Latest / Serious Trouble / Blasts From the Past

Transcript

Blasts From the Past · Serious Trouble

• 0:08
  SPEAKER_00: Hi, it's Ken White.
• 0:10
  SPEAKER_00: And it's Josh Barrow, and this is Serious Trouble.
• 0:13
  SPEAKER_00: Ken, we're recording this episode on Monday morning, April 15th, which is also the start date of Donald Trump's first criminal trial, the trial that is occurring in Manhattan.
• 0:23
  SPEAKER_00: The district attorney in Manhattan brought charges over falsification of business records related to the hush payments that were made to Stormy Daniels to conceal the affair.
• 0:32
  SPEAKER_00: Well, he had the affair way before he was a candidate, but at the time that the hush payments were agreed to, he was running for president of the United States.
• 0:40
  SPEAKER_00: Now he's being accused of lying to the government about what the purpose of the payments was, which is a crime of falsification of business records.
• 0:47
  SPEAKER_00: So anyway, that trial, I guess, is starting, but it's going to be quite some time until we're actually into the trial, right?
• 0:54
  SPEAKER_00: They have to seat a jury, among other things.
• 0:56
  SPEAKER_01: Oh, yeah.
• 0:56
  SPEAKER_01: And so far today, they've been dealing with pretrial motions.
• 1:02
  SPEAKER_01: And those are things like a rejection of Trump's latest motion to recuse the judge and latest demands to delay the trial.
• 1:12
  SPEAKER_01: And that comes at the tail end of Trump having done a flurry of emergency appeals to the appellate division, trying to get it to stop the trial on various pretexts, which got shut down three times in a row.
• 1:25
  SPEAKER_00: What was the point of doing that, by the way?
• 1:26
  SPEAKER_00: Was there any, like, when they filed those motions, was it like they thought that the appellate court might actually do that?
• 1:31
  SPEAKER_00: Or is it just to make a show of trying to stop the trial?
• 1:34
  SPEAKER_01: I mean, I think it's a mix, as these things usually are in Trump cases.
• 1:39
  SPEAKER_01: Trump rarely does something for purely legal or courtroom reasons.
• 1:44
  SPEAKER_01: But here, I think he hoped that maybe he'd get one or two judges in the appellate division to say, well, let's slow this down for a few weeks and answer a couple of questions here.
• 1:53
  SPEAKER_01: So that's what's been going on.
• 1:56
  SPEAKER_01: Today, though, the main event has been discussion of the evidence that the prosecution wants to come in that Trump doesn't want to come in.
• 2:06
  SPEAKER_01: This is sometimes called bad acts evidence or other acts evidence.
• 2:10
  SPEAKER_01: And the idea is that when a defendant has done something
• 2:14
  SPEAKER_01: bad stuff other than what is charged in a criminal complaint, then there are limits to your ability to bring that in.
• 2:21
  SPEAKER_01: You shouldn't be able to prejudice the jury and dirty up the defendant just that he's the type of guy who does terrible things.
• 2:27
  SPEAKER_01: You have to have a solid theory of why these other things the defendant did are somehow relevant.
• 2:32
  SPEAKER_01: Usually, the government says they're relevant to show his intent or his plan, his motive, his knowledge, something like that.
• 2:40
  SPEAKER_01: So as we're recording this, the judge is going through a very long list the government wants to bring in of things.
• 2:48
  SPEAKER_01: And that's everything from Donald Trump's affair with a different person other than Stormy Daniels during this time period, Karen McDougal.
• 2:57
  SPEAKER_01: It has to do with his close communications with tabloids and both to monitor what's going to be said about him and what's going to be said about his rivals for the presidency during that period.
• 3:11
  SPEAKER_01: And there's going to be a lot about –
• 3:14
  SPEAKER_01: his other statements about abusive sexual conduct.
• 3:18
  SPEAKER_01: So the infamous Access Hollywood tape.
• 3:22
  SPEAKER_01: And the purpose of that, the prosecution is arguing, is to show that he was deeply concerned about the impact of these types of stories on his campaign.
• 3:32
  SPEAKER_00: Wait, I'm sorry.
• 3:33
  SPEAKER_00: How does the...
• 3:34
  SPEAKER_00: Access Hollywood tape in which he describes that, you know, he can do, you know, whatever kind of abusive acts he wants toward women.
• 3:41
  SPEAKER_00: How does that demonstrate that he was concerned about public perception?
• 3:44
  SPEAKER_00: Because it's the response to the tape.
• 3:46
  SPEAKER_01: So the tape sets up the context of some email exchanges and some discussions about how are we going to do with this and shows how he was very focused on the harm that these types of stories were doing to the campaign at this time.
• 4:01
  SPEAKER_01: Remember that to make these felonies as opposed to misdemeanors in New York, they have to connect it to some other crime.
• 4:11
  SPEAKER_01: And the two big theories they've talked about in the past is some sort of campaign finance or tax violation or some sort of interference with an election.
• 4:21
  SPEAKER_01: So it's pretty clear the theory the DA is leaning into hard is that this was a conspiracy to falsify business records, to hide facts from coming out in an election that could have changed the course of an election.
• 4:34
  SPEAKER_01: And that's what almost all of these are talking about.
• 4:38
  SPEAKER_01: And so we're going to await the rest of the rulings.
• 4:42
  SPEAKER_01: So far, Judge Merchant is kind of going down the middle, allows in the fact that Trump's having an affair with
• 4:47
  SPEAKER_01: Karen McDougal, but not that Trump's wife is pregnant at the time, sort of down the middle rulings like that on a number of these things.
• 4:55
  SPEAKER_00: I'm sorry, can you explain the underlying crime there about interfering with an election?
• 4:59
  SPEAKER_00: I mean, ordinarily trying to ensure that bad facts about you don't get out while you're a political candidate.
• 5:03
  SPEAKER_00: That's not inherently a crime.
• 5:05
  SPEAKER_00: And now, obviously, you could find illegal ways to do that.
• 5:08
  SPEAKER_00: What's the underlying crime about trying to conceal a fact that voters might find relevant in a campaign?
• 5:14
  SPEAKER_01: Well, there is a New York crime about basically election interference, and it's not particularly well defined.
• 5:22
  SPEAKER_01: So I'd say we still remain to be seen what the government's exact theory is on how this stuff was also unlawful under that statute, in addition to being a violation of the don't falsify business record statute.
• 5:37
  SPEAKER_01: So remember, this has been something that's been a big question mark recently.
• 5:40
  SPEAKER_01: Really, since this case was brought, we've been saying, what exactly is their theory?
• 5:45
  SPEAKER_01: Are they talking about helping federal crimes or state crimes?
• 5:48
  SPEAKER_01: Are they talking about helping campaign finance violations or tax violations or what?
• 5:53
  SPEAKER_01: So this so far today, and it's only the first day.
• 5:58
  SPEAKER_01: The emphasis seems to be on the sort of corrupting an election, interfering with an election.
• 6:03
  SPEAKER_01: And I think it remains to be seen what the DA's specific argument is about how the conduct violated that New York law.
• 6:10
  SPEAKER_00: And so when will we find out their exact theory there?
• 6:13
  SPEAKER_00: Is that something that they'll lay out in their opening argument?
• 6:15
  SPEAKER_01: I think so.
• 6:16
  SPEAKER_01: I think probably as these arguments that are happening, even as we speak, go on, it'll become clearer.
• 6:22
  SPEAKER_01: And as they argue over other preliminary legal issues.
• 6:27
  SPEAKER_01: Yeah.
• 6:28
  SPEAKER_00: I was delighted to get a blast from the past this past week.
• 6:31
  SPEAKER_00: Michael Avenatti appeared on cable news, which, you know, 2018, 2019, he was ubiquitous on cable news.
• 6:39
  SPEAKER_00: He's been unavailable lately because he's apparently living on Terminal Island.
• 6:43
  SPEAKER_00: Yes.
• 6:44
  SPEAKER_00: Where is that?
• 6:45
  SPEAKER_00: That's like near San Pedro.
• 6:46
  SPEAKER_01: It is.
• 6:47
  SPEAKER_01: There's a lot of federal detention facilities for immigration and also for federal inmates.
• 6:53
  SPEAKER_01: Terminal Island, it's not as nice as it sounds.
• 6:55
  SPEAKER_00: It's by the port of Los Angeles.
• 6:56
  SPEAKER_00: Yes, exactly.
• 6:58
  SPEAKER_00: It's pretty awful.
• 7:00
  SPEAKER_00: I assume you've been in this facility, right?
• 7:02
  SPEAKER_01: I have been.
• 7:02
  SPEAKER_00: As federal prisons go, is it a good one or a bad one?
• 7:06
  SPEAKER_01: It's very grim, but it's not the most horrifying because it's not the highest security or anything like that.
• 7:14
  SPEAKER_01: A number of people who are relatively low level wind up there, but it's not a beachside resort.
• 7:22
  SPEAKER_01: It's more like a prison dropped into the middle of a loading dock.
• 7:27
  SPEAKER_00: And so while he's there in that federal prison, you know, he's convicted of a wide variety of crimes on both coasts.
• 7:34
  SPEAKER_00: He phoned in and recorded an interview with Ari Melber of MSNBC, which was then broadcast on TV.
• 7:39
  SPEAKER_00: So he wasn't on video.
• 7:41
  SPEAKER_00: It was a photo of Michael Avenatti in Better Days up there on screen, along with the recording of him talking on the phone.
• 7:47
  SPEAKER_00: I guess is there like we don't see this very often, but I guess there's no particular reason why you can't make phone calls from federal prison that are recorded in the broadcast on television.
• 7:56
  SPEAKER_01: No.
• 7:56
  SPEAKER_01: I mean some prisons may purport to have regulations governing that and jails in particular have been known to try to prevent people from talking to the media.
• 8:05
  SPEAKER_01: But generally you have a right to unless there's a genuine security reason to stop you from doing it.
• 8:11
  SPEAKER_01: That doesn't stop it from being profoundly gross in my opinion.
• 8:15
  SPEAKER_01: I think Ari Melber was going to have the far less personally demeaning –
• 8:22
  SPEAKER_01: approach of eating a bug on live TV, but the bug canceled.
• 8:25
  SPEAKER_01: So he had to talk to Michael Avenatti instead.
• 8:28
  SPEAKER_01: It's just gross.
• 8:31
  SPEAKER_01: And it's a cluster of gross people because Michael Avenatti is using this as like the first step in his rehabilitation tour that he's planning someday.
• 8:41
  SPEAKER_01: He's using it to bash other people who are on rehabilitation tours like Michael Cohen and
• 8:47
  SPEAKER_01: And to sort of hedge his bets by sort of supporting Donald Trump by saying that this New York case against him is stale and bogus and Michael Cohen and Stormy Daniels are liars.
• 9:00
  SPEAKER_01: And by the way, I was politically prosecuted too.
• 9:02
  SPEAKER_01: And it's just, you know –
• 9:05
  SPEAKER_01: I don't know, man.
• 9:06
  SPEAKER_01: I don't know why you put this on TV.
• 9:08
  SPEAKER_00: Well, so, I mean, setting aside why MSNBC would air it, why Michael Avenatti would make this call, I assume Donald Trump might be president again.
• 9:16
  SPEAKER_00: Maybe he hopes that he can get a pardon.
• 9:18
  SPEAKER_01: Yeah, I mean, I think that's kind of a long reach, unless he really, really, really poked a thumb in some of Donald Trump's foes' eyes.
• 9:32
  SPEAKER_01: Maybe he just doesn't want them to spend more resources going after him more, which is not out of the question.
• 9:39
  SPEAKER_00: Or, I mean, you know, maybe he's just bored, right?
• 9:41
  SPEAKER_00: Like, you know, he used to be quite famous.
• 9:43
  SPEAKER_00: He used to be on television a lot.
• 9:44
  SPEAKER_00: You know, he doesn't have a lot to do with his days, presumably, since he's in prison.
• 9:49
  SPEAKER_00: And, you know, we talk a lot about things that criminal defendants shouldn't say publicly because it harms their interests.
• 9:53
  SPEAKER_00: But at this point, like those ships have all sailed for Michael Avenatti.
• 9:56
  SPEAKER_00: He's been convicted and convicted and convicted.
• 9:58
  SPEAKER_00: He's not going to get more jail time because he does this.
• 10:01
  SPEAKER_01: No, no.
• 10:02
  SPEAKER_01: And it's just another indication of how these public figures who do terrible things and face consequences then just want to like come back like nothing ever happened.
• 10:13
  SPEAKER_01: The ongoing trend of that.
• 10:15
  SPEAKER_00: Yeah.
• 10:15
  SPEAKER_00: I mean, he said, you know, he's doing fine and he's going to come out of this better and stronger than ever, which seems unlikely, especially since he's going to be in there for a while.
• 10:24
  SPEAKER_00: But it was it was also I mean, transparently, like part of why he wanted to do this is that he has, as you described, beef with Michael Cohen and also with Stormy Daniels.
• 10:32
  SPEAKER_00: Right.
• 10:32
  SPEAKER_00: And, you know, Michael Cohen obviously is a deeply flawed witness.
• 10:36
  SPEAKER_00: And one of the things that Avenatti was claiming was that, you know, it's a real problem for this case because they have to put Cohen on the stand and Cohen is so dishonest and it can be bad for the government.
• 10:45
  SPEAKER_00: And Avenatti was like, you know, this is a documents based case, but documents don't admit themselves.
• 10:50
  SPEAKER_00: You need someone to tell the story that's in the documents.
• 10:52
  SPEAKER_00: And if you're relying on Michael Cohen to do that, that's a problem.
• 10:55
  SPEAKER_00: Do you agree with Michael Avenatti, who you have sometimes said is a good lawyer?
• 10:58
  SPEAKER_00: Yeah.
• 10:59
  SPEAKER_00: Is he right about that issue with Michael Cohen having to be your narrator for the documents?
• 11:04
  SPEAKER_01: He's right to a certain extent that documents don't admit themselves and that you need someone to explain their context.
• 11:11
  SPEAKER_01: And he's right that it's a bad fact if you have to rely on Michael Cohen.
• 11:15
  SPEAKER_01: But that's something – it's sort of a banal point because that happens with prosecutors all the time.
• 11:21
  SPEAKER_01: Prosecutors all the time have crooked cooperators they have to rely on in cases and they know very well how to do it.
• 11:31
  SPEAKER_01: So he's not sharing any sort of deep insight from trial lawyering there.
• 11:36
  SPEAKER_01: And the prosecutors from New York know perfectly well how to put a crooked cooperator on the stand and use them.
• 11:43
  SPEAKER_01: What I think is more interesting is that Michael Avenatti is also really leaning into supporting some of Trump's arguments about the gag order.
• 11:52
  SPEAKER_01: And they're not terrible arguments.
• 11:54
  SPEAKER_01: I mean, he's pointing out Michael Cohen and Stormy Daniels can go on TV and trash talk Donald Trump and accuse him of things.
• 12:04
  SPEAKER_01: And Trump can't really respond under the gag order because if he talks about them in a way that relates to their anticipated testimony, that violates the gag order.
• 12:13
  SPEAKER_01: And Michael Avenatti, through whatever cutout he uses to be tweeting now, says we can't be hypocrites when it comes to the First Amendment.
• 12:22
  SPEAKER_01: It's outrageous that Cohen and Daniels can do countless TV interviews, post on social and make money on bogus documentaries all by talking shit about Trump.
• 12:31
  SPEAKER_01: But he's gagged and threatened with jail if he responds.
• 12:34
  SPEAKER_01: And Trump put that on Truth Social, you know, thanks to Michael Avenatti.
• 12:38
  SPEAKER_01: You know, he's right here.
• 12:40
  SPEAKER_01: And, you know, it's not a terrible argument.
• 12:42
  SPEAKER_01: It's true.
• 12:43
  SPEAKER_01: I think that when you think about the theory behind a gag order, that we don't want someone like Donald Trump lashing at a potential witnesses, chilling them from testifying and, you know, encouraging followers possibly to do them harm.
• 12:59
  SPEAKER_01: I don't think we really contemplate someone who is already out there trash talking Donald Trump.
• 13:05
  SPEAKER_01: That seems a little weird and a basis to criticize the gag order.
• 13:10
  SPEAKER_00: Is there I mean, is there a different way that the gag order could be crafted to deal with that?
• 13:14
  SPEAKER_00: I mean, I guess one thing is, could the gag order apply to witnesses or is there a way to sort of carve out, you know, if the if the witness has made themselves, you know, a public figure that then responses to that are allowed?
• 13:26
  SPEAKER_01: Yeah, you could say something to the effect that if the witness makes public statements about the defendant or their anticipated testimony against the defendant, the defendant's entitled to respond in public.
• 13:40
  SPEAKER_01: OK, I think that would be a reasonable accommodation.
• 13:43
  SPEAKER_00: So there you have it, Ken.
• 13:44
  SPEAKER_00: Still thinking Michael Avenatti is making good points via phone from from Terminal Island.
• 13:49
  SPEAKER_00: We're going to come back.
• 13:50
  SPEAKER_00: We're going to watch what happens with the trial this week.
• 13:52
  SPEAKER_00: And so if there's substantive developments, we'll come back later this week to talk about them.
• 13:56
  SPEAKER_00: Otherwise, we'll be back early next week.
• 13:57
  SPEAKER_00: But we're we're watching this.
• 13:59
  SPEAKER_00: Ken, is there anything else that you have on it before we move on?
• 14:01
  SPEAKER_00: I was just, you know.
• 14:03
  SPEAKER_01: Trump is flirting with danger by still putting stuff on Truth Social about Michael Cohen.
• 14:11
  SPEAKER_01: In addition to the stuff about what Avenatti said, he posted stuff to the effect that, you know, why am I on trial?
• 14:19
  SPEAKER_01: Why am I being prosecuted?
• 14:20
  SPEAKER_01: Michael Cohen isn't being prosecuted for being a terrible person.
• 14:24
  SPEAKER_01: And, you know, the point is, of course, Michael Cohen was prosecuted.
• 14:27
  SPEAKER_01: He went to prison.
• 14:28
  SPEAKER_00: Yeah, exactly.
• 14:28
  SPEAKER_01: Well, Trump's more of a big picture guy, Josh.
• 14:33
  SPEAKER_01: So, I mean, that's perilously close to attacking the witness about something, you know, anticipated testimony.
• 14:39
  SPEAKER_01: So we'll see if that gets him in trouble with the judge.
• 14:42
  SPEAKER_01: Also, I have to disagree with you.
• 14:44
  SPEAKER_01: I think it is perfectly plausible that Michael Avenatti will come out of prison stronger.
• 14:49
  SPEAKER_01: A lot of my clients come out jacked because there's very little to do other than lift and work out and run.
• 14:56
  SPEAKER_01: You know, they improve their health.
• 14:59
  SPEAKER_01: They improve their conditioning, improve relations with their family.
• 15:03
  SPEAKER_01: They read books they've always wanted to read, you know.
• 15:05
  SPEAKER_01: Clean living.
• 15:06
  SPEAKER_01: You never know, Josh.
• 15:06
  SPEAKER_00: He could come out a poet.
• 15:08
  SPEAKER_00: I bet he would write the worst poetry.
• 15:10
  SPEAKER_00: Oh, I think so.
• 15:11
  SPEAKER_00: It would be so bad.
• 15:19
  SPEAKER_00: So we're getting started on that New York state criminal trial in Manhattan.
• 15:22
  SPEAKER_00: There's also been some action in the documents case down in Florida.
• 15:26
  SPEAKER_00: Eileen Cannon continues to get snippy with special prosecutor Jack Smith, but has backtracked at least on one item.
• 15:34
  SPEAKER_00: She's not going to produce certain documents bearing witness names that she had said that she was going to.
• 15:40
  SPEAKER_01: Basically, Judge Cannon had refused to allow certain documents to be filed under seal, protected from the public record.
• 15:48
  SPEAKER_01: And the government's complaint was that, well, these records are interview notes and interview reports of witnesses.
• 15:55
  SPEAKER_01: And if you reveal the witnesses' names—
• 15:58
  SPEAKER_01: It's going to expose them to danger because of the way Donald Trump sets his followers on witnesses and calls them out and that type of thing.
• 16:08
  SPEAKER_01: And Judge Cannon eventually got back on this and said, OK, I'm modifying my prior ruling.
• 16:14
  SPEAKER_01: The names of the witnesses can be redacted.
• 16:16
  SPEAKER_01: The entire interview reports can't be filed under seal.
• 16:21
  SPEAKER_01: And that should address the concern now that the prosecutors made a showing of what he meant.
• 16:26
  SPEAKER_01: And she chides Jack Smith and the prosecution.
• 16:30
  SPEAKER_01: for kind of taking things for granted, for not having previously explained why he wanted these things under seal and just doing sort of pro forma requests without any sort of showing of need.
• 16:44
  SPEAKER_01: And I have to tell you, she's not wrong.
• 16:47
  SPEAKER_01: And this is not something about Jack Smith in particular.
• 16:50
  SPEAKER_01: It's something about federal prosecutors and state prosecutors.
• 16:53
  SPEAKER_01: There are a lot of things that
• 16:55
  SPEAKER_01: the judge has the discretion to do.
• 16:58
  SPEAKER_01: And it's anywhere from keeping certain documents under seal to sometimes issuing gag orders, for instance, forbidding someone who gets a grand jury subpoena from revealing that they got it.
• 17:11
  SPEAKER_01: Those are discretionary calls, but a lot of the time, prosecutors ask for them in a very boilerplate pro forma, no details, no factual support way.
• 17:23
  SPEAKER_01: And that can be very annoying.
• 17:25
  SPEAKER_01: So, you know, I worked on a case years ago where the U.S.
• 17:30
  SPEAKER_01: attorney's office in New York sent subpoenas to Reason magazine to find out the identity of some of their commenters and filed an incredibly boilerplate rubber stamp pro forma, judge, please order Reason not to reveal they've gotten the subpoena.
• 17:45
  SPEAKER_01: and the judge granted it.
• 17:47
  SPEAKER_01: And it wasn't that the judge was a terrible judge who's doing the way judges often do, which is sort of, frankly, rubber stamp without much thought, government requests, even when the government requests are very pro forma.
• 17:58
  SPEAKER_01: So I think Judge Cannon kind of has a point here.
• 18:01
  SPEAKER_01: And part of her frustration might be that as a relatively new judge, she sort of needs that additional explanation.
• 18:09
  SPEAKER_01: A more experienced judge might be able to
• 18:11
  SPEAKER_01: sort of infer why it's needed or understand the circumstances.
• 18:16
  SPEAKER_01: And she's just saying, look, if you don't give me a thorough explanation, don't expect me to rule in your favor.
• 18:22
  SPEAKER_00: Presumably, if these witnesses actually end up testifying at trial, we'll all learn their identities.
• 18:27
  SPEAKER_00: The protection here, I guess, is just that their identities will be out there for less time, and therefore there's less opportunity for harassment.
• 18:33
  SPEAKER_00: And then also some of them won't end up being witnesses.
• 18:35
  SPEAKER_00: And so it's a more limited number of people whose identities will eventually be disclosed.
• 18:39
  SPEAKER_01: Right.
• 18:40
  SPEAKER_01: I think that's it.
• 18:40
  SPEAKER_01: And it's also that a lot of the time, some of the witnesses in some of these reports don't wind up as trial witnesses because what they know is hearsay or sort of inadmissible character evidence or whatever.
• 18:53
  SPEAKER_01: But often those are the people whose statements most infuriate the defendant and the defendant's allies.
• 19:00
  SPEAKER_01: So I think there's a sense that every judge to look at this so far has kind of come to the conclusion that Trump is a danger to witnesses.
• 19:09
  SPEAKER_01: And I think even canon recognizes that that's enough to conceal the identity of the witnesses from the public for now.
• 19:18
  SPEAKER_00: And then also with Judge Cannon, last time we talked about her, there had been this issue with the jury instructions where she had this request about, should we give this totally bizarre jury instruction?
• 19:27
  SPEAKER_00: Write for me what the jury instruction would look like under Trump's theory where he can declassify documents in his mind.
• 19:33
  SPEAKER_00: And both sides actually kind of bristled at that exercise.
• 19:36
  SPEAKER_00: Trump's side said, you know, well, if we're right about this, then you should just dismiss the charges because obviously then he can't have committed a crime.
• 19:43
  SPEAKER_00: And the prosecutors had all of these, you know, like, if you do this, you know, we're going to appeal and you need to rule on this now so that we can go to and get relief for it now because this totally fucks our case if you do that.
• 19:55
  SPEAKER_00: And so as we discussed that she might do, she took all of that stuff in and then didn't issue a jury instruction.
• 20:01
  SPEAKER_00: Now, you don't normally issue the jury instructions this early anyway.
• 20:05
  SPEAKER_00: And she basically was was really, you know, pissy about it and basically just said, you know, we're just trying to explore these issues.
• 20:11
  SPEAKER_00: And she said it was unprecedented and unjust for Jack Smith to ask her to rule on this so early.
• 20:17
  SPEAKER_00: And so I guess the first question is unjust to whom?
• 20:20
  SPEAKER_01: Well, that's a good question.
• 20:22
  SPEAKER_01: I mean, she needs to have a little thicker skin as the judge.
• 20:25
  SPEAKER_01: Now, this comes on the context of Jack Smith's last brief having been pretty blunt, pretty much saying you're badly screwing up or we're going to tell the 11th Circuit about it if you don't.
• 20:36
  SPEAKER_01: straighten up and fly right.
• 20:37
  SPEAKER_01: And so she straightens up to a certain extent by saying, okay, yeah, the motions are denied.
• 20:42
  SPEAKER_01: But then she also says, but, you know, I'm going to revisit the jury instructions when it's the time to.
• 20:47
  SPEAKER_01: And it's unprecedented or unjust for you to demand that I do something different than normal and do jury instructions now.
• 20:53
  SPEAKER_01: And I think what she's saying is that, you know, that's not the normal procedure and that the normal procedure is jury instructions are handled that, you know,
• 21:03
  SPEAKER_01: at trial, basically, or immediately before trial.
• 21:07
  SPEAKER_01: Smith's response would be, yeah, but you're the one who was asking us to do jury instructions on these crazy ass issues.
• 21:14
  SPEAKER_01: And now you're telling us you might still give crazy ass jury instructions, but you're not going to
• 21:23
  SPEAKER_01: You're not going to disclaim that now.
• 21:25
  SPEAKER_01: And so I don't know.
• 21:26
  SPEAKER_01: I don't know what Jack Smith is going to do with this because it's she's saying all I'm doing is asking the party's positions to try to understand them.
• 21:33
  SPEAKER_01: I'm not, you know, ruling on the jury instructions.
• 21:36
  SPEAKER_01: But I would be seriously worried if I were Jack Smith that she's going to come back and do this at the time for jury instructions.
• 21:43
  SPEAKER_00: And do you have more specific thoughts now on what his timing is on that posture?
• 21:48
  SPEAKER_00: Because we talked about the difficult position that he's in if this happened and then it did happen.
• 21:52
  SPEAKER_00: That, you know, if he tries to appeal this now and basically says, you know, we think the judge is going to do something crazy, but she hasn't done it yet.
• 21:58
  SPEAKER_00: I mean, that's not normally the sort of thing that an appeals court weighs in on, like things that might theoretically happen in the future but haven't happened.
• 22:05
  SPEAKER_01: Yeah, it is not ripe, I think, to be reviewed.
• 22:08
  SPEAKER_01: And I think the fact that she sort of
• 22:11
  SPEAKER_01: hasn't thoroughly disclaimed any intent ever to give any such jury instructions, there's probably not enough for the circuit to step in.
• 22:18
  SPEAKER_00: And so as we talked about that Roger Parloff piece for Lawfare about, you know, when and how these sorts of things can be appealed, because, you know, the government can't appeal after a verdict.
• 22:27
  SPEAKER_00: That would be double jeopardy.
• 22:29
  SPEAKER_00: But there is a little bit of precedent for this idea that, you know, if the jury instruction comes down when there's a jury that's already been seated, the government could seek and I guess it would be an emergency writ then.
• 22:39
  SPEAKER_00: Right.
• 22:40
  SPEAKER_00: And try to go to the appeals court during the trial.
• 22:42
  SPEAKER_01: Yeah, which is a extremely unusual and extremely difficult thing to do.
• 22:47
  SPEAKER_01: So you would probably, if you were Jack Smith, have the emergency writ pre-written.
• 22:53
  SPEAKER_01: And then, you know, it's just a matter of sometimes timing.
• 22:59
  SPEAKER_01: I mean, the judge could rule on jury instructions before lunch and instruct the jury after lunch.
• 23:06
  SPEAKER_01: You might have absolutely no time.
• 23:10
  SPEAKER_01: You'd be lucky if you could have overnight or something like that if she's really committed to doing this.
• 23:16
  SPEAKER_01: So, yeah, I think that it's going to be very tricky for them.
• 23:20
  SPEAKER_01: And there are very few cases where this sort of thing has worked.
• 23:25
  SPEAKER_00: We've already had one blast from the past this week with Michael Avenatti.
• 23:27
  SPEAKER_00: We have another one now, which is Jacob Wohl.
• 23:30
  SPEAKER_00: Jacob Wohl and Jack Berkman, who, you know, I mean, these are the like... What was our terminology for them?
• 23:37
  SPEAKER_00: They're like the like... Didn't we have a like... It was like a thumb-headed henchman kind of thing.
• 23:42
  SPEAKER_00: Uh...
• 23:45
  SPEAKER_00: Anyway, these miscreants.
• 23:47
  SPEAKER_00: Right.
• 23:47
  SPEAKER_00: Who, you know, Jack Berkman is allegedly a lobbyist.
• 23:50
  SPEAKER_00: Jacob Wohl is some kid who was a Donald Trump super fan on the Internet.
• 23:53
  SPEAKER_00: And they came up with all of these harebrained schemes to lie about things that were supposed to somehow affect politics.
• 23:59
  SPEAKER_00: They had one press conference where they alleged that Elizabeth Warren had had an affair with a much younger man.
• 24:04
  SPEAKER_00: And they had this big banner that said Elizabeth Warren cougar.
• 24:07
  SPEAKER_00: So that was sort of the level on which we were dealing with them.
• 24:10
  SPEAKER_00: But then they also they had these racist robocalls that they made into various states trying to confuse black voters out of voting, which is illegal.
• 24:19
  SPEAKER_00: And they've had both civil and criminal issues related to that.
• 24:22
  SPEAKER_00: And so now they've they've settled another case on this this time for robocalls with the New York attorney general.
• 24:28
  SPEAKER_00: And they have to pay about four hundred thousand dollars for their misbehavior there.
• 24:34
  SPEAKER_01: Right, and that's if they pay timely.
• 24:35
  SPEAKER_01: If they don't pay on time, it can go up to 1.25 million.
• 24:40
  SPEAKER_01: And yeah, remember they've already taken – they've already pled guilty to crimes in Ohio off of these robocalls.
• 24:49
  SPEAKER_01: But they got hit with lawsuits and investigations all over the place over these.
• 24:54
  SPEAKER_01: And if you remember, these were things –
• 24:56
  SPEAKER_01: you know, targeted at Black voters and saying things like, did you know that if you register to vote, they're going to run all your wants and warrants, they're going to check if you owe child support, they're going to do all these, trying to scare and deter people.
• 25:10
  SPEAKER_01: So they continue to face consequences, although I have to point out, still no federal felony for Jacob Wall.
• 25:17
  SPEAKER_01: But, you know, I continue to believe, and I recognize that I'm getting a bit
• 25:22
  SPEAKER_01: Like the mother who says that her 42-year-old son who lives at home just hasn't found the right job yet.
• 25:29
  SPEAKER_01: But I still have confidence in him.
• 25:31
  SPEAKER_01: He's going to get that federal felony.
• 25:32
  SPEAKER_01: Yeah.
• 25:34
  SPEAKER_00: We we apparently that our term for him is the incompetent rat fucker.
• 25:39
  SPEAKER_00: That's evocative.
• 25:40
  SPEAKER_00: Yeah.
• 25:40
  SPEAKER_00: I mean, it's it's it's true.
• 25:42
  SPEAKER_00: You know, they try to do the rat fucks, but they're really bad at it.
• 25:44
  SPEAKER_01: I see the more sort of a dollar store Batman and Robin trying to pretend to be superheroes, but really, really bad at it.
• 25:55
  SPEAKER_00: Now, for something a little bit different, I want to talk about this lawsuit that Gina Carano, the actress, has brought against Disney.
• 26:03
  SPEAKER_00: People may have followed this.
• 26:04
  SPEAKER_00: Gina Carano was in The Mandalorian.
• 26:07
  SPEAKER_00: She was in a couple of seasons of it.
• 26:09
  SPEAKER_00: But then she started saying a bunch of stuff online about, you know, political conservatives are treated like Jews during the Holocaust when the Nazis rounded up thousands of Jews, thousands.
• 26:18
  SPEAKER_00: as Disney notes, she said.
• 26:20
  SPEAKER_00: And so she made a number of politically controversial statements about vaccines and that sort of thing.
• 26:26
  SPEAKER_00: And Disney ended up deciding that it was too much trouble to have her work for them.
• 26:30
  SPEAKER_00: And they announced they were not going to have her back in season three and said that they disapproved of the various things that she'd said.
• 26:36
  SPEAKER_00: And now she's suing them for employment discrimination on a couple of grounds.
• 26:39
  SPEAKER_00: One is apparently there's a California law
• 26:42
  SPEAKER_00: that prohibits employers from interfering in the political activities of their employees.
• 26:46
  SPEAKER_00: And so basically she says they're trying to control my political activity and that's against my rights in California.
• 26:51
  SPEAKER_00: She also has a sex discrimination claim saying that they didn't fire men who said things that might have been embarrassing to the Walt Disney Company.
• 26:58
  SPEAKER_00: And so I was surprised by this because the idea that you have a right to be rehired into a new season of a show struck me as far-fetched.
• 27:07
  SPEAKER_00: Does she have a real employment discrimination claim in the state of California on the basis of this?
• 27:11
  SPEAKER_01: I don't think so.
• 27:12
  SPEAKER_01: And Disney has now filed a motion to dismiss in the federal court case.
• 27:19
  SPEAKER_01: And it's basically premised entirely on the First Amendment.
• 27:23
  SPEAKER_01: They didn't bring an anti-slap.
• 27:25
  SPEAKER_01: They simply said, we have the First Amendment right to decide who to hire and who not to hire and with whom we associate ourselves in our expressive activity.
• 27:37
  SPEAKER_01: So they talk about a long line of cases that says that when you're doing expressive activity, you're allowed to choose who participates in it and who is your face for that expressive activity.
• 27:50
  SPEAKER_01: And some of the cases are the Supreme Court cases like about the –
• 27:55
  SPEAKER_01: The Boston St.
• 27:56
  SPEAKER_01: Patrick's Day parade that the Supreme Court said was allowed to exclude gays and lesbians from representing the values of the parade.
• 28:05
  SPEAKER_01: Same with the Boy Scouts had some similar rulings.
• 28:08
  SPEAKER_01: And there have been some other ones where.
• 28:10
  SPEAKER_01: Everything back to Vanessa Redgrave, who was, you know, decast from a stage show for things she said about the Palestinians, just to show that nothing ever changes in the world.
• 28:23
  SPEAKER_00: Decades ago.
• 28:24
  SPEAKER_01: Exactly.
• 28:25
  SPEAKER_01: So there's a strong line of cases saying that people engage in expressive activity, get to make their choices about who is their spokesperson, who is their face for that.
• 28:35
  SPEAKER_01: And they have the right voice.
• 28:36
  SPEAKER_01: to not have someone who they think contradicts their message and their values.
• 28:43
  SPEAKER_01: So they say that the Mandalorian is First Amendment expression.
• 28:48
  SPEAKER_01: It's not outside the scope of the First Amendment, like the
• 28:56
  SPEAKER_01: That therefore they can choose which actors, you know, they don't have to hire David Duke to use an extreme example.
• 29:03
  SPEAKER_01: They get to choose which actors represent their values and their messages and that therefore her claims are just barred by the First Amendment.
• 29:12
  SPEAKER_01: This is a really straightforward frontal attack.
• 29:15
  SPEAKER_01: They don't argue explicitly at least that the California labor codes sections she's relying on are unconstitutional.
• 29:24
  SPEAKER_01: But the implication is they're unconstitutional as applied here to the extent she purports to bring them to bear.
• 29:31
  SPEAKER_01: I'd add that it's kind of questionable whether they apply this way at all because –
• 29:36
  SPEAKER_01: So you have here these fairly unusual statutes.
• 29:39
  SPEAKER_01: California Labor Code 1101 says that an employer can't make a rule or policy forbidding employees from engaging or participating in politics or from becoming candidates for public office.
• 29:52
  SPEAKER_01: and can't control or direct the political activities.
• 29:56
  SPEAKER_01: And I think it's questionable whether that applies to just stuff you say on Twitter.
• 30:02
  SPEAKER_01: It seems more guided at formal political activity, candidacy, things like that.
• 30:08
  SPEAKER_01: I think that if it became so broad that
• 30:11
  SPEAKER_01: You know, no employer can fire you for anything that arguably political or social you say on Twitter.
• 30:17
  SPEAKER_01: I think that's far outside the intended scope of the statute.
• 30:20
  SPEAKER_01: And I suspect we'll get cases clarifying that.
• 30:24
  SPEAKER_00: Yeah, it struck me how Disney's argument here is specific to being in the kind of business they're in where they make expressive products.
• 30:31
  SPEAKER_00: And they talk about some other cases like, you know, for example, if you're casting a biopic of Martin Luther King Jr., you can insist that the person you hire to play that role has to be black.
• 30:40
  SPEAKER_00: notwithstanding employment discrimination lawsuits that generally prohibit you from hiring on the basis of race because that's essential to the expressive activity that you're doing when you create the movie.
• 30:51
  SPEAKER_00: But it wouldn't apply to most kinds of businesses.
• 30:53
  SPEAKER_00: And so I was – as I looked at this, I was wondering if Gina Carano had been an executive at Google –
• 30:58
  SPEAKER_00: and had been going on and saying these things on the internet and causing embarrassment to the Google corporation, does that mean that Google couldn't fire her for that because they're not engaged in the making of an expressive product in the way that Disney is?
• 31:11
  SPEAKER_00: Because that would strike me as a very surprising result.
• 31:14
  SPEAKER_01: It would.
• 31:15
  SPEAKER_01: And I think the history of Labor Code 1101 and its companion statute is more about employers trying to suppress membership in labor unions and political organizing and political candidacy.
• 31:29
  SPEAKER_01: And I doubt that courts would.
• 31:32
  SPEAKER_01: expand it to be a general, you know, private employees can say whatever they want, whatever harm it has to the employer's reputation.
• 31:44
  SPEAKER_01: That would make actually, ironically, private employees have broader rights than public employees, since public employees don't enjoy that right.
• 31:52
  SPEAKER_01: So, yeah.
• 31:53
  SPEAKER_01: But the statute has not been used a lot or interpreted a lot.
• 31:58
  SPEAKER_01: And I don't think that particular nuance will get explored here because I think this is a very strong First Amendment argument and that they're likely to prevail on it.
• 32:11
  SPEAKER_01: On the sex discrimination argument, her point is like, well, you look at Pedro Pascal.
• 32:17
  SPEAKER_01: He said these things on Twitter and they're fairly edgy.
• 32:23
  SPEAKER_01: And yet he keeps coming back.
• 32:26
  SPEAKER_01: And the answer is, well, first of all, everyone loves Pedro Pascal and people don't necessarily love Gina Carano.
• 32:33
  SPEAKER_01: And but also it's the employer's First Amendment right to decide which statements they find offensive, which ones they do or don't want to.
• 32:44
  SPEAKER_01: associate themselves with.
• 32:46
  SPEAKER_01: So that's completely legitimate on their part.
• 32:49
  SPEAKER_01: And but we'll see.
• 32:51
  SPEAKER_00: It's funny.
• 32:51
  SPEAKER_00: We dealt with this also with Francesca Gino, where she says, you know, I was treated differently and I'm a woman and therefore this is sex discrimination.
• 32:58
  SPEAKER_00: I mean, how did how did the courts investigate that?
• 33:00
  SPEAKER_00: Because employers may treat two employees in an inconsistent manner for all sorts of reasons.
• 33:06
  SPEAKER_00: And, you know, sometimes they will happen to be of different sex, but that might not be the reason for the inconsistent treatment.
• 33:12
  SPEAKER_00: Do they have to like show like they find emails where people say, you know, this is really embarrassing because she's a woman or that sort of thing?
• 33:19
  SPEAKER_00: Or can they just infer it just from the fact that she was treated differently and she is a woman?
• 33:23
  SPEAKER_01: Well, you can infer it.
• 33:24
  SPEAKER_01: The question is whether that's enough to prevail.
• 33:27
  SPEAKER_01: The bigger question is whether or not that's enough to survive at a motion to dismiss stage.
• 33:32
  SPEAKER_01: So her argument is you're treating me differently because I'm a woman and it's sexist.
• 33:37
  SPEAKER_01: Their argument is we're treating you differently because of what you said.
• 33:40
  SPEAKER_01: So typically that would be a disputed fact that you might not resolve at a motion to dismiss stage.
• 33:46
  SPEAKER_01: So I think the motion to dismiss as to the sex discrimination claim is weaker than
• 33:51
  SPEAKER_01: than the one on the politics discrimination claim because it relies basically on factually rejecting her claim and getting to a pure First Amendment issue.
• 34:03
  SPEAKER_01: One of the problems she has is that it's not like she had a nine to five job and a contract.
• 34:09
  SPEAKER_01: She was a character on the show.
• 34:11
  SPEAKER_01: And what she's asking courts to do is decide how many more years should this character have been on this show?
• 34:19
  SPEAKER_01: How many episodes per season should she be on?
• 34:24
  SPEAKER_01: How, you know, does she get to kill people?
• 34:26
  SPEAKER_01: Does she get any really cool Star Wars stuff?
• 34:29
  SPEAKER_01: You know, because there's a billion ways that you could make someone's life less pleasant as an actor.
• 34:34
  SPEAKER_01: And I think they have a good point that you really don't want third parties in courts coming in and saying, okay, well, you didn't fire her, but you reduced her role from two episodes to one or whatever it is.
• 34:48
  SPEAKER_00: Yeah.
• 34:49
  SPEAKER_00: Well, that doesn't sound like great news for Gina Carano here.
• 34:52
  SPEAKER_00: You know, yet another brick in the conspiracy against her.
• 34:55
  SPEAKER_00: Ken, let's leave it there this week.
• 34:56
  SPEAKER_00: Thank you for speaking with me.
• 34:57
  SPEAKER_00: Thank you, Josh.
• 34:59
  SPEAKER_00: Serious Trouble is created and produced by Very Serious Media.
• 35:01
  SPEAKER_00: That's me and Sarah Faye.
• 35:02
  SPEAKER_00: Jennifer Swadik mixed this episode.
• 35:04
  SPEAKER_00: Our theme music is by Joshua Mosier.
• 35:05
  SPEAKER_00: Thanks for listening.
• 35:06
  SPEAKER_00: And we'll be back with more soon.
• 35:07
  SPEAKER_00: See you next time.