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He'll Be An Old Thug By The Time This Trial Is Over · 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.
0:13
SPEAKER_00: Ken,
0:14
SPEAKER_00: so Donald Trump,
0:16
SPEAKER_00: immune,
0:17
SPEAKER_00: not absolutely immune,
0:18
SPEAKER_00: but like really,
0:19
SPEAKER_00: really pretty immune to most things after that Supreme Court decision,
0:24
SPEAKER_00: as we discussed last week?
0:25
SPEAKER_01: Yeah, pretty much.
0:27
SPEAKER_01: We've been getting some questions about, well, is it really all as bad as that?
0:31
SPEAKER_01: Did Ken just not have his coffee?
0:34
SPEAKER_01: Disappointing breakfast?
0:36
SPEAKER_01: Some other explanation.
0:37
SPEAKER_01: But no,
0:38
SPEAKER_01: it really is all as bad as that in terms of creating a situation where it's almost
0:45
SPEAKER_01: functionally impossible to prosecute a former president for crimes done while they
0:50
SPEAKER_01: were president.
0:51
SPEAKER_01: And that is starting to be reflected in
0:55
SPEAKER_01: in the maneuvers that Trump is doing in the various criminal cases against him.
0:59
SPEAKER_00: Yeah,
0:59
SPEAKER_00: so let's look at those cases individually,
1:01
SPEAKER_00: because as you note,
1:02
SPEAKER_00: it's very difficult to prosecute a president for activity that was done while he
1:06
SPEAKER_00: was in office.
1:07
SPEAKER_00: But then you have these cases that involve activity that occurred after Trump left
1:11
SPEAKER_00: office or before he entered office,
1:13
SPEAKER_00: but there is testimony and evidence that may have to do with things that occurred
1:17
SPEAKER_00: while he was in office.
1:17
SPEAKER_00: And even that is a problem for those cases where the key colonel is not during his time in office.
1:22
SPEAKER_00: So I guess let's start with New York.
1:25
SPEAKER_00: Trump convicted on 34 felony counts,
1:26
SPEAKER_00: of course,
1:27
SPEAKER_00: in New York state related to hush payments that he made to Stormy Daniels.
1:32
SPEAKER_00: The agreement to make the hush payments occurred before he was president.
1:35
SPEAKER_00: Many of the actual payments were made while he was president.
1:38
SPEAKER_00: And then there was also testimony about things that occurred in his presidential office.
1:42
SPEAKER_00: So, you know, even if obviously paying hush payments to a porn star is not an official act.
1:48
SPEAKER_00: And Ken, is that is that obviously not an official act?
1:51
SPEAKER_01: I would have said before, it's absolutely obviously not an official act.
1:56
SPEAKER_01: Post this ruling by the Supreme Court,
1:59
SPEAKER_01: I would say,
1:59
SPEAKER_01: well,
2:00
SPEAKER_01: we have to go through a lot of analysis to decide whether or not it's official act.
2:04
SPEAKER_00: But even if you decide that's obviously not an official act,
2:07
SPEAKER_00: there was also testimony from Hope Hicks and Madeleine Westerhout about the way
2:11
SPEAKER_00: things operated day to day in the president's office.
2:14
SPEAKER_00: And one of the upshots of this ruling is that you can't even bring in evidence of
2:17
SPEAKER_00: things that were done on an official basis.
2:19
SPEAKER_00: in a trial about some unofficial act.
2:22
SPEAKER_00: So what does that mean for the conviction that's come down in New York and the
2:26
SPEAKER_00: sentence that is supposed to be pronounced pretty soon in that case?
2:29
SPEAKER_01: Well, it remains to be seen.
2:30
SPEAKER_01: The sentence is no longer going to be done pretty soon.
2:33
SPEAKER_01: It's been moved to September.
2:35
SPEAKER_00: Sorry, I was thinking of September as pretty soon on a glacial scale.
2:40
SPEAKER_00: Summer's almost over, everybody.
2:41
SPEAKER_01: That's right.
2:42
SPEAKER_01: So yeah,
2:44
SPEAKER_01: remember that some of the evidence in the case was testimony from some of Trump's
2:51
SPEAKER_01: aides in the White House about things he said in the White House that really went
2:57
SPEAKER_01: to his knowledge and intent.
2:59
SPEAKER_01: in this case.
3:00
SPEAKER_01: And the problem is that to the extent those conversations were official acts in the
3:05
SPEAKER_01: sense of consulting with,
3:08
SPEAKER_01: you know,
3:08
SPEAKER_01: your staff about advice about things,
3:11
SPEAKER_01: then under the Supreme Court decision,
3:13
SPEAKER_01: you're not even supposed to introduce evidence of them,
3:16
SPEAKER_01: let alone prosecute based on them.
3:18
SPEAKER_01: So that's a problem.
3:19
SPEAKER_01: It's not clear whether or not those conversations are going to be seen as official
3:24
SPEAKER_01: acts because the Supreme Court's
3:27
SPEAKER_01: test, to use the term very generously for that, is so vague, and I think it's waiting to be developed.
3:33
SPEAKER_01: The other thing that Trump has raised that I didn't even think about,
3:36
SPEAKER_01: it's so crazy,
3:38
SPEAKER_01: is that,
3:39
SPEAKER_01: you know,
3:39
SPEAKER_01: a number of his tweets,
3:41
SPEAKER_01: the things he said on Twitter while in office,
3:44
SPEAKER_01: in response to allegations about Stormy Daniels,
3:47
SPEAKER_01: were introduced as evidence at trial.
3:49
SPEAKER_01: And that
3:50
SPEAKER_01: could be an official act.
3:52
SPEAKER_01: So in discussing what Trump said and did to rile up the crowd that eventually
3:58
SPEAKER_01: attacked the Capitol,
4:00
SPEAKER_01: the Supreme Court said,
4:01
SPEAKER_01: well,
4:01
SPEAKER_01: you know,
4:02
SPEAKER_01: great many of the president's communications to the public can be considered
4:05
SPEAKER_01: official acts.
4:06
SPEAKER_01: It's, you know, it has to be examined communication by communication, blah, blah, blah.
4:11
SPEAKER_01: And so it's possible those tweets are official acts, evidence of which was improper.
4:16
SPEAKER_01: And then you've got to get into the whole analysis of if at a trial there was
4:22
SPEAKER_01: evidence that shouldn't have come in,
4:25
SPEAKER_01: what impact does that have on the verdict?
4:28
SPEAKER_01: Is it an automatic overturning of the verdict or is it treated more like a normal
4:34
SPEAKER_01: criminal case where you do what's called a harmless error analysis?
4:37
SPEAKER_01: You decide whether or not it probably was determinative
4:42
SPEAKER_01: Normally, the Supreme Court loves harmless error analysis.
4:44
SPEAKER_01: Normally,
4:45
SPEAKER_01: the Supreme Court loves anything that preserves a conviction in the face of any
4:49
SPEAKER_01: sort of challenge.
4:50
SPEAKER_01: But I have a feeling that here they're going to go in a different direction and say
4:53
SPEAKER_01: this was immunized stuff.
4:55
SPEAKER_01: It shouldn't have come in.
4:56
SPEAKER_01: The conviction has to be overturned.
4:58
SPEAKER_00: If it is the case that you actually need to do that harmless error analysis,
5:02
SPEAKER_00: if the Supreme Court is ultimately going to say that that is the correct way to
5:04
SPEAKER_00: consider this,
5:05
SPEAKER_00: who does that analysis?
5:07
SPEAKER_00: Is it the trial judge?
5:08
SPEAKER_00: Initially, yes.
5:09
SPEAKER_01: And then the Court of Appeals also takes it up and looks at it under a different standard.
5:14
SPEAKER_00: But is that one of those things where the trial judge's approach gets a fair amount of deference?
5:18
SPEAKER_00: It's one of these fairly fact-intensive questions where he'd only be reversed if
5:22
SPEAKER_00: there was some sort of egregious error?
5:24
SPEAKER_00: Or does the appeals court just substitute its own judgment?
5:27
SPEAKER_01: Generally, the appeals court does use some level of deference depending on the exact circumstances.
5:33
SPEAKER_01: It's not absolutely substituting its judgment.
5:37
SPEAKER_00: So presumably it's going to take years to get through this, right?
5:40
SPEAKER_00: Because there will be an appeal in New York and then another appeal to a higher
5:43
SPEAKER_00: level court in New York and then you go to federal court and then maybe you
5:46
SPEAKER_00: eventually end up at the Supreme Court?
5:48
SPEAKER_01: Yeah.
5:49
SPEAKER_01: And as other people have pointed out,
5:50
SPEAKER_01: if Trump wins the election and becomes president again,
5:53
SPEAKER_01: it's not even clear that the case can proceed in any way while he's president
5:58
SPEAKER_01: because of the general sense that you can't,
6:02
SPEAKER_01: you know,
6:02
SPEAKER_01: prosecute a sitting president.
6:04
SPEAKER_01: But does that apply to the appeals too?
6:06
SPEAKER_01: The appeals are not a prosecution.
6:07
SPEAKER_01: Well, but they are.
6:08
SPEAKER_01: If you're appealing a case, that is ongoing proceedings in a prosecution of the president.
6:14
SPEAKER_01: So the president would have an argument.
6:16
SPEAKER_01: The whole thing should be shut down at least during the time that he's president.
6:19
SPEAKER_00: But that itself is something that would have to be litigated, right?
6:22
SPEAKER_00: I mean,
6:22
SPEAKER_00: it's been a while since we've talked about this,
6:24
SPEAKER_00: but my recollection is that this is one of those questions that,
6:26
SPEAKER_00: you know,
6:27
SPEAKER_00: there are these ideas about,
6:28
SPEAKER_00: you know,
6:28
SPEAKER_00: that you can't have a federal prosecution of a president.
6:31
SPEAKER_00: And what a state can do is one of these questions that there just isn't law on yet.
6:35
SPEAKER_00: There's speculation about how courts would handle it.
6:38
SPEAKER_01: Yes,
6:39
SPEAKER_01: but that seems to me the sort of thing that this Supreme Court is likely to be
6:44
SPEAKER_01: willing to take up on an expedited basis.
6:47
SPEAKER_01: And I think this Supreme Court,
6:48
SPEAKER_01: as reflected in the immunity decision,
6:51
SPEAKER_01: is pretty clearly going to decide that you can't proceed against a sitting president.
6:56
SPEAKER_00: Let's talk about the Florida case where the cardinal of the key actions were after Donald Trump.
7:00
SPEAKER_00: had left office,
7:01
SPEAKER_00: but there is evidence and other things that might come in that has to do with
7:05
SPEAKER_00: things that he did while in office.
7:07
SPEAKER_00: What's happening with the documents case as a result of the immunity issue?
7:10
SPEAKER_01: Well,
7:10
SPEAKER_01: remember that the documents case was a huge mess with all sorts of things going on,
7:14
SPEAKER_01: all sorts of motions.
7:16
SPEAKER_01: Judge Cannon setting a lot of complicated hearings.
7:19
SPEAKER_01: But Judge Cannon,
7:21
SPEAKER_01: in response to Donald Trump's request,
7:23
SPEAKER_01: has paused most of the pending deadlines to allow briefing on the impact of the
7:29
SPEAKER_01: immunity decision.
7:31
SPEAKER_01: And Josh,
7:31
SPEAKER_01: as you suggest,
7:32
SPEAKER_01: I think that the charges themselves relating to post-presidential conduct are not immunized.
7:39
SPEAKER_01: But the question is,
7:41
SPEAKER_01: whether the government is seeking to use evidence from the time Trump was president,
7:48
SPEAKER_01: things showing his access to documents,
7:50
SPEAKER_01: things showing statements he made that demonstrate his knowledge or intent.
7:56
SPEAKER_01: And
7:56
SPEAKER_01: more importantly,
7:57
SPEAKER_01: whether or not they introduced any of that evidence to the grand jury leading to
8:02
SPEAKER_01: the indictment.
8:03
SPEAKER_01: So I would expect Trump to argue that to the extent they relied on any of that
8:07
SPEAKER_01: evidence and presented it to the grand jury,
8:10
SPEAKER_01: that the indictment is tainted as being based on immunized conduct and therefore
8:16
SPEAKER_01: should be dismissed.
8:18
SPEAKER_01: And that's something I expect will drag that case out for a long time,
8:23
SPEAKER_01: even if it's a fairly weak argument.
8:25
SPEAKER_00: And then in Washington,
8:25
SPEAKER_00: D.C.,
8:26
SPEAKER_00: the case that this appeal was actually in,
8:28
SPEAKER_00: the one before Judge Chutkin,
8:30
SPEAKER_00: there's a bunch of stuff that the Supreme Court sent back to her and basically said,
8:33
SPEAKER_00: figure out how to apply this test that's very confusing and that we only told you
8:38
SPEAKER_00: part of to figure out which aspects of the charges here the government can proceed on,
8:42
SPEAKER_00: right?
8:42
SPEAKER_00: Yeah.
8:43
SPEAKER_01: Right.
8:43
SPEAKER_01: And that process hasn't even really begun.
8:45
SPEAKER_01: And it's not clear yet what it's going to look like because one view of it could be
8:52
SPEAKER_01: a very evidence-intensive hearings,
8:55
SPEAKER_01: witnesses,
8:56
SPEAKER_01: documents,
8:57
SPEAKER_01: that type of thing.
8:58
SPEAKER_01: And another vision of it would be really more of a legal argument based on more
9:04
SPEAKER_01: intense briefing evidence.
9:06
SPEAKER_01: based on the things in the indictment.
9:08
SPEAKER_01: So we don't know yet what direction that's going to go.
9:12
SPEAKER_01: There have been some suggestions that Trump doesn't want the big evidentiary approach,
9:16
SPEAKER_01: that he'd like it to be done sort of on the papers.
9:19
SPEAKER_01: And if that's the case, it'll go more rapidly.
9:22
SPEAKER_01: But that's still a matter of months.
9:24
SPEAKER_00: And then finally, Georgia, does this matter for the Fannie Willis RICO prosecution?
9:29
SPEAKER_00: Or was that just such a mess already that it's irrelevant?
9:32
SPEAKER_01: Well,
9:32
SPEAKER_01: it matters in the sense that once the case comes back from the appeal that's going
9:37
SPEAKER_01: to take years over whether Fannie Willis should be disqualified,
9:41
SPEAKER_01: then it's going to take more years on appeal based on this new issue.
9:45
SPEAKER_01: So, you know, our children's children will be reporting on what's going on with the Georgia Rico case.
9:52
SPEAKER_00: Chuck Schumer,
9:53
SPEAKER_00: the Senate majority leader,
9:54
SPEAKER_00: went on the Senate floor on Monday and said he's going to work with colleagues on
9:58
SPEAKER_00: legislation that would classify Trump's election subversion acts as unofficial acts,
10:03
SPEAKER_00: not subject to immunity.
10:05
SPEAKER_00: Does that work?
10:06
SPEAKER_00: I mean, set aside that the House of Representatives is Republican controlled and won't take that up.
10:10
SPEAKER_00: If they passed a law that said that, would that do anything?
10:13
SPEAKER_01: No, no.
10:14
SPEAKER_01: That's like Chuck Schumer saying that Congress is going to pass a law saying that I
10:20
SPEAKER_01: have a beautiful head of hair and a discernible waistline.
10:26
SPEAKER_01: It doesn't actually change reality.
10:28
SPEAKER_01: Here, the Supreme Court's decision is based on what's in the Constitution.
10:35
SPEAKER_01: and the president's duties as identified by the Constitution.
10:39
SPEAKER_01: Congress can't alter the Constitution by legislation.
10:43
SPEAKER_01: They can do it by a constitutional amendment, but that's its own process.
10:46
SPEAKER_01: So no, that is absolutely not a thing.
10:49
SPEAKER_01: It seems like a purely performative gesture.
10:52
SPEAKER_00: And then I want to talk about one more matter that's actually related to the New York prosecution.
10:58
SPEAKER_00: And that's this lawsuit that's been filed by the state attorney general in Missouri,
11:02
SPEAKER_00: who is obviously a Republican,
11:04
SPEAKER_00: suing the state of New York and saying that by –
11:09
SPEAKER_00: trying and convicting former President Trump and also by placing this gag order
11:13
SPEAKER_00: that is still in place on Donald Trump.
11:15
SPEAKER_00: They're interfering with the rights of Missouri citizens to receive information
11:20
SPEAKER_00: from a presidential candidate and that this is some sort of First Amendment issue.
11:24
SPEAKER_00: Because it's a lawsuit between two states,
11:25
SPEAKER_00: they want the Supreme Court to take it up with original jurisdiction.
11:29
SPEAKER_00: What the fuck is that?
11:29
SPEAKER_00: Yeah.
11:31
SPEAKER_01: Well,
11:31
SPEAKER_01: Josh,
11:32
SPEAKER_01: that I think is best seen as part of a pattern of performative litigation by
11:38
SPEAKER_01: Republican attorneys general across the United States,
11:41
SPEAKER_01: increasingly as a way of energizing their base,
11:46
SPEAKER_01: of their aspirations to higher office,
11:49
SPEAKER_01: of supporting other Republicans.
11:52
SPEAKER_01: They engage in this sort of, as you said, bullshit litigation.
11:57
SPEAKER_00: What I said was, what the fuck is that?
11:59
SPEAKER_00: But-
11:59
SPEAKER_00: Bullshit litigation is also fine.
12:01
SPEAKER_01: I thought it was implied.
12:03
SPEAKER_01: And this is an example.
12:04
SPEAKER_01: So yeah, the Supreme Court can exercise original jurisdiction on a lawsuit between two states.
12:10
SPEAKER_01: And the typical form of that is like two states with a river in between them
12:14
SPEAKER_01: squabbling over an island in the river,
12:17
SPEAKER_01: something like that.
12:17
SPEAKER_01: Delaware and New Jersey.
12:18
SPEAKER_01: Exactly.
12:19
SPEAKER_01: But here,
12:20
SPEAKER_01: basically,
12:20
SPEAKER_01: AG Andrew Bailey is saying New York and specifically the county,
12:27
SPEAKER_01: the DA who brought this,
12:29
SPEAKER_01: is interfering with the rights of decent people of Missouri to have the candidate
12:34
SPEAKER_01: of their choice,
12:35
SPEAKER_01: to have the candidate free to talk to them on any subject he wishes,
12:38
SPEAKER_01: interfering with elections and obstructing elections.
12:42
SPEAKER_01: And yeah, it's complete nonsense.
12:45
SPEAKER_01: It's basically, you know, the same sorts of logic would apply to civil cases as well.
12:50
SPEAKER_01: So it would be it's so far that even the Supreme Court would go there, I think.
12:56
SPEAKER_01: So,
12:57
SPEAKER_01: I mean,
12:57
SPEAKER_01: the Supreme Court has shown in an immunity decision how far they're willing to go
13:00
SPEAKER_01: to immunize the president.
13:03
SPEAKER_01: But I don't think they're going to do it in a complete clown shoes way, which is this complaint.
13:09
SPEAKER_01: So I think they have SCOTUS has already thoroughly enough protected president's
13:14
SPEAKER_01: that they're not going to need to do it in a sort of haphazard and bizarre way like
13:19
SPEAKER_01: this that would just cause all sorts of litigation because there's no reason that
13:23
SPEAKER_01: this should be restricted to the president.
13:25
SPEAKER_01: It could be all sorts of offices where you could,
13:28
SPEAKER_01: under this theory,
13:29
SPEAKER_01: a prosecution or even a civil case is somehow interfering with other people's right
13:35
SPEAKER_01: to hear from and vote for that candidate.
13:38
SPEAKER_00: Isn't this also, I mean, how would Missouri establish standing here?
13:41
SPEAKER_00: The Supreme Court has not been super eager to endorse new aggressive theories of standing.
13:46
SPEAKER_00: We saw they tossed the Mifepristone case 9-0 for lack of standing by the doctors
13:53
SPEAKER_00: who sued trying to get the abortion pill taken off the market.
13:56
SPEAKER_00: What would Missouri's argument be for even being allowed in the court before you
14:00
SPEAKER_00: would evaluate the merits of the claims?
14:02
SPEAKER_00: Well,
14:02
SPEAKER_01: their theory of standing is that the people of Missouri have the right to vote,
14:05
SPEAKER_01: including the right to vote for president.
14:08
SPEAKER_01: They wish to hear from their candidates completely.
14:12
SPEAKER_01: And when their candidates are obstructed from campaigning in Missouri and speaking
14:17
SPEAKER_01: their mind to the people of Missouri and being able to proceed as candidates,
14:22
SPEAKER_01: then their First Amendment right to receive information and their rights as voters
14:26
SPEAKER_01: are being impaired.
14:27
SPEAKER_01: I think it's complete horseshit.
14:29
SPEAKER_01: Isn't that way too generalized?
14:31
SPEAKER_01: I do think it's too generalized.
14:32
SPEAKER_01: And again,
14:33
SPEAKER_01: my hesitation here is that obviously I didn't think the Supreme Court would go so
14:39
SPEAKER_01: thoroughly in the tank on the immunity decision.
14:41
SPEAKER_01: I don't think anyone really did.
14:43
SPEAKER_01: It's crazy.
14:44
SPEAKER_01: But this seems to be crazy in a way that they wouldn't want to do because it would
14:49
SPEAKER_01: broaden standing so much that it would allow all these lawsuits.
14:53
SPEAKER_01: So the Supreme Court will absolutely do extremely political things, but it will
14:58
SPEAKER_01: tend to do it in a way that promotes its interests and doesn't promote other people's interests.
15:05
SPEAKER_01: And that's why I don't think they'd use this avenue.
15:12
SPEAKER_00: Let's talk about Alec Baldwin, whose trial began on Tuesday this week in Santa Fe, New Mexico.
15:18
SPEAKER_00: He's on trial for involuntary manslaughter.
15:20
SPEAKER_00: This,
15:20
SPEAKER_00: of course,
15:21
SPEAKER_00: is the tragic shooting that occurred on the set of the film Rust,
15:24
SPEAKER_00: in which he was starring and he was also producing the film.
15:27
SPEAKER_00: And so I've been sort of amazed that this actually got to trial.
15:32
SPEAKER_00: It feels a little bit like the prosecutors here got so committed to this that they
15:35
SPEAKER_00: felt like they had to go through with it.
15:37
SPEAKER_00: But I kind of can't believe that Alec Baldwin is actually being criminally prosecuted for this.
15:41
SPEAKER_00: Civil liability makes a lot of sense to me, especially because he was both an actor and a producer.
15:48
SPEAKER_00: And what happened on the set of that film should never have been allowed to happen.
15:51
SPEAKER_00: But I'm just still kind of baffled by the idea that they're trying to get a criminal conviction on this.
15:56
SPEAKER_00: Yeah.
15:57
SPEAKER_01: Well, there are always all sorts of incentives for prosecutors to go after famous people.
16:03
SPEAKER_01: That's how you get known.
16:04
SPEAKER_01: That's how you get publicity.
16:06
SPEAKER_01: That's how you run for state attorney general and eventually for governor, so on and so forth.
16:12
SPEAKER_01: And there may be some level of political hostility, Alec Baldwin being a
16:16
SPEAKER_01: fairly prominent liberal of the Hollywood sort.
16:20
SPEAKER_01: So it doesn't surprise me that much.
16:23
SPEAKER_01: It's going to be an interesting trial.
16:25
SPEAKER_01: Baldwin has won some significant pretrial rulings.
16:28
SPEAKER_01: The judge said the prosecution doesn't get to put in evidence the fact that he was
16:33
SPEAKER_01: the producer because that's not really a theory of why he was liable.
16:38
SPEAKER_01: And it might mislead the jury into thinking that's why he's liable when he's not.
16:41
SPEAKER_00: It's not a theory of why he's criminally liable.
16:44
SPEAKER_01: Exactly.
16:45
SPEAKER_01: And the other thing the judge has recently done is the DA wanted the judge to give
16:51
SPEAKER_01: immunity to Hannah Gutierrez,
16:53
SPEAKER_01: who is the armorer on the set,
16:55
SPEAKER_01: who was convicted of involuntary manslaughter relating to the shooting.
16:59
SPEAKER_01: And the judge said, basically, you really haven't shown me what she has to give.
17:04
SPEAKER_01: And even if I gave her use immunity, that she's still saying that she's not willing to testify.
17:10
SPEAKER_01: So like all this, I'm not going to compel her and give her immunity.
17:14
SPEAKER_01: So that's good news,
17:15
SPEAKER_01: too,
17:15
SPEAKER_01: because she apparently has sort of a grudge against Baldwin and who knows what she
17:18
SPEAKER_01: would say on the stand.
17:21
SPEAKER_01: What the trial may come down to,
17:23
SPEAKER_01: and a friend of the show,
17:27
SPEAKER_01: Mitch Eppner,
17:28
SPEAKER_01: was talking about this,
17:29
SPEAKER_01: reminding us of something we talked about a couple of years ago,
17:32
SPEAKER_01: which is how Alec Baldwin kind of thoroughly screwed himself by running his mouth
17:39
SPEAKER_01: about this case,
17:40
SPEAKER_01: talking to,
17:40
SPEAKER_01: I think,
17:41
SPEAKER_01: George Stephanopoulos.
17:43
SPEAKER_00: Alec Baldwin talking too much.
17:44
SPEAKER_00: Shocking.
17:45
SPEAKER_01: I know.
17:46
SPEAKER_01: Hard to believe.
17:47
SPEAKER_01: But what he said was, oh, yeah, I didn't pull the trigger.
17:50
SPEAKER_01: And that's been his defense.
17:51
SPEAKER_01: I didn't pull the trigger.
17:51
SPEAKER_01: The gun malfunctioned.
17:53
SPEAKER_01: But where he says something stupid is I didn't pull the trigger.
17:56
SPEAKER_01: I know you never pull the trigger.
17:57
SPEAKER_01: That's dangerous whether or not you think the gun is unloaded.
18:01
SPEAKER_01: You never pull the trigger and point it at somebody.
18:04
SPEAKER_01: That just basically,
18:05
SPEAKER_01: as Mitch points out,
18:07
SPEAKER_01: almost turns it into a single issue case about whether or not he pulled the trigger.
18:12
SPEAKER_01: Because he's basically admitted that it would be unreasonably dangerous to point it
18:17
SPEAKER_01: and pull the trigger and that he knew that.
18:20
SPEAKER_01: And he's kind of removed that issue.
18:21
SPEAKER_01: One of the main issues in the involuntary manslaughter case is whether or not you
18:24
SPEAKER_01: were knowingly doing something unreasonably dangerous.
18:28
SPEAKER_01: And he's basically admitted it.
18:30
SPEAKER_01: Yes.
18:31
SPEAKER_01: If you pulled the trigger, you was.
18:32
SPEAKER_01: So it all comes down to whether you believe the gun malfunctioned,
18:36
SPEAKER_01: whether you believe the experts,
18:38
SPEAKER_01: the government will put on saying there's no way this could have fired unless you
18:41
SPEAKER_01: pulled the trigger.
18:42
SPEAKER_01: So once again, someone who should have shut up did not shut up and they're paying the price.
18:47
SPEAKER_00: In case listeners have forgotten,
18:48
SPEAKER_00: one of the issues with the evidence in this case is that the FBI,
18:51
SPEAKER_00: when doing testing on the gun to figure out whether it was possible for the gun to
18:54
SPEAKER_00: fire without the trigger being pulled,
18:57
SPEAKER_00: So the gun was therefore not available in its original unbroken form to be used as
19:04
SPEAKER_00: evidence in the case or for the defense to analyze.
19:08
SPEAKER_00: That seems to me like it's going to be a big problem for the government, right?
19:11
SPEAKER_00: And saying, you know, well, we know that this gun couldn't have fired without the trigger being pulled.
19:14
SPEAKER_00: Won't the defense basically say, how could we possibly know they broke the gun?
19:18
SPEAKER_00: Yeah.
19:18
SPEAKER_01: Right.
19:19
SPEAKER_01: And then the big question becomes,
19:21
SPEAKER_01: as the defense,
19:23
SPEAKER_01: when you know you have his prior statement out there,
19:25
SPEAKER_01: do you put him on the stand to lean into it?
19:30
SPEAKER_01: Do you put them on the stand to tell the jury, no, I didn't pull the trigger?
19:34
SPEAKER_01: Of course I wouldn't pull the trigger.
19:36
SPEAKER_01: That's dangerous.
19:36
SPEAKER_01: I don't do that.
19:37
SPEAKER_01: I admitted that because it's true.
19:40
SPEAKER_01: You know, that's kind of against the normal defense lawyer instinct not to put the client on the stand.
19:46
SPEAKER_01: But Alec Baldwin, despite having run his mouth, is reasonably smart.
19:50
SPEAKER_01: He might be able to maintain and testify well.
19:54
SPEAKER_01: Juries love it when people testify.
19:57
SPEAKER_00: So they may roll those dice.
19:59
SPEAKER_00: He's also, I mean, obviously he's an actor.
20:00
SPEAKER_00: Right.
20:01
SPEAKER_00: So he has some experience with making convincing speeches to people.
20:05
SPEAKER_00: And,
20:05
SPEAKER_00: you know,
20:05
SPEAKER_00: even though he has this reputation for sort of,
20:08
SPEAKER_00: you know,
20:08
SPEAKER_00: failing to contain his personal behavior and getting into fights in parking lots
20:11
SPEAKER_00: and that sort of thing,
20:12
SPEAKER_00: he's also had to work in a variety of professional settings where he has to go out
20:16
SPEAKER_00: and deliver lines and,
20:17
SPEAKER_00: you know,
20:18
SPEAKER_00: and be a professional.
20:19
SPEAKER_00: Right.
20:19
SPEAKER_00: So I assume that,
20:20
SPEAKER_00: you know,
20:20
SPEAKER_00: when you're thinking in terms of,
20:22
SPEAKER_00: you know,
20:22
SPEAKER_00: do I have client control and is this someone who I can put on the stand?
20:25
SPEAKER_00: I assume those are all very favorable indicators.
20:29
SPEAKER_01: Generally, yes.
20:30
SPEAKER_01: I mean, he should be able to talk in a way that is charming and relatable to a jury.
20:36
SPEAKER_01: He's not going to yell at the jury.
20:37
SPEAKER_01: It's not his 12-year-old daughter or something.
20:40
SPEAKER_01: So, yeah, it should work out great.
20:49
SPEAKER_00: We have two cases this week about rappers, Ken.
20:52
SPEAKER_00: This is your influence on the rundown?
20:54
SPEAKER_00: You were like, we have to do all these rap cases?
20:57
SPEAKER_01: Word.
20:58
Ha!
21:00
SPEAKER_00: So the first one is a case we've talked about already.
21:02
SPEAKER_00: This is the Young Thug case, the other big, messy disaster of a RICO case down in Fulton County, Georgia.
21:08
SPEAKER_00: And this one deals with actual alleged gang activity like robberies and murder and that sort of thing.
21:14
SPEAKER_00: And, you know, took almost a year to seat a jury.
21:17
SPEAKER_00: And there's been this controversy.
21:19
SPEAKER_00: Judge Uriel Glanville had this ex-party meeting with the prosecutor and with a
21:24
SPEAKER_00: witness who was reluctant to testify,
21:26
SPEAKER_00: basically leaning on the witness to go out and testify in this case.
21:30
SPEAKER_00: defense attorneys got wind of it, complained about it.
21:32
SPEAKER_00: The judge was like, well, how did you learn about this ex-party meeting?
21:35
SPEAKER_00: Tell me who told you about this or I'm going to put you in contempt.
21:37
SPEAKER_00: He ordered Brian Steele,
21:40
SPEAKER_00: who is Young Thug's defense attorney,
21:41
SPEAKER_00: Young Thug being the sort of ringleader main defendant here,
21:47
SPEAKER_00: ordered him to spend 10 weekends in jail.
21:49
SPEAKER_00: And so that controversy has been ongoing.
21:52
SPEAKER_00: And I gather that Judge Glanville has stepped back a little bit
21:55
SPEAKER_00: from the brink in terms of the extremely aggressive posture he'd been taking toward
21:59
SPEAKER_00: the defense attorneys.
22:01
SPEAKER_01: Right.
22:01
SPEAKER_01: So the defense attorneys,
22:03
SPEAKER_01: all the defense attorneys,
22:04
SPEAKER_01: by the way,
22:05
SPEAKER_01: had been saying,
22:05
SPEAKER_01: we want to see the transcript of this secret meeting you had with the DA and this
22:11
SPEAKER_01: witness to bully the witness.
22:12
SPEAKER_01: And the judge said nothing improper happened.
22:14
SPEAKER_01: There's a transcript showing nothing improper happened, but you don't get to see the transcript.
22:18
SPEAKER_01: which was not a plausible position.
22:21
SPEAKER_01: Also, the judge was saying basically, no, I'm not going to recuse myself.
22:24
SPEAKER_01: I don't think it's a valid motion.
22:25
SPEAKER_01: There's no reason to, even though Georgia law requires that decision to be made by a different judge.
22:31
SPEAKER_01: So finally, Judge Glanville climbed down a little bit.
22:34
SPEAKER_01: He released the transcript of this meeting with him and the DA and the witness,
22:39
SPEAKER_01: and he referred the motion to recuse him to a different judge.
22:43
SPEAKER_01: And
22:44
SPEAKER_01: And the transcript, now that it's out, is just about as bad as you could imagine.
22:50
SPEAKER_01: And Brian Steele,
22:52
SPEAKER_01: the lawyer for Young Thug,
22:53
SPEAKER_01: who was spared jail by the Court of Appeals pending the appeal— Brian Steele had
22:59
SPEAKER_00: requested that he be allowed to be jailed with Young Thug if he was going to have
23:03
SPEAKER_00: to be put in jail so that they could at least prepare for trial together while he
23:06
SPEAKER_00: was in jail.
23:06
SPEAKER_00: And Judge Glanville had said he could do that if he wanted.
23:09
SPEAKER_01: That's badass.
23:10
SPEAKER_01: I got to admire that.
23:11
SPEAKER_01: But so he's filed a new sort of a supplemental motion and it dials it up to 11.
23:18
SPEAKER_01: Really,
23:18
SPEAKER_01: this is a 250 pages of analyzing the transcript of this meeting and of saying
23:24
SPEAKER_01: basically that the judge and the prosecutors have crossed into overtly unethical
23:29
SPEAKER_01: and possibly criminal behavior.
23:31
SPEAKER_01: And normally I would think that is kind of going over the top.
23:36
SPEAKER_01: But the transcript warrants it, I think.
23:38
SPEAKER_01: The transcript is absolutely appalling.
23:40
SPEAKER_01: The judge and the prosecutors lean really heavily on this witness.
23:46
SPEAKER_01: The judge threatens that he's going to have the witness kept in jail until all the
23:50
SPEAKER_01: cases against all the co-defendants are over,
23:53
SPEAKER_01: which means in Georgia,
23:54
SPEAKER_01: in these RICO cases,
23:55
SPEAKER_01: God knows how many years.
23:57
SPEAKER_01: The judge trying to persuade him falsely tells him that he can't be prosecuted
24:02
SPEAKER_01: arising out of his testimony.
24:04
SPEAKER_01: Which isn't quite right because he's been given use immunity,
24:07
SPEAKER_01: meaning that the DA can't introduce his testimony and evidence.
24:10
SPEAKER_01: He's not given transactional immunity.
24:12
SPEAKER_01: So other jurisdictions could prosecute him for crimes arising out of this.
24:17
SPEAKER_01: It's inaccurate and dangerous advice this guy's been given.
24:22
SPEAKER_01: And this witness makes a bunch of statements that are great for the defense,
24:26
SPEAKER_01: saying basically,
24:27
SPEAKER_01: I haven't been telling the truth at all up until now.
24:30
SPEAKER_01: You know, I've been lying about all this stuff.
24:32
SPEAKER_01: Of course, the defense would want to know that and cross-examine it with it.
24:35
SPEAKER_01: But the prosecution and the judge didn't turn that over.
24:38
SPEAKER_01: They withheld the transcript.
24:40
SPEAKER_01: This is completely appalling.
24:42
SPEAKER_01: There's hardly a commentator out there who doesn't see it as completely appalling.
24:47
SPEAKER_01: The people who would normally defend the DA and the judge are just being kind of quiet.
24:52
SPEAKER_01: This is a complete train wreck.
24:53
SPEAKER_01: I find it difficult to imagine this case continuing.
24:58
SPEAKER_01: And if it is, it's irretrievably tainted.
25:00
SPEAKER_01: It's not going to survive appeal if there's a conviction.
25:03
SPEAKER_01: So Brian Steele reasonably is asking not only for the judge to be recused, but for bail.
25:09
SPEAKER_01: And he's pointing out basically this is bogus.
25:12
SPEAKER_01: This is misconduct not caused by my client,
25:15
SPEAKER_01: but caused by the government and the judge and wasting more than a year of his life
25:21
SPEAKER_01: in custody waiting for the trial to go forward.
25:23
SPEAKER_01: The only just thing is for him to be released on bail.
25:27
SPEAKER_01: mess.
25:28
SPEAKER_01: I don't know what this other judge is going to do on the recusal motion.
25:33
SPEAKER_01: I mean,
25:33
SPEAKER_01: I think it ought to be granted,
25:35
SPEAKER_01: but judges tend to be hesitant to do that,
25:38
SPEAKER_01: and it would pretty much dictate a mistrial.
25:41
SPEAKER_01: But this is a prosecution going as badly, actually worse, than their Trump-Rico prosecution.
25:49
SPEAKER_00: Is this the sort of situation where you could get not just a mistrial,
25:53
SPEAKER_00: but like a dismissal of charges for egregious prosecutorial misconduct?
25:58
SPEAKER_01: In theory, I don't think in reality here.
26:01
SPEAKER_01: It's something where judges probably have the discretion to do it,
26:05
SPEAKER_01: but I find it difficult to imagine that they would.
26:08
SPEAKER_01: I think it may be that the wheels will just so thoroughly come off the wagon that
26:13
SPEAKER_01: they decide they can't retry.
26:15
SPEAKER_01: But I think the more likely scenario is mistrial declared and the DA tries to
26:21
SPEAKER_01: Retry the case,
26:22
SPEAKER_01: maybe thinking about a better way other than the slowest way possible,
26:28
SPEAKER_01: which is what they've chosen.
26:29
SPEAKER_00: And then the other rapper case is about BG or Baby Gangster.
26:34
SPEAKER_00: This guy's real name is Chris Dorsey.
26:36
SPEAKER_00: He was until recently a inmate in federal prison.
26:40
SPEAKER_00: He did 11 years on a gun charge.
26:42
SPEAKER_00: 11 years sounds like a lot for a gun charge, right?
26:45
SPEAKER_01: Yeah, but apparently he had a record.
26:46
SPEAKER_01: He had guns.
26:48
SPEAKER_01: He was possessing guns and all this other stuff.
26:50
SPEAKER_01: I just want to say the baby gangster, young thug.
26:52
SPEAKER_01: My grandmother would say, why not baby stockbroker?
26:56
SPEAKER_01: Can we have a young doctor here?
26:57
SPEAKER_00: Wouldn't that be more positive?
26:59
SPEAKER_00: Yeah, yeah.
27:00
SPEAKER_00: And so he's on supervised release and they're haggling over terms of the supervised release and the
27:06
SPEAKER_00: I guess when you go out on supervised release,
27:07
SPEAKER_00: part of the idea is you're supposed to go back and work and be a productive member
27:10
SPEAKER_00: of society.
27:11
SPEAKER_00: And what he does for work is he's a rapper, and so he's going to go and make more artistic output.
27:16
SPEAKER_00: And so the prosecutors wanted a provision that basically said that he couldn't have
27:20
SPEAKER_00: lyrics in his rap that would promote and glorify gun violence or murder.
27:24
SPEAKER_00: And they've been haggling over, you know, exactly how that's going to work on the supervised release.
27:29
SPEAKER_00: Is that like a thing that they do where you have restrictions in your supervised
27:33
SPEAKER_00: release that restrict what you're allowed to say and talk about?
27:36
SPEAKER_00: It depends.
27:37
SPEAKER_01: It's weird.
27:38
SPEAKER_01: It's a cloudy area.
27:39
SPEAKER_01: So supervised release is what they call what parole used to be.
27:44
SPEAKER_01: The idea is we're letting you out of jail earlier than we otherwise might have,
27:49
SPEAKER_01: and you're going to be under supervision for a period of time.
27:52
SPEAKER_01: And the key concept is this is like a grace being done to you.
27:56
SPEAKER_01: not something you're automatically entitled to, which is kind of a fiction.
27:59
SPEAKER_01: But the idea is because you're under court supervision and you're only out walking
28:05
SPEAKER_01: the streets by the grace of the court,
28:07
SPEAKER_01: then the court can put limits on you that it might not otherwise be able to do.
28:11
SPEAKER_01: So everyone, there are very common First Amendment restricting ones that get upheld all the time.
28:17
SPEAKER_01: For instance, most famously, don't associate with known criminals.
28:21
SPEAKER_01: So that would normally violate your First Amendment right to free association.
28:24
SPEAKER_01: You're allowed to, you know, hang out with Donald Trump or whatever.
28:28
SPEAKER_01: But in the context of probation or supervised release, the court's allowed to do that.
28:36
SPEAKER_01: It's a little cloudy today.
28:38
SPEAKER_01: Exactly where the line is,
28:39
SPEAKER_01: what the court is allowed to do in terms of restricting your First Amendment rights.
28:45
SPEAKER_01: Restricting a hacker from using computers, yes.
28:49
SPEAKER_01: Restricting a rapper based on the content of lyrics, I think probably not.
28:55
SPEAKER_01: The judge basically agreed with Baby Gangster's very good First Amendment lawyers
29:00
SPEAKER_01: and said that,
29:00
SPEAKER_01: yeah,
29:01
SPEAKER_01: I'm not going to police the specific content.
29:04
SPEAKER_01: of his lyrics.
29:05
SPEAKER_01: But what I'll do is I'll say he has to pre-clear his lyrics with the government.
29:13
SPEAKER_01: And if they believe that his lyrics are basically promoting crime or something like that,
29:19
SPEAKER_01: then they can make a motion to change his conditions of release or even to revoke
29:24
SPEAKER_01: his supervised release if they show involvement in crime.
29:28
SPEAKER_01: So that's kind of a semi-Solomonic decision to not say we're going to dictate what
29:36
SPEAKER_01: you say,
29:37
SPEAKER_01: but we're going to keep the option open to put more restrictions on you if your rap
29:41
SPEAKER_01: lyrics are showing direct involvement in crime or encouraging it or that type of thing.
29:46
SPEAKER_00: Well, but that's – I mean –
29:47
SPEAKER_00: That's a very different and much narrower kind of restriction, right?
29:51
SPEAKER_01: It's much narrower and it doesn't get the court and the prosecution into this
29:57
SPEAKER_01: difficult area of what's glorifying gun violence and murder versus what is
30:02
SPEAKER_01: depicting the reality of street life or gang life or that type of thing.
30:09
SPEAKER_01: There's all this controversy over does gangster rap glorify gang life or is it sort
30:14
SPEAKER_01: of a raw depiction of the reality of it?
30:16
SPEAKER_01: And,
30:17
SPEAKER_01: you know,
30:17
SPEAKER_01: the government,
30:18
SPEAKER_01: particularly the federal government,
30:19
SPEAKER_01: has always had a hair up its ass about rap lyrics.
30:22
SPEAKER_01: And there are all sorts of cases about whether or not they can introduce rap lyrics
30:28
SPEAKER_01: into testimony at trial to show,
30:30
SPEAKER_01: you know,
30:31
SPEAKER_01: you're a person who likes guns and violence.
30:33
SPEAKER_01: And so you must have done these guns and violence.
30:35
SPEAKER_01: There have been laws that seek to restrict introduction of rap lyrics,
30:40
SPEAKER_01: to say you can't bring that up because it violates their First Amendment rights and
30:43
SPEAKER_01: their creativity.
30:44
SPEAKER_01: So this judge is sort of trying to thread the needle and not basically saying,
30:50
SPEAKER_01: well,
30:50
SPEAKER_01: you can do or say absolutely anything you want on supervised release,
30:54
SPEAKER_01: but not taking on the job of basically editing rap lyrics,
30:59
SPEAKER_01: which nobody wants to have the job of doing.
31:02
SPEAKER_00: I think we can leave it there for this week.
31:03
SPEAKER_00: Ken, thank you so much for speaking with me as always.
31:05
SPEAKER_00: Thank you, Josh.
31:06
SPEAKER_00: Serious Trouble is created and produced by Very Serious Media.
31:08
SPEAKER_00: That's me and Sarah Faye.
31:10
SPEAKER_00: Jennifer Swanick mixed this episode.
31:11
SPEAKER_00: Our theme music is by Joshua Mosier.
31:13
SPEAKER_00: Thanks for listening, and we'll be back with more soon.
31:15
SPEAKER_00: See you next time.