Transcript

G.L.O.A.T. · Serious Trouble

0:08
SPEAKER_00: Hi, it's Ken White.
0:10
SPEAKER_00: And it's Josh Barrow.
0:11
SPEAKER_00: And this is Serious Trouble.
0:12
SPEAKER_00: Ken, as we record on Wednesday morning, the jury is just getting this case.
0:17
SPEAKER_00: Judge Juan Mershon is finishing up with jury instructions on Tuesday.
0:20
SPEAKER_00: You had,
0:21
SPEAKER_00: I think,
0:22
SPEAKER_00: pretty lengthy closing arguments from each side,
0:24
SPEAKER_00: a full day,
0:25
SPEAKER_00: you know,
0:25
SPEAKER_00: multiple hour arguments from both sides.
0:27
SPEAKER_00: Is that typical?
0:28
SPEAKER_01: It is.
0:28
SPEAKER_01: And here,
0:30
SPEAKER_01: as in many times,
0:32
SPEAKER_01: you have the effectiveness of a short,
0:34
SPEAKER_01: punchy argument fighting against the lawyer's inclination to go on at great length.
0:40
SPEAKER_01: So it's harder for the prosecution.
0:42
SPEAKER_01: They have the burden of proof.
0:43
SPEAKER_01: And the prosecution here chose a fairly methodical timeline style review of all the evidence,
0:50
SPEAKER_01: which is a very typical prosecution thing to do.
0:53
SPEAKER_01: Nothing whiz bang,
0:54
SPEAKER_01: nothing terribly exciting,
0:56
SPEAKER_01: but methodical and workmanlike and probably the most persuasive way to do it.
1:01
SPEAKER_01: The defense did a very lengthy argument that was mostly attacking Michael Cohen,
1:06
SPEAKER_01: which,
1:06
SPEAKER_01: again,
1:07
SPEAKER_01: is a very standard way for the defense to go in a case like this.
1:10
SPEAKER_01: So the majority of the argument was about how.
1:14
SPEAKER_01: Cohen is the gloat,
1:16
SPEAKER_01: the greatest liar of all time,
1:17
SPEAKER_01: and basically saying the whole case rests on him and that you can't trust the case,
1:24
SPEAKER_01: can't trust him,
1:25
SPEAKER_00: etc.
1:27
SPEAKER_00: And so, I mean, you say this is a pretty standard approach for the defense.
1:31
SPEAKER_00: Is this how you would have argued it if you were defending Donald Trump here?
1:34
SPEAKER_01: Well, I hope I wouldn't be defending Donald Trump in the shit show in the way that it wound up here.
1:39
SPEAKER_01: And,
1:40
SPEAKER_01: you know,
1:40
SPEAKER_01: if you are,
1:41
SPEAKER_01: you're kind of dealing with things like,
1:42
SPEAKER_01: for instance,
1:43
SPEAKER_01: Donald Trump having mouthed off and admitted a number of the elements in public and
1:47
SPEAKER_01: things like that.
1:48
SPEAKER_01: But, yeah, attacking the lead witness is probably the right play and the best play.
1:54
SPEAKER_01: I might have made it shorter.
1:56
SPEAKER_01: but that's probably the way to do it.
1:58
SPEAKER_01: This, Josh, is the classic what the defense lawyer calls the cockroach and the spaghetti argument.
2:03
SPEAKER_01: Are you familiar with that one?
2:04
SPEAKER_01: No, but I assume you don't want a cockroach in your spaghetti.
2:07
SPEAKER_01: Right,
2:07
SPEAKER_01: so the argument is by a defense lawyer when you've got a lead cooperator who's sleazy,
2:13
SPEAKER_01: is he say,
2:13
SPEAKER_01: say you're at a great restaurant and you order the spaghetti,
2:17
SPEAKER_01: nevermind why you're ordering spaghetti at a great restaurant,
2:20
SPEAKER_01: and they bring out your plate of spaghetti and there's a cockroach right in the
2:24
SPEAKER_01: middle of it.
2:25
SPEAKER_01: Do you eat around the cockroach?
2:27
SPEAKER_01: Do you consume the rest of the plate of spaghetti or do you send the whole thing back?
2:32
SPEAKER_01: Ladies and gentlemen, the United States government here is asking you to eat around the cockroach.
2:35
SPEAKER_01: The cockroach is Michael Cohen, but don't do that.
2:38
SPEAKER_01: Send the whole thing back because that's what you know you would do whenever you
2:42
SPEAKER_01: have to make a decision like this.
2:43
SPEAKER_01: Very classic argument.
2:45
SPEAKER_01: And the prosecution's comeback is A,
2:49
SPEAKER_01: that guy hired the cockroach because he's a cockroach and that's why you know you
2:53
SPEAKER_01: can believe him.
2:54
SPEAKER_01: And B,
2:55
SPEAKER_01: Everything the cockroach said, Trump has more or less admitted at one point or another.
2:59
SPEAKER_00: A couple of things about this.
3:00
SPEAKER_00: One,
3:00
SPEAKER_00: I was struck,
3:01
SPEAKER_00: you're talking about Donald Trump put them in a position where they had to deal
3:05
SPEAKER_00: with arguing around certain things that he said.
3:08
SPEAKER_00: One of the things that came up again in Todd Blanch's summation is noting that when
3:12
SPEAKER_00: we talk about this alleged encounter with Stormy Daniels and the efforts to prevent
3:16
SPEAKER_00: it from ending up in the press,
3:18
SPEAKER_00: he reiterated that Donald Trump denied that he ever had a sexual relationship with
3:22
SPEAKER_00: Stormy Daniels.
3:23
SPEAKER_00: which feels like something that you don't want to have to argue in the summation.
3:26
SPEAKER_00: We talked previously about how arguing that allowed them to bring in evidence
3:31
SPEAKER_00: pretty sleazy.
3:31
SPEAKER_00: I mean,
3:32
SPEAKER_00: Stormy Daniels probably wouldn't have had a reason to testify if Donald Trump had
3:35
SPEAKER_00: not contested the idea that he ever had sex with her.
3:39
SPEAKER_00: But so if you go up there and you're arguing all these things and you also are
3:42
SPEAKER_00: arguing at least by implication that,
3:44
SPEAKER_00: you know,
3:44
SPEAKER_00: hey,
3:44
SPEAKER_00: this thing never even happened,
3:46
SPEAKER_00: the jury's probably not going to buy that argument.
3:49
SPEAKER_00: And so does that undermine the rest of your defense case if you're up there arguing,
3:52
SPEAKER_00: oh,
3:52
SPEAKER_00: and they didn't really have sex and that's not plausible?
3:54
SPEAKER_00: It makes people wonder if the rest of the things you're arguing are plausible?
3:58
SPEAKER_01: Well, that's the thing.
3:59
SPEAKER_01: Trump,
3:59
SPEAKER_01: because he's Trump,
4:00
SPEAKER_01: forced his lawyers to take on a lot of arguments that in a perfect world you
4:03
SPEAKER_01: wouldn't have to take on.
4:05
SPEAKER_01: That was one of them.
4:06
SPEAKER_01: And Trump's lawyers very much went after Stormy Daniels.
4:10
SPEAKER_01: They suggested she was lying.
4:11
SPEAKER_01: They suggested she was blackmailing Trump and that she made off very well from this
4:16
SPEAKER_01: whole thing and so forth.
4:18
SPEAKER_01: They shouldn't have had to do that.
4:20
SPEAKER_01: As to whether or not it works,
4:22
SPEAKER_01: again,
4:23
SPEAKER_01: in my view,
4:24
SPEAKER_01: juries often pick a story and then focus on evidence that proves or disproves the story,
4:30
SPEAKER_01: right?
4:30
SPEAKER_01: So if someone is inclined to rule for Trump, then they'll use that as a hook.
4:35
SPEAKER_01: But I suspect they would have found another hook
4:38
SPEAKER_01: to hang reasonable doubt on if they were inclined to go for Trump.
4:42
SPEAKER_01: Same with the jurors who are inclined to convict.
4:44
SPEAKER_01: They'll find a way to do it.
4:46
SPEAKER_01: And generally, they'll decide on the big picture and then come down to the details.
4:51
SPEAKER_01: So yeah, to me, keeping it simpler is better.
4:54
SPEAKER_01: And articulating the more direct ways of bigger flaws in the case is better.
5:00
SPEAKER_01: But you go to court with a client you have, not the client you want.
5:05
SPEAKER_00: Another thing we've talked about as this case has gone on is that prosecutors were
5:08
SPEAKER_00: a little more aggressive than they might have been in terms of what they relied on
5:11
SPEAKER_00: Michael Cohen for.
5:13
SPEAKER_00: At the barest version, you use a witness like this as a vehicle to bring in documents.
5:19
SPEAKER_00: You know, there are all these invoices and checks and various things.
5:22
SPEAKER_00: And Michael Cohen being on the stand gives you a way to bring those in and show the
5:25
SPEAKER_00: jury these documents that had false statements upon them.
5:28
SPEAKER_00: But they also had Michael Cohen testifying about things that really went to Donald Trump's state of mind.
5:32
SPEAKER_00: You know,
5:33
SPEAKER_00: Offering a view on why Donald Trump made these payments and they were made for a
5:37
SPEAKER_00: campaign purpose rather than to shield information from his wife,
5:41
SPEAKER_00: for example.
5:42
SPEAKER_00: And then you also have this question and the defense had a witness,
5:45
SPEAKER_00: you know,
5:46
SPEAKER_00: their very brief case that the defense presented for itself.
5:49
SPEAKER_00: They had a witness contesting Michael Cohen's claim that Donald Trump was aware of
5:53
SPEAKER_00: these payments being made.
5:54
SPEAKER_00: Because that's one potential defense to the crime here that,
5:56
SPEAKER_00: you know,
5:57
SPEAKER_00: people around me created these various business records,
6:00
SPEAKER_00: but I never knew what the business records said and I didn't direct them to create
6:03
SPEAKER_00: those business records.
6:04
SPEAKER_00: And so you have this dispute with Michael Cohen on one side and Robert Costello,
6:09
SPEAKER_00: who is Rudy Giuliani's longtime personal attorney,
6:11
SPEAKER_00: among other things,
6:12
SPEAKER_00: on another side saying,
6:13
SPEAKER_00: you know,
6:13
SPEAKER_00: well,
6:13
SPEAKER_00: Michael Cohen said to me that Donald Trump never knew about any of these payments
6:16
SPEAKER_00: being made.
6:17
SPEAKER_00: So if those kinds of disputes are central in the case,
6:20
SPEAKER_00: I mean,
6:20
SPEAKER_00: that strengthens the argument for the defense to go on this Michael Cohen argument
6:25
SPEAKER_00: and say,
6:26
SPEAKER_00: you know,
6:26
SPEAKER_00: you really are relying on Michael Cohen to be honest with you.
6:29
SPEAKER_00: He's not just the person who brought these invoices here.
6:31
SPEAKER_00: The government's case rests at least to some extent on his credibility, and you cannot find him credible.
6:36
SPEAKER_00: Right.
6:36
SPEAKER_00: I mean,
6:36
SPEAKER_01: I think the defense did a very effective job illuminating all the ways that Michael
6:43
SPEAKER_01: Cohen is a dishonest comeback.
6:45
SPEAKER_01: And there's no question that he is.
6:46
SPEAKER_01: So they did what they had to do with that.
6:48
SPEAKER_01: It's just a question of whether or not the jury buys it.
6:51
SPEAKER_01: You're right that the prosecution made him more of a target through their choices.
6:55
SPEAKER_01: And I think that was in part...
6:57
SPEAKER_01: a strategic play based on them,
7:00
SPEAKER_01: you know,
7:00
SPEAKER_01: swinging,
7:01
SPEAKER_01: making a big swing here going for the felony and having to tie the false business
7:05
SPEAKER_01: records to some other crime.
7:08
SPEAKER_01: And the thing about,
7:09
SPEAKER_01: you know,
7:09
SPEAKER_01: the whole Michael Cohen said that Trump didn't even know about the payoffs is that
7:15
SPEAKER_01: you've got all these inconsistent Trump statements and Trump defenses.
7:18
SPEAKER_01: There's a defense he didn't know.
7:20
SPEAKER_01: There's the defense.
7:22
SPEAKER_01: It was not connected in his mind to the campaign or to taxes.
7:27
SPEAKER_01: There's the defense.
7:28
SPEAKER_01: And in fact, these payments were just payment for legal services.
7:33
SPEAKER_01: So you've got all these kind of flailing things that the defense has to deal with
7:37
SPEAKER_01: as a result of Donald Trump so constantly running his mouth.
7:42
SPEAKER_01: As Robert Costello in his testimony said,
7:45
SPEAKER_00: Yeah, he was an interesting witness.
7:47
SPEAKER_01: Yeah, that didn't go great for the defense, I think.
7:49
SPEAKER_01: This is kind of a classic example of what happens when a Trump personality acts
7:54
SPEAKER_01: like a Trump personality on the stand in front of a judge.
7:57
SPEAKER_01: So Costello was being an ass.
8:00
SPEAKER_00: There's no other way to say it.
8:02
SPEAKER_00: Just to give people some background.
8:03
SPEAKER_00: Costello's an attorney.
8:04
SPEAKER_00: As I noted, he's been Giuliani's attorney.
8:06
SPEAKER_00: And when Michael Cohen got into legal trouble back in 2018,
8:10
SPEAKER_00: he had some,
8:11
SPEAKER_00: I guess,
8:11
SPEAKER_00: consultations with Robert Costello where they talked about strategy and approach.
8:16
SPEAKER_00: And that was the reason purportedly that Michael Cohen made statements to Robert
8:20
SPEAKER_00: Costello about dirt that he did not have on Donald Trump that could conceivably
8:25
SPEAKER_00: have been useful to him as a criminal defendant facing a question of whether he
8:28
SPEAKER_00: could cooperate with prosecutors on something.
8:31
SPEAKER_00: So that's that's the reason that Robert Costello was a relevant witness in this case.
8:35
SPEAKER_00: Right.
8:36
SPEAKER_00: But he was a Trumpist witness.
8:37
SPEAKER_01: He was arrogant.
8:38
SPEAKER_01: He was mouthy.
8:39
SPEAKER_01: He was arguing with the judge like the judge would sustain an objection to the
8:43
SPEAKER_01: defense's question to him and a Costello would like interject.
8:46
SPEAKER_01: So at one point, Judge Merchant sustains an objection.
8:50
SPEAKER_01: Costello goes, geez.
8:52
SPEAKER_01: And Merchant says, I'm sorry, what did you say?
8:55
SPEAKER_01: And Costello says, oh, strike it.
8:57
SPEAKER_01: You know, like he's the judge or like he's in a deposition or something.
9:00
SPEAKER_01: So the judge clears the courtroom and dresses down Costello.
9:04
SPEAKER_01: Costello's not taking it well.
9:06
SPEAKER_01: The judge is basically, you know, are you mad dogging me?
9:09
SPEAKER_01: Are you staring me down?
9:10
SPEAKER_01: And Costello eventually sort of like subsides and realizes he can't use his
9:15
SPEAKER_01: outsized personality to bully his way through this.
9:18
SPEAKER_01: But the whole thing is kind of embarrassing.
9:20
SPEAKER_00: But he's not just a Trumpist witness.
9:22
SPEAKER_00: He's a criminal defense lawyer.
9:24
SPEAKER_00: And a former assistant U.S.
9:25
SPEAKER_00: attorney, an esteemed former AUSA like yourself.
9:29
SPEAKER_00: I mean, you know, shouldn't he be familiar with what judges will and won't put up with?
9:33
SPEAKER_01: Yeah, but Josh, you may have heard this.
9:36
SPEAKER_01: I know it's a very obscure fact, but AUSAs sometimes can have an ego.
9:42
SPEAKER_01: And the fact that someone was an AUSA is no guarantee that they'll act appropriately in public.
9:48
SPEAKER_01: And here, I think, again, it's just an outsized personality.
9:51
SPEAKER_01: There's some lawyers who,
9:52
SPEAKER_01: despite a decent pedigree,
9:55
SPEAKER_01: their whole brand is acting brash and combative and that type of thing.
9:59
SPEAKER_01: And it's hard to turn that on and off if you're on the stand.
10:03
SPEAKER_01: So the other thing that's happening as we record,
10:06
SPEAKER_01: Josh,
10:06
SPEAKER_01: just finishing up,
10:07
SPEAKER_01: is the reading of the jury instructions,
10:11
SPEAKER_01: which is kind of one of those occasions in the criminal justice system for
10:15
SPEAKER_01: suspension of disbelief.
10:18
SPEAKER_00: Yeah,
10:18
SPEAKER_00: so Judge Mershon sits the jury down on Wednesday morning and basically says,
10:22
SPEAKER_00: now I'm going to talk to you about the law.
10:25
SPEAKER_00: And so what does that entail exactly?
10:27
SPEAKER_01: So basically jury instructions are a set of statements about the law.
10:32
SPEAKER_01: Many of them are forms.
10:35
SPEAKER_01: Very standard ones like, you know, how to evaluate witnesses or what is and isn't evidence.
10:39
SPEAKER_01: And then there's all the specific ones about this particular case and about the elements of the offenses.
10:44
SPEAKER_01: That is what the government has to prove and definitions of things.
10:48
SPEAKER_01: And the parties draft these.
10:49
SPEAKER_01: They have competing ones.
10:51
SPEAKER_01: They argue for hours over one particular word in the instructions and one particular definition.
10:57
SPEAKER_01: The judge sorts all that out in this lengthy process,
11:00
SPEAKER_01: and then the judge reads it,
11:01
SPEAKER_01: often in a monotone,
11:03
SPEAKER_01: over the course of two hours to a jury.
11:05
SPEAKER_01: And the legal fiction is that the jury can follow it, that they absorb it and understand it.
11:11
SPEAKER_01: Often they have a copy with them in the jury room so they can go back to the
11:15
SPEAKER_01: definition of something or the elements,
11:16
SPEAKER_01: but...
11:17
SPEAKER_01: The presumption that the jury understands it and follows it is questionable.
11:21
SPEAKER_01: I can tell you,
11:21
SPEAKER_01: I mean,
11:22
SPEAKER_01: I've been doing this for 30 years,
11:24
SPEAKER_01: but if you read me these elements,
11:26
SPEAKER_01: if I was sitting in a crowd in a courtroom,
11:29
SPEAKER_01: hadn't had both coffees yet,
11:31
SPEAKER_01: and you want me to follow a complicated instruction on the elements of this obscure
11:36
SPEAKER_01: New York statute...
11:37
SPEAKER_01: I'm not sure I would absorb it on one time someone reading it to me.
11:42
SPEAKER_01: I would probably need to read through it myself a few times or ask questions.
11:46
SPEAKER_01: And the presumption that people who have no experience with jury instructions are
11:49
SPEAKER_01: going to absorb it all is questionable.
11:51
SPEAKER_01: But the system is premised on the idea that the jury hears and understands and understands
11:56
SPEAKER_01: there's kind of a magical incantation element to it.
11:59
SPEAKER_01: Like,
12:00
SPEAKER_01: if the judge says these words,
12:02
SPEAKER_01: then we believe that the jury follows these words,
12:04
SPEAKER_01: like abracadabra,
12:06
SPEAKER_01: and now they're going to do the right thing.
12:07
SPEAKER_01: Now they're going to only convict the person if these particular elements are met.
12:12
SPEAKER_00: Is that so hard to believe in this specific instance?
12:15
SPEAKER_00: I mean, we've talked, first of all, about how this is a highly educated jury.
12:18
SPEAKER_00: Two of the members of the jury are attorneys.
12:20
SPEAKER_00: And then you have, for example, a software engineer.
12:22
SPEAKER_00: 11 of the 12 jurors have jobs where you would ordinarily need at least a bachelor's degree to do the job.
12:28
SPEAKER_00: And then also, I mean, this case is a very high stakes case, and it's one that has gone on for weeks.
12:34
SPEAKER_00: And frankly,
12:35
SPEAKER_00: if they really didn't want to be on this jury,
12:37
SPEAKER_00: there were lots of opportunities during that jury selection process to find a way
12:41
SPEAKER_00: to get off the jury.
12:42
SPEAKER_00: So,
12:43
SPEAKER_00: which says to me that these are people who were willing to devote a lot of time and
12:47
SPEAKER_00: attention to this case.
12:48
SPEAKER_00: Is it so hard to believe that they're going to listen hard and then take that
12:51
SPEAKER_00: written copy of the jury instructions and to the extent that they have
12:54
SPEAKER_00: disagreements and deliberations about the elements,
12:56
SPEAKER_00: they turn back to it and actually try to understand it?
13:00
SPEAKER_01: Josh, it could happen, but that doesn't mean it necessarily would happen.
13:04
SPEAKER_01: So can I believe it's possible?
13:06
SPEAKER_01: Absolutely.
13:07
SPEAKER_01: Do I think that the presumption that it happens is earned or appropriate?
13:13
SPEAKER_01: Not so much.
13:14
SPEAKER_01: And look, yes, people often take civic duties seriously.
13:20
SPEAKER_01: But sometimes they don't.
13:21
SPEAKER_01: Everyone knows people who go in and vote without having read anything about any of
13:24
SPEAKER_01: the candidates or propositions or anything first.
13:27
SPEAKER_01: And the fact that you took an oath to obey the law doesn't make you more than the
13:31
SPEAKER_01: human being you were before you walked into the courtroom.
13:34
SPEAKER_01: So there's a lot of sort of professional wrestling going on here, a lot of theater going
13:42
SPEAKER_01: And the presumption that jurors absorb all this complicated stuff and follow it exactly,
13:48
SPEAKER_01: I think,
13:48
SPEAKER_01: is a questionable one.
13:50
SPEAKER_01: I still maintain that juries tend more to go for the big picture and then look for
13:56
SPEAKER_01: things to hang their conclusion on in the instructions.
13:59
SPEAKER_00: So now the jury is getting the case.
14:02
SPEAKER_00: And obviously,
14:03
SPEAKER_00: one thing that determines how long the jury takes is how much disagreement there is
14:06
SPEAKER_00: among the jurors.
14:07
SPEAKER_00: But then there's also the complexity of what they have to decide.
14:10
SPEAKER_00: You have 34 counts here.
14:11
SPEAKER_00: There are several elements to the alleged crimes here,
14:15
SPEAKER_00: whereas you have to show not only that the financial record was created and that it
14:19
SPEAKER_00: was false,
14:20
SPEAKER_00: but that Trump had awareness of that and that it was in furtherance of some
14:24
SPEAKER_00: underlying crime.
14:26
SPEAKER_00: Is that – to go through that for 34 counts,
14:28
SPEAKER_00: is that inherently something where you'd expect a jury to take a while to reach
14:33
SPEAKER_00: conclusions even if they were in pretty good agreement about what had happened here?
14:37
SPEAKER_01: It depends on the jury and the jurors.
14:38
SPEAKER_01: Some of them are very methodical and they will take a very long time and go through –
14:44
SPEAKER_01: each count and the elements of each one slowly and so you'll find out later it took
14:50
SPEAKER_01: three days to deliberate but they had pretty much you know it was just going
14:54
SPEAKER_01: through the counts they weren't arguing they weren't disagreeing other times they
14:58
SPEAKER_01: will just sort of gestalt it and they will say oh yeah well here's the elements of
15:02
SPEAKER_01: this first one i think they're met yeah i agree is it the same for the others yeah
15:07
SPEAKER_01: and and you know bing bang you're done and other times i mean
15:11
SPEAKER_01: You can have people go down rabbit holes of bizarre things that they thought they heard,
15:15
SPEAKER_01: misunderstandings.
15:18
SPEAKER_01: You know, it really depends on the jury.
15:20
SPEAKER_00: Well, we'll be watching and we'll be back when there's a verdict to discuss.
15:24
SPEAKER_00: Let's talk about other news and other proceedings that have been going on this week,
15:28
SPEAKER_00: starting with Jenna Ellis.
15:29
SPEAKER_00: Remember Jenna Ellis,
15:30
SPEAKER_00: one of Donald Trump's campaign lawyers who was involved in these,
15:34
SPEAKER_00: you know,
15:34
SPEAKER_00: these various efforts to steal the 2020 election.
15:37
SPEAKER_00: She now is facing some additional consequence related to that.
15:42
SPEAKER_01: She is.
15:43
SPEAKER_01: She has stipulated in Colorado to surrender her law license for three years as a
15:49
SPEAKER_01: result of her guilty plea in Georgia in the Rico case.
15:53
SPEAKER_01: So this is another example of consequences for supporting Trump being much swifter
16:00
SPEAKER_01: than consequences for being Trump.
16:02
SPEAKER_01: So another person who backed Trump and wound up paying for it, both in a conviction and now in
16:08
SPEAKER_01: surrendering one of her law licenses, at least.
16:11
SPEAKER_01: I believe she's licensed in some other states as well,
16:13
SPEAKER_01: although often those will reciprocate and begin proceedings against her.
16:18
SPEAKER_00: And I think we can sort of put Rudy Giuliani in that bucket.
16:21
SPEAKER_00: I mean, you know, he obviously has agency to the extent that a permanently drunk person can have agency.
16:27
SPEAKER_00: But he has,
16:28
SPEAKER_00: you know,
16:28
SPEAKER_00: his version of defending Donald Trump has involved going out and making a lot of
16:32
SPEAKER_00: wildly false statements and having large judgments entered against him related to that.
16:37
SPEAKER_00: And so now the listeners will remember that Giuliani,
16:40
SPEAKER_00: he defamed these two Georgia election workers,
16:43
SPEAKER_00: accusing them of a conspiracy to steal that state's electoral votes for Joe Biden.
16:47
SPEAKER_00: They sued him.
16:48
SPEAKER_00: They won a very large financial judgment that was a reason that Giuliani is now in bankruptcy.
16:53
SPEAKER_00: And he kept saying these things,
16:55
SPEAKER_00: which got him fired from WABC radio and which also brought these two women back
16:59
SPEAKER_00: into court seeking injunctive relief for the court
17:02
SPEAKER_00: to order Giuliani to stop lying about them.
17:04
SPEAKER_00: And now Giuliani basically said, okay, okay, let's reach an agreement that says I have to stop lying.
17:11
SPEAKER_01: Right.
17:11
SPEAKER_01: So remember we talked about last time how the doctrine of prior restraint means you
17:16
SPEAKER_01: can't get an injunction against defamation.
17:19
SPEAKER_01: You can't get a court order to tell someone to stop saying things because they're
17:23
SPEAKER_01: defamatory unless the thing has been completely litigated all the way through.
17:27
SPEAKER_01: So there's an exception that if there's been a final judgment that a particular
17:31
SPEAKER_01: statement is defamatory,
17:33
SPEAKER_01: then you can probably get an injunction to stop you from continuing to say that
17:37
SPEAKER_01: specific statement.
17:38
SPEAKER_01: So the plaintiffs here are very annoyed that Giuliani,
17:41
SPEAKER_01: after being hit with this immense judgment,
17:43
SPEAKER_01: kept saying the same stupid things about them,
17:46
SPEAKER_01: sued him again,
17:47
SPEAKER_01: this time just for injunctive relief.
17:49
SPEAKER_01: And he has now resolved this.
17:50
SPEAKER_01: He's agreed and stipulated to a new judgment that will prohibit him very broadly
17:55
SPEAKER_01: from saying anything suggesting that those plaintiffs engaged in misconduct in
18:00
SPEAKER_01: connection with the 2020 election and any of the specific statements that were at
18:05
SPEAKER_01: issue in the case.
18:06
SPEAKER_01: So that's a very wide array of stuff
18:08
SPEAKER_01: where they were,
18:09
SPEAKER_01: you know,
18:10
SPEAKER_01: allegedly handing back flash drives and double counting votes and doing all this
18:15
SPEAKER_01: sinister stuff.
18:17
SPEAKER_01: There was a lot of sort of racist,
18:19
SPEAKER_01: you know,
18:19
SPEAKER_01: handing back and forth flash drives like it was heroin,
18:22
SPEAKER_01: that sort of stuff.
18:23
SPEAKER_01: Typical Rudy stuff.
18:25
SPEAKER_01: And so now he's prohibited from doing it.
18:26
SPEAKER_01: If he does, he could be in contempt of court.
18:29
SPEAKER_01: It's an additional vehicle to exercise control over him.
18:34
SPEAKER_01: And I suspect the reason that he caved and stipulated to this was just to avoid the
18:40
SPEAKER_01: ongoing expense of having to litigate it.
18:42
SPEAKER_01: He can't afford to pay his lawyers.
18:44
SPEAKER_01: His lawyers are not inclined to do it for free for such an annoying client who can't keep his mouth shut.
18:50
SPEAKER_00: So this is probably the only way out of it.
18:52
SPEAKER_00: And so you say he can be in contempt of court if he violates the agreement.
18:56
SPEAKER_00: Will they put him in jail?
18:57
SPEAKER_01: They could eventually, usually, as we've seen with Trump and the gag order in New York.
19:04
SPEAKER_01: Judges tend to steadily escalate the consequences for violating an order.
19:10
SPEAKER_01: So he would probably get warnings,
19:12
SPEAKER_01: fines at first before the judge put a 80-year-old in poor health in jail to subside
19:22
SPEAKER_01: solely on toilet wine and tears.
19:27
SPEAKER_00: But so what would be the point of fines here?
19:29
SPEAKER_00: Rudy Giuliani already owes more money than he has to these women.
19:33
SPEAKER_00: And so if the court finds him, I mean, first of all, does the government keep that money?
19:37
SPEAKER_00: Is that money that goes to the government instead of,
19:39
SPEAKER_00: you know,
19:39
SPEAKER_00: to pay out the judgment to the plaintiffs here?
19:41
SPEAKER_00: It goes to the court, I believe.
19:43
SPEAKER_01: I'm not sure which fund.
19:44
SPEAKER_00: But that doesn't seem like a very just outcome, right?
19:46
SPEAKER_00: Like it's,
19:47
SPEAKER_00: you know,
19:47
SPEAKER_00: actually,
19:47
SPEAKER_00: you know,
19:48
SPEAKER_00: to the extent that the injunction gets enforced,
19:50
SPEAKER_00: they get less money.
19:51
SPEAKER_00: No,
19:51
SPEAKER_00: but again,
19:52
SPEAKER_01: we've talked for years about how judges are slow to sanction people,
19:57
SPEAKER_01: particularly lawyers,
19:58
SPEAKER_01: but really anyone.
20:00
SPEAKER_01: And they tend to do it in an escalating way.
20:01
SPEAKER_01: They give multiple chances.
20:03
SPEAKER_01: Now, anyone would say that Rudy has gotten tons of chances, and so has Donald Trump.
20:07
SPEAKER_01: But that doesn't stop the natural inclination of judges to slowly build up to the
20:13
SPEAKER_01: place where they're actually putting someone in jail over violating an order.
20:17
SPEAKER_01: So with Rudy,
20:19
SPEAKER_01: the process might be quicker,
20:20
SPEAKER_01: might have fewer steps than it would with a normal citizen who just ups and
20:24
SPEAKER_01: violates a judicial order.
20:25
SPEAKER_01: But I would be surprised if the judge's first step for the first violation is to throw him in jail.
20:38
SPEAKER_00: Why don't we talk about Florida and Judge Eileen Cannon's courtroom?
20:43
SPEAKER_00: There's been more pretrial action.
20:46
SPEAKER_00: It doesn't look like this documents case is going to go to trial anytime soon.
20:49
SPEAKER_00: And we've talked a lot about the various reasons for that reasons that are inherent
20:53
SPEAKER_00: to the case,
20:53
SPEAKER_00: plus reasons that seem to have to do with the way that Eileen Cannon runs her courtroom.
20:58
SPEAKER_00: And so the latest issue there has been Donald Trump got the search plan for
21:03
SPEAKER_00: Mar-a-Lago when the FBI went in to look for classified documents that he was
21:06
SPEAKER_00: keeping at his club.
21:08
SPEAKER_00: And the rules say, you know, that they're only allowed to use force if it's necessary.
21:13
SPEAKER_00: There's always a rule about this if the FBI is going to raid your home or raid your property.
21:18
SPEAKER_00: But this has been talked about by Donald Trump and his supporters as a conspiracy
21:22
SPEAKER_00: to go into Mar-a-Lago and murder him like it like he would be in Florida in August anyway.
21:27
SPEAKER_00: But the government now wants technically it's not a gag order.
21:31
SPEAKER_00: They wanted a change to the conditions of release for Donald Trump that would
21:35
SPEAKER_00: prohibit him from saying things like this.
21:37
SPEAKER_01: Right.
21:37
SPEAKER_01: First, let's set this up.
21:38
SPEAKER_01: This is a completely transparently bogus claim by Trump.
21:42
SPEAKER_01: Every single search warrant plan by the feds has a lot of detail.
21:48
SPEAKER_01: You know,
21:48
SPEAKER_01: we're going to meet at the parking lot outside Arby's and then we're going to drive
21:52
SPEAKER_01: two blocks and we're all going to leap out of the cars and put on our neat jackets
21:56
SPEAKER_01: and knock on the door and so on.
21:58
SPEAKER_01: And often these plans have a use of force policy.
22:02
SPEAKER_01: That's particularly sensible when you're going someplace where people are armed,
22:05
SPEAKER_01: like the Secret Service or things like that.
22:07
SPEAKER_01: It is not at all remarkable.
22:09
SPEAKER_01: I saw plans with use of force policies when I was in AUSA 30 years ago.
22:15
SPEAKER_01: So it is completely routine.
22:16
SPEAKER_01: Trump and his various cutouts use this as basically saying they were plotting to assassinate him.
22:23
SPEAKER_01: So everyone from Marjorie Taylor Greene to,
22:25
SPEAKER_01: you know,
22:26
SPEAKER_01: various vice presidential hopefuls are saying this proves they went in intending to
22:30
SPEAKER_01: use force against Donald Trump.
22:32
SPEAKER_01: And only for the grace of God do the FBI agents not shoot him.
22:36
SPEAKER_00: I mean, just to elaborate on that for one second.
22:38
SPEAKER_00: I mean,
22:38
SPEAKER_00: in some sense,
22:39
SPEAKER_00: the threat of the use of force lies somewhere behind all exercises of government power.
22:44
SPEAKER_00: You know, sooner or later, you know, there are orders and fines and various things.
22:47
SPEAKER_00: And, you know, the
22:48
SPEAKER_00: You can put yourself in a position where if you don't comply with them, then you can be arrested.
22:51
SPEAKER_00: And then if you point your gun at the cop, then the cop can shoot back at you.
22:56
SPEAKER_00: Ultimately,
22:57
SPEAKER_00: the way that the government has power somewhere deep behind that is the threat of
23:01
SPEAKER_00: the use of force.
23:02
SPEAKER_00: Now, granted, it almost never comes to that.
23:06
SPEAKER_00: But it's sort of – in some way,
23:07
SPEAKER_00: it's actually an unremarkable thing to say that if the worst thing happened at
23:11
SPEAKER_00: every time and there was every kind of noncompliance you could possibly have,
23:15
SPEAKER_00: sooner or later,
23:16
SPEAKER_00: it ends up with a police officer who's allowed to shoot you.
23:18
SPEAKER_01: Absolutely.
23:19
SPEAKER_01: I mean this is one of the more apt observations about government that libertarians make,
23:24
SPEAKER_01: far more than the one about age just being a number.
23:26
SPEAKER_01: They point out that if you're passing a law,
23:29
SPEAKER_01: you have to be willing eventually for that law to be enforced by the state with violence.
23:34
SPEAKER_01: Even if it's just eventually you've been fined five times and you haven't paid the fine,
23:39
SPEAKER_01: now we're confiscating your property or whatever.
23:41
SPEAKER_01: Sooner or later, all laws are backed up by state force.
23:44
SPEAKER_01: And the truth is that state force is far more likely to be used if you're poor and
23:48
SPEAKER_01: if they're raiding you for drugs than it is if you're at Mar-a-Lago and they're
23:52
SPEAKER_01: raiding you because you kept national secrets in the bathroom.
23:56
SPEAKER_01: Right.
23:57
SPEAKER_01: But this was all incredibly dishonest.
23:59
SPEAKER_01: What was mostly disheartening about it is how widely it spread and how shamelessly
24:03
SPEAKER_01: seemingly mainstream people pushed it.
24:06
SPEAKER_01: But special counsel is worried that Trump is basically whipping up potential violence against the FBI.
24:12
SPEAKER_01: And you're right that the notable thing about it is that they styled it as a
24:16
SPEAKER_01: request to change his conditions of release.
24:19
SPEAKER_01: That's significant because that's a little different than a gag order.
24:21
SPEAKER_01: So a gag order is a straight up,
24:24
SPEAKER_01: we're going to limit your speech because of my authority as a judge over this case
24:29
SPEAKER_01: and making sure it goes smoothly.
24:31
SPEAKER_01: There you would probably need some sort of connection between the speech and
24:35
SPEAKER_01: somebody's capacity as a witness or a juror.
24:37
SPEAKER_01: That's why the gag orders in New York and Washington
24:40
SPEAKER_01: D.C.
24:41
SPEAKER_01: where we're tied to those concepts.
24:43
SPEAKER_01: Conditions of release are a little different.
24:44
SPEAKER_01: You're entitled to bail unless the government shows that you're likely to flee or
24:50
SPEAKER_01: you're likely to cause danger to the community,
24:52
SPEAKER_01: and no conditions can stop that.
24:54
SPEAKER_01: So what the government's saying is Trump is a danger to the community,
24:58
SPEAKER_01: and we want you to ease that danger by preventing him from whipping up his crazy
25:04
SPEAKER_01: followers from going after FBI agents.
25:06
SPEAKER_01: Honestly, I see where they're going.
25:09
SPEAKER_01: And yeah, I think Trump is reckless, but I'm not sure that this was a great argument.
25:14
SPEAKER_01: I think it was a little too cute.
25:18
SPEAKER_01: And I think that probably was a little too much of a stretch.
25:22
SPEAKER_00: With that past constitutional muster,
25:24
SPEAKER_00: Donald Trump is making statements about a matter of great political concern.
25:28
SPEAKER_00: He's a political candidate.
25:30
SPEAKER_00: I would assume that the courts would be wary about allowing conditions of release
25:35
SPEAKER_00: that significantly restrict his ability to make comments about that,
25:38
SPEAKER_00: even comments that are irresponsible or inflammatory.
25:42
SPEAKER_00: That's still – it's pretty core political speech.
25:45
SPEAKER_00: I would assume that you'd need a really strong showing about why that was necessary in some way.
25:51
SPEAKER_00: If Judge Cannon were to issue this order,
25:52
SPEAKER_00: which she didn't,
25:53
SPEAKER_00: and I don't think she's likely to issue a similar one in the future,
25:56
SPEAKER_00: would we get another round of appellate litigation that would further draw out the
25:59
SPEAKER_00: boundaries of how you can restrict a defendant's speech pretrial?
26:03
SPEAKER_01: Yes, you would.
26:05
SPEAKER_01: And one of the reasons why you'd need that is that this is another area of First
26:09
SPEAKER_01: Amendment law that's not well developed for some of the same reasons that gag order
26:15
SPEAKER_01: laws are not developed.
26:16
SPEAKER_01: It's relatively rare to have someone who's going to be out on bail,
26:21
SPEAKER_01: but with speech restrictions,
26:24
SPEAKER_01: who has the money and opportunity to appeal those speech restrictions,
26:29
SPEAKER_01: who wants to be engaging in speech that's pissing off the judge.
26:33
SPEAKER_01: So all those factors come together to make it rare for there to be appellate
26:38
SPEAKER_01: litigation and published decisions explaining exactly where the lines are of what
26:44
SPEAKER_01: the judge can restrict you from doing or saying while you're on bail.
26:48
SPEAKER_01: I'd say it's even less well-developed than gag orders.
26:52
SPEAKER_01: One area where you sometimes see it is restrictions from using computers or using
26:56
SPEAKER_01: the internet,
26:57
SPEAKER_01: that type of thing,
26:58
SPEAKER_01: the First Amendment challenges there.
27:00
SPEAKER_01: But the defendant who wants to go out whipping people up to kill FBI agents and
27:05
SPEAKER_01: then wants to litigate over it is a rare bird.
27:08
SPEAKER_01: So yeah,
27:09
SPEAKER_01: it would absolutely,
27:10
SPEAKER_01: and this is why I think it was somewhat dumb for the government to do,
27:14
SPEAKER_00: it would absolutely cause all sorts of litigation.
27:17
SPEAKER_00: And so Judge Cannon declined to issue this order, but without even getting into that analysis, right?
27:21
SPEAKER_00: She had other objections to what the government had done here?
27:23
SPEAKER_00: Well, here's what the government did.
27:25
SPEAKER_01: So they sent the defense a notice by email saying, this is what we're going to do to see you now.
27:31
SPEAKER_01: And the defense objected, and then they filed their motion.
27:34
SPEAKER_01: So, Josh, federal courts in particular, state courts, too, have this sort of
27:39
SPEAKER_01: fetishistic interest in what's called meeting and conferring the process by which
27:44
SPEAKER_01: before you file a motion in a case asking the judge to rule on something you're
27:49
SPEAKER_01: supposed to meet and confer with the opposing counsel say hey i want to make a
27:54
SPEAKER_01: motion for this what's your position
27:56
SPEAKER_01: Let's see what we can work out.
27:58
SPEAKER_01: Let's argue it out,
27:59
SPEAKER_01: come to the point where we don't agree anymore,
28:01
SPEAKER_01: and then I'll file my motion based on that.
28:04
SPEAKER_01: The theory behind this is that it saves the judge work,
28:08
SPEAKER_01: it narrows the issues and makes the motions more specific,
28:12
SPEAKER_01: and it promotes resolution of issues,
28:15
SPEAKER_01: blah,
28:15
SPEAKER_01: blah,
28:15
SPEAKER_01: blah,
28:16
SPEAKER_01: all this happy sunshine shit.
28:18
SPEAKER_01: So federal courts, state courts generally have rules requiring you to do that.
28:23
SPEAKER_01: Now, it's a rule that's often violated, and the meet and confers can often be very perfunctory.
28:30
SPEAKER_01: You know, you call, I'm going to file a motion to dismiss your case because it's bullshit.
28:34
SPEAKER_01: Are you going to object?
28:35
SPEAKER_01: Well, of course I am.
28:35
SPEAKER_01: Okay, I'll put down we met and conferred.
28:38
SPEAKER_01: But you've got to do it because it's a hook on which a judge can hang a refusal to
28:43
SPEAKER_01: listen to your motion if the judge doesn't want to listen to the motion.
28:46
SPEAKER_01: So you know that you've got to put in a plausible, credible effort.
28:50
SPEAKER_01: The government really didn't do that here.
28:53
SPEAKER_01: The government just said, hey, we're doing this.
28:54
SPEAKER_01: What's your position?
28:56
SPEAKER_01: And then, according to the judge, sort of listed the position in a snide footnote in the motion.
29:02
SPEAKER_01: You know,
29:02
SPEAKER_01: I would worry if I did that in a criminal or civil case in any federal court that
29:07
SPEAKER_01: the judge would yell at me.
29:09
SPEAKER_01: Maybe not.
29:10
SPEAKER_01: Maybe the judge would just blow by.
29:11
SPEAKER_01: But if the judge wanted to yell at me or didn't particularly want to listen to the
29:14
SPEAKER_01: motion or was in a mood or as a stickler for procedure,
29:18
SPEAKER_01: then the judge is going to yell at me.
29:20
SPEAKER_01: There's a problem here,
29:21
SPEAKER_01: and it's illuminated,
29:21
SPEAKER_01: I think,
29:22
SPEAKER_01: by a New York Times story that just came out about Judge Cannon and her conflicts
29:27
SPEAKER_01: with the prosecutors.
29:28
SPEAKER_01: And that's this.
29:30
SPEAKER_01: One of the...
29:32
SPEAKER_01: One of the stereotypes of assistant US attorneys is that they're arrogant and that
29:37
SPEAKER_01: they think they're basically like judges too.
29:40
SPEAKER_01: They sort of see themselves as co-equal with the judge in the system.
29:45
SPEAKER_01: They're very impatient with judges who don't accept propositions they think are obvious.
29:51
SPEAKER_01: They're very impatient with judges who don't do things the way all the other judges
29:55
SPEAKER_01: do it or the way the AUSA is used to being done.
29:59
SPEAKER_01: And they can broadcast that impatience through a level of arrogance that really vexes federal judges.
30:06
SPEAKER_01: And a lot of them,
30:06
SPEAKER_01: when they go into private practice,
30:08
SPEAKER_01: get into trouble with that,
30:09
SPEAKER_01: particularly in state court.
30:11
SPEAKER_01: And you see some AUSAs,
30:13
SPEAKER_01: they go into a state court and they have this attitude like,
30:16
SPEAKER_01: well,
30:16
SPEAKER_01: I'm going to treat this just as if it's a real court.
30:19
SPEAKER_01: but I expect you to do that too, Judge.
30:23
SPEAKER_01: And I think there's something of a clash there.
30:25
SPEAKER_01: You've got Judge Cannon,
30:26
SPEAKER_01: who is pretty young,
30:28
SPEAKER_01: relatively inexperienced,
30:29
SPEAKER_01: took the bench without a lot of experience,
30:32
SPEAKER_01: is clearly finding it a challenge.
30:35
SPEAKER_01: and she's being met by these special counsel who are very capable very smart really
30:40
SPEAKER_01: doing their best but they're conveying a level of sort of impatience disdain uh for
30:47
SPEAKER_01: her that i think is making her defensive and i think it's it's sort of like a greek
30:52
SPEAKER_01: tragedy it's a clash of
30:54
SPEAKER_01: of fatal flaws.
30:55
SPEAKER_01: So I think that this perfunctory meet and confer kind of got in her face a little
31:01
SPEAKER_01: bit and she saw it as arrogance and as,
31:04
SPEAKER_01: you know,
31:05
SPEAKER_01: this happened earlier with when they didn't make a motion to seal a document in the
31:10
SPEAKER_01: procedurally correct way.
31:12
SPEAKER_01: She is probably reading it as them thinking they can do whatever they want.
31:15
SPEAKER_01: They don't have to follow rules or the special counsel.
31:18
SPEAKER_01: And that's just rubbing her the wrong way.
31:20
SPEAKER_00: One thing that New York Times profile describes as a manifestation of her
31:23
SPEAKER_00: inexperience being how slow certain things in this case are going,
31:27
SPEAKER_00: that she will hold full blown hearings on things that maybe didn't really need them,
31:32
SPEAKER_00: that she will delay issuing decisions because she doesn't really know what to do in
31:36
SPEAKER_00: the moment.
31:38
SPEAKER_00: And, you know, that's sort of the you can think of this as having two effects.
31:41
SPEAKER_00: I mean, the you know, there might be good reasons for her to go slow.
31:44
SPEAKER_00: Both are, you know, the classified document aspects of this case are going to be slow in any courtroom.
31:49
SPEAKER_00: There are some complex and weighty issues to consider here.
31:52
SPEAKER_00: Her inexperience maybe is a good reason for her to take more time and more care
31:55
SPEAKER_00: than a more experienced judge might need to take.
31:58
SPEAKER_00: But also,
31:58
SPEAKER_00: all of that delay has positive side effects for Donald Trump,
32:02
SPEAKER_00: toward whom she has displayed a certain amount of bias over this period.
32:06
SPEAKER_00: So you might think if you're Judge Cannon and you're not exactly sure how to proceed,
32:10
SPEAKER_00: you might be extra inclined to lean in to a slow,
32:14
SPEAKER_00: deliberative process that also happens to help the defendants.
32:17
SPEAKER_01: It does,
32:18
SPEAKER_01: and something that's playing into that is Trump's and his lawyer's willingness to
32:22
SPEAKER_01: throw absolutely any bullshit on the wall to see if it sticks.
32:25
SPEAKER_01: So Judge Cannon is taking the approach that in the abstract is good,
32:29
SPEAKER_01: that I'm going to take every motion argument seriously,
32:33
SPEAKER_01: not literally,
32:34
SPEAKER_01: but seriously.
32:35
SPEAKER_01: The problem is if you've got a party who is willing to make crazy arguments and
32:40
SPEAKER_01: just flood the zone with them,
32:42
SPEAKER_01: then that's really going to consume the case.
32:44
SPEAKER_01: And if you don't have decades of experience ruling on these things to say immediately,
32:48
SPEAKER_01: no,
32:48
SPEAKER_01: obviously not counsel,
32:50
SPEAKER_01: then it's going to be slow to move.
32:52
SPEAKER_01: Then you add to that the special counsel attorneys,
32:56
SPEAKER_01: those AUSAs,
32:57
SPEAKER_01: they're,
32:59
SPEAKER_01: you know,
32:59
SPEAKER_01: again,
33:00
SPEAKER_01: their cultural flaw of having a difficulty concealing their impatience with her.
33:05
SPEAKER_01: And,
33:05
SPEAKER_01: you know,
33:05
SPEAKER_01: there's a line in that profile where one of them says something,
33:08
SPEAKER_01: we're just trying to move this along.
33:10
SPEAKER_01: And she snaps back at them.
33:11
SPEAKER_01: So,
33:12
SPEAKER_01: again,
33:12
SPEAKER_01: it's a clash of different cultures and the AUSAs are acting like classic
33:17
SPEAKER_01: stereotypical AUSAs and it's riling her up.
33:20
SPEAKER_01: And it's just sort of like a clash of everyone being the way they are.
33:24
SPEAKER_00: There's also been a campaign to send complaints about her to the Judicial Council of the 11th Circuit.
33:30
SPEAKER_00: So that's the appellate court that sits above her court.
33:34
SPEAKER_00: But that campaign has not been successful.
33:36
SPEAKER_00: It has not been.
33:37
SPEAKER_00: So remember,
33:38
SPEAKER_01: every now and then,
33:39
SPEAKER_01: whoever the judge is,
33:40
SPEAKER_01: whoever the public figure is,
33:41
SPEAKER_01: someone puts on a campaign list.
33:43
SPEAKER_01: complain about this person to the authorities and we'll get it removed and we,
33:46
SPEAKER_01: the people,
33:46
SPEAKER_01: will fix everything.
33:48
SPEAKER_01: So,
33:48
SPEAKER_01: you know,
33:48
SPEAKER_01: hundreds of people have been flooding the 11th Circuit Judicial Council,
33:52
SPEAKER_01: which is just a committee of the 11th Circuit that oversees complaints of judicial misconduct.
33:58
SPEAKER_01: And they're basically saying, oh, she's in the tank for Trump.
34:01
SPEAKER_01: You know, she's biased.
34:02
SPEAKER_01: She's not doing it right.
34:04
SPEAKER_01: And they're flooding it with this.
34:05
SPEAKER_01: So it's perceptibly like someone is orchestrating hundreds of these things coming in.
34:11
SPEAKER_01: And the 11th Circuit Judicial Council just issued an order saying,
34:15
SPEAKER_01: you know,
34:15
SPEAKER_01: look,
34:16
SPEAKER_01: we even got a rule that says that coordinated campaigns of attacks on a judge,
34:20
SPEAKER_01: we're going to treat differently.
34:21
SPEAKER_01: That's what this is.
34:22
SPEAKER_01: These are all about her rulings.
34:25
SPEAKER_01: Absent extraordinary circumstances,
34:27
SPEAKER_01: the appeal is a proper vehicle for disagreement with a judge's rulings.
34:32
SPEAKER_01: We're instructing the clerk not to accept any more of these if that's just more of
34:36
SPEAKER_01: the same,
34:36
SPEAKER_01: if it's not about rulings.
34:37
SPEAKER_01: something that actually is appropriate for judicial misconduct complaints.
34:41
SPEAKER_01: And yeah, no.
34:45
SPEAKER_00: Finally,
34:45
SPEAKER_00: this week,
34:46
SPEAKER_00: the Robert Menendez trial remains ongoing,
34:49
SPEAKER_00: and there's been a setback for the prosecution in terms of a ruling from the judge
34:52
SPEAKER_00: about what evidence they are allowed to present for the bribery charges against
34:57
SPEAKER_00: Senator Menendez.
34:58
SPEAKER_00: There's the speech or debate clause of the U.S.
35:00
SPEAKER_00: Constitution that protects senators and representatives from certain kinds of
35:04
SPEAKER_00: accountability for legislative acts.
35:07
SPEAKER_00: And what the judges ruled,
35:09
SPEAKER_00: basically,
35:09
SPEAKER_00: is that you can't present evidence of official acts of him actually taking certain acts.
35:14
SPEAKER_00: You know,
35:15
SPEAKER_00: there's evidence of texts from these Egyptians saying that,
35:18
SPEAKER_00: you know,
35:19
SPEAKER_00: they're concerned that Menendez is holding up military aid.
35:22
SPEAKER_00: There are texts where his wife brags about him approving military aid to Egypt.
35:27
SPEAKER_00: And so what the government is allowed to do here is they can present evidence of
35:31
SPEAKER_00: him promising to do certain things,
35:33
SPEAKER_00: but they can't actually present the evidence of him doing the things.
35:36
SPEAKER_00: That seems like a kind of absurd result.
35:38
SPEAKER_01: Yeah, it's deeply weird.
35:40
SPEAKER_01: And it's particularly weird in a case where you literally have –
35:44
SPEAKER_01: The briber having registered with the FBI specific gold bars that are later found
35:50
SPEAKER_01: in Menendez's walk-in closet.
35:53
SPEAKER_01: I mean, that's good evidence.
35:54
SPEAKER_01: You wouldn't think that's going to be a hard case,
35:56
SPEAKER_01: but it is a hard case because of the speech and debate clause.
35:59
SPEAKER_01: Remember,
36:00
SPEAKER_01: that was originally intended like so,
36:02
SPEAKER_01: you know,
36:02
SPEAKER_01: Maryland isn't going to arrest the congressman from North Carolina or something
36:07
SPEAKER_01: like that.
36:08
SPEAKER_00: For voting the wrong way.
36:09
SPEAKER_01: For voting the wrong way.
36:10
SPEAKER_01: They're not going to use state laws or federal laws as a way to harass legislators.
36:15
SPEAKER_01: But it's grown to a concept that not only can you not prosecute people for what
36:21
SPEAKER_01: they do,
36:23
SPEAKER_01: you also can't introduce evidence of those activities.
36:26
SPEAKER_01: So you can't introduce evidence of what Menendez said
36:29
SPEAKER_01: on the floor.
36:30
SPEAKER_01: Menendez could go out on the floor and say, you know, I think we should give more military aid to Egypt.
36:38
SPEAKER_01: These guys are as good as gold.
36:40
SPEAKER_01: You know, they're the Mercedes-Benz of countries, all this stuff.
36:44
SPEAKER_01: And you couldn't put that into evidence because that is core legislator activity.
36:51
SPEAKER_01: And the speech and debate clause,
36:52
SPEAKER_01: for better or worse,
36:53
SPEAKER_01: has been interpreted to mean you can't even show evidence of that because that
36:56
SPEAKER_01: would be like
36:57
SPEAKER_01: being prosecuted for it.
36:58
SPEAKER_00: Okay.
36:59
SPEAKER_00: I mean, it's an interesting comparison for me.
37:02
SPEAKER_00: We've talked a lot about First Amendment protections and what they mean for what can be crimes.
37:07
SPEAKER_00: And particularly,
37:08
SPEAKER_00: this has had to do with the stuff to do with the Georgia election and other cases
37:13
SPEAKER_00: where Donald Trump did a wide variety of things in an effort to steal the election,
37:17
SPEAKER_00: some of which involved making constitutionally protected statements.
37:20
SPEAKER_00: And we've talked a lot about how saying something can't be a crime, but it can be evidence of a crime.
37:25
SPEAKER_00: In the case of the speech or debate clause,
37:27
SPEAKER_00: as you note,
37:27
SPEAKER_00: they're saying it can't even be used as evidence of a crime.
37:30
SPEAKER_00: And what the clause says is for any speech or debate in either house,
37:33
SPEAKER_00: they shall not be questioned in any other place.
37:36
SPEAKER_00: And so is that why the idea is that you can't even use it as evidence?
37:38
SPEAKER_00: You can not only can they you know,
37:40
SPEAKER_00: you can't charge them for,
37:41
SPEAKER_00: you know,
37:42
SPEAKER_00: for that speech as being a crime.
37:43
SPEAKER_00: You can't even question them about the speech.
37:45
SPEAKER_01: Right.
37:45
SPEAKER_01: So the way the Supreme Court interpreted it is that means you can't even use – not
37:51
SPEAKER_01: only can you not charge them for saying that on the House floor,
37:54
SPEAKER_01: you can't use that as evidence that they committed a crime.
37:57
SPEAKER_01: Now, that's an expansive view.
37:59
SPEAKER_01: And as you pointed out,
38:00
SPEAKER_01: I think that's different than the way we interpret other constitutional protections.
38:05
SPEAKER_01: So,
38:05
SPEAKER_01: like,
38:06
SPEAKER_01: I have the First Amendment right to say,
38:09
SPEAKER_01: I hate this guy,
38:10
SPEAKER_01: and,
38:11
SPEAKER_01: you know,
38:11
SPEAKER_01: someone ought to deal him in.
38:13
SPEAKER_01: But nothing prevents the prosecution from using that as evidence when someone does
38:16
SPEAKER_01: him in,
38:17
SPEAKER_01: right,
38:17
SPEAKER_01: in a murder case against me.
38:19
SPEAKER_01: Well, but the First Amendment doesn't say you can't be questioned about your speech.
38:21
SPEAKER_01: That's true.
38:22
SPEAKER_01: That would be the defense of the Supreme Court's interpretation.
38:26
SPEAKER_01: So,
38:26
SPEAKER_01: yeah,
38:27
SPEAKER_01: you add this,
38:28
SPEAKER_01: Josh,
38:29
SPEAKER_01: to the ongoing sort of development of the law about what is or isn't an official act.
38:35
SPEAKER_01: That can be the subject of a bribery prosecution.
38:38
SPEAKER_01: And you've got sort of difficult territory.
38:41
SPEAKER_01: So, you know, the prosecution is making a lot of noise.
38:44
SPEAKER_01: It's notable that this stuff didn't happen until trial.
38:48
SPEAKER_01: So,
38:49
SPEAKER_01: I think the prosecution is somewhat blindsided by the judge's decision here.
38:53
SPEAKER_01: I would have expected them to try to flush all this out in pretrial rulings because
38:59
SPEAKER_01: once the jury is impaneled,
39:01
SPEAKER_01: then you're out of luck.
39:03
SPEAKER_01: If you're the prosecution and the judge tanks your case by keeping out essential evidence,
39:09
SPEAKER_01: you can't appeal that.
39:10
SPEAKER_01: Double jeopardy attaches.
39:12
SPEAKER_01: So you're out of luck.
39:14
SPEAKER_01: I'm not entirely sure why they didn't manage to flush these things out before trial, but they didn't.
39:21
SPEAKER_01: How essential is this evidence to their case?
39:23
SPEAKER_01: Well, it's pretty direct in terms of the conspiracy.
39:28
SPEAKER_01: So for the conspiracy,
39:29
SPEAKER_01: you really want evidence that they were talking about this and they were referring
39:34
SPEAKER_01: to what they were expecting.
39:36
SPEAKER_01: They have, I think, the delivery of gifts.
39:39
SPEAKER_01: They've got them very cold on the fact they got gold bars and a Mercedes and all
39:43
SPEAKER_01: this type of stuff,
39:44
SPEAKER_01: right?
39:45
SPEAKER_01: But what were they going to get in return?
39:46
SPEAKER_01: What do they expect to get in return?
39:48
SPEAKER_01: Was anything promised?
39:50
SPEAKER_01: So without these texts that sort of demonstrate that expectation or,
39:54
SPEAKER_01: you know,
39:55
SPEAKER_01: our physical evidence backing up testimony,
39:57
SPEAKER_01: it becomes more difficult to show that there was some sort of promise.
40:01
SPEAKER_01: And, you know, not just some sort of general expectation.
40:04
SPEAKER_01: If we're nice to this guy, he'll listen to us and do the right thing.
40:08
SPEAKER_00: Well, that's that's fun.
40:10
SPEAKER_00: Why don't we leave that there this week?
40:11
SPEAKER_00: Ken, thank you for speaking with me as always.
40:13
SPEAKER_00: Thank you, Josh.
40:14
SPEAKER_00: Serious Trouble is created and produced by Very Serious Media.
40:16
SPEAKER_00: That's me and Sarah Fay.
40:17
SPEAKER_00: Jennifer Swannick mixed this episode.
40:19
SPEAKER_00: Our theme music is by Joshua Mosier.
40:20
SPEAKER_00: Thanks for listening, and we'll be back with more soon.
40:23
SPEAKER_00: See you next time.