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Bad Week for Prosecutors · Serious Trouble

0:08
SPEAKER_01: Hi, it's Ken White.
0:09
SPEAKER_01: And it's Josh Barrow, and this is Serious Trouble.
0:13
SPEAKER_01: So, Ken, a little bit of news in the last week since we've recorded.
0:16
SPEAKER_01: I think we obviously have to start with the assassination attempt on former President Donald Trump.
0:22
SPEAKER_01: Shot in the ear, literally within inches of being killed in this assassination attempt.
0:27
SPEAKER_01: And,
0:28
SPEAKER_01: you know,
0:28
SPEAKER_01: there's a lot of incompetence here on the part of the Secret Service,
0:31
SPEAKER_01: or what looks like incompetence.
0:32
SPEAKER_01: That's outside of our portfolio, but that's part of what interests me here.
0:36
SPEAKER_01: But I think what we should talk about today is the federal government involvement
0:41
SPEAKER_01: in this because,
0:42
SPEAKER_01: you know,
0:42
SPEAKER_01: the killing the president or trying to kill the president is a federal crime.
0:46
SPEAKER_01: Is this a federal crime to try to kill a leading presidential candidate who is a former president?
0:52
SPEAKER_00: Well, you might be able to find a theory under which it is, but not in a straightforward way.
0:58
SPEAKER_00: So the federal law prohibits killing the president or someone who is the president-elect.
1:04
SPEAKER_00: It does not,
1:05
SPEAKER_00: strangely enough,
1:06
SPEAKER_00: prohibit killing someone because they're a former president or because they are –
1:12
SPEAKER_00: a candidate for president.
1:13
SPEAKER_00: I mean, it's obviously illegal under all sorts of theories.
1:17
SPEAKER_00: It might be a federal crime under some circumstances, but there's not a specific federal law about it.
1:23
SPEAKER_00: So that's what you've seen when people have killed presidential candidates like Sirhan Sirhan.
1:29
SPEAKER_00: It's been prosecuted by the state or— It killed Robert F.
1:33
SPEAKER_01: Kennedy Sr.,
1:34
SPEAKER_01: although if you ask RFK Jr.,
1:36
SPEAKER_01: he's not so sure that's what really happened.
1:38
SPEAKER_00: Right.
1:38
SPEAKER_00: I think it might have been the measles vaccine.
1:42
SPEAKER_00: Yeah, or Arthur Bremer, who shot and wounded George Wallace or any of these people.
1:48
SPEAKER_00: So usually they get prosecuted by the state, or rarely people get prosecuted under some other theory.
1:55
SPEAKER_00: So for instance,
1:55
SPEAKER_00: there was a guy recently who tried to help bring an Iraqi hit squad into the
2:00
SPEAKER_00: country to kill George W.
2:03
SPEAKER_00: Bush,
2:03
SPEAKER_00: and he was prosecuted for aiding a designated foreign terrorist organization.
2:08
SPEAKER_00: That doesn't stop the government from investigating.
2:13
SPEAKER_00: The feds are still involved.
2:14
SPEAKER_01: Right.
2:15
SPEAKER_01: So the FBI is involved in this investigation and people are talking about it as a
2:19
SPEAKER_01: domestic terrorism investigation.
2:21
SPEAKER_01: What does domestic terrorism mean in federal law?
2:25
SPEAKER_00: Well,
2:25
SPEAKER_00: so there is a definition of domestic terrorism buried in federal law,
2:30
SPEAKER_00: but it's not really actionable yet.
2:34
SPEAKER_00: the way other terrorism is.
2:36
SPEAKER_00: So there are few laws that actually make domestic terrorism as such a federal crime.
2:44
SPEAKER_00: It's really more sort of a conceptual category.
2:48
SPEAKER_00: And you've heard a lot of rhetoric.
2:50
SPEAKER_00: And in fact,
2:51
SPEAKER_00: I think we've talked about it in the past,
2:53
SPEAKER_00: about every now and then there's this drive that we've got to have
2:56
SPEAKER_00: federal laws criminalizing domestic terrorism because the existing laws aren't adequate.
3:03
SPEAKER_00: But when they say that,
3:04
SPEAKER_00: to me,
3:05
SPEAKER_00: that's sort of a term the FBI uses like a person of interest that doesn't actually
3:11
SPEAKER_00: mean something very specific,
3:13
SPEAKER_00: but it's sort of a catch-all that means whatever they want it to mean.
3:17
SPEAKER_01: And so the other thing about the investigation here is obviously the shooter is dead,
3:22
SPEAKER_01: was shot dead almost immediately by the Secret Service.
3:25
SPEAKER_01: Obviously, there's still a lot to investigate here because you want to know how this happened.
3:30
SPEAKER_01: You'd want to know whether he had any co-conspirators,
3:32
SPEAKER_01: although I don't think we've seen anything so far that suggests that that's likely.
3:35
SPEAKER_01: But so what does an investigation look like here when it's not actually moving very
3:40
SPEAKER_01: likely toward a prosecution?
3:42
SPEAKER_00: It looks like any other shooting investigation is delving into
3:47
SPEAKER_00: How the shooter got a gun,
3:50
SPEAKER_00: if they told anyone ahead of time,
3:51
SPEAKER_00: if so,
3:52
SPEAKER_00: who,
3:53
SPEAKER_00: if anyone assisted them,
3:55
SPEAKER_00: if you have a scenario where parents or colleagues were somehow negligent in the
4:03
SPEAKER_00: way they allowed this person to have a gun.
4:05
SPEAKER_00: those are the things that they look at.
4:08
SPEAKER_00: And the FBI calling it potential domestic terrorism is just sort of a generic sort
4:13
SPEAKER_00: of rationale for the FBI being involved.
4:18
SPEAKER_00: I mean, there are other theories on which you could see the FBI going after it.
4:21
SPEAKER_00: Anyone shooting the president is
4:23
SPEAKER_00: shooting at or pretty close to the Secret Service, who are federal agents in the course of their duty.
4:30
SPEAKER_00: But the FBI likes to have sort of something to hang its hat on in terms of why it's involved.
4:34
SPEAKER_01: I shouldn't be taking from your tone that there's something improper about the
4:37
SPEAKER_01: FBI's involvement here,
4:38
SPEAKER_01: right?
4:39
SPEAKER_00: No,
4:40
SPEAKER_00: if I have a tone,
4:40
SPEAKER_00: it's probably just that this is one of those situations where the FBI says
4:46
SPEAKER_00: something that's perhaps a little misleading and makes people think,
4:51
SPEAKER_00: oh,
4:51
SPEAKER_00: OK,
4:51
SPEAKER_00: well,
4:51
SPEAKER_00: there must be,
4:52
SPEAKER_00: you know,
4:52
SPEAKER_00: we could have if this guy had lived,
4:53
SPEAKER_00: we could have charged him with domestic terrorism.
4:56
SPEAKER_00: Well, not necessarily.
4:59
SPEAKER_01: So it's slippery language use.
5:01
SPEAKER_01: Speaking of slippery language,
5:02
SPEAKER_01: we've gotten some notes about the conversation we had a few weeks ago about the
5:05
SPEAKER_01: concept of stochastic terrorism,
5:08
SPEAKER_01: which is not a concept that I think I or you are a big fan of.
5:12
SPEAKER_01: And people basically saying to us, see, you know, we told you that's a thing.
5:16
SPEAKER_01: And so I guess,
5:16
SPEAKER_01: you know,
5:17
SPEAKER_01: first of all,
5:18
SPEAKER_01: we weren't saying that there's no such concept that if you know,
5:21
SPEAKER_01: if you have rhetoric that is irresponsible,
5:23
SPEAKER_01: it might,
5:23
SPEAKER_01: you know,
5:24
SPEAKER_01: lead to people doing irresponsible things.
5:27
SPEAKER_01: The problems I have with that terminology – I mean first of all,
5:29
SPEAKER_01: I don't think that we have an indication here specifically that this shooter was
5:33
SPEAKER_01: activated by any particular rhetoric about Donald Trump or any other rhetoric.
5:37
SPEAKER_01: I mean when you get crazy people who go out and shoot major political figures,
5:42
SPEAKER_01: sometimes it looks like there's a nexus to certain inflammatory content like with
5:46
SPEAKER_01: the guy who attacked Paul Pelosi.
5:48
SPEAKER_01: And thought that, you know, what Nancy Pelosi was doing horrible things to America, etc.
5:52
SPEAKER_01: But sometimes you get someone like John Hinckley who shot Ronald Reagan because he
5:55
SPEAKER_01: was trying to impress Jodie Foster.
5:56
SPEAKER_01: And I don't think that we know yet or have a strong reason to believe this shooter
6:01
SPEAKER_01: was hyped up by some particular kind of rhetoric.
6:03
SPEAKER_01: But I don't dispute the idea that that can happen and does happen in principle.
6:07
SPEAKER_01: I just think that the term is used very loosely.
6:10
SPEAKER_01: And I think as we've seen in certain contexts,
6:13
SPEAKER_01: it can be applied basically to any kind of inflammatory language that people don't
6:16
SPEAKER_01: like hearing,
6:17
SPEAKER_01: even though politics is about important things.
6:19
SPEAKER_01: And sometimes things are important and bad, and it is appropriate to be inflammatory about them.
6:24
SPEAKER_00: Absolutely.
6:24
SPEAKER_00: And I think we saw an example of that immediately after this assassination attempt with
6:29
SPEAKER_00: GOP rushing in to say that basically anyone who said that this election is about
6:37
SPEAKER_00: defending democracy or that Trump is a fascist is responsible for the shooting and
6:42
SPEAKER_00: inspired it by using excessive language.
6:45
SPEAKER_00: But the thing is,
6:46
SPEAKER_00: it's unquestionably okay to have strong feelings one way or the other about Trump
6:52
SPEAKER_00: being elected and to
6:54
SPEAKER_00: voice those.
6:55
SPEAKER_00: And calling Trump a fascist is no more any kind of terrorism,
7:00
SPEAKER_00: nor,
7:00
SPEAKER_00: frankly,
7:01
SPEAKER_00: are the people who are saying that if you don't elect Trump,
7:04
SPEAKER_00: democracy will fail.
7:06
SPEAKER_00: That's just normal, overblown, arguably, political hype.
7:10
SPEAKER_00: My quarrel with it is it's often used sort of in a confusing way to mislead people
7:17
SPEAKER_00: about what the law is.
7:19
SPEAKER_00: So stochastic terrorism is absolutely a philosophical or sociological concept.
7:24
SPEAKER_00: It is not a legal concept.
7:25
SPEAKER_00: There is no such legal category.
7:29
SPEAKER_00: There is no First Amendment exception for stochastic terrorism.
7:32
SPEAKER_00: And probably a good thing because it's impossible to define because sometimes
7:38
SPEAKER_00: things in politics really do need extreme language to describe them.
7:44
SPEAKER_00: And creating this category,
7:46
SPEAKER_00: well,
7:46
SPEAKER_00: we're going to arbitrarily say that some language is too extreme,
7:50
SPEAKER_00: is a real problem.
7:51
SPEAKER_00: So, again, if you want to use stochastic terrorism effectively,
7:56
SPEAKER_00: to describe Rwanda-type situations where extreme rhetoric is being used really with
8:03
SPEAKER_00: an intent to inspire people,
8:05
SPEAKER_00: to kill people.
8:07
SPEAKER_00: I see that.
8:08
SPEAKER_00: Otherwise, I just think it's, you might as well say bad or mean.
8:12
SPEAKER_00: It's so infinitely flexible,
8:14
SPEAKER_00: and it's going to be used as a justification for censorship,
8:18
SPEAKER_00: like we see in all the
8:20
SPEAKER_00: the denunciations of people for criticizing Trump right now.
8:26
SPEAKER_01: Let's turn to some actual legal proceedings.
8:29
SPEAKER_01: I want to start with Judge Cannon.
8:30
SPEAKER_01: This is another piece of big news that came this week.
8:33
SPEAKER_01: She's dismissed the documents case against Donald Trump.
8:36
SPEAKER_01: And the reason that she has dismissed it is that she says that Jack Smith's
8:39
SPEAKER_01: appointment as special counsel is not authorized by law.
8:43
SPEAKER_01: The appointments clause of the Constitution authorizes the president to make
8:47
SPEAKER_01: certain kinds of appointments and authorizes the Congress to give him power to make
8:51
SPEAKER_01: other kinds of appointments.
8:52
SPEAKER_01: And she says there's no law that the Congress passed that allows him to do that.
8:56
SPEAKER_01: Therefore, the special counsel is not validly in place and the charge has to be dismissed.
9:01
SPEAKER_01: And so I've seen a lot of people saying that this is in contravention of some sort
9:06
SPEAKER_01: of Supreme Court ruling.
9:07
SPEAKER_01: My understanding is that's not quite right,
9:09
SPEAKER_01: that this ruling is I think we can say the ruling is incorrect and is very likely
9:13
SPEAKER_01: to be overturned.
9:14
SPEAKER_01: But it is not, in fact, in direct.
9:16
SPEAKER_01: It's other appeals courts and other circuits that have made rulings that are
9:19
SPEAKER_01: contradictory to what Judge Cannon has ruled here.
9:22
SPEAKER_00: Right.
9:22
SPEAKER_00: So let's set the table first.
9:23
SPEAKER_00: I mean,
9:23
SPEAKER_00: this whole thing about you can't have a special counsel or a special prosecutor has
9:29
SPEAKER_00: been a conservative bugaboo for generations.
9:33
SPEAKER_00: You know, Scalia was absolutely wild about hating special counsels and special prosecutors.
9:40
SPEAKER_00: And the idea is that you're
9:41
SPEAKER_00: improperly delegating authority to someone who is not normally supervised,
9:47
SPEAKER_00: and that breaches the separation of powers.
9:50
SPEAKER_00: So every court that has considered this question and ruled on it before has
9:56
SPEAKER_00: rejected the argument,
9:57
SPEAKER_00: has rejected the argument that the Department of Justice regulation allowing
10:02
SPEAKER_00: appointment of a special counsel is
10:04
SPEAKER_00: is somehow a violation of the Appointments Clause or any other provision of the Constitution.
10:10
SPEAKER_00: There is a Supreme Court case that many people read to say that special counsels
10:17
SPEAKER_00: are okay,
10:18
SPEAKER_00: but it doesn't say so in so explicit a way that I think you can fairly say that
10:22
SPEAKER_00: canon is
10:23
SPEAKER_00: absolutely deliberately defying the Supreme Court.
10:27
SPEAKER_00: She is tracking very closely the concurrence by Justice Thomas in last month's
10:37
SPEAKER_00: decision on presidential immunity.
10:39
SPEAKER_00: And this is something where this was not briefed at all.
10:41
SPEAKER_00: Again,
10:41
SPEAKER_01: to just give people the context,
10:43
SPEAKER_01: the appeal was from the January 6th related case in federal court in Washington,
10:47
SPEAKER_01: D.C.,
10:47
SPEAKER_01: also brought by Jack Smith.
10:49
SPEAKER_01: And so you could have had a controversy there over whether Jack Smith's appointment
10:52
SPEAKER_01: was improper and it should be dismissed for that reason.
10:55
SPEAKER_01: But that issue did not actually get up to the Supreme Court.
10:57
SPEAKER_00: Exactly.
10:57
SPEAKER_00: It wasn't briefed.
10:58
SPEAKER_00: It wasn't one of the issues presented.
11:00
SPEAKER_00: But Thomas went on a long concurrence about it,
11:02
SPEAKER_00: saying that lower court should look into the special counsel whether this is appropriate.
11:07
SPEAKER_00: And
11:07
SPEAKER_00: Cannon took it up and agreed.
11:10
SPEAKER_00: And what she says,
11:11
SPEAKER_00: basically,
11:12
SPEAKER_00: is that because there's no congressional statute,
11:16
SPEAKER_00: in her view,
11:18
SPEAKER_00: expressly permitting this appointment,
11:20
SPEAKER_00: it doesn't fall within the power of the Department of Justice generally.
11:24
SPEAKER_00: It also amounts to expenditure of funds without congressional approval.
11:29
SPEAKER_00: And therefore, it's unconstitutional.
11:31
SPEAKER_00: The amended indictment is dismissed, and that's it.
11:37
SPEAKER_00: It's a very long opinion, which doesn't mean that it's a good opinion, just that it's 93 pages.
11:43
SPEAKER_00: It's not like a minute order.
11:45
SPEAKER_00: But yeah, I mean, that's the end of it.
11:47
SPEAKER_00: And some people are kind of asking, you know, why now in particular?
11:52
SPEAKER_00: There have been all sorts of Trump motions demanding to dismiss the whole case that
11:57
SPEAKER_00: she sat on or had lengthy hearings on.
11:59
SPEAKER_00: Some of which she's rejected.
12:01
SPEAKER_00: Right.
12:01
SPEAKER_00: And people have been asking,
12:02
SPEAKER_00: is this just because she thinks it's the moment that she can get away with this?
12:06
SPEAKER_00: Is this, you know, masks off?
12:09
SPEAKER_00: And I think there is sort of a mask off element to this.
12:13
SPEAKER_00: Since the time she was appointed as the judge on this case,
12:17
SPEAKER_00: we've been talking about the things she could do to help Trump that were big or
12:22
SPEAKER_00: small and gradual.
12:23
SPEAKER_00: And this one is big.
12:24
SPEAKER_00: And it shows a sort of going all in for Trump on a level that she hasn't done before.
12:31
SPEAKER_01: Jack Smith has appealed this ruling.
12:33
SPEAKER_01: And I think the consensus is that he has a good chance of the appeals court reversing Judge Cannon here.
12:39
SPEAKER_00: Yes, I think he has an excellent chance of the 11th Circuit reversing her.
12:43
SPEAKER_00: The United States Supreme Court, I would have said before that they would not accept this theory.
12:50
SPEAKER_00: I'm no longer confident of that after the immunity decision.
12:53
SPEAKER_00: So I think that reflects a level of in the tank for Trump that suggests they might accept it.
13:00
SPEAKER_00: But I think, yeah, I think Jack Smith wins in the 11th Circuit if the case survives that long.
13:06
SPEAKER_01: Right.
13:06
SPEAKER_01: Which is to say that if Trump is president, he may move to dismiss the case.
13:10
SPEAKER_01: I've also seen a couple of theories that people have floated about how this could
13:13
SPEAKER_01: lead to a situation where the case continues and Judge Cannon is not presiding over it.
13:17
SPEAKER_01: Now,
13:17
SPEAKER_01: one is that Jack Smith could appeal to the 11th Circuit and the 11th Circuit could
13:20
SPEAKER_01: not only reverse her,
13:21
SPEAKER_01: but find that her
13:23
SPEAKER_01: Dismissal was so egregious combined with prior conduct that she's done that they
13:27
SPEAKER_01: would reassign the case to another judge.
13:29
SPEAKER_01: Do you think that's likely?
13:31
SPEAKER_00: I'm a little torn on this.
13:33
SPEAKER_00: People smarter than I am have said that they think it's likely.
13:37
SPEAKER_00: But to me, it's hard to put my finger on it.
13:40
SPEAKER_00: It doesn't have the vibe of the type of case where a circuit does that.
13:44
SPEAKER_00: I saw an article surveying the, I think, 28 times the 11th Circuit has done that in a case.
13:51
SPEAKER_00: My sense is that Judge Cannon's prior civil ruling, the crazy one where she
13:59
SPEAKER_00: halted the investigation where they spanked her pretty hard is more the type of
14:04
SPEAKER_00: thing where a circuit will do that because it's sort of so nakedly illegal based on
14:10
SPEAKER_00: no possible precedent.
14:12
SPEAKER_00: This,
14:12
SPEAKER_00: even though it's kind of out there,
14:13
SPEAKER_00: even though it's really relying on a single concurrence by a Supreme Court justice,
14:18
SPEAKER_00: I don't think is sufficiently sort of defiant of the law
14:23
SPEAKER_00: to have the vibe of something that the circuit's going to do this for.
14:28
SPEAKER_00: But I could be wrong.
14:29
SPEAKER_01: And then the other thing I've seen people say is that Jack Smith,
14:31
SPEAKER_01: I guess,
14:32
SPEAKER_01: instead of appealing it,
14:33
SPEAKER_01: could basically say,
14:34
SPEAKER_01: OK,
14:34
SPEAKER_01: fine,
14:35
SPEAKER_01: we'll dismiss the charge and the charge will be brought by the U.S.
14:38
SPEAKER_01: attorney's office in South Florida and cure the special counsel problem.
14:42
SPEAKER_01: And I've seen some people say that if they did that,
14:44
SPEAKER_01: they would then get to pick a new judge at random and it probably wouldn't be
14:47
SPEAKER_01: before Judge Cannon.
14:48
SPEAKER_00: well i don't think that's right i would have to review the uh local rules for that
14:56
SPEAKER_00: district but in general in a situation where a case gets dismissed and refiled it
15:01
SPEAKER_00: gets sent back to the judge who had it before and that's in part so that the
15:05
SPEAKER_00: prosecutors don't go judge shopping right so there's a process called low numbering
15:10
SPEAKER_00: where you know if a case is substantially related to a prior one
15:15
SPEAKER_00: Then it goes to whichever judge had the lowest number.
15:18
SPEAKER_00: That is the first case.
15:20
SPEAKER_00: And I suspect that's what would happen here.
15:23
SPEAKER_00: So I kind of think that's wish casting as opposed to reality.
15:28
SPEAKER_00: And also, I mean, it would be a big lift for the U.S.
15:31
SPEAKER_00: attorney to reindite this fast because really they would have to represent things to a grand jury.
15:39
SPEAKER_00: I mean,
15:39
SPEAKER_00: I guess they could try to do it right and make sure that they don't run into any
15:43
SPEAKER_00: immunity problems,
15:44
SPEAKER_00: that they don't present any evidence to the grand jury of anything that takes place
15:48
SPEAKER_00: during the time that Trump is president.
15:50
SPEAKER_00: But I find it unlikely.
15:52
SPEAKER_00: I think it's much more likely that they'll pursue it through the appellate course,
15:57
SPEAKER_00: even though that might wind up being futile.
16:00
SPEAKER_00: Because as you said, if Trump becomes president—
16:03
SPEAKER_00: He can direct Jacob Wall or whoever his attorney general is to dismiss the case or
16:10
SPEAKER_00: he can pardon himself and have the same effect.
16:13
SPEAKER_01: Another upshot of this opinion that I've been hearing people talk about is,
16:16
SPEAKER_01: well,
16:16
SPEAKER_01: if special counsels aren't allowed,
16:17
SPEAKER_01: isn't Hunter Biden off the hook?
16:20
SPEAKER_01: And I have a couple of questions about that.
16:21
SPEAKER_01: I mean, one is the special counsel in the Hunter Biden case is the US attorney for Delaware.
16:27
SPEAKER_01: And so doesn't that cure the appointments clause issue that basically,
16:30
SPEAKER_01: you know,
16:31
SPEAKER_01: it's not the president going and picking someone who was never confirmed by the Congress.
16:35
SPEAKER_01: It's not only someone who's a confirmed US attorney,
16:36
SPEAKER_01: but in the case of the gun case,
16:38
SPEAKER_01: it is the very same US attorney who would be overseeing the case if there were not
16:41
SPEAKER_01: a special prosecutor.
16:43
SPEAKER_00: Well,
16:43
SPEAKER_00: I think the difference is,
16:45
SPEAKER_00: and I think probably what Judge Cannon would say is no,
16:49
SPEAKER_00: because Weiss in his capacity as special counsel was not supervised in the same way
16:56
SPEAKER_00: as Weiss in his capacity as U.S.
16:57
SPEAKER_00: attorney.
16:58
SPEAKER_00: So you might have had,
17:00
SPEAKER_00: depending on how the funding worked,
17:02
SPEAKER_00: you might have avoided the appropriations clause issue because he's being paid
17:07
SPEAKER_00: as U.S.
17:08
SPEAKER_00: attorney, although I don't know if his staff was paid to normal U.S.
17:11
SPEAKER_00: attorney channels.
17:13
SPEAKER_00: But Cannon's whole point is that this is someone who's not in the normal chain of command,
17:18
SPEAKER_00: and therefore it's improper.
17:20
SPEAKER_00: And my sense is that Weiss, because he was only
17:25
SPEAKER_00: being supervised in his capacity as special counsel through the attorney general,
17:30
SPEAKER_00: through this regulation and not as U.S.
17:33
SPEAKER_00: attorney, then it would still run into the same problem.
17:36
SPEAKER_00: But Josh,
17:37
SPEAKER_00: really,
17:37
SPEAKER_00: that question is kind of like,
17:39
SPEAKER_00: you know,
17:39
SPEAKER_00: if we say we're going to decide this case by the rules of fourth edition Dungeons
17:43
SPEAKER_00: and Dragons,
17:44
SPEAKER_00: you know,
17:45
SPEAKER_00: does it really matter?
17:47
SPEAKER_00: If we were arguing about the rules of fourth edition Dungeons and Dragons,
17:51
SPEAKER_00: is that really the point or is the point that we're – Well,
17:53
SPEAKER_00: I would think that would matter a great deal to you,
17:54
SPEAKER_00: Ken.
17:55
SPEAKER_00: Well, yes, because fourth edition is terrible.
17:57
SPEAKER_00: But my point is that if you're buying into this irrational system that's based on
18:02
SPEAKER_00: something completely different than what law is supposed to be,
18:05
SPEAKER_00: you're kind of angels on the head of a pin at that point.
18:08
SPEAKER_00: So it's kind of a weird conversation to have.
18:18
SPEAKER_01: Let's talk about Rudy Giuliani.
18:20
SPEAKER_01: He is no longer in bankruptcy.
18:22
SPEAKER_01: Congratulations, Rudy Giuliani, not bankrupt anymore.
18:24
SPEAKER_01: This is a good thing for him, right?
18:26
SPEAKER_00: Well, I mean, it might be the least bad thing available to him at the moment.
18:30
SPEAKER_00: So recall, he's been...
18:33
SPEAKER_00: In this bankruptcy,
18:34
SPEAKER_00: the proceeding,
18:34
SPEAKER_00: he's got this group of creditors,
18:38
SPEAKER_00: including the people who successfully sued him for defamation.
18:42
SPEAKER_00: As a creditors committee, they've been pursuing him.
18:45
SPEAKER_00: They've wanted and the judge has suggested that he needs all his assets need to be
18:50
SPEAKER_00: much more closely controlled and supervised.
18:54
SPEAKER_00: by a trustee and what he really did here was try to convert his bankruptcy into one
18:59
SPEAKER_00: that has less control and supervision over his assets or barring that dismiss it
19:05
SPEAKER_00: and what the judge said is no we're just going to dismiss it you're very
19:08
SPEAKER_00: uncooperative uh and so you know you're on your own the effect of this is that his
19:15
SPEAKER_00: creditors can go after his assets using the same techniques they could for anyone
19:20
SPEAKER_00: else who's not in bankruptcy
19:23
SPEAKER_00: That doesn't necessarily mean they immediately get all his money because there are
19:27
SPEAKER_00: many ways to try to thwart creditors and frivolous litigation,
19:33
SPEAKER_00: transferring assets,
19:35
SPEAKER_00: all sorts of stunts you can pull to try to blockade a collections effort.
19:39
SPEAKER_00: And it wouldn't surprise me at all if that's what he winds up doing.
19:42
SPEAKER_00: But he no longer has the protection of the bankruptcy court for people trying to take his assets.
19:47
SPEAKER_01: There's a reason you file bankruptcy, right?
19:49
SPEAKER_01: And there's a reason that he would have chosen to in the first place.
19:51
SPEAKER_01: In particular, he has these two homes, one in Florida and one in New York.
19:54
SPEAKER_01: And part of the dispute with the bankruptcy court has been over – essentially,
19:57
SPEAKER_01: it's like at different times he's trying to claim that both of them are primary
20:00
SPEAKER_01: residences of his in order to avoid liquidation of either home.
20:05
SPEAKER_01: So does that mean they can go like put a lien on his apartment and seize it?
20:08
SPEAKER_00: Yeah, they can put liens on –
20:11
SPEAKER_00: any of his property.
20:12
SPEAKER_00: They can garnish wages if he had any.
20:15
SPEAKER_00: They could do all the normal things you can do, governed by state law, to collect on a judgment.
20:22
SPEAKER_00: And there are ways to resist that.
20:24
SPEAKER_00: And if you're someone like Rudy Giuliani...
20:27
SPEAKER_00: willing to file crazy lawsuits and crazy legal theories then you would expect him
20:32
SPEAKER_00: to do a lot of sort of out there things to try to to do it so uh you know it would
20:40
SPEAKER_00: not surprise me if he tries to somehow invoke presidential immunity even though
20:44
SPEAKER_00: that makes no sense at all
20:46
SPEAKER_01: But so, I mean, what are the remedies if, you know, he uses fraudulent transfers, for example?
20:50
SPEAKER_01: He takes assets and moves them to somewhere that they are unavailable to the creditors.
20:54
SPEAKER_01: That's a crime, right?
20:55
SPEAKER_01: Could he be criminally charged for that?
20:57
SPEAKER_00: In theory, although usually with fraudulent transfer, you know, it's a civil thing.
21:01
SPEAKER_00: So then you have to sue him again,
21:04
SPEAKER_00: and then you sue whoever received the assets,
21:07
SPEAKER_00: sue them for fraudulent transfer,
21:09
SPEAKER_00: try to claw it back.
21:11
SPEAKER_00: And usually, eventually, it works.
21:14
SPEAKER_00: It's very hard to permanently hide your assets, but it delays things.
21:19
SPEAKER_00: It's a way to drag it out.
21:21
SPEAKER_00: And Rudy might be thinking that, you know, if Trump gets into office, he'll be able to help me somehow.
21:27
SPEAKER_01: Is that true, though?
21:28
SPEAKER_01: I mean, as you say, isn't this a state law matter?
21:30
SPEAKER_00: It is a state law matter, but we're talking about Rudy here.
21:33
SPEAKER_00: He's not necessarily, you know, thinking about rational legal theories.
21:40
SPEAKER_01: The Young Thug case, the other RICO case in Fulton County, Georgia...
21:45
SPEAKER_01: Right.
21:45
SPEAKER_01: Right.
22:04
SPEAKER_00: Well, I mean, quite badly isn't the term I'd use.
22:06
SPEAKER_00: It has to basically interject themselves and make their own credibility an issue in the case.
22:13
SPEAKER_00: So after resisting for a long time,
22:15
SPEAKER_00: Judge Granville finally correctly referred the motions to recuse him to a different judge,
22:21
SPEAKER_00: which is what he was supposed to do in the first place.
22:23
SPEAKER_00: And so Judge Rachel Krause decided this.
22:27
SPEAKER_00: And what she said—
22:30
SPEAKER_00: she said in a very unconvincing and conclusory way,
22:34
SPEAKER_00: I actually don't think this ex parte meeting,
22:38
SPEAKER_00: you know,
22:38
SPEAKER_00: where the DA and the judge got together to bully this witness,
22:41
SPEAKER_00: I'm not sure if that was wrong.
22:43
SPEAKER_00: I think it was actually right.
22:44
SPEAKER_00: I'm not going to cite any law or explain why, but I'm just going to give you that sense.
22:49
SPEAKER_00: But what she said is that when he responded to the demands to recuse himself, he said,
22:58
SPEAKER_00: responded in a way that sort of put his credibility on the line.
23:02
SPEAKER_00: He responded substantively.
23:04
SPEAKER_00: And if you're a judge,
23:05
SPEAKER_00: you can sort of articulate,
23:08
SPEAKER_00: you know,
23:08
SPEAKER_00: plain facts like,
23:10
SPEAKER_00: you know,
23:10
SPEAKER_00: I didn't get this case until this date.
23:12
SPEAKER_00: What you can't do is put a whole bunch of new facts about your intent and knowledge
23:17
SPEAKER_00: into the record and make yourself,
23:18
SPEAKER_00: in effect,
23:19
SPEAKER_00: a witness.
23:20
SPEAKER_00: So what she said is that the disclosure, if you're making some sort of disclosure statement
23:26
SPEAKER_00: to reject recusal it has to be in a way that's objective dispassionate and
23:30
SPEAKER_00: non-argumentative so that the judge is not reasonably perceived as an advocate or a
23:36
SPEAKER_00: hostile witness and that's very much what he did and she can't deny it he he went
23:41
SPEAKER_00: all in sort of saying you know i'm not the problem you guys are the problem and so
23:46
SPEAKER_00: to me this is kind of like the most polite and respectful to the chief judge way to
23:52
SPEAKER_00: recuse the chief judge
23:53
SPEAKER_00: His whole pattern of behavior here is pretty awful, pretty appalling.
23:58
SPEAKER_00: And this is the most face-saving way for another judge to get him off.
24:03
SPEAKER_01: So what happens to this case?
24:05
SPEAKER_01: You're mid-trial with the judge who's been taken off the case.
24:08
SPEAKER_01: Can the trial continue with a new judge?
24:10
SPEAKER_01: I don't know.
24:10
SPEAKER_00: I find that very hard to believe.
24:14
SPEAKER_00: Normally,
24:15
SPEAKER_00: the usual remedy when the judge dies or otherwise leaves a case midway through is a
24:21
SPEAKER_00: mistrial because otherwise you get inconsistent rulings.
24:25
SPEAKER_00: The judge who comes on doesn't know everything that happened before.
24:29
SPEAKER_00: They don't understand the context.
24:31
SPEAKER_00: I don't know that it's absolutely required under Georgia law.
24:35
SPEAKER_00: That's a question for a Georgia judge.
24:37
SPEAKER_00: criminal law expert, but that would be the usual practice is to mistrial it.
24:43
SPEAKER_01: And so, I mean, this has been such a saga.
24:46
SPEAKER_01: I mean, this is the case where it took almost a year to seat a jury.
24:49
SPEAKER_01: So are they really going to start all over again?
24:52
SPEAKER_00: They may,
24:53
SPEAKER_00: or they may try to just appoint another judge and slog through it,
24:57
SPEAKER_00: which by itself creates a new additional appellate issue.
25:01
SPEAKER_00: So, you know, Young Thug's lawyers have been saying you ought to let him in on bond.
25:05
SPEAKER_00: This is an own goal by the prosecution and the judge.
25:09
SPEAKER_00: It's not fair to make him sit in custody through this whole case again.
25:13
SPEAKER_01: I mean,
25:13
SPEAKER_01: does a situation like this motivate the prosecutor's office to try to find some way
25:17
SPEAKER_01: to plead it out?
25:18
SPEAKER_01: Possibly.
25:19
SPEAKER_00: Although, you know, again, this doing these big, messy, endless RICO cases is just the way
25:27
SPEAKER_00: the Fulton County DA does business.
25:30
SPEAKER_00: And it being a big,
25:32
SPEAKER_00: messy,
25:33
SPEAKER_00: years-long,
25:35
SPEAKER_00: hideously expensive to defend,
25:37
SPEAKER_00: keep everyone in jail forever type of thing,
25:39
SPEAKER_00: I think is intentional.
25:40
SPEAKER_00: It's a feature, not a bug.
25:42
SPEAKER_00: It's the process being the punishment.
25:44
SPEAKER_00: So I don't think that in the case of Fulton County, it makes them rethink.
25:49
SPEAKER_00: I just think it makes them say,
25:50
SPEAKER_00: yeah,
25:50
SPEAKER_00: well,
25:50
SPEAKER_00: yeah,
25:51
SPEAKER_00: now we get to start all over and he's in jail the whole time,
25:53
SPEAKER_00: so it sucks to be him.
25:55
SPEAKER_01: Finally this week, I want to talk about Alec Baldwin, who's had quite a good week.
25:58
SPEAKER_01: The manslaughter case against him in New Mexico has been dismissed with prejudice,
26:03
SPEAKER_01: which means they can't bring the case against him again.
26:05
SPEAKER_01: And it's because prosecutors failed to turn over some evidence that might have been exculpatory.
26:10
SPEAKER_00: That's right, Josh.
26:12
SPEAKER_00: This is the latest in a string of blunders and defeats by the prosecution in this case.
26:18
SPEAKER_00: What happened apparently is that someone came forward with a group of bullets that
26:24
SPEAKER_00: they claimed were related to the bullets that were on set,
26:28
SPEAKER_00: some of which turned out to be live.
26:30
SPEAKER_00: So potentially relevant to the question of how did live bullets wind up on set and
26:37
SPEAKER_00: how did one get loaded into a gun?
26:39
SPEAKER_00: And the police and DA's office,
26:42
SPEAKER_00: rather than notifying the defense or turning over this evidence,
26:47
SPEAKER_00: they created a new case file with a different number and they stuck it there.
26:53
SPEAKER_00: And the prosecution's excuse for this,
26:56
SPEAKER_00: the special prosecutor's excuse for this was,
26:58
SPEAKER_00: well,
26:59
SPEAKER_00: you know,
26:59
SPEAKER_00: I looked at a photo and it didn't appear to me to be the same kind of bullets that
27:03
SPEAKER_00: were at issue here.
27:04
SPEAKER_00: It didn't appear to be the same live rounds.
27:07
SPEAKER_00: So there was a very dramatic moment when the judge holds a hearing on this and cuts
27:11
SPEAKER_00: open an envelope and spills out some of these bullets that this person brought in.
27:16
SPEAKER_00: And some of them are the same kind of rounds that were the live rounds that
27:20
SPEAKER_00: wound up on set.
27:21
SPEAKER_00: The lead special prosecutor wound up testifying,
27:24
SPEAKER_00: which is rarely a good sign for the prosecution when the prosecutor's testifying.
27:29
SPEAKER_00: The second special prosecutor resigned,
27:33
SPEAKER_00: saying she was doing so for ethical reasons,
27:35
SPEAKER_00: strongly suggesting that she felt that she hadn't known this and that the
27:39
SPEAKER_00: justification for holding this stuff back was bogus.
27:43
SPEAKER_00: And after this whole thing, the judges said, this is misconduct.
27:47
SPEAKER_00: This is potentially exculpatory evidence that's relevant to the defense.
27:51
SPEAKER_00: You can't withhold it like that.
27:54
SPEAKER_00: And because of how it's coming out, I'm dismissing with prejudice.
27:59
SPEAKER_00: Now, some critics have said, well, what does it matter about these bullets?
28:04
SPEAKER_00: Because the question is, did he pull the trigger?
28:07
SPEAKER_00: and i think that's too narrow a reading of the prosecutor's obligation because how
28:14
SPEAKER_00: live bullets got on there and who was negligent and how they were negligent and how
28:19
SPEAKER_00: this whole mess happened is absolutely part of the defense and and part of the
28:23
SPEAKER_00: story this is a problem with some prosecutors where they'll look at evidence and
28:27
SPEAKER_00: they'll use their most stingy and
28:32
SPEAKER_00: critical interpretation.
28:33
SPEAKER_00: Well, I don't think this is relevant to defense the way I look at it, and then not turn it over.
28:39
SPEAKER_00: That's clearly what happened here, and that was very wrong.
28:42
SPEAKER_00: So even if these bullets ultimately would not have made a difference in the defense,
28:48
SPEAKER_00: the possibility that they could and the fact that it's for the defense to make that
28:52
SPEAKER_00: decision is what tanked the prosecution here.
28:55
SPEAKER_01: I mean,
28:55
SPEAKER_01: isn't it also the reason that Alec Baldwin was locked into arguing I didn't pull
28:59
SPEAKER_01: the trigger is that he made public statements to the effect that he didn't pull the
29:03
SPEAKER_01: trigger and that he wouldn't pull the trigger because it's irresponsible to pull
29:06
SPEAKER_01: the trigger.
29:07
SPEAKER_01: But he didn't have to lock himself into that.
29:09
SPEAKER_01: And in theory, he could have even presented a defense that contradicted him.
29:12
SPEAKER_01: his prior statement.
29:13
SPEAKER_01: He could have said,
29:14
SPEAKER_01: well,
29:15
SPEAKER_01: you know,
29:15
SPEAKER_01: there was supposed to be dummy bullets in the gun and shouldn't have killed her
29:19
SPEAKER_01: even if I did pull the trigger.
29:21
SPEAKER_01: And so I assume the state can't decide which evidence to hand over based on its
29:25
SPEAKER_01: suppositions about exactly what kind of defense the defense is going to mount.
29:28
SPEAKER_00: That's exactly right.
29:29
SPEAKER_00: You can't substitute your judgment for the judgment of the defense or the jury or the judge.
29:34
SPEAKER_00: And that's a real problem defense lawyers encounter all the time.
29:38
SPEAKER_00: Prosecutors basically saying, well,
29:40
SPEAKER_00: I don't find this evidence moving or particularly relevant, so I'm not going to turn it over.
29:47
SPEAKER_01: Hannah Gutierrez-Reed,
29:48
SPEAKER_01: the armorer who was responsible for weaponry on the set of the film Rust,
29:52
SPEAKER_01: has already been convicted in the death of Helena Hutchins.
29:57
SPEAKER_01: Is her conviction going to be overturned?
29:59
SPEAKER_01: Because this evidence wasn't available for her trial either.
30:02
SPEAKER_00: Well, I think it strongly suggests it will be.
30:05
SPEAKER_00: At the very least, it's in grave danger.
30:07
SPEAKER_00: It's even more plainly
30:09
SPEAKER_00: relevant to her case because her case was much more about how did live rounds get mixed in with blanks.
30:16
SPEAKER_00: And so this goes directly to her case.
30:20
SPEAKER_00: And so I would be surprised if her conviction doesn't get thrown out.
30:26
SPEAKER_00: And I suspect that there the prosecution may decide not to re-prosecute just
30:33
SPEAKER_00: because of the just incredible string of blunders and incompetence by the apparatus
30:40
SPEAKER_00: of the New Mexico prosecutors here.
30:43
SPEAKER_01: Are you surprised by how incompetent this prosecution was?
30:46
SPEAKER_01: I mean,
30:46
SPEAKER_01: remember,
30:47
SPEAKER_01: going back to when we started covering this case,
30:49
SPEAKER_01: for example,
30:50
SPEAKER_01: they charged Alec Baldwin under a statute that hadn't even been in effect at the
30:54
SPEAKER_01: time that the shooting happened.
30:56
SPEAKER_01: Right.
30:57
SPEAKER_01: Is this I mean,
30:57
SPEAKER_01: is this just a matter of,
30:58
SPEAKER_01: you know,
30:59
SPEAKER_01: we pay a lot of attention to federal court and federal court is,
31:02
SPEAKER_01: you know,
31:02
SPEAKER_01: varsity and state court is the JV team.
31:04
SPEAKER_01: Or is this unusually bad even for state court?
31:06
SPEAKER_00: It's unusually bad even for state court because,
31:09
SPEAKER_00: yes,
31:09
SPEAKER_00: they they charged him under a statute that wasn't in effect yet.
31:13
SPEAKER_00: They appointed a special prosecutor who is specifically disqualified by the statute
31:18
SPEAKER_00: from being special prosecutor.
31:19
SPEAKER_00: They've done a bunch of other blunders.
31:22
SPEAKER_00: It really was the gang that couldn't shoot straight.
31:24
SPEAKER_01: Why don't we leave it there for this week?
31:25
SPEAKER_01: Ken, thank you for speaking with me as always.
31:27
SPEAKER_01: Thank you, Josh.
31:29
SPEAKER_01: Serious Trouble is created and produced by Very Serious Media.
31:31
SPEAKER_01: That's me and Sarah Faye.
31:33
SPEAKER_01: Jennifer Swadik mixed this episode.
31:34
SPEAKER_01: Our theme music is by Joshua Mosier.
31:35
SPEAKER_01: Thanks for listening, and we'll be back with more soon.
31:38
SPEAKER_01: See you next time.