deal.
29:11
SPEAKER_01: That's it for this week's free episode of Serious Trouble.
29:14
SPEAKER_01: If you want to hear about a couple of cases of judges behaving strangely,
29:18
SPEAKER_01: or rather one judge and one district attorney,
29:21
SPEAKER_01: and a story from Ken's career about what you do when you have a judge who is really
29:26
SPEAKER_01: in no condition to be judging,
29:29
SPEAKER_01: What do you do about the fact that they're presiding over a courtroom?
29:31
SPEAKER_01: We talk about that.
29:33
SPEAKER_01: And then we also talk about RICO, a new use of RICO that's kind of less nonsense than usual.
29:42
SPEAKER_01: Civil RICO claims being filed by the city of New York and also
29:45
SPEAKER_01: by companies like Uber and FedEx
29:48
SPEAKER_01: against personal injury law firms they say are ginning up fake personal injury cases
29:52
SPEAKER_01: against them.
29:53
SPEAKER_01: There have been a number of these around the country
29:54
SPEAKER_01: that are getting different disposition claims.
29:56
SPEAKER_01: For $6 a month or $60 a year,
29:57
SPEAKER_01: you can become a full paying subscriber and get every full episode,
30:00
SPEAKER_01: including this one.
30:01
SPEAKER_01: We'd love to have you.