Latest / Serious Trouble / If You Can’t Trust Michael Cohen, Who Can You Trust?

Transcript

If You Can’t Trust Michael Cohen, Who Can You Trust? · Serious Trouble

• 0:00
  [music]
• 0:08
  SPEAKER_00: Hi, it's Ken White.
• 0:09
  SPEAKER_00: And it's Josh Barrow, and this is Serious Trouble.
• 0:12
  SPEAKER_00: Ken, why don't we start,
• 0:13
  SPEAKER_00: as so often happens, with Jeanine Pirro, U.S. Attorney for the District of Columbia.
• 0:17
  SPEAKER_00: There was a CNN story.
• 0:20
  SPEAKER_00: Right.
• 0:20
  SPEAKER_00: So the feds,
• 0:21
  SPEAKER_00: and they brag about this a lot,
• 0:24
  SPEAKER_00: tend to win around 90% of the criminal trials they do.
• 0:27
  SPEAKER_00: Part of that is stuff we've talked about for years,
• 0:29
  SPEAKER_00: how selective they are and what cases they take,
• 0:31
  SPEAKER_00: how loss-averse
• 0:31
  SPEAKER_01: they are, how they charge things relatively conservatively.
• 0:51
  SPEAKER_01: And it's also about the overwhelming resources that the feds tend to have
• 0:57
  SPEAKER_01: so they can throw ridiculous amounts of people and documents and things like that.
• 1:03
  SPEAKER_01: Not so much in the district of D.C.
• 1:07
  SPEAKER_01: under Jeanine Pirro, where,
• 1:08
  SPEAKER_01: as you pointed out,
• 1:13
  SPEAKER_01: apparently from the articles around 20 or so criminal trials,
• 1:18
  SPEAKER_01: By the national federal side of the US Attorney's Office,
• 1:22
  SPEAKER_01: they've won half and the rest is split between mistrials and straight up acquittals.
• 1:29
  SPEAKER_01: So those are terrible numbers.
• 1:31
  SPEAKER_01: Those are your show gets canceled or you get sent to the minors numbers.
• 1:37
  SPEAKER_01: Those are worse than state numbers.
• 1:39
  SPEAKER_01: Those are like some sort of TV court numbers.
• 1:43
  SPEAKER_00: So it's very bad.
• 1:45
  SPEAKER_00: This is like Fulton County DA kind of stuff?
• 1:47
  SPEAKER_00: It's worse, I would say, than that.
• 1:49
  SPEAKER_01: Because Fulton County DA still tends to get pretty good numbers
• 1:53
  SPEAKER_01: when they're not doing big high publicity stuff.
• 1:55
  SPEAKER_01: But this is...
• 1:57
  SPEAKER_00: Not competent.
• 1:58
  SPEAKER_00: So are they losing because they're bringing dumb cases that they couldn't win?
• 2:03
  SPEAKER_00: Or are they losing because they're screwing up cases that they should have won?
• 2:07
  SPEAKER_00: Yes.
• 2:09
  SPEAKER_01: I think it's a combination of all of that.
• 2:11
  SPEAKER_01: Some of this is clearly, you know, the guy who threw the sandwich or stuff.
• 2:17
  SPEAKER_01: Dumb cases are bringing for political reasons and to try to please Donald Trump.
• 2:23
  SPEAKER_01: That is no way to run a railroad.
• 2:24
  SPEAKER_01: And if Your office is bringing dumb MAGA cases.
• 2:29
  SPEAKER_01: You're going to get dumb MAGA results.
• 2:32
  SPEAKER_01: But part of it is also clearly just making some bad strategic decisions.
• 2:37
  SPEAKER_01: And there's such a thing as approaching a righteous case too aggressively.
• 2:43
  SPEAKER_01: So you can overcharge a case in a way that in the jury's mind sort of casts doubt
• 2:50
  SPEAKER_01: onto the whole thing.
• 2:51
  SPEAKER_01: And you can prosecute a case in a way That seems like you're bigfooting it
• 2:55
  SPEAKER_01: and loses you credibility with a jury.
• 2:58
  SPEAKER_01: So if you overreach, that can have impact on the whole case.
• 3:02
  SPEAKER_00: Yeah, I mean,
• 3:04
  SPEAKER_00: the biggest high profile one of these,
• 3:06
  SPEAKER_00: I think, was this MS-13 related case, this guy Moises Rivera Luna.
• 3:11
  SPEAKER_00: Back in 2025,
• 3:12
  SPEAKER_00: the Department of Justice was very triumphant about getting this guy extradited to
• 3:17
  SPEAKER_00: the United States on RICO charges,
• 3:20
  SPEAKER_00: supposedly an international leader of the MS-13 drug gang.
• 3:24
  SPEAKER_00: And then her office prosecuted him and was unable to obtain a conviction.
• 3:29
  SPEAKER_00: Twice.
• 3:29
  SPEAKER_00: Twice, yes.
• 3:31
  SPEAKER_00: Two mistrials, right?
• 3:32
  SPEAKER_00: Not an acquittal here?
• 3:33
  SPEAKER_00: Correct.
• 3:33
  SPEAKER_01: Two mistrials.
• 3:34
  SPEAKER_01: I'm not sure about the breakdown of the jury, which doesn't always become public.
• 3:40
  SPEAKER_01: But two mistrials, that indicates a significant problem with the case.
• 3:46
  SPEAKER_01: Now, I haven't heard to say in the past it's never RICO.
• 3:49
  SPEAKER_01: It is sometimes RICO, but it's usually not RICO.
• 3:53
  SPEAKER_01: And often – Yes,
• 3:54
  SPEAKER_01: but it's written to deal with organizations like that
• 3:59
  SPEAKER_01: when other methods aren't working.
• 4:14
  SPEAKER_01: The problem of cases like this is often that RICO is charged not
• 4:18
  SPEAKER_01: because you're having troubles with the plain vanilla mundane drug trafficking
• 4:25
  SPEAKER_01: or conspiracy or that sort of thing.
• 4:28
  SPEAKER_01: But because you want to make a splash and say this guy's been indicted for Rico
• 4:33
  SPEAKER_01: because, pardon me, dumb people respond to that.
• 4:38
  SPEAKER_01: So that could well be it, that Rico is overly convoluted and a bad tool for the job.
• 4:47
  SPEAKER_00: Do we have any sense nationally?
• 4:50
  SPEAKER_00: We've talked a lot about increased turnover or increased resignations in the U.S.
• 4:55
  SPEAKER_00: attorney's offices.
• 4:56
  SPEAKER_00: There are a number of reasons people don't want to work there.
• 4:59
  SPEAKER_00: The Trump administration has also been firing certain people that it perceives as disloyal.
• 5:03
  SPEAKER_00: I assume that lack of staffing should come down as reduced efficacy in the offices.
• 5:08
  SPEAKER_00: And we've talked before about how they might conduct fewer prosecutions
• 5:13
  SPEAKER_00: and de-emphasize certain areas of prosecution that are not politically interesting
• 5:17
  SPEAKER_00: to this administration.
• 5:19
  SPEAKER_00: Would that also manifest as losing more?
• 5:22
  SPEAKER_01: It would, but probably most noticeably with the sort of politically high-profile cases.
• 5:29
  SPEAKER_01: So, you know,
• 5:29
  SPEAKER_01: like the Department of Justice has been racking up an absolutely abysmal record
• 5:34
  SPEAKER_01: In its prosecution,
• 5:35
  SPEAKER_01: protesters and,
• 5:38
  SPEAKER_01: you know,
• 5:38
  SPEAKER_01: people in connection with ICE incidents and things like that to the point where like
• 5:44
  SPEAKER_01: for them to win a case,
• 5:45
  SPEAKER_01: you pretty much got to have one of the
• 5:46
  SPEAKER_00: protesters shooting somebody
• 5:48
  SPEAKER_00: before they can get a win.
• 5:49
  SPEAKER_00: Which happened in one of those Texas cases.
• 5:51
  SPEAKER_01: Exactly.
• 5:52
  SPEAKER_01: And so you're getting a lot of high-profile losses in that.
• 5:56
  SPEAKER_01: But as you said,
• 5:57
  SPEAKER_01: the thing about the feds is they don't have to charge anything they don't want
• 6:00
  SPEAKER_01: to charge.
• 6:01
  SPEAKER_01: And they can sit on stuff and not charge for years if they feel like it.
• 6:04
  SPEAKER_01: And that's what reprioritization does.
• 6:08
  SPEAKER_01: And the feds still remain a place where the vast, vast majority of people don't go to trial.
• 6:16
  SPEAKER_01: So, you know,
• 6:16
  SPEAKER_01: for instance,
• 6:17
  SPEAKER_01: if you shift priorities to Immigration stuff,
• 6:21
  SPEAKER_01: which is usually trafficking in unlawful immigrants,
• 6:29
  SPEAKER_01: coming back into the country after being deported,
• 6:32
  SPEAKER_01: bread and butter, immigration crimes like that.
• 6:35
  SPEAKER_01: The huge majority of that's going to plead out.
• 6:37
  SPEAKER_01: So you're just not going to see the same number of trials and therefore
• 6:41
  SPEAKER_01: the same number of losses.
• 6:45
  SPEAKER_01: Also,
• 6:47
  SPEAKER_01: the other thing is that the types of cases – That tend to result in losses tend
• 6:53
  SPEAKER_01: to be either stupid political cases.
• 6:55
  SPEAKER_01: So, you know,
• 6:56
  SPEAKER_01: the sandwich throwing or the reflecting pool or what have you,
• 7:00
  SPEAKER_01: or big high profile complex cases that are difficult to do.
• 7:07
  SPEAKER_01: And those just tend to fall by the wayside.
• 7:09
  SPEAKER_01: So unless it's like a high priority national thing,
• 7:14
  SPEAKER_01: like going after MS-13, where,
• 7:16
  SPEAKER_01: you know, if they get someone extradited, they could hardly say, well, nevermind.
• 7:20
  SPEAKER_01: They can just stop putting in the resources and bringing those precisely.
• 7:24
  SPEAKER_01: And those are the things that tend to fall by the wayside because by definition,
• 7:28
  SPEAKER_01: they are so difficult.
• 7:30
  SPEAKER_01: Not just to try, but to investigate and charge in the first place.
• 7:34
  SPEAKER_01: So something like the MS-13 case is hellishly difficult to do all the stuff
• 7:40
  SPEAKER_01: that happens before anyone gets charged.
• 7:42
  SPEAKER_01: And all the extradition process and all that other unusual stuff, it's extremely complicated.
• 7:47
  SPEAKER_01: So you're just not going to have as many of those and therefore...
• 7:51
  SPEAKER_01: Any incompetence issues tend to get kind of buried.
• 7:54
  SPEAKER_00: I want to talk about a couple of civil judgments that have gotten overturned
• 7:58
  SPEAKER_00: or partially overturned on appeals.
• 8:00
  SPEAKER_00: The first one that's gotten a lot of attention is Alex Jones,
• 8:04
  SPEAKER_00: one of those defamation lawsuits that was brought against him, the one in Texas.
• 8:08
  SPEAKER_00: He's gotten a significant partial victory on appeal where you had an appeals court
• 8:12
  SPEAKER_00: In the third district of Texas that threw out a whole bunch of punitive damages
• 8:18
  SPEAKER_00: that were awarded against Alex Jones.
• 8:21
  SPEAKER_00: And there's been a lot of consternation about this.
• 8:23
  SPEAKER_00: There has been.
• 8:24
  SPEAKER_01: And Josh,
• 8:25
  SPEAKER_01: I know this will be a shock to our listeners,
• 8:28
  SPEAKER_01: but this led me to a somewhat intemperate rant because I was so mad about
• 8:33
  SPEAKER_01: the bad media coverage of this and the dumb reactions to it.
• 8:38
  SPEAKER_01: So This was the Texas case that had a lot of drama when it was going against Jones.
• 8:43
  SPEAKER_01: And you might remember that like the case on the East Coast,
• 8:47
  SPEAKER_01: this one was largely premised on defaults,
• 8:51
  SPEAKER_01: on Jones just not doing the things he was supposed to do during the case,
• 8:55
  SPEAKER_01: getting default on liability and then going,
• 8:57
  SPEAKER_01: you know, the case really being about damages mostly.
• 9:00
  SPEAKER_01: So on appeal, Jones lost almost everything.
• 9:05
  SPEAKER_01: So there were like 10 issues.
• 9:06
  SPEAKER_01: A lot of them went to That default, a lot of them went to structural things like that.
• 9:11
  SPEAKER_01: He lost on all of those things.
• 9:14
  SPEAKER_01: There's one thing he won on,
• 9:15
  SPEAKER_01: on appeal,
• 9:16
  SPEAKER_01: and that is the amount of punitive damages,
• 9:19
  SPEAKER_01: which we've talked about before is always honorable on appeal,
• 9:22
  SPEAKER_01: particularly when the jury just sort of comes up with some sort of number
• 9:26
  SPEAKER_01: that expresses their anger and frustration at the situation.
• 9:30
  SPEAKER_01: So Texas,
• 9:31
  SPEAKER_01: like a number of states,
• 9:32
  SPEAKER_01: has passed Legislation that limits the amount of punitive damages,
• 9:37
  SPEAKER_01: exemplary damages, they call it there, that you can get.
• 9:41
  SPEAKER_01: And the limit is a cap at $750,000 per plaintiff is supposed to be the limit
• 9:47
  SPEAKER_01: on punitive damages.
• 9:49
  SPEAKER_01: Now, there are exceptions,
• 9:51
  SPEAKER_01: and you can do what is called cap busting,
• 9:53
  SPEAKER_01: meaning that you can invoke one of these exceptions to the cap,
• 9:57
  SPEAKER_01: plead it in your complaint,
• 9:59
  SPEAKER_01: prove it up at trial,
• 10:00
  SPEAKER_01: and Get the jury to find that the conditions for busting the cap had been met and
• 10:06
  SPEAKER_01: then have the jury award above $750,000.
• 10:10
  SPEAKER_01: The problem in this case was that the plaintiffs didn't do any of that.
• 10:16
  SPEAKER_01: They did not plead the cap busting in the complaint.
• 10:20
  SPEAKER_01: They did not try to prove it up at trial.
• 10:23
  SPEAKER_01: They didn't ask the jury to make findings that these particular exceptions to bust
• 10:29
  SPEAKER_01: the cap were met.
• 10:30
  SPEAKER_01: And the jury didn't do so.
• 10:32
  SPEAKER_01: So after the gigantic verdict that included punitive damages,
• 10:38
  SPEAKER_01: exemplary damages well over the cap,
• 10:41
  SPEAKER_01: they came back and said,
• 10:42
  SPEAKER_01: oh, judge, can we just amend our complaint to allege the cap busting?
• 10:49
  SPEAKER_01: And can you find the jury necessarily found it and that it was satisfied?
• 10:53
  SPEAKER_01: And the judge said yes.
• 10:55
  SPEAKER_00: And on appeal, they just said, you can't do that.
• 10:57
  SPEAKER_00: Come on.
• 10:58
  SPEAKER_01: This particular exception to the $750,000 cap they were relying
• 11:03
  SPEAKER_01: on required specific findings of fact.
• 11:07
  SPEAKER_01: The jury wasn't asked to make those,
• 11:10
  SPEAKER_01: and they were not the same findings the jury had to make on other issues,
• 11:14
  SPEAKER_01: so they were not made.
• 11:16
  SPEAKER_01: You can't do that.
• 11:17
  SPEAKER_01: It would be like just deciding that the jury had found someone liable for something
• 11:23
  SPEAKER_01: that wasn't even in the complaint and without the jury being told the elements
• 11:27
  SPEAKER_01: of it.
• 11:28
  SPEAKER_01: So the court says no.
• 11:30
  SPEAKER_01: So we're striking down the punitive damages and reducing it to $750,000 per plaintiff.
• 11:37
  SPEAKER_01: They left intact the substantial amount of compensatory damages and the entire liability phase.
• 11:47
  SPEAKER_00: So obviously the amount of the damages matters for the specific plaintiffs in the Texas case.
• 11:52
  SPEAKER_00: But for people who are looking at this from the outside and,
• 11:55
  SPEAKER_00: you know,
• 11:56
  SPEAKER_00: Alex Jones has ended up in bankruptcy,
• 11:58
  SPEAKER_00: the judgment in the other case against him,
• 12:01
  SPEAKER_00: the Connecticut case, was more than a billion dollars.
• 12:05
  SPEAKER_00: So presumably he's still insolvent.
• 12:07
  SPEAKER_00: And, you know,
• 12:08
  SPEAKER_00: the wrangling over who is going to own the InfoWars assets will continue and Is
• 12:14
  SPEAKER_00: the only effect that this has how the proceeds of
• 12:16
  SPEAKER_00: the bankruptcy estate will be divided among plaintiffs in the different cases?
• 12:20
  SPEAKER_01: Yes,
• 12:20
  SPEAKER_01: and it's not even clear it will result in a net reduction of money ultimately in
• 12:26
  SPEAKER_01: the pocket of the plaintiffs in the Texas case.
• 12:28
  SPEAKER_01: So just because – You're not dealing with an infinite pot
• 12:32
  SPEAKER_01: of money that's immediately available to be distributed to plaintiffs.
• 12:36
  SPEAKER_01: You're dealing with someone who's insolvent and fighting over every penny
• 12:42
  SPEAKER_01: and it's being split over the place.
• 12:44
  SPEAKER_01: But that does not stop people from spinning this as,
• 12:50
  SPEAKER_01: oh my God,
• 12:51
  SPEAKER_01: how could you expect anything else from Texas, which is like the epitome of evil.
• 12:57
  SPEAKER_01: And I saw people saying, this is what you expect.
• 13:00
  SPEAKER_01: From Texas patriarchy.
• 13:04
  SPEAKER_01: Now, in evaluating that,
• 13:07
  SPEAKER_01: I want to point out that the Texas Third District of the Court
• 13:12
  SPEAKER_01: of Appeal is six women who are all elected Democrats from the Austin area,
• 13:19
  SPEAKER_01: which is not actually a citadel of patriarchy.
• 13:24
  SPEAKER_01: So it's just like Sometimes there are rulings in a case in favor of somebody awful
• 13:30
  SPEAKER_01: that are just right.
• 13:31
  SPEAKER_01: And, you know,
• 13:33
  SPEAKER_01: the inclination of the media to spin it in a clickbaity,
• 13:37
  SPEAKER_01: angry way and the inclination of people not to think twice about that and say,
• 13:43
  SPEAKER_01: oh, clearly, you know, the state of Texas and his judges are on Alex Jones's side.
• 13:47
  SPEAKER_01: Like, no, if they were on his side, they would have overturned the whole judgment.
• 13:52
  SPEAKER_01: You know, applying a rule that seems...
• 13:54
  SPEAKER_01: Most commentators are saying, oh yeah, this is clearly right.
• 13:56
  SPEAKER_01: You can't do that.
• 13:58
  SPEAKER_01: So exercise a little more skepticism about the rage bait stuff like this.
• 14:04
  SPEAKER_00: What about James O'Keefe,
• 14:06
  SPEAKER_00: the guy who used to run Project Veritas,
• 14:09
  SPEAKER_00: would do those undercover sting operations against liberals to try to get them
• 14:13
  SPEAKER_00: to say embarrassing things that he would then publish?
• 14:16
  SPEAKER_00: He was sued by the subject of one of those All the way back in 2016,
• 14:22
  SPEAKER_00: this guy Robert Creamer had conversations with one of O'Keefe's associates
• 14:28
  SPEAKER_00: who was posing as someone applying to be an intern for him.
• 14:32
  SPEAKER_00: The conversation made it sound like he was trying to cause violence at Trump rallies.
• 14:35
  SPEAKER_00: This was published.
• 14:37
  SPEAKER_00: He then lost a business relationship that he had with the Democratic National Committee.
• 14:43
  SPEAKER_00: He sued James O'Keefe and he had won at trial and received a judgment
• 14:48
  SPEAKER_00: or was awarded $130,000, but has now lost on appeal.
• 14:52
  SPEAKER_00: And it's this interesting question about,
• 14:55
  SPEAKER_00: you know, well,
• 14:56
  SPEAKER_00: if they put out a video that includes undercover footage that was obtained
• 15:01
  SPEAKER_00: in some underhanded way,
• 15:03
  SPEAKER_00: but that also includes other commentary and other footage,
• 15:07
  SPEAKER_00: How do you figure out which part of that actually caused the damages?
• 15:10
  SPEAKER_00: Sure.
• 15:11
  SPEAKER_01: And this is something that was relatively cleverly pursued and that they didn't go
• 15:17
  SPEAKER_01: after defamation.
• 15:19
  SPEAKER_01: What they went after was fraudulent misrepresentation and wiretapping
• 15:24
  SPEAKER_01: because what this woman,
• 15:26
  SPEAKER_01: Alison Moss,
• 15:27
  SPEAKER_01: did was pose as someone who was genuinely interested in this democratic organization
• 15:33
  SPEAKER_01: and wanted to be an intern.
• 15:35
  SPEAKER_01: And got hired and was there and was recording video and audio as her work as
• 15:41
  SPEAKER_01: an intern having access to these discussions that James O'Keefe then used to portray
• 15:46
  SPEAKER_01: the organization as the things he did.
• 15:50
  SPEAKER_01: And they were – Pretty careful to try to not make it an issue about the content of
• 15:58
  SPEAKER_01: the resulting video by Project Veritas,
• 16:01
  SPEAKER_01: but not careful enough because what the Court of Appeals said is that, okay,
• 16:06
  SPEAKER_01: you know,
• 16:06
  SPEAKER_01: normally you don't have a First Amendment right to commit fraud or wiretapping
• 16:10
  SPEAKER_01: or things like that.
• 16:12
  SPEAKER_01: So it's not,
• 16:13
  SPEAKER_01: you know,
• 16:14
  SPEAKER_01: that doesn't inherently block you from,
• 16:17
  SPEAKER_01: you know,
• 16:18
  SPEAKER_01: The problem comes in is when the damages you are claiming,
• 16:21
  SPEAKER_01: like the loss of contractual relationships with a democratic party
• 16:23
  SPEAKER_01: or democratic organizations, might flow from protected speech.
• 16:41
  SPEAKER_01: What was democracy partners in this guy,
• 16:45
  SPEAKER_01: Robert Kramer,
• 16:47
  SPEAKER_01: did they become pariahs because of the video about them or was it
• 16:52
  SPEAKER_01: because this person posed as an intern and recorded things?
• 16:56
  SPEAKER_01: And what the Court of Appeals says is, well,
• 16:59
  SPEAKER_01: they didn't really clearly show that there was – Harm flowing only from
• 17:05
  SPEAKER_01: the deceitful act of getting hired or from wrongful videotaping.
• 17:11
  SPEAKER_01: A lot of the sort of undercover video and audio she took didn't make it into –
• 17:17
  SPEAKER_01: The big splashy Veritas video and they admitted that and they really couldn't trace
• 17:23
  SPEAKER_01: the resulting disruption and loss of business from anything other than
• 17:27
  SPEAKER_01: the embarrassment from the allegations in this video.
• 17:33
  SPEAKER_01: Which are,
• 17:33
  SPEAKER_01: you know,
• 17:33
  SPEAKER_01: typical Project Veritas crap and very biased and smart people would believe it.
• 17:38
  SPEAKER_01: But nonetheless, that's what caused the outcome.
• 17:42
  SPEAKER_01: So based on that, they said you have to reverse it.
• 17:46
  SPEAKER_01: And they also reversed the wiretapping because
• 17:51
  SPEAKER_01: the wiretapping statute they were relying on,
• 17:55
  SPEAKER_01: you can only sue under it if you were wiretapping in order to commit a crime
• 18:00
  SPEAKER_01: or commit a tort.
• 18:02
  SPEAKER_01: The tort they were claiming was a breach of fiduciary duty,
• 18:05
  SPEAKER_01: that this woman had a fiduciary duty.
• 18:07
  SPEAKER_01: And they basically said – You know, no, she's an intern.
• 18:11
  SPEAKER_01: She's not a fiduciary.
• 18:12
  SPEAKER_01: She didn't have a fiduciary duty.
• 18:15
  SPEAKER_01: This all is actually not new.
• 18:17
  SPEAKER_01: It's quite old because there has long been this journalistic tradition,
• 18:23
  SPEAKER_01: and I'm not calling O'Keefe a journalist,
• 18:26
  SPEAKER_01: but there is this long tradition of people getting hired
• 18:31
  SPEAKER_01: by companies doing undercover videos and then using them to expose an industry.
• 18:35
  SPEAKER_01: You know, the meat industry sued a lot of people over this.
• 18:39
  SPEAKER_01: And In the 90s, there were a lot of cases involving like the grocery industry.
• 18:45
  SPEAKER_01: So the famous case is Food Lion, in which people got hired by Food Lion.
• 18:49
  SPEAKER_00: Food Lion is a supermarket chain, particularly located in the South.
• 18:54
  SPEAKER_01: Right.
• 18:54
  SPEAKER_01: And some journalists got hired there, took videos, ran exposés, got sued.
• 19:00
  SPEAKER_01: And what the courts say is that on the one hand,
• 19:03
  SPEAKER_01: the First Amendment doesn't You know,
• 19:06
  SPEAKER_01: protect you from lying to get hired or things like that,
• 19:09
  SPEAKER_01: but it does protect you from being sued under a sham
• 19:13
  SPEAKER_01: where they're really saying it's defamation or really don't like the content
• 19:16
  SPEAKER_01: of your reporting,
• 19:17
  SPEAKER_01: but they're pretending it's about fraud or, you know, something like that.
• 19:23
  SPEAKER_01: So this is kind of an part of an ongoing struggle between people who want
• 19:28
  SPEAKER_01: to do undercover work and people who don't want you to do undercover work.
• 19:33
  SPEAKER_01: And this outcome is more or less the way it's gone most of the time.
• 19:38
  SPEAKER_00: So the way that worked in the Food Lion case specifically,
• 19:40
  SPEAKER_00: this was for a segment on Primetime Live on ABC.
• 19:43
  SPEAKER_00: And Food Lion technically won.
• 19:46
  SPEAKER_00: Including on appeal,
• 19:48
  SPEAKER_00: or at least they won on some of the counts,
• 19:49
  SPEAKER_00: but all of the damage that they were awarded got reduced to $2 by the time
• 19:54
  SPEAKER_00: the appeals court was done.
• 19:56
  SPEAKER_00: And so I guess the idea was that it was a tort to get fraudulently hired
• 20:02
  SPEAKER_00: or was potentially a tort,
• 20:03
  SPEAKER_00: but then is it that ABC can't be liable for the usage of that footage
• 20:09
  SPEAKER_00: because it's First Amendment protected?
• 20:10
  SPEAKER_00: Or is it that the segment includes a bunch of stuff that is not the footage
• 20:14
  SPEAKER_00: if it's people talking about What Food Lion is doing rather than
• 20:18
  SPEAKER_00: the footage directly, that that can't be the basis for damages?
• 20:22
  SPEAKER_01: Well, the concept is that you have to have a direct connection between
• 20:28
  SPEAKER_01: the wrongdoing that's not protected and the damages.
• 20:32
  SPEAKER_01: It can't just be but for.
• 20:34
  SPEAKER_01: So, you know,
• 20:35
  SPEAKER_01: the argument is but for you defrauding me into hiring you,
• 20:40
  SPEAKER_01: you wouldn't have been able to make this video.
• 20:42
  SPEAKER_01: That's not the standard.
• 20:43
  SPEAKER_01: It has to be.
• 20:44
  SPEAKER_01: The it has because,
• 20:46
  SPEAKER_01: you know,
• 20:46
  SPEAKER_01: that would just mean that,
• 20:48
  SPEAKER_01: you know,
• 20:49
  SPEAKER_01: you're suing over the results of the protected First Amendment conduct,
• 20:53
  SPEAKER_01: which is the reporting part.
• 20:55
  SPEAKER_01: So you have to connect the harm,
• 20:58
  SPEAKER_01: the damages to the specific wrongdoing of, you know, defrauding me into hiring you.
• 21:04
  SPEAKER_01: So that could be something like,
• 21:05
  SPEAKER_01: you know,
• 21:05
  SPEAKER_01: the money you were paid in salary or money that was,
• 21:08
  SPEAKER_01: you know, laid out to train you or something like that.
• 21:11
  SPEAKER_01: Those could be legitimate damages.
• 21:13
  SPEAKER_01: But like The harm resulting from your reporting, that is not legitimate damages.
• 21:17
  SPEAKER_01: That violates the First Amendment.
• 21:19
  SPEAKER_00: And so then just to go back to the O'Keefe case,
• 21:22
  SPEAKER_00: does this mean that James O'Keefe's business model is one
• 21:26
  SPEAKER_00: that he can broadly keep going around and doing?
• 21:30
  SPEAKER_01: Not necessarily because there can be ways that you could generate damages
• 21:37
  SPEAKER_01: or you could generate crimes.
• 21:41
  SPEAKER_01: I mean O'Keefe – Was famously prosecuted at one point for one of his intrusions.
• 21:47
  SPEAKER_01: And also, you know, it's a lot of the time it's not, you know, it's the same as the cops.
• 21:55
  SPEAKER_01: Just the process of being sued and having to defend yourself is hugely expensive.
• 22:00
  SPEAKER_01: And so you can beat the rat, but you can't beat the right.
• 22:03
  SPEAKER_01: It's the same in civil litigation.
• 22:06
  SPEAKER_00: Yeah, I mean,
• 22:06
  SPEAKER_00: my sense is that,
• 22:07
  SPEAKER_00: you know,
• 22:07
  SPEAKER_00: Post Food Lion,
• 22:09
  SPEAKER_00: it's really discouraged the TV networks,
• 22:11
  SPEAKER_00: for example, from doing those kinds of cases.
• 22:13
  SPEAKER_00: And I guess,
• 22:14
  SPEAKER_00: you know,
• 22:14
  SPEAKER_00: even though ABC ended up only owing $2 in the end,
• 22:17
  SPEAKER_00: I assume they spent a fortune on lawyers during the seven years between the airing
• 22:21
  SPEAKER_00: of that segment and the end of the litigation.
• 22:23
  SPEAKER_01: Right.
• 22:25
  SPEAKER_01: Like here, I mean, even,
• 22:26
  SPEAKER_01: frankly,
• 22:26
  SPEAKER_01: $130,000 was a puny verdict,
• 22:31
  SPEAKER_01: and I'm sure that the plaintiffs spent vastly more than that to get it to trial.
• 22:36
  SPEAKER_01: And so they really walk away with nothing.
• 22:38
  SPEAKER_01: But I am sure it was a ruinous amount of money that O'Keefe and Mass
• 22:45
  SPEAKER_01: and Project Veritas had to spend to defend it.
• 22:50
  SPEAKER_00: And then we have – Another one that is a defamation case and a remarkable one,
• 22:54
  SPEAKER_00: the New York Times,
• 22:55
  SPEAKER_00: for the first time in more than 50 years, lost a defamation case.
• 22:59
  SPEAKER_00: The New York Times reported incorrectly that a University
• 23:02
  SPEAKER_00: of Alabama basketball player named Kai Spears had been present in a car at the scene
• 23:07
  SPEAKER_00: of a shooting that killed a young woman.
• 23:10
  SPEAKER_00: There were three other players on the U of A team that were present there,
• 23:14
  SPEAKER_00: including one who has been charged with murder.
• 23:17
  SPEAKER_00: But Mr. Spears was not there.
• 23:19
  SPEAKER_00: The Times made a mistake.
• 23:21
  SPEAKER_00: Made kind of a dumb mistake.
• 23:22
  SPEAKER_00: It's that the source who told him
• 23:24
  SPEAKER_00: that Spears was there didn't actually have firsthand knowledge of that,
• 23:27
  SPEAKER_00: had some unnamed source of his own who had told him that,
• 23:30
  SPEAKER_00: and it turned out not to be true.
• 23:32
  SPEAKER_00: So newspapers make mistakes and do corrections all the time.
• 23:36
  SPEAKER_00: It doesn't ordinarily lead to a loss in a defamation case.
• 23:39
  SPEAKER_00: Why did they lose this one?
• 23:41
  SPEAKER_01: Well, a few reasons.
• 23:42
  SPEAKER_01: First of all, he's a private figure.
• 23:43
  SPEAKER_00: They did not find that being a player on the team was enough to make him a public figure.
• 23:47
  SPEAKER_01: He doesn't have to show actual malice.
• 23:49
  SPEAKER_01: The standard is much easier for him to meet.
• 23:52
  SPEAKER_00: So it's just that the times had to be negligent?
• 23:53
  SPEAKER_00: Right.
• 23:54
  SPEAKER_01: So they don't have to show that they knew or recklessly disregarded that it was false.
• 23:59
  SPEAKER_01: Also, I think probably one of the factors here is kind of the indicia that it was
• 24:04
  SPEAKER_01: a little reckless and the way they spun it.
• 24:06
  SPEAKER_01: So it wasn't just like a passing reference to In a story that he was one
• 24:10
  SPEAKER_01: of three people in the car,
• 24:12
  SPEAKER_01: they ran a whole headline,
• 24:13
  SPEAKER_01: fourth Alabama player was at deadly shooting and made it the point of a story,
• 24:19
  SPEAKER_01: which I think is more in your face.
• 24:21
  SPEAKER_01: There was also some evidence suggesting they were kind of rushing it out
• 24:24
  SPEAKER_01: to get it out before the NCAA tournament.
• 24:29
  SPEAKER_01: And it just seemed really skeevy,
• 24:31
  SPEAKER_01: I think,
• 24:31
  SPEAKER_01: the way they did it to report it based on a guy Who didn't see it firsthand
• 24:38
  SPEAKER_01: and had his own source that the reporter didn't really know enough about to assess
• 24:43
  SPEAKER_01: the credibility of.
• 24:45
  SPEAKER_01: So I think that chain of events just made it look sloppy.
• 24:50
  SPEAKER_01: You know, the Times did their best to say, look, people make mistakes.
• 24:53
  SPEAKER_01: We made mistakes.
• 24:54
  SPEAKER_01: We corrected it.
• 24:55
  SPEAKER_01: We admitted it.
• 24:56
  SPEAKER_01: They said it didn't say he was a shooter.
• 24:58
  SPEAKER_01: It just said he was present at the scene.
• 25:01
  SPEAKER_01: And which is true.
• 25:02
  SPEAKER_01: But I think the answer to that is that if that's so insignificant,
• 25:05
  SPEAKER_01: why is it your headline to the story?
• 25:08
  SPEAKER_01: So I think it kind of looked sloppy and arrogant by the times.
• 25:11
  SPEAKER_01: I don't think it helped that it was in Alabama,
• 25:13
  SPEAKER_01: which is probably not the most New York Times friendly.
• 25:16
  SPEAKER_01: A jury pool to get.
• 25:18
  SPEAKER_01: And I think that the reporter screwed up at least to a level of negligence.
• 25:24
  SPEAKER_01: What do you make of a judgment that large?
• 25:26
  SPEAKER_01: Nine and a quarter million dollars.
• 25:27
  SPEAKER_01: It's a lot.
• 25:29
  SPEAKER_01: But if you were talking about a small town newspaper, I think it would be more questionable.
• 25:33
  SPEAKER_01: And it's the New York Times at the start of your NCAA tournament about,
• 25:40
  SPEAKER_01: in effect, your occupation as a basketball player.
• 25:43
  SPEAKER_01: Then I think it's something where it's going to be Hard to knock it down too much.
• 25:48
  SPEAKER_01: The New York Times itself is reporting that under Alabama law,
• 25:53
  SPEAKER_01: the damages are going to be cut down by two million under some statutory caps.
• 25:58
  SPEAKER_01: But as for the rest, I'm not sure that's particularly vulnerable to attack.
• 26:02
  SPEAKER_01: The judge may reduce it some,
• 26:03
  SPEAKER_01: the court of appeals might reduce it some,
• 26:04
  SPEAKER_01: but I think,
• 26:05
  SPEAKER_01: you know,
• 26:07
  SPEAKER_01: With inflation, $9 million is no longer like shocks to conscious outrageous.
• 26:13
  SPEAKER_01: I think,
• 26:14
  SPEAKER_01: you know,
• 26:14
  SPEAKER_01: $90 million is the new $9 million in terms of a shocks
• 26:18
  SPEAKER_01: to conscious outrageous verdict.
• 26:19
  SPEAKER_00: Because of the price of gasoline, I guess.
• 26:21
  SPEAKER_00: Exactly.
• 26:22
  SPEAKER_00: Let's talk about Jelaine Maxwell.
• 26:24
  SPEAKER_00: We talked about some people who've had success on appeal lately.
• 26:26
  SPEAKER_00: Jelaine Maxwell is not one of them.
• 26:28
  SPEAKER_01: She is not.
• 26:29
  SPEAKER_00: She filed this appeal with all of these different arguments about what's wrong
• 26:33
  SPEAKER_00: with her conviction.
• 26:36
  SPEAKER_00: And Judge Paul Engelmeyer didn't agree with any of them.
• 26:40
  SPEAKER_01: No.
• 26:41
  SPEAKER_01: So she filed what's called 2255.
• 26:47
  SPEAKER_00: That's it for this week's free episode of Serious Trouble.
• 26:49
  SPEAKER_00: If you want to hear about Jelaine Maxwell's failed pro se appeal,
• 26:54
  SPEAKER_00: about Michael Cohen's recantation,
• 26:56
  SPEAKER_00: he says he was pressured to testify negatively about Donald Trump and what
• 27:00
  SPEAKER_00: that could mean under New York law.
• 27:02
  SPEAKER_00: And updates on the ballroom where Chief Justice Roberts issued
• 27:06
  SPEAKER_00: a very terse administrative stay that might only be in effect very briefly.
• 27:11
  SPEAKER_00: We talk about what's likely going on there.
• 27:14
  SPEAKER_00: And then finally,
• 27:14
  SPEAKER_00: the Kennedy Center,
• 27:15
  SPEAKER_00: which Trump now claims is so dilapidated that it must be demolished
• 27:19
  SPEAKER_00: unless he's allowed to proceed with putting his name on the building immediately.
• 27:23
  SPEAKER_00: Serious Trouble.
• 27:24
  SPEAKER_00: Show.