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Trump Verdict Watch Begins · Pod Save America

0:20
Speaker 1: Welcome to Pod Save America. I'm Tommy Vitor.
0:22
Speaker 2: And I'm Alyssa Murray.
0:23
Speaker 1: On today's show, we are officially on verdict watch as
0:26
Speaker 1: the jury in Manhattan begins deliberations. Robert De Niro, of
0:30
Speaker 1: all people, hit the campaign trail for Joe Biden this
0:32
Speaker 1: week and got into it with protesters outside the courtroom.
0:36
Speaker 1: And the Trump team reportedly thinks they have a sympathizer
0:39
Speaker 1: in the jury room. We're also going to talk about
0:41
Speaker 1: the cluster that the Florida documents trial is turning out
0:44
Speaker 1: to be, what we might expect from the Supreme Court
0:47
Speaker 1: this week in the latest and greatest on the Justice
0:49
Speaker 1: Alito flag saga. including allegations of spitting, using the C word.
0:55
Speaker 1: We now have a letter from Sam Alito himself that
0:58
Speaker 1: we were just reading. So that's a fun one. But
1:01
Speaker 1: the best news of all is that Melissa Murray is
1:03
Speaker 1: here riding shotgun. Melissa, as you know by now, is
1:05
Speaker 1: a co-host of the fantastic Crooked podcast, Strict Scrutiny, a
1:10
Speaker 1: professor at NYU Law School, and the author of the
1:12
Speaker 1: very excellent book, The Trump Indictments. Melissa, great to see you.
1:17
Speaker 2: Thanks so much for having me. I'm so excited. I
1:20
Speaker 2: have so much to say.
1:22
Speaker 1: I just, I love Strict Scrutiny every week, but boy,
1:26
Speaker 1: when there's an Alito news item in there, it really,
1:29
Speaker 1: it just, it's my favorite.
1:30
Speaker 2: He's truly a friend of the pod. He really is.
1:32
Speaker 1: It's just skincare.
1:33
Speaker 2: Content creator, Sam Alito. Yes.
1:35
Speaker 1: Content creator, flag lover, or maybe not.
1:38
Speaker 2: Or not. Or not.
1:39
Speaker 1: Not a fan.
1:41
Speaker 2: But feminist, because he defends his right. to love his wife,
1:46
Speaker 2: who loves flags more than he does, and his right
1:49
Speaker 2: to throw her under the bus as often and as
1:53
Speaker 2: forcefully as possible to avoid any responsibility for any of this.
1:58
Speaker 1: To the press, to the Senate. To everyone. He'll put
2:00
Speaker 1: it in writing. He'll say it anytime. Yeah, she is
2:03
Speaker 1: under the bus. But we will get to that. We're
2:04
Speaker 1: going to get to that, yes. But let's start with
2:06
Speaker 1: the Trump trial, because as of this recording, we don't
2:08
Speaker 1: have a verdict in Donald Trump's Manhattan hush money trial.
2:11
Speaker 1: Judge Marchand has charged the jury with, That is, giving
2:14
Speaker 1: them the legal instructions on how to make their decision
2:16
Speaker 1: about Trump's innocence or guilt. And the 12 jurors are
2:19
Speaker 1: now holed up somewhere in 100 Center Street. They're probably
2:22
Speaker 1: eating some bad catering, arguing with each other, and wondering
2:26
Speaker 1: about what kind of book deal each of them is
2:28
Speaker 1: going to get when this is all over. I did
2:30
Speaker 1: want to note that we have an imprint. Just throwing
2:32
Speaker 1: that out there, York Media. We don't have any indication
2:35
Speaker 1: yet of how long deliberations might take, but odds are
2:37
Speaker 1: we'll get a verdict immediately after we released podcast episodes,
2:41
Speaker 1: because that's how it goes here. The defendant didn't seem
2:44
Speaker 1: too optimistic about things outside the court today. Maybe he's
2:48
Speaker 1: just playing the expectations game. But let's listen to a clip.
2:51
Speaker 3: I would say in listening to the charges from the judges,
2:56
Speaker 3: as you know, very conflicted and corrupt because of the confliction.
3:01
Speaker 1: Very, very corrupt.
3:04
Speaker 3: Mother Teresa could not beat these charges. These charges are rigged.
3:09
Speaker 3: The whole thing is rigged.
3:11
Speaker 1: Let's all get to my real question. I just love
3:13
Speaker 1: how dated his references are. She died in 1997.
3:17
Speaker 2: Confliction, like a new word. And also the cheek to
3:21
Speaker 2: say this judge is so corrupt. Mere hours before Samuel
3:27
Speaker 2: Alito issues his letter, which we're going to get to,
3:29
Speaker 2: but also days after the second Alito flag has been reported. Sir,
3:35
Speaker 2: read the room.
3:36
Speaker 1: Freak flags are flying all over the place. Everywhere. So
3:39
Speaker 1: let's back up a bit. We haven't talked since the
3:41
Speaker 1: closing arguments concluded earlier this week. The defense summations took
3:44
Speaker 1: three hours. It was Todd Blanche basically spending most of
3:48
Speaker 1: his time focusing on Michael Cohen and called him the
3:50
Speaker 1: MVP of liars and the gloat, which is the greatest
3:53
Speaker 1: liar of all time. As a Tom Brady fan, I
3:56
Speaker 1: appreciated that one for the creativity. Todd, the prosecution then
4:00
Speaker 1: took about five hours to go through a detailed timeline
4:02
Speaker 1: of evidence that corroborated Cohen's testimony. Melissa, any big takeaways
4:06
Speaker 1: from you about these closing arguments?
4:09
Speaker 2: One, they were way too long, I thought, on both sides.
4:12
Speaker 2: The prosecution went on for about four hours. Todd Planch
4:15
Speaker 2: went on for three hours. Like, that's a lot. It's
4:17
Speaker 2: a lot of information for the jury to comprehend and digest. Typically,
4:23
Speaker 2: closing arguments are probably two hours max, depending on how
4:27
Speaker 2: complicated the case is. And I don't know that this
4:29
Speaker 2: case is so complicated that it required going on until
4:33
Speaker 2: 8 o'clock last night, which is when they finally did break. But,
4:38
Speaker 2: you know, I will say this, and I think it's
4:39
Speaker 2: important for listeners to understand it. The real pressure here
4:43
Speaker 2: is on the government to establish Donald Trump's guilt on
4:47
Speaker 2: every charge beyond a reasonable doubt, which is to say very, very,
4:52
Speaker 2: very certain that he is guilty of all of the
4:55
Speaker 2: things of which he has been accused and charged. All
4:58
Speaker 2: the defense has to do is basically say that the
5:02
Speaker 2: government hasn't done this. The defense isn't required to put
5:06
Speaker 2: on a defense, and indeed it did not put on
5:08
Speaker 2: much of a defense here. The defendant isn't required to
5:11
Speaker 2: take the stand. All they're required to show to prevail
5:14
Speaker 2: here is that the prosecution hasn't met its burden. The problem, though,
5:19
Speaker 2: is that the prosecution really has done a relatively good
5:24
Speaker 2: job of meeting its burden. They've been very clear here
5:27
Speaker 2: that their star witnesses are not Michael Cohen or Hope
5:33
Speaker 2: Hicks or any of the other corroborating witnesses that they called,
5:36
Speaker 2: their star witnesses are these documents. And in particular, the
5:40
Speaker 2: smoking gun documents, that's People's Exhibit 35 and People's Exhibit 36.
5:45
Speaker 2: Those are the handwritten notes that talk about how this
5:50
Speaker 2: repayment to Michael Cohen is going to be grossed up.
5:53
Speaker 2: There's handwriting from Ellen Weisselberg and Jeffrey McConaughey, who's the
5:58
Speaker 2: Trump Organization comptroller. who are basically explaining how they're going
6:02
Speaker 2: to create these falsified business documents for the purpose of
6:07
Speaker 2: repaying Michael Cohen for the $ 130, 000 he paid to Stormy
6:12
Speaker 2: Daniels' lawyers, but then they have to plus it up
6:14
Speaker 2: in order to make Cohen whole because the payment has
6:18
Speaker 2: been classified as legal services, which counts as income and
6:21
Speaker 2: which is going to be taxed as income to Cohen.
6:23
Speaker 2: So they have to make it bigger so that he
6:25
Speaker 2: can ultimately be made whole after the IRS gets its cut.
6:29
Speaker 2: Those are the real smoking gun documents. And as much
6:33
Speaker 2: as Todd Blanche dwelled on all of the infirmities of
6:37
Speaker 2: Michael Cohen as a witness, he never really refuted the
6:41
Speaker 2: fact of those smoking gun documents, which I thought was
6:44
Speaker 2: really surprising. He didn't provide evidence. an alternative story or
6:48
Speaker 2: narrative that could explain why those documents exist or why
6:52
Speaker 2: they very clearly show the scheme to plus up the
6:57
Speaker 2: number so that Cohen could be made whole again. And
6:59
Speaker 2: he also didn't explain that very damning audio tape in
7:03
Speaker 2: which Donald Trump and Michael Cohen are discussing how this
7:07
Speaker 2: scheme is going to work and how Cohen is going
7:09
Speaker 2: to be made whole again. Yes, the defense has to
7:13
Speaker 2: poke holes in the prosecution's case, but you also have
7:16
Speaker 2: to create a kind of counterfactual or counter-narrative that the
7:19
Speaker 2: jury can latch onto. And I'm not sure Todd Blanch
7:22
Speaker 2: did that here. And I'll just stop there. We can
7:25
Speaker 2: say more. I mean, I have lots to say about
7:26
Speaker 2: Todd Blanch as a lawyer, but to me, that was
7:30
Speaker 2: the most glaring aspect of these three hours. I was
7:32
Speaker 2: waiting for the refutation of those key pieces of evidence,
7:36
Speaker 2: and it was never forthcoming.
7:38
Speaker 1: Yeah, he just sort of hammered Michael Cohen. I think
7:40
Speaker 1: you and Trump actually seem to have agreed on the
7:43
Speaker 1: prosecution's closing arguments there. I think he truthed boring and
7:46
Speaker 1: filibuster were his big takeaways, the former president.
7:50
Speaker 2: It was really long. I mean, I think Joshua Steinglass
7:53
Speaker 2: was really terrific. It was very methodical. And to be fair,
7:56
Speaker 2: from all accounts inside the courtroom, the jury was with him.
8:00
Speaker 2: They seemed to be very responsive. They had a good rapport. So,
8:03
Speaker 2: you know, maybe it's fine. But I just, you know...
8:06
Speaker 2: Four hours. It's eight o'clock at night. Like I'm two
8:10
Speaker 2: unisoms in and I'm going to be asleep by nine o'clock.
8:13
Speaker 1: You're talking to a guy who loves a 90 minute movie.
8:15
Speaker 1: I'm with you on all of this.
8:16
Speaker 2: A 90 minute movie, a play with no intermission. These
8:19
Speaker 2: are the gold standards.
8:20
Speaker 1: That's what we're talking about. We also heard Trump attacking
8:23
Speaker 1: the judge's jury instructions in that clip we played. Judges
8:26
Speaker 1: have some latitude in how they instruct the jury and
8:29
Speaker 1: that can have big consequences. Or at least that's what
8:32
Speaker 1: smart lawyers on TV tell me. Did anything seem surprising
8:35
Speaker 1: or noteworthy about the jury instructions? And can you just
8:38
Speaker 1: give listeners a sense of how bad jury instructions can
8:41
Speaker 1: actually bite the prosecution in the ass down the road?
8:45
Speaker 2: Sure. So the jury instructions are basically the directives that
8:49
Speaker 2: the judge reads to the jury in advance of the
8:51
Speaker 2: jury going out by itself to deliberate about the case.
8:54
Speaker 2: And it's where the judge instructs the jury as to
8:57
Speaker 2: the particular points of the law that they then have
9:00
Speaker 2: to apply to the facts as they have found them.
9:03
Speaker 2: And so the parties usually spend a lot of time
9:08
Speaker 2: fighting over the jury instructions. When I was a clerk,
9:10
Speaker 2: we would get jury instructions from the they would be very,
9:15
Speaker 2: very different proposed jury instructions. And the job of the chambers,
9:19
Speaker 2: the judge, would be to kind of meld them together,
9:22
Speaker 2: figure out what was the right sort of mix, how
9:24
Speaker 2: to present certain things so that no side was unfairly
9:27
Speaker 2: advantaged or disadvantaged. And one of the things I noticed
9:31
Speaker 2: here was there's this really intricate question about the way
9:35
Speaker 2: the prosecution has charged the case. Because ordinarily, in New York,
9:39
Speaker 2: The falsification of business records, which is the bulk of
9:41
Speaker 2: the charges against Donald Trump, that's ordinarily a misdemeanor. But
9:45
Speaker 2: when it is done in furtherance of another crime or
9:48
Speaker 2: the concealment of another crime, it can be elevated to
9:52
Speaker 2: a felony. The defense had asked for the jury to
9:55
Speaker 2: be instructed that the prosecution actually had to come up
9:59
Speaker 2: with a singularity. theory of what the other crime was
10:03
Speaker 2: that Donald Trump was allegedly falsifying business records in furtherance
10:07
Speaker 2: of or in the concealment of. And the prosecution said, no,
10:11
Speaker 2: we actually don't have to do that. According to the law,
10:14
Speaker 2: all that we have to show is that it was
10:16
Speaker 2: done in furtherance or in concealment of some crime. We
10:18
Speaker 2: don't actually have to establish beyond a reasonable doubt what
10:21
Speaker 2: that other crime is, nor do we have to specify
10:25
Speaker 2: what particular crime is or single out any particular crime.
10:28
Speaker 2: And so the prosecution here actually identified four different theories
10:33
Speaker 2: of alternative crimes that were the sort of predicate crimes
10:36
Speaker 2: in furtherance or in concealment of, and the judge struck
10:39
Speaker 2: one of them, but that left three of them, a
10:41
Speaker 2: tax fraud claim, a federal election claim, and then a
10:45
Speaker 2: New York state election claim. And the judge, in writing
10:50
Speaker 2: these jury instructions, basically went with the prosecution's theory of this.
10:53
Speaker 2: They don't actually have to identify a single crime that
10:57
Speaker 2: this is in furtherance of or in concealment of, nor
11:00
Speaker 2: is the jury required to find that Donald Trump actually
11:03
Speaker 2: committed that crime. It just has to be in furtherance
11:05
Speaker 2: of or concealment of. It doesn't actually have to have
11:07
Speaker 2: been committed. And I think that's a big win for
11:09
Speaker 2: the prosecution.
11:11
Speaker 1: And you've seen Republicans like Marco Rubio, who is apparently
11:15
Speaker 1: on the short list to be vice president, is picking
11:18
Speaker 1: up on what you just described, the fact that Marchand
11:21
Speaker 1: told the jury they don't have to come to a
11:22
Speaker 1: unanimous decision on which underlying crime was committed and saying
11:27
Speaker 1: that that shows that this whole thing is rigged and
11:30
Speaker 1: unfair to Donald Trump. What do you make of that?
11:32
Speaker 2: I don't think that's true. I mean, I think that
11:34
Speaker 2: is the law. And that is the point the prosecution
11:36
Speaker 2: made in arguing this point with the defense before the judge. Like,
11:40
Speaker 2: You don't have to prove that unanimously. You don't have
11:43
Speaker 2: to settle on a single charge. Like three jurors can
11:46
Speaker 2: think it's about the taxes. Three jurors can think it's
11:49
Speaker 2: about the federal charge. Three jurors can think it's about
11:51
Speaker 2: something else entirely, some other crime that's been identified here,
11:55
Speaker 2: the state-level election charge. And all of that might be fine.
12:01
Speaker 2: The defense very much wanted the prosecution to pick one.
12:05
Speaker 2: And again, if the prosecution had been required to pick one,
12:08
Speaker 2: it would have really played in the defense's favor. So
12:10
Speaker 2: it's not surprising that that's the argument here. they were making,
12:13
Speaker 2: nor is it surprising that the prosecution was arguing the
12:16
Speaker 2: opposite side of that. I think what is really important
12:19
Speaker 2: here is that there had already been precedent in New
12:22
Speaker 2: York State that you didn't actually have to identify a
12:25
Speaker 2: single crime, that the falsification of business records was in
12:29
Speaker 2: furtherance of. And so the judges kind of played this
12:31
Speaker 2: down the middle, and it was a playing down the
12:33
Speaker 2: middle that kind of worked for the prosecution. So I
12:36
Speaker 2: don't think there's much here to Marco Rubio's claims, but
12:39
Speaker 2: I also think there often isn't much there to Marco Rubio.
12:43
Speaker 1: Oh, yeah. He's the king of saying things that are
12:46
Speaker 1: devoid of substance. But you also, you don't think that
12:49
Speaker 1: anything in those jury instructions creates risk for the prosecution
12:53
Speaker 1: upon appeal?
12:54
Speaker 2: Oh, I think that is certainly going to be an
12:56
Speaker 2: appealable issue. I mean, I said from the beginning, this
12:58
Speaker 2: question of whether the prosecution could sort of bootstrap these
13:03
Speaker 2: charges to get to a felony was always going to
13:06
Speaker 2: be a big question. It really didn't become a big
13:08
Speaker 2: question at the trial, but I do think it may
13:11
Speaker 2: be a big issue that one that could actually be
13:13
Speaker 2: appealable if Trump is convicted going into the next phase
13:17
Speaker 2: of this. And trust me, there's going to be a
13:19
Speaker 2: next phase. If he is convicted on any charge, he
13:22
Speaker 2: is going to appeal. I think this might be something
13:24
Speaker 2: that becomes fodder for an appeal.
13:26
Speaker 1: Yeah, well, let's talk about the potential outcomes and the
13:29
Speaker 1: phases here. So the simplest one is a total acquittal
13:34
Speaker 1: or total conviction. A full acquittal is the worst case
13:37
Speaker 1: scenario for the prosecution. Trump walks, the government can't appeal.
13:41
Speaker 1: People like us get to say double jeopardy. So that's fun.
13:44
Speaker 1: We get to talk about that because that's why you
13:46
Speaker 1: can't prosecute him again, right? But even Trump's allies seem
13:49
Speaker 1: to think there is little chance of a full acquittal.
13:52
Speaker 1: We'll see, I guess.
13:53
Speaker 2: Well, I mean, they kind of were communicating that. I mean,
13:55
Speaker 2: in his closing argument, and this was very, very controversial,
14:00
Speaker 2: Todd Blanch, who, and I have to say this, Todd
14:02
Speaker 2: Blanch is not a defense lawyer by trade. He's been
14:05
Speaker 2: a longtime prosecutor. This is actually one of his first
14:08
Speaker 2: big defense trials, maybe even the first that he has done.
14:12
Speaker 2: And so he's more often on the other side of
14:14
Speaker 2: the V prosecuting cases. So he knows that when you
14:18
Speaker 2: are talking to the jury in your closing arguments, you
14:21
Speaker 2: cannot mention the prospect of punishment because the jury doesn't
14:25
Speaker 2: determine punishment. It's the judge that does that. And so
14:28
Speaker 2: in his closing statement, he said something to the effect of,
14:30
Speaker 2: you know, do not send Donald Trump to prison on
14:33
Speaker 2: the say-so of Michael Cohen, the greatest liar of all time.
14:37
Speaker 2: And he was immediately rebuked by Judge Merchan because, again,
14:41
Speaker 2: it's playing on the sympathy of the jury. And it's
14:45
Speaker 2: a huge no-no since the jury has no role in
14:48
Speaker 2: determining the ultimate sanction or punishment. But I think it
14:52
Speaker 2: was also kind of a concession that They don't have
14:55
Speaker 2: high hopes for their chances with this jury, that the
14:58
Speaker 2: prosecution's evidence is really damning and the best they can
15:02
Speaker 2: hope for is perhaps one or two jurors just, you know,
15:07
Speaker 2: being a little on the fence about whether this is
15:09
Speaker 2: something for which someone should serve prison time or whether
15:14
Speaker 2: they're even convinced that Donald Trump did this. So I
15:16
Speaker 2: don't think they're holding out hope for a complete acquittal.
15:18
Speaker 2: I think they are really hoping for a hung jury
15:21
Speaker 2: that leads to a mistrial.
15:22
Speaker 1: Two things, though, before we go to break. In 2014,
15:25
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15:28
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15:30
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15:33
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15:36
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15:40
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Speaker 1: any candidate or candidates committee. So the best case scenario
17:15
Speaker 1: for us is a full conviction campaign. Then I guess
17:17
Speaker 1: you start the clock on sentencing, and I'm sure Trump
17:19
Speaker 1: will appeal. Yes. But with 34 counts, my understanding is
17:24
Speaker 1: you basically have 34 separate verdicts. And in each case,
17:26
Speaker 1: the jury has to be unanimous. So you could see
17:29
Speaker 1: Trump convicted on some counts, acquitted on others, right? So
17:32
Speaker 1: how does it work in a split case? Does the
17:35
Speaker 1: sentencing process begin? Does the appeals process slow everything down?
17:39
Speaker 1: Are they concurrent? How does that go?
17:41
Speaker 2: So there's the ordinary case and then there's this case, right?
17:45
Speaker 2: I mean, so I should just say at the outset,
17:48
Speaker 2: most cases never make it to a trial by jury.
17:51
Speaker 2: And certainly, you know, my husband's a former prosecutor. One
17:53
Speaker 2: of the first things he said about this case was
17:56
Speaker 2: for any other defendant, there would have already been a
17:58
Speaker 2: guilty plea just based on what the indictment said and
18:03
Speaker 2: the evidence that it seemed very clear the prosecution was
18:05
Speaker 2: going to marshal that, you know, most defendants would have
18:07
Speaker 2: pled out to this. It's like falsification of business records,
18:11
Speaker 2: very unlikely to lead to jail time. Like, you don't
18:13
Speaker 2: even want the hassle of this. Just, you know, and
18:15
Speaker 2: if the evidence is so clear, just get it over with.
18:19
Speaker 2: He's taken this to trial. That by itself is unusual.
18:23
Speaker 2: We've already seen in the disposition of the gag order
18:27
Speaker 2: requests and the various arguments involving the gag order that
18:30
Speaker 2: Judge Merchan although he is very straight down the middle,
18:33
Speaker 2: he seems very reluctant to throw this defendant in jail.
18:38
Speaker 2: And so I think there are going to be some
18:40
Speaker 2: real questions going forward if Donald Trump is convicted on
18:44
Speaker 2: any of these charges, whether or not we're going to
18:47
Speaker 2: see immediate action. Usually what happens once a defendant has
18:51
Speaker 2: been convicted is that it then shifts to the probation
18:54
Speaker 2: office to work up what is known as a pre-sentencing report.
18:58
Speaker 2: A pre-sentencing report goes through the defendant's criminal history, his
19:02
Speaker 2: family circumstances, his work circumstances. They talk about the nature
19:06
Speaker 2: of the crime, whether there's a likelihood of recidivism in
19:09
Speaker 2: the future, all of this. And it's like a six
19:12
Speaker 2: to seven page document that is supposed to inform the
19:16
Speaker 2: judge's response in the sentence. Like it's supposed to inform
19:20
Speaker 2: the judge's sentence. But this is someone who... despite not
19:24
Speaker 2: having a criminal history, has some legal troubles in the
19:28
Speaker 2: background that may be worth talking about in a pre-sentencing report.
19:32
Speaker 2: And he's also someone who's on the campaign trail. And
19:34
Speaker 2: so any sentence, even if it's probation or house arrest,
19:38
Speaker 2: would have huge implications for his ability to participate in
19:43
Speaker 2: campaign season, to press his case before the American people.
19:46
Speaker 2: And so I wonder if Judge Merchan is maybe going
19:50
Speaker 2: to drag his feet a little on the sentencing in
19:53
Speaker 2: order not to unduly influence the election cycle. So, you know,
19:58
Speaker 2: the PSR, the writing of the PSR, that whole process
20:01
Speaker 2: could take a month, maybe two months. Maybe it just
20:04
Speaker 2: takes a little longer and maybe the appeals process starts
20:07
Speaker 2: and Judge Merchan decides to stay the sentencing until the
20:12
Speaker 2: appeals can be worked out. Maybe all of that happens
20:15
Speaker 2: and we actually don't get a sentencing before the election
20:19
Speaker 2: is concluded.
20:20
Speaker 1: Oh, interesting. And just a little more on the sentencing.
20:22
Speaker 1: I know Norm Eisen, who's been on the show a
20:24
Speaker 1: bunch of times, analyzed cases like this one where falsifying
20:28
Speaker 1: business records was the most serious charge. And Norm found
20:32
Speaker 1: that only one in 10 cases resulted in incarceration. That said,
20:37
Speaker 1: CBS News reported that Secret Service has been in touch
20:39
Speaker 1: with local prison officials. So who knows? But I think like,
20:43
Speaker 1: you know, to our listeners chanting, you know, lock him
20:45
Speaker 1: up in the shower every morning, like pump the brakes, maybe.
20:48
Speaker 2: Yeah, I mean, I think this could I think the
20:51
Speaker 2: maximum sentence that could be imposed here is about four
20:54
Speaker 2: years incarceration. But again, like going back to the gag order.
20:58
Speaker 2: This was a judge who explicitly said, I am loathe
21:01
Speaker 2: to put someone who is a former president, maybe even
21:03
Speaker 2: a future president, in jail for violating the gag order.
21:07
Speaker 2: And I bet he's also worried about the prospect of
21:10
Speaker 2: imposing a sentence that some view as unduly harsh and
21:13
Speaker 2: that might incite Donald Trump's followers to do whatever it
21:17
Speaker 2: is they do, maybe even things that are violent. So
21:21
Speaker 2: prison time, I think, is an outlier here. But I
21:23
Speaker 2: don't think that means there can't be a meaningful sentence
21:26
Speaker 2: that speaks to accountability for this. But, you know, if
21:29
Speaker 2: this was the vehicle through which you were going to
21:31
Speaker 2: get all your accountability out for everything, like including January 6th,
21:35
Speaker 2: this is probably not it.
21:36
Speaker 1: Yeah, I'll probably give him house arrest. It'll be 2020
21:39
Speaker 1: election all over again. And then we'll lose. And that's
21:42
Speaker 1: just the, you know, the future we're doomed to. Just kidding, everyone.
21:45
Speaker 1: I'm much more optimistic than that. The other big wrinkle, though,
21:48
Speaker 1: is obviously the various hung jury scenarios where jurors can't
21:52
Speaker 1: get to unanimity on Trump's guilt or innocence on a
21:54
Speaker 1: given count. I know that if you have a hung
21:57
Speaker 1: jury on every count, you have a mistrial and the
21:59
Speaker 1: prosecution has to start all over. But what happens if
22:01
Speaker 1: you have a hung jury on a couple counts or
22:04
Speaker 1: one count?
22:05
Speaker 2: I mean, again, if it's a hung jury, like, you know,
22:07
Speaker 2: And they don't get to a conviction. It's sort of
22:10
Speaker 2: the question kind of looms out there. Like, does the
22:12
Speaker 2: prosecution attempt to do this over again? I think it's
22:14
Speaker 2: probably unlikely here.
22:16
Speaker 1: So expensive and politically risky and embarrassing.
22:19
Speaker 2: It'd be politically embarrassing. I don't think Alvin Bragg wants
22:23
Speaker 2: that smoke. I also think Donald Trump would make hay
22:25
Speaker 2: of it. And he would talk about this as, again,
22:29
Speaker 2: kind of doubling down on this persecution narrative. And I
22:33
Speaker 2: think it actually would be very powerful for his followers.
22:36
Speaker 4: Yeah.
22:37
Speaker 1: So the bulwark had a story yesterday about how the
22:40
Speaker 1: Trump team thinks a hung jury is basically their only
22:43
Speaker 1: hope here, the only shot of him escaping legal consequences.
22:46
Speaker 1: They're eyeing one juror in particular. So the hope here
22:50
Speaker 1: comes from this guy's making eye contact or this juror,
22:54
Speaker 1: I should say.
22:54
Speaker 2: Yeah, we don't know which juror it is.
22:56
Speaker 1: Right. They're making eye contact. There's been certain head nods
23:00
Speaker 1: during things that were favorable to the defense. There's a
23:03
Speaker 1: perceived enthusiasm for Trump surrogates in the courtroom like J.D. Vance. Now,
23:07
Speaker 1: this could all be nonsense. But one Trump insider quoted
23:11
Speaker 1: in the article acknowledged like, hey, maybe this person just
23:14
Speaker 1: trying to mess with us, essentially. But, you know, there's
23:16
Speaker 1: a guy named Harry Littman, a former federal prosecutor who
23:19
Speaker 1: was appointed by Bill Clinton. He wrote on Twitter, quote,
23:22
Speaker 1: there's one juror that people are worried about. And I
23:25
Speaker 1: share the worry. Can't identify her or him per judge's orders,
23:28
Speaker 1: but seems less engaged and slightly irritable.
23:31
Speaker 4: Melissa.
23:32
Speaker 1: That sounds like me. I would be so pissed if
23:36
Speaker 1: I sat for five hours, too. But is this like
23:39
Speaker 1: when the Daily Mail is doing, they call it a
23:41
Speaker 1: body language expert to look at the royal family's photo?
23:44
Speaker 2: Oh, yeah, so they look at Prince Harry and Meghan Markle,
23:46
Speaker 2: and they're like, oh, they're not holding hands. They're obviously
23:48
Speaker 2: going to be getting a divorce.
23:50
Speaker 1: Is that what this is? Is this serious?
23:53
Speaker 2: So I'm just going to say this at the top.
23:56
Speaker 2: Juries are really weird organisms. No jury is alike. It's
24:01
Speaker 2: like 12 people. who are totally random, being thrown together
24:05
Speaker 2: in pretty shabby circumstances, if I'm being honest. I was
24:10
Speaker 2: just down at the New York courthouse for my own
24:12
Speaker 2: jury duty and not luxurious. So they're thrown together in
24:17
Speaker 2: these kind of gross, desultory circumstances for days on end,
24:23
Speaker 2: they kind of bond together in certain aspects, but they're
24:26
Speaker 2: not like, they're familial, but they're not family. And they're
24:29
Speaker 2: sort of bound together in this one particular trial. And
24:33
Speaker 2: I just think the dynamics of something like that, it's
24:35
Speaker 2: basically the real world with law. And it's just weird.
24:40
Speaker 2: And I think it's really unpredictable. And so looking for
24:43
Speaker 2: clues from whether they smile at you or they don't
24:46
Speaker 2: smile at you, like, I guess, but You know, jury
24:49
Speaker 2: consultants make tons of money. I'm not sure it's all
24:52
Speaker 2: deserved trying to predict what juries will do or trying
24:55
Speaker 2: to figure out who would make the right collection of
24:57
Speaker 2: people to be on a jury. But I think it's
25:00
Speaker 2: just inherently unpredictable. Like this is just an organism that
25:06
Speaker 2: is constantly evolving and is its own animal. And I
25:10
Speaker 2: think nine times out of 10, when you talk to
25:12
Speaker 2: the jury after a trial, you're really surprised by what
25:15
Speaker 2: moved them and what didn't.
25:18
Speaker 5: Yeah.
25:18
Speaker 1: So a jury is like the real world with the
25:20
Speaker 1: law or like being on Survivor without all the fire
25:23
Speaker 1: starting and starvation.
25:25
Speaker 2: But with a good LSAT score. Do you know someone
25:28
Speaker 2: like that?
25:29
Speaker 1: I do know someone like that who considers himself as
25:32
Speaker 1: having a good LSAT score. We'll see. For listeners, we
25:35
Speaker 1: know as literal about those deliberations as we do about
25:38
Speaker 1: the ones happening in New York. It's a black box.
25:41
Speaker 2: Yeah. I think that's exactly right. Yeah. Yeah. outlast, outwit, outkill, whatever.
25:47
Speaker 2: I'm much like what happens.
25:50
Speaker 1: Love it's like taking swimming lessons in the backyard.
25:52
Speaker 2: Okay.
25:53
Speaker 1: So lately though, Trump has been fighting it out outside
25:56
Speaker 1: the courtroom too. He's been relying on high profile surrogates
25:58
Speaker 1: to make news on trial days and get around his
26:01
Speaker 1: gag order. But yesterday Democrats decided to get in the game.
26:05
Speaker 1: The Biden campaign had Robert De Niro and two former
26:08
Speaker 1: Capitol police officers outside the courthouse They were attacking Trump
26:12
Speaker 1: for January 6th and they were kind of mixing it
26:14
Speaker 1: up with all the Trump fans. Let's take a listen.
26:17
Speaker 2: You think Trump ever threw a punch himself or took one?
26:21
Speaker 3: This guy who.
26:22
Speaker 2: Ran and hid in the White House bunker when there
26:24
Speaker 2: were protesters outside?
26:26
Speaker 4: No way.
26:27
Speaker 3: You're not going to intimidate.
26:29
Speaker 4: That's what Trump does to try to intimidate.
26:31
Speaker 1: We are going to fight back.
26:34
Speaker 3: You are gangsters.
26:36
Speaker 1: You are gangsters. You, you. Like raging bull. Putting on
26:46
Speaker 1: your Politico hat there. What did you make of this
26:48
Speaker 1: messaging effort?
26:49
Speaker 2: I mean, I'll just say this. He didn't have far
26:53
Speaker 2: to go, Robert De Niro. He lives in Tribeca. The
26:55
Speaker 2: courthouse is probably a 10 minute walk from his home.
26:59
Speaker 2: So like, I think he probably went out there with
27:02
Speaker 2: the best of intentions and the whole thing kind of,
27:05
Speaker 2: it got the better of him. Like, I mean, it's
27:06
Speaker 2: probably not his finest hour, probably not the best surrogate
27:10
Speaker 2: for the Biden administration. You know, I'm sure Korean Jean-Pierre
27:14
Speaker 2: is like, ugh, like right now. Like John Roberts smoking
27:17
Speaker 2: furiously while holding a Dunkin' Donuts cup. But yeah, like
27:22
Speaker 2: this was weird to me. Just, we don't normally do this,
27:26
Speaker 2: I think. And it was kind of a weird moment.
27:30
Speaker 1: Yeah, everything is new here. I mean, I talked to
27:32
Speaker 1: some of the Biden campaign staffers who are, you know,
27:35
Speaker 1: making these decisions. And the rationale from their standpoint was, one,
27:39
Speaker 1: let's go where the cameras are. They're recording. Let's talk
27:42
Speaker 1: to them.
27:43
Speaker 2: Right.
27:43
Speaker 1: Like they're just sitting there. Two, they wanted to try
27:45
Speaker 1: to put the focus on January 6th and the stakes
27:49
Speaker 1: for the American people in the election and not just
27:52
Speaker 1: the stakes in the verdict for Trump himself, which I
27:54
Speaker 1: think is smart. And then three, I think like De
27:56
Speaker 1: Niro's in this new campaign ad. So it kind of
27:58
Speaker 1: made sense on some level to put him out there.
28:00
Speaker 1: But he's also a celebrity and he's more likely to
28:02
Speaker 1: get covered. And the places they're getting killed are like
28:06
Speaker 1: kind of TikTok voters, like people who aren't reading the
28:08
Speaker 1: New York Times every day. So Robert De Niro is
28:10
Speaker 1: your choice. Yeah, so an 80-year-old is your obvious choice.
28:14
Speaker 1: He did a dance, I think.
28:15
Speaker 2: I mean, you know, I love Robert De Niro. He's
28:18
Speaker 2: one of the greatest actors of modern times. I don't
28:22
Speaker 2: know if he's going to play on TikTok.
28:25
Speaker 1: I just don't. Well.
28:27
Speaker 2: I mean, Timothee Chalamet, I think if he had come
28:30
Speaker 2: out for those, that would have been great. Um, that guy, um,
28:33
Speaker 2: Regé-Jean Page, like also would have been, I think a
28:36
Speaker 2: welcome addition for the, I'm just, I'm just riffing here. Um,
28:40
Speaker 2: call me up by the administration. I've got nothing but
28:43
Speaker 2: suggestions for TikTokable stars to be your surrogates.
28:47
Speaker 1: TikTokable stars.
28:48
Speaker 3: Yeah.
28:48
Speaker 1: Well, this election, um, already feels longer than the Irishman.
28:51
Speaker 1: So we'll see about that. Um, Last thing on Trump.
28:54
Speaker 1: So Maggie Haberman had an interesting piece about Trump running
28:57
Speaker 1: as an outlaw. This is the New York Times. So
29:00
Speaker 1: his Bronx rally featured a rapper who faces two counts
29:03
Speaker 1: of attempted murder in an effort to get the endorsement
29:06
Speaker 1: of the Libertarian Party. Trump promised to commute the sentence
29:09
Speaker 1: of a guy named Ross Ulbricht, who created the website
29:12
Speaker 1: Silk Road, which was used for drug trafficking and all
29:14
Speaker 1: kinds of illegal stuff. And Trump recently hung out with
29:18
Speaker 1: Afro Man. a rapper who apparently punched a female fan
29:22
Speaker 1: at a concert. I did not know that. That is crazy,
29:25
Speaker 1: though some people argue he should be in jail because
29:27
Speaker 1: of the song, because I got high. But what do
29:29
Speaker 1: you think? Does America want a bad boy? Is that
29:32
Speaker 1: what's happening here?
29:33
Speaker 2: Honestly, this makes me so enraged. I actually have to like,
29:36
Speaker 2: step back. I mean, I just think about poor Barack Obama,
29:39
Speaker 2: where the worst thing he ever did was put on
29:41
Speaker 2: a tan suit. And, like, he just got pilloried for
29:45
Speaker 2: the audacity of taupe. And this guy is literally, like,
29:51
Speaker 2: running and comparing himself to black men and, like, trying
29:55
Speaker 2: to sort of make common cause. Like, we're all outlaws.
29:57
Speaker 2: It's just gross. Honestly, I can't actually even read Maggie
30:02
Speaker 2: Haberman anymore. I mean, I have to read her in
30:04
Speaker 2: such small doses because it makes me so angry. But
30:07
Speaker 2: this is– I just can't. I don't even know what
30:10
Speaker 2: else to say. Like, no.
30:12
Speaker 1: The disconnect in how this would be covered if it
30:13
Speaker 1: were Obama is just so glaring. I remember, like, he
30:16
Speaker 1: had a birthday barbecue and it featured, like, some celebrities
30:19
Speaker 1: and rappers and athletes. And I remember Fox News had
30:21
Speaker 1: a headline that was, like, Obama's hip-hop barbecue won't create jobs.
30:25
Speaker 4: Yeah.
30:25
Speaker 1: Okay. I get what you're doing.
30:26
Speaker 2: Do you remember when they were leaving the white house
30:28
Speaker 2: and they had that party with like, like all, like
30:31
Speaker 2: just all of these hip hop stars, everyone came and like,
30:33
Speaker 2: they were pilloried for that. I mean, they were literally
30:35
Speaker 2: on the way out. Like, I mean, it was like,
30:37
Speaker 2: it's almost over. Like let them live. And this guy,
30:40
Speaker 2: was it great?
30:42
Speaker 1: It was incredible. Prince was up there. Shut up. Like
30:46
Speaker 1: he was with, in his sort of rock era though.
30:47
Speaker 1: It was like rock era Prince. And they were just playing.
30:50
Speaker 1: It was wild.
30:51
Speaker 2: So can I tell you, um, Prince played in Oakland and, um,
30:55
Speaker 2: My husband was able to get tickets, and I said
30:59
Speaker 2: I couldn't go because I had promised to host some
31:01
Speaker 2: Berkeley Law students at my house for something, like for
31:05
Speaker 2: an auction item that they had won at the public
31:07
Speaker 2: interest auction. So I said no and said, we'll just
31:09
Speaker 2: see him the next time.
31:10
Speaker 4: Oh, no.
31:10
Speaker 2: And he, like, literally died two months later, and I
31:14
Speaker 2: can't look at those students anymore. I just feel like
31:16
Speaker 2: they got in the way of me and Prince.
31:18
Speaker 1: I hope you failed all of them.
31:20
Speaker 2: I didn't. It wasn't their fault. I was like, I'll
31:24
Speaker 2: never be that conscientious again, ever.
31:27
Speaker 1: I was once at a bar and I put on
31:30
Speaker 1: Afro Man because I got high like 10 times in
31:32
Speaker 1: a row on the jukebox and then left. And I
31:35
Speaker 1: felt really, I thought that was a very funny thing
31:37
Speaker 1: to do. Enough about Afro Man. We're going to take
31:40
Speaker 1: a quick break. And when we come back, we're going
31:41
Speaker 1: to talk about the latest with the classified documents case.
31:44
Speaker 1: And of course, the latest with Martha Annalito. and her
31:46
Speaker 1: Stop the Steal flag, so stick around for that.
31:49
Speaker 4: All right, Melissa, we haven't talked a lot about the
32:02
Speaker 4: classified documents case on this show, the one playing out
32:05
Speaker 4: in Florida, because it seems less and less likely that
32:08
Speaker 4: anything is going to happen there before the election, mostly
32:11
Speaker 4: because the Trump-appointed judge in the case, Aileen Cannon, doesn't
32:14
Speaker 4: seem to want it to happen or maybe isn't qualified
32:17
Speaker 4: to oversee the case.
32:18
Speaker 1: Or maybe some combination of both. But there's been a
32:20
Speaker 1: lot of weird stuff happening that we should discuss. So
32:24
Speaker 1: Trump the other day said that the FBI agents who
32:27
Speaker 1: raided Mar-a-Lago were given the OK to shoot him. Steve
32:30
Speaker 1: Bannon called it an assassination attempt. This is total nonsense.
32:34
Speaker 2: I mean, remember, Trump, depending on how the immunity case
32:38
Speaker 2: turns out at the Supreme Court, it might actually be fine.
32:41
Speaker 1: May or may not be legal. Though, unfortunately for the FBI,
32:45
Speaker 1: Trump wasn't at Mar-a-Lago that day, so it would have
32:47
Speaker 1: been tough to assassinate him. But that doesn't stop these
32:50
Speaker 1: guys from making these claims. So after Trump makes this claim,
32:53
Speaker 1: Jack Smith, the prosecutor, requested a gag order to stop
32:56
Speaker 1: Trump from saying it again. Judge Cannon denied that request
33:00
Speaker 1: on Tuesday and criticized the special counsel for not following
33:03
Speaker 1: the proper procedure and consulting with Trump's lawyers before making
33:06
Speaker 1: the filing. This has been a pattern with Aileen Cannon.
33:10
Speaker 1: She seems openly hostile to the prosecutors, and it's reviving
33:14
Speaker 1: criticism on the left about the decision to try this
33:17
Speaker 1: case in Florida rather than in Washington, D.C. What do
33:20
Speaker 1: you make of that critique?
33:22
Speaker 2: I mean, I think Jack Smith, when deciding where to
33:27
Speaker 2: charge these cases, was trying to sort of play it
33:29
Speaker 2: straight down the middle and recognizing that these cases would
33:31
Speaker 2: be extraordinarily scrutinized and his decisions would be really scrutinized
33:36
Speaker 2: as well. The bulk of... The action happened at Mar-a-Lago,
33:40
Speaker 2: which made it an obvious place to file the Southern
33:43
Speaker 2: District of Florida, although it would have been more favorable, obviously,
33:47
Speaker 2: to the prosecution to have this case brought in D.C.,
33:51
Speaker 2: where there is likely to be a more favorable jury pool,
33:54
Speaker 2: certainly likely to be more experienced district court judges who
33:59
Speaker 2: were prepared to try this case, who have some expertise
34:04
Speaker 2: in some of the arcane procedures involving classified documents that
34:08
Speaker 2: have to be brought in as evidence in a case
34:10
Speaker 2: like this. But I think he was playing it down
34:12
Speaker 2: the middle, just recognizing that any decision that seemed unorthodox
34:17
Speaker 2: would be heavily scrutinized and would be classified or characterized
34:22
Speaker 2: by the Trump campaign as a kind of political persecution
34:26
Speaker 2: brought on by the Biden administration.
34:29
Speaker 1: I mean, it just seems like it's almost impossible for
34:31
Speaker 1: this case to happen before the election, right?
34:33
Speaker 2: Oh, no, it's never going to happen. I mean, Andrew
34:35
Speaker 2: and I wrote that book, The Trump Indictments, and we
34:38
Speaker 2: annotated all four indictments. We probably should have just done one.
34:42
Speaker 2: There's only one case that's going to go to trial here.
34:44
Speaker 2: We can talk about the Trump immunity decision, which I
34:48
Speaker 2: think is going to be the nail in the coffin
34:51
Speaker 2: of the United States versus Trump, the January 6th federal
34:54
Speaker 2: election interference case that Jack Smith brought. But I think
34:57
Speaker 2: Both of these federal cases are, they're not long for
35:01
Speaker 2: this world. Eileen Cannon has been the nail in the
35:04
Speaker 2: coffin for the documents case, which is a very serious case.
35:07
Speaker 2: And I think a very straightforward case that would have
35:09
Speaker 2: very easily led to a conviction. And the Supreme Court
35:14
Speaker 2: is the nail in the coffin to the election interference case.
35:17
Speaker 1: Yeah. Well, let's get to the Supreme Court because I
35:20
Speaker 1: know strict scrutiny, you guys try not to play favorites.
35:23
Speaker 1: You love all your children equally, but- Sam Alito is
35:26
Speaker 1: a special boy, Justice Alito. So the New York Times
35:29
Speaker 1: this week reported some remarkable new details about Alito. Oh,
35:33
Speaker 1: hold on real quick. We've got to get into character here.
35:36
Speaker 4: Okay.
35:36
Speaker 1: This is important for everyone watching on the YouTube. We
35:40
Speaker 1: brought in our upside down flag because Lovett leaves for
35:43
Speaker 1: half an hour.
35:43
Speaker 2: Let your freak flag fly. Let it fly.
35:46
Speaker 4: I love that.
35:46
Speaker 1: Thank you, guys. Thank you. Lovett goes away for a
35:49
Speaker 1: day and I'm doing prop comedy like I'm fucking Carrot
35:51
Speaker 1: Top at this place. So the New York Times reported
35:54
Speaker 1: They reported some remarkable new details about Alito, his wife,
35:57
Speaker 1: Martha Ann, and their love for insurrectionist flags and symbols.
36:00
Speaker 1: In case listeners haven't heard about this saga, back in
36:04
Speaker 1: January of 2021, Alito flew an upside down American flag
36:07
Speaker 1: at their house in Virginia. And they kept that flag
36:10
Speaker 1: up even after January 6th. After the insurrection, they had
36:14
Speaker 1: the upside down flag up there, despite the upside down
36:16
Speaker 1: flag becoming the symbol of the MAGA insurrectionist movement. After
36:21
Speaker 1: the Times reported out that first story, Alito blamed his
36:24
Speaker 1: wife and said she hung the flag because Alito's liberal
36:28
Speaker 1: neighbors had been mean to her, basically. The Times later
36:31
Speaker 1: reported that years later, in 2023, the Alitos flew another
36:35
Speaker 1: flag linked to Trump and the insurrection at their beach
36:38
Speaker 1: house in New Jersey, which brings us to this week
36:40
Speaker 1: in this latest reporting by Jodi Kantor of The Times.
36:43
Speaker 1: The New York Times interviewed the neighbors the Alitos were
36:47
Speaker 1: reportedly beefing with. Here are a few things we learned
36:49
Speaker 1: in this report. first, this couple, the Badens, actually called
36:53
Speaker 1: the police on Mrs. Alito and asked the cops to
36:57
Speaker 1: make her stop harassing them somehow. I'm not sure how
36:59
Speaker 1: that would have worked, but it happened.
37:01
Speaker 2: Well, it was also what was really interesting about the
37:03
Speaker 2: way they framed it was like, she's the wife of
37:06
Speaker 2: a very important person. Like, it's almost like she feels
37:09
Speaker 2: she's above the law and we need law enforcement to
37:12
Speaker 2: help us.
37:13
Speaker 1: Yeah, it's wild. It's a I can't tell if it's
37:16
Speaker 1: like a very Karen move, if it shows some real concern.
37:18
Speaker 2: Like Martha Annalito is going to call the management. Or
37:21
Speaker 2: maybe she is the management.
37:23
Speaker 1: She is the manager. I think that's it. We also
37:26
Speaker 1: learned that Martha Annalito swore at this couple and called
37:30
Speaker 1: the Badens fascists. And she did so in front of
37:32
Speaker 1: her husband, Sam Alito, who said nothing. And then most importantly, though,
37:36
Speaker 1: this reporting contradicts Justice Alito's excuse for why his wife
37:41
Speaker 1: flew the upside down flag. Alito said that his wife
37:44
Speaker 1: hung this flag up in response to the Badens calling
37:47
Speaker 1: them vulgar names. But the incident when Mrs. Baden called
37:51
Speaker 1: Martha Ann Alito the C-word, as in See You Next Tuesday,
37:55
Speaker 1: happened after the flag was up.
37:57
Speaker 2: I thought the C-word for the Alitos and women was citizen.
38:02
Speaker 1: That's the meanest thing I can say. No, apparently it's
38:04
Speaker 1: a different one. Okay. So minutes before we started recording,
38:07
Speaker 1: we learned that despite all of this, despite this glaring
38:10
Speaker 1: conflict of interest, you're basically raising an insurrectionist flag and
38:13
Speaker 1: then ruling on the cases involving January 6th. Alito says
38:16
Speaker 1: he will not recuse. Melissa, you've been watching this guy
38:20
Speaker 1: for years. What does this saga tell us about him?
38:22
Speaker 1: What do people need to know about Sam Alito?
38:25
Speaker 2: Sam Alito is basically on DGAF energy. He's fueled entirely
38:31
Speaker 2: by DGAF energy. He does not give a about anyone, anything.
38:36
Speaker 2: He has a six to three conservative supermajority. Dick Durbin
38:40
Speaker 2: can't stop him. The president can't stop him. The chief
38:43
Speaker 2: justice can't stop him. No one can stop him. He
38:45
Speaker 2: does whatever he wants. And if you even question it,
38:50
Speaker 2: he will just throw his wife under the bus and
38:52
Speaker 2: keep doing it. So that's House Alito in a nutshell.
38:56
Speaker 2: And I have to say, This letter that he wrote
38:59
Speaker 2: to Dick Durbin responding to calls that he recused himself
39:03
Speaker 2: from the January 6th cases that are currently pending before
39:06
Speaker 2: the United States Supreme Court, Fisher v. United States and
39:09
Speaker 2: United States v. Trump, it's just the most trolly energy ever.
39:13
Speaker 2: I mean, it's just one giant F-you to Congress. And
39:18
Speaker 2: He's also trolling the American people and American women in
39:21
Speaker 2: particular because he kind of puts out there that, you know,
39:24
Speaker 2: his wife did this. And you know what, folks? She's
39:27
Speaker 2: a citizen. She's an equal citizen. She makes her own decisions,
39:31
Speaker 2: and he honors her right to do so. This from
39:36
Speaker 2: the man who wrote Dobbs v. Jackson Women's Health Organization
39:40
Speaker 2: withdrawing the right to an abortion and literally preventing American
39:45
Speaker 2: women from making their own decisions about an essential aspect
39:48
Speaker 2: of health care. Like this guy is literally whipping it
39:52
Speaker 2: out and just like giving us a full frontal finger.
39:58
Speaker 2: And he's enjoying it.
40:00
Speaker 1: Yeah, I mean, I guess what must have happened is
40:02
Speaker 1: Durbin and Sheldon Whitehouse, two U.S. senators, asked him to
40:06
Speaker 1: recuse himself from those cases. So Alito personally writes back
40:09
Speaker 1: this response because it's a decision made by the individual justices, right?
40:13
Speaker 1: Not by like the court as an institution or a body.
40:16
Speaker 2: This is what I mean. Like the chief justice can't
40:18
Speaker 2: make him do anything. Like he gets to choose.
40:20
Speaker 1: He just gets to choose. So in this letter, just
40:22
Speaker 1: to read a little bit from it. So I love
40:24
Speaker 1: that you're exactly right on the tone. He says, in
40:26
Speaker 1: considering whether this event requires recusal, an unbiased and reasonable
40:30
Speaker 1: person must take into account the following facts. And he
40:33
Speaker 1: walks through some of those facts. He says he was
40:35
Speaker 1: not even aware of the upside down flag until it
40:37
Speaker 1: was called to my attention. He says, quote, as soon
40:39
Speaker 1: as I saw it, I asked my wife to take
40:40
Speaker 1: it down. But for several days, she refused.
40:43
Speaker 2: Because she does what she wants. She's a free citizen.
40:46
Speaker 2: I can't control her. So instead, I'm going to control
40:49
Speaker 2: all other American women. Thomas can't control Ginny. And I
40:54
Speaker 2: can't control Martha Ann. So we'll control all of you bitches.
40:59
Speaker 1: He also says, my wife and I own our Virginia
41:01
Speaker 1: home jointly. She therefore has the legal right to use
41:03
Speaker 1: the property as she sees fit, and there are no
41:05
Speaker 1: additional steps that I could have taken to have the
41:07
Speaker 1: flag taken down more promptly.
41:09
Speaker 2: She's a rights holder, an equal citizen. Do you tricks
41:12
Speaker 2: know anything about that? No, you don't, because I took
41:15
Speaker 2: away your rights. Alito out.
41:19
Speaker 1: He says, my wife is fond of flying flags. I
41:21
Speaker 1: am not. Clears that up. He also says, our vacation
41:25
Speaker 1: home was purchased with money she inherited from her parents.
41:27
Speaker 1: and is titled in her name. It is a place
41:29
Speaker 1: away from Washington where she should be able to relax.
41:32
Speaker 2: It's like Kylie Jenner's not the only sugar mama in town.
41:35
Speaker 2: Martha Ann got me this place, and she flies all
41:38
Speaker 2: the flags she wants. She has rights, and I respect
41:42
Speaker 2: and honor her right to do so. I mean, it's
41:45
Speaker 2: so troll-y time. I mean, like, he literally is just
41:48
Speaker 2: telling American women to F right off.
41:51
Speaker 1: He's absolutely terrible. Well, okay, so, like, stepping back, like,
41:56
Speaker 1: The impunity and the lack of consequences for anything these
41:59
Speaker 1: Supreme Court justices do is just so galling. You've got
42:02
Speaker 1: justices accepting lavish gifts from people with business before the court.
42:07
Speaker 1: Nothing happens.
42:08
Speaker 2: Including Sam Alito.
42:10
Speaker 1: Including Sam Alito. Jeannie Thomas, Justice Thomas's wife, as you mentioned,
42:13
Speaker 1: was an active participant in the Stop the Steal movement.
42:17
Speaker 1: Nothing happens. Now Alito is refusing to recuse himself in
42:20
Speaker 1: this case. How do we hold these guys accountable? Is it? hearings,
42:24
Speaker 1: a new ethics law, a new chairman of the Senate
42:26
Speaker 1: Judiciary Committee because Dick Durbin won't do it? What do
42:28
Speaker 1: you make of this?
42:30
Speaker 2: So first, before I answer that, ask me what I'm drinking.
42:32
Speaker 1: What are you drinking?
42:34
Speaker 2: So last summer, the official strict scrutiny cocktail was a
42:37
Speaker 2: Ginny tonic. This summer, it's a margarita with salt, plenty
42:43
Speaker 2: of salt.
42:45
Speaker 1: Oh, that looks delicious.
42:46
Speaker 2: It's so good. Because of the letter, I'm drinking it
42:49
Speaker 2: out of this vat. It's enormous. It's Okay, so what
42:52
Speaker 2: can we do about the Supreme Court? Basically nothing. The
42:54
Speaker 2: Supreme Court is like cruising on Real Housewives of Atlanta,
42:59
Speaker 2: she buys Sharae, who gonna check me boo energy? Like,
43:03
Speaker 2: no one's going to check them. The Chief Justice isn't
43:04
Speaker 2: going to check them. Congress isn't going to check them.
43:06
Speaker 2: They have this faux ethics code that is completely unenforceable
43:11
Speaker 2: and toothless. And it just means that maybe occasionally they
43:13
Speaker 2: might deign to tell us when A millionaire buys them
43:17
Speaker 2: like a home somewhere or a flag that they fly
43:19
Speaker 2: upside down. Maybe if we're lucky, they'll tell us. So really,
43:22
Speaker 2: the only accountability we have is literally to vote so
43:27
Speaker 2: that Sam Alito and Clarence Thomas do not get to
43:30
Speaker 2: resign under a Republican president and get replaced by fetuses.
43:35
Speaker 2: allowing this conservative 6-3 supermajority to last until the end
43:40
Speaker 2: of time. Like, I know nobody wants to hear this,
43:42
Speaker 2: but winning the Senate, winning the presidency means that Justice
43:47
Speaker 2: Sotomayor can step down and be replaced by someone younger,
43:51
Speaker 2: someone progressive, maybe more progressive. Justice Kagan can step down,
43:55
Speaker 2: do the same thing. Like, we don't have to live
43:58
Speaker 2: with the 6-3 supermajority. The fact of a Democratic-controlled Senate,
44:02
Speaker 2: the fact of a Democratic president means that If Sam
44:05
Speaker 2: Alito or Clarence Thomas, both of whom are in their 70s,
44:09
Speaker 2: unexpectedly passes away in the next four years, they will
44:12
Speaker 2: be replaced by a Democratic president. And we will be
44:16
Speaker 2: on our way back to clawing back the progressive majority
44:20
Speaker 2: that might have happened if the Senate had allowed President
44:25
Speaker 2: Obama to have a nomination hearing for Merrick Garland back
44:28
Speaker 2: in 2016. Those are the stakes. I mean, people don't
44:31
Speaker 2: talk about this election as though the court is on
44:33
Speaker 2: the docket. The court is totally on the docket because
44:37
Speaker 2: the minute there is a Republican president, these two fools,
44:41
Speaker 2: Clarence Thomas and Sam Alito, are going to retire. They're
44:44
Speaker 2: going to be replaced by younger movement conservatives. And they're
44:47
Speaker 2: just going to go off to wherever they do to
44:49
Speaker 2: get feted by billionaires. Like maybe they'll actually get sponsored
44:53
Speaker 2: by NASCAR billionaires and we'll just like, we'll drive race
44:55
Speaker 2: cars somewhere with like tattooed pictures of billionaires on their backs.
44:59
Speaker 2: I don't know, but they're definitely going to step down
45:01
Speaker 2: if Donald Trump wins and they're going to be replaced
45:04
Speaker 2: by younger conservatives who are going to make the rest
45:07
Speaker 2: of our lives in the law, absolute crap.
45:11
Speaker 1: That's a hell of a pitch for why this election
45:13
Speaker 1: matters for the courts.
45:14
Speaker 2: Yeah. And it's all this Martha Rita.
45:16
Speaker 1: I'm fueled by Martha Rita's. And Trump himself has said
45:20
Speaker 1: that like what he's looking for is youth in his
45:23
Speaker 1: judicial nominees.
45:23
Speaker 2: He's been very explicit about that.
45:25
Speaker 1: He'll name like a 35 year old who will get to.
45:28
Speaker 2: Or a fetus.
45:29
Speaker 3: Yes.
45:30
Speaker 1: That's the final stage in the fetal personhood debate.
45:33
Speaker 2: When the fetus becomes a member of the court. That's
45:35
Speaker 2: when we'll know.
45:37
Speaker 1: But just on this ethics question, like, I don't know. Look, obviously,
45:41
Speaker 1: these guys are. and it's guys mostly, they will not
45:45
Speaker 1: go away if there are new ethics laws or if
45:48
Speaker 1: they're forced to, I don't know, come before the Senate.
45:50
Speaker 1: Do you think any of it would matter, though, in
45:52
Speaker 1: terms of just shaping things in the meantime?
45:55
Speaker 2: I do think it would matter if the Democrats appeared
45:58
Speaker 2: to want to fight about this. I think it would
46:00
Speaker 2: be buoying to the public. I think it would be
46:03
Speaker 2: buoying to those of us who care and understand the
46:05
Speaker 2: importance of the court. I think it would signal that
46:08
Speaker 2: the Democrats... really are taking seriously the question of the
46:12
Speaker 2: court and running on the court in the way that
46:14
Speaker 2: Republicans have in the past. And there just doesn't seem
46:17
Speaker 2: to be an appetite to fight. And I'm like, if
46:19
Speaker 2: you're not going to fight about this, what's the point?
46:22
Speaker 2: This is a big deal. I mean, we have become
46:24
Speaker 2: anesthetized to this kind of grift for our leaders. And
46:28
Speaker 2: that's really unfortunate. But if you go back even a generation...
46:32
Speaker 2: Think about Thurgood Marshall, the first African-American to sit on
46:35
Speaker 2: the court. He had been a lawyer for the NAACP
46:38
Speaker 2: Legal Defense Fund for years before he was appointed to
46:41
Speaker 2: the federal bench. And he was a very gregarious social person.
46:45
Speaker 2: When he and his wife, Sissy, moved to Washington, D.C.,
46:49
Speaker 2: They basically became recluses because she knew her husband was
46:53
Speaker 2: the first black justice. They had to be above reproach.
46:56
Speaker 2: They couldn't be seen to be fraternizing with individuals who
47:00
Speaker 2: might have business before the court, which was a lot
47:02
Speaker 2: of the people with whom they had previously been friendly.
47:05
Speaker 2: And so they kind of kept to themselves, kept to
47:08
Speaker 2: their family. They were not flying flags upside down. They
47:11
Speaker 2: were not going on lavish vacations at Harlan Pro's house
47:14
Speaker 2: or getting pictures of themselves painted with billionaires. They were
47:19
Speaker 2: really concerned about the optics, knowing that he could not
47:23
Speaker 2: have any questions about whether or not he was biased
47:28
Speaker 2: or whether or not he could be impartial. And so
47:32
Speaker 2: that was just a generation ago. Like, Abe Fortas, again,
47:35
Speaker 2: a generation ago, stepped down because he accepted, I think,
47:39
Speaker 2: a $ 20, 000 payment for someone that he later gave back.
47:42
Speaker 2: And he stepped down because there was bipartisan outcries for
47:46
Speaker 2: him to leave the court because the optics of it
47:49
Speaker 2: were so bad. And here we just have... these dudes, like,
47:54
Speaker 2: you know, fantastico. Like, it doesn't matter if I'm hanging
47:57
Speaker 2: out with billionaires. It doesn't matter if my wife is
48:00
Speaker 2: flying flags upside down, like MAGA battle flags. Like, I'm
48:04
Speaker 2: happy to sit on this case. I'm happy to decide
48:07
Speaker 2: if Donald Trump is above the law and not subject
48:10
Speaker 2: to any kind of constraint on criminal liability. I mean, like,
48:14
Speaker 2: it's just madness.
48:16
Speaker 1: And then they whine to the press about attacks on
48:19
Speaker 1: the court or the court's reputation. Why aren't the.
48:20
Speaker 2: Lawyers defending us? Because you're indefensible, moron.
48:24
Speaker 1: Yeah. The reputation damage is coming from inside the house, guys.
48:28
Speaker 1: You're all doing this. Last thing on this, but unfortunately,
48:31
Speaker 1: Justice Alito, he's plowing ahead with his job, his constitutionally
48:35
Speaker 1: mandated work of helping Donald Trump escape accountability for the insurrection.
48:39
Speaker 2: He's obligated to do so, as he said in the letter.
48:41
Speaker 1: Yes, yes. As he flies the flag at the courts. Um, Tomorrow,
48:47
Speaker 1: Thursday the 30th, is probably going to be a Supreme
48:49
Speaker 1: Court opinion day. Do you think we'll finally get a
48:51
Speaker 1: ruling on Trump's immunity claim? And can you just like
48:54
Speaker 1: remind listeners why it matters?
48:56
Speaker 2: So the Trump immunity claim is basically going to decide
48:59
Speaker 2: whether or not the criminal case against Donald Trump, the
49:02
Speaker 2: federal election interference case, can go forward and whether a
49:05
Speaker 2: president can be held criminally liable for acts undertaken during
49:09
Speaker 2: the course of his presidency, whether those acts are in
49:12
Speaker 2: furtherance of his presidential duties or outside of the scope
49:15
Speaker 2: of those presidential duties? And the short answer, Tommy, is
49:18
Speaker 2: I don't think we're going to get that decision tomorrow.
49:21
Speaker 2: I'd love to be wrong on this, but I think
49:23
Speaker 2: this is a conservative supermajority that kind of seemed half
49:27
Speaker 2: in the bag for Donald Trump. We certainly have one
49:29
Speaker 2: of them who's flying flags, or I'm sorry, House Alito
49:32
Speaker 2: is flying flags for the MAGA movement. I think they
49:37
Speaker 2: recognize that The longer they wait on this, the more
49:41
Speaker 2: unlikely it is that this trial is going to go
49:44
Speaker 2: forward in the District of Columbia. And that is a
49:48
Speaker 2: de facto win for Donald Trump. Whatever the court finally decides,
49:52
Speaker 2: and I think it's very unlikely that they say that
49:55
Speaker 2: presidents are completely immune from any criminal liability. I think
49:59
Speaker 2: that's very unlikely, but it won't matter. It'll be completely academic,
50:04
Speaker 2: like something I teach in constitutional law, but nothing that
50:06
Speaker 2: matters for this particular case and whether Donald Trump will
50:09
Speaker 2: be held accountable for what happened on January 6th, 2021.
50:12
Speaker 2: And I think they know that.
50:16
Speaker 1: Well, that is a very depressing place to end, but
50:18
Speaker 1: end we shall. Melissa Murray, thank you so much for
50:21
Speaker 1: doing the show. A huge news week. Really, really appreciate it.
50:24
Speaker 1: And everyone, please subscribe, download, tell your friends about Strict Scrutiny.
50:29
Speaker 1: It is such a great show. It is so fun
50:30
Speaker 1: and funny. And you feel smarter afterwards.
50:33
Speaker 2: I mean, it's time for some bad decisions, Tommy. I mean,
50:36
Speaker 2: that's why we're here.
50:38
Speaker 1: Got a whole lot of them coming. And they're all,
50:40
Speaker 1: you know, the next month is going to be packed
50:41
Speaker 1: full of them. So get ready.
50:43
Speaker 2: Thanks for having me.
50:46
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