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Because I Got Highly Likely to Lose an Anti-SLAPP Motion · Serious Trouble

• 0:00
  [music]
• 0:08
  SPEAKER_00: Hi, it's Ken White.
• 0:10
  SPEAKER_00: And it's Josh Barrow, and this is Serious Trouble.
• 0:13
  SPEAKER_00: Ken, Serious Trouble for the Tate Brothers, as we've discussed.
• 0:17
  SPEAKER_00: They got picked up in Miami, where they were, of course, for a bare-knuckle boxing fight.
• 0:24
  SPEAKER_00: And they are to be extradited to the United Kingdom.
• 0:26
  SPEAKER_00: One of the things we discussed when we last talked about this is that
• 0:29
  SPEAKER_00: if you're being held for extradition,
• 0:30
  SPEAKER_00: it's significantly harder to get pretrial release than if you're being held before
• 0:35
  SPEAKER_00: a trial in the United States.
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  SPEAKER_00: And that's for a number of reasons.
• 0:37
  SPEAKER_00: It's embarrassing if we're trying to extradite someone and they run away.
• 0:41
  SPEAKER_00: But the Tate brothers are giving it an effort and they're trying
• 0:45
  SPEAKER_00: to get release pending their proceedings about whether they can be extradited to
• 0:48
  SPEAKER_00: the United Kingdom.
• 0:49
  SPEAKER_00: But it doesn't look like it's going so well for them.
• 0:51
  SPEAKER_01: It does not, in large part because they are the Tate brothers.
• 0:55
  SPEAKER_01: This is very much a character is destiny type of thing.
• 0:58
  SPEAKER_01: So yeah,
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  SPEAKER_01: in extradition cases,
• 1:00
  SPEAKER_01: even though it's in federal court,
• 1:02
  SPEAKER_01: the Bail Reform Act, the rules that apply everywhere else do not apply.
• 1:07
  SPEAKER_01: And there is this presumption against bail and So basically the way the kind
• 1:16
  SPEAKER_01: of mishmash of case law has worked out is that there's a presumption against it.
• 1:21
  SPEAKER_01: You have to show special circumstances.
• 1:24
  SPEAKER_01: You have the burden of proving,
• 1:25
  SPEAKER_01: unlike the government normally having to prove things,
• 1:28
  SPEAKER_01: you have the burden of proving you're not a flight risk.
• 1:30
  SPEAKER_01: You're not a danger.
• 1:32
  SPEAKER_01: And there are some sort of extreme special circumstances justifying bail.
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  SPEAKER_01: And that's the only reason we'll let you out and potentially have
• 1:38
  SPEAKER_01: a diplomatic incident when you flee.
• 1:40
  SPEAKER_01: Right.
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  SPEAKER_01: So the challenge here,
• 1:44
  SPEAKER_01: you know,
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  SPEAKER_01: the Tate brothers have filed a motion for bail in which they say, hey,
• 1:47
  SPEAKER_01: you know,
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  SPEAKER_01: that stuff in Romania was bullshit and they eventually let us out on bail
• 1:52
  SPEAKER_01: and we're famous all over the world.
• 1:54
  SPEAKER_01: So how could we flee?
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  SPEAKER_01: And all this type of thing.
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  SPEAKER_01: The problem is they have basically branded themselves as, hey,
• 2:00
  SPEAKER_01: we're the Tate brothers and we fuck hoes, we hide money and we flee jurisdictions.
• 2:07
  SPEAKER_01: Right.
• 2:08
  SPEAKER_01: It's kind of their entire online branding.
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  SPEAKER_01: And in fact,
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  SPEAKER_01: their online presence is full of stuff about how they are unstoppable,
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  SPEAKER_01: uncatchable, and have multiple identities.
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  SPEAKER_01: And you've picked out some of your favorites, Josh.
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  SPEAKER_00: Yeah, the government has a field day here with their social media posting,
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  SPEAKER_00: things that they're saying about how it would be difficult to keep them in one place
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  SPEAKER_00: if you let them out.
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  SPEAKER_00: One of the Tate brothers posted saying, you can't ban me from driving.
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  SPEAKER_00: I have nine licenses.
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  SPEAKER_00: You can't freeze my passport.
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  SPEAKER_00: I have four.
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  SPEAKER_00: You can't take my money.
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  SPEAKER_00: It's everywhere.
• 2:46
  SPEAKER_00: Different circumstance, he claimed to have had five passports.
• 2:50
  SPEAKER_00: He posted a Mexican passport online showing Tristan Tate's photograph and date
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  SPEAKER_00: of birth, but it's Mexican.
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  SPEAKER_00: It has the name Vladimir Scorpius,
• 3:01
  SPEAKER_00: which is that of the Guadalajara Scorpiuses?
• 3:06
  SPEAKER_00: That doesn't sound very Mexican to me.
• 3:08
  SPEAKER_01: I'm pretty sure that's a Bond villain, Josh.
• 3:12
  SPEAKER_01: You missed the part where he says it takes international cooperation to slow me down.
• 3:17
  SPEAKER_01: And DOJ is like, oh, don't mind if we do.
• 3:21
  SPEAKER_00: Yeah.
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  SPEAKER_00: So they're probably not going to get bail, you think?
• 3:25
  SPEAKER_01: I think almost certainly not.
• 3:26
  SPEAKER_01: And in fact, after getting this Government opposition.
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  SPEAKER_01: They filed a motion asking to continue the hearing on this
• 3:33
  SPEAKER_01: so they could more carefully respond to the government opposition.
• 3:36
  SPEAKER_01: Part of what's going on here is they have a lawyer who is very much in their style
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  SPEAKER_01: of, you know, blustery, loud and bald.
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  SPEAKER_01: And he's, you know, talking shit and all this type of thing.
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  SPEAKER_01: And so he went in with a motion that did that.
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  SPEAKER_01: He really,
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  SPEAKER_01: I do not think,
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  SPEAKER_01: expected the government to have such unmitigated glee with I think
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  SPEAKER_01: the technical term is clients here,
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  SPEAKER_01: just saying stuff that's absolutely in their worst interest if they ever get charged
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  SPEAKER_01: or caught or anything.
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  SPEAKER_01: And, you know,
• 4:16
  SPEAKER_01: this is a classic story of,
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  SPEAKER_01: I think of our entire show, Josh,
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  SPEAKER_01: about how your public persona and your media
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  SPEAKER_01: and social media persona can wind up reaping bad things if you're ever in court
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  SPEAKER_01: and are very antithetical to your legal interests that boring people like me try
• 4:33
  SPEAKER_01: to get you not to do.
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  SPEAKER_00: I mean, the funny thing here is that clearly what animates the Tates is they believe
• 4:39
  SPEAKER_00: that they are above the law because they are connected to Trump and
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  SPEAKER_00: that they would just get away with whatever they did.
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  SPEAKER_00: And a key part of what was their downfall was that they reached a point
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  SPEAKER_00: where it appears that Donald Trump and his associates are no longer interested
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  SPEAKER_00: in expending any political capital on their behalf.
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  SPEAKER_00: So if it's,
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  SPEAKER_00: you know,
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  SPEAKER_00: for my friends, everything for my enemies, the law, they're not friends anymore.
• 5:00
  SPEAKER_00: Right.
• 5:01
  SPEAKER_00: Right.
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  SPEAKER_00: And their passports from Vanuatu,
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  SPEAKER_00: which the UK government believes they hold, are not going to help them now.
• 5:08
  SPEAKER_01: Well, it does seem as if their messaging,
• 5:10
  SPEAKER_01: their lawyers' messaging,
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  SPEAKER_01: and like the messages from them that are being posted on social media from jail,
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  SPEAKER_01: continue to have an audience of basically Donald Trump,
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  SPEAKER_01: Marco Rubio,
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  SPEAKER_01: and the people around them that they hope will weigh on them to make a decision
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  SPEAKER_01: to spare them from all this.
• 5:27
  SPEAKER_01: But as you said,
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  SPEAKER_01: it doesn't seem as if At least the higher level people,
• 5:32
  SPEAKER_01: the Trumps and the Rubios are still interested in all of that.
• 5:35
  SPEAKER_01: There's not a lot of reaction from the government,
• 5:37
  SPEAKER_01: but they're hitting all the notes they
• 5:39
  SPEAKER_01: hope will work about,
• 5:40
  SPEAKER_01: you know, being oppressed by evil European governments.
• 5:45
  SPEAKER_01: And they're kind of repeating the January 6th people's complaints about how bad
• 5:50
  SPEAKER_01: the jail is if you're someone like Andrew Tate and all this stuff.
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  SPEAKER_01: But it does not seem to be working.
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  SPEAKER_01: Rubio is absent.
• 5:57
  SPEAKER_01: Trump hasn't said anything about it.
• 5:59
  SPEAKER_01: They haven't, I guess, yet.
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  SPEAKER_01: Couched it in the right language to attract J.D.
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  SPEAKER_01: Vance's attention.
• 6:04
  SPEAKER_00: And Caroline Leavitt,
• 6:07
  SPEAKER_00: until recently,
• 6:08
  SPEAKER_00: the White House press secretary said from the podium in the White House
• 6:10
  SPEAKER_00: that they weren't going to intervene.
• 6:11
  SPEAKER_00: Now, obviously,
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  SPEAKER_00: it wouldn't be the first time the Trump administration changed its mind
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  SPEAKER_00: about something, but they are on the record.
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  SPEAKER_00: They're saying they're not going to.
• 6:17
  SPEAKER_01: Right.
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  SPEAKER_01: But the government's opposition,
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  SPEAKER_01: you can tell when a government lawyer really, really enjoyed writing something.
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  SPEAKER_01: And this is one of those times.
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  SPEAKER_01: This made that person's day and I'm happy for them.
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  SPEAKER_00: Yes.
• 6:32
  SPEAKER_00: Meanwhile,
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  SPEAKER_00: Jeanine Pirro in Washington, D.C.,
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  SPEAKER_00: recently on the outs with the president,
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  SPEAKER_00: who was quite upset with her failure to identify and prosecute the people
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  SPEAKER_00: who destroyed the president's beautiful reflecting pool.
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  SPEAKER_00: She's now convened a special grand jury and And the lieutenant who will be doing
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  SPEAKER_00: the operations before this grand jury is Stefan van der Velden.
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  SPEAKER_00: You listeners may remember him as the ex dance photographer who used to work
• 6:58
  SPEAKER_00: under her in the Westchester District Attorney's office and has come on to do some
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  SPEAKER_00: of her most special projects.
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  SPEAKER_00: So anyway, we know this grand jury exists.
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  SPEAKER_00: We don't know what it's for.
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  SPEAKER_00: Is it weird to convene a special grand jury?
• 7:14
  SPEAKER_01: Well, it is now.
• 7:16
  SPEAKER_01: It's not necessarily weird, just like in the abstract.
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  SPEAKER_01: So normal grand juries,
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  SPEAKER_01: you know,
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  SPEAKER_01: get appointed for a particular term, usually 18 months for federal grand juries.
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  SPEAKER_01: But there's a statute that allows the Department of Justice to certify that there's
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  SPEAKER_01: a need and have a special grand jury that's usually convened to look
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  SPEAKER_01: at organized crime in a particular jurisdiction or maybe political corruption.
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  SPEAKER_01: And it's a little – I mean it can still indict.
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  SPEAKER_01: It can still investigate.
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  SPEAKER_01: The sort of thing that makes it different is it's convened for a special reason
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  SPEAKER_01: and it has the ability to issue these reports as opposed to just indictments.
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  SPEAKER_01: It can –
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  SPEAKER_01: Issue a report about what it thinks is going on or what it thinks is wrong
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  SPEAKER_01: or what reforms it thinks are necessary.
• 8:01
  SPEAKER_01: So we don't know why this is being convened.
• 8:04
  SPEAKER_01: Given that Stephen Vanderveld and maybe the organized crime is the Sharks and
• 8:08
  SPEAKER_01: the Jets, but we'd be speculating at this point.
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  SPEAKER_01: But now,
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  SPEAKER_01: given that it's Pirro,
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  SPEAKER_01: given that Pirro is trying to recover Her reputation with Trump and given this DOJ,
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  SPEAKER_01: you kind of have to wonder whether it's some further sort of going
• 8:24
  SPEAKER_01: after Trump's enemies type of thing.
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  SPEAKER_00: But the interesting thing with that is that it's a grand jury in the District of Columbia.
• 8:30
  SPEAKER_00: Now, I assume that's the only place that Jeanine Pirro could call a grand jury
• 8:34
  SPEAKER_00: because she's the U.S. attorney for the District of Columbia.
• 8:38
  SPEAKER_00: But they've had trouble in the past with these grand juries in D.C.
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  SPEAKER_00: being full of people who tend to be Sure.
• 8:46
  SPEAKER_00: I guess the idea would be it might be a little easier to control
• 8:48
  SPEAKER_00: a special grand jury because regular grand juries mean they just have to hear
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  SPEAKER_00: a bunch of cases.
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  SPEAKER_00: Otherwise, you know, otherwise they're useless and you run out of grand jury time.
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  SPEAKER_00: So-
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  SPEAKER_01: You can't just feed them one case or else you won't have enough grand juries.
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  SPEAKER_01: Here,
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  SPEAKER_01: you could really choose only to bring this one particular investigation or case
• 9:26
  SPEAKER_01: or issue before them, and that could kind of shape the way they see things.
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  SPEAKER_01: If they don't see a wide array of cases,
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  SPEAKER_01: grand juries are going to be less likely to say, wait, why is this one so different?
• 9:36
  SPEAKER_01: Why is the evidence so lacking compared to what we're used to seeing?
• 9:40
  SPEAKER_01: So that could be a factor.
• 9:41
  SPEAKER_01: But you're right.
• 9:42
  SPEAKER_01: You're still dealing with D.C.
• 9:43
  SPEAKER_01: people who – I don't think are going to be super amenable to
• 9:48
  SPEAKER_01: a completely bullshit case.
• 9:50
  SPEAKER_00: Well, and also I would think would notice that they're being used
• 9:53
  SPEAKER_00: as Jeanine Pirro's political tool.
• 9:55
  SPEAKER_00: At least some of them, they would talk amongst themselves.
• 9:57
  SPEAKER_00: You would hope.
• 9:58
  SPEAKER_01: Yeah.
• 9:59
  SPEAKER_01: Yeah.
• 9:59
  SPEAKER_01: And so far that seems to be the case.
• 10:01
  SPEAKER_00: Yeah.
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  SPEAKER_00: We also have a little correction about that reflecting pool case with David Hearn.
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  SPEAKER_01: I erroneously said that when Jeanine Pirro moved to dismiss the Hearn case— This is
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  SPEAKER_01: the former Olympic canoeist.
• 10:16
  SPEAKER_01: Yes, who wantonly and savagely destroyed the lining of the reflecting pool, allegedly.
• 10:23
  SPEAKER_01: I said she had moved to do it with prejudice, meaning permanently.
• 10:27
  SPEAKER_01: She actually did it— It moved without prejudice, meaning in theory she could bring it again.
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  SPEAKER_01: Hearn has since filed a brief basically arguing it should be with prejudice
• 10:38
  SPEAKER_01: because it was so abusive and ridiculous.
• 10:40
  SPEAKER_01: And what the judge did is dismissed it immediately and then set a briefing schedule
• 10:47
  SPEAKER_01: for why or why not it should be done with prejudice.
• 10:51
  SPEAKER_01: In a way that suggests to me the judge is probably inclined towards with prejudice.
• 10:55
  SPEAKER_01: So we'll see what Jeanine Pirro's office has to say in opposition to that motion
• 11:00
  SPEAKER_01: by Hearn saying it should be with prejudice and how they defend themselves.
• 11:04
  SPEAKER_01: And then the judge will ultimately make the call.
• 11:07
  SPEAKER_01: And given how ridiculous the case is,
• 11:08
  SPEAKER_01: I think even though usually without prejudice would be the norm,
• 11:12
  SPEAKER_01: I suspect it'll be with prejudice.
• 11:14
  SPEAKER_00: One case we haven't talked about yet.
• 11:16
  SPEAKER_00: Because we haven't had the right sort of court proceeding until this week is
• 11:20
  SPEAKER_00: the case of Max Miller,
• 11:21
  SPEAKER_00: this Ohio congressman who has been accused of domestic abuse by his ex-wife
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  SPEAKER_00: and also, by the way, by a prior ex-girlfriend.
• 11:31
  SPEAKER_00: In a book that was released several years ago.
• 11:34
  SPEAKER_00: And this has become a political scandal in Ohio.
• 11:36
  SPEAKER_00: His ex-wife happens to be the daughter of the Republican senator from Ohio,
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  SPEAKER_00: Bernie Moreno,
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  SPEAKER_00: who's made some public statements about how Max Miller is not fit to be a member
• 11:47
  SPEAKER_00: of Congress.
• 11:48
  SPEAKER_00: And Max Miller has been fighting for his political life
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  SPEAKER_00: and made this rather odd video appearance defending himself and talking about how
• 11:57
  SPEAKER_00: the accusations against him are made up.
• 11:59
  SPEAKER_00: And in conjunction with that,
• 12:00
  SPEAKER_00: he put out a dossier of documents that have to deal with his divorce and
• 12:05
  SPEAKER_00: the disputes that they have had in family court and such things.
• 12:09
  SPEAKER_00: And in the video where he's talking about how he's not abusive,
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  SPEAKER_00: he basically says, go look at this dossier.
• 12:13
  SPEAKER_00: It has all of this evidence that backs me up.
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  SPEAKER_00: Now, a lawsuit has been filed against him by his ex-wife,
• 12:19
  SPEAKER_00: Emily Moreno,
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  SPEAKER_00: saying that amid that dossier was a naked photo of their young daughter,
• 12:25
  SPEAKER_00: I believe it's of their two-year-old daughter.
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  SPEAKER_00: Apparently posted in error,
• 12:30
  SPEAKER_00: but she sues Max Miller and also Max Miller's lawyer
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  SPEAKER_00: for having recklessly disclosed this.
• 12:36
  SPEAKER_00: The first thing I thought when I look at this is that's,
• 12:38
  SPEAKER_00: you know, I mean, this is a civil lawsuit, but that's a crime, isn't it?
• 12:41
  SPEAKER_01: Potentially.
• 12:42
  SPEAKER_01: So the lawsuit is,
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  SPEAKER_01: first of all,
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  SPEAKER_01: it's horrible,
• 12:46
  SPEAKER_01: but the lawsuit claims that it's a photo of the child that depicts genitalia and
• 12:55
  SPEAKER_01: The significance of that is that can take it into the realm of child pornography
• 13:00
  SPEAKER_01: and things like that.
• 13:01
  SPEAKER_01: Now, not every naked picture of a kid in the tub is child pornography.
• 13:06
  SPEAKER_01: Generally, there are factors you would have to show, like it's for a...
• 13:09
  SPEAKER_01: lascivious purpose or things like that.
• 13:12
  SPEAKER_01: But I mean, it's dramatically escalating the seriousness of the situation.
• 13:17
  SPEAKER_01: And so Emily Moreno filed this on behalf of the kid.
• 13:22
  SPEAKER_01: So it's actually the kid named only as, you know, RM by her mother filing the suit.
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  SPEAKER_01: And it's claiming under a federal sort of revenge porn law and intimate image law,
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  SPEAKER_01: as well as under Ohio law for Wrongful invasion of privacy,
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  SPEAKER_01: negligence and civil conspiracy.
• 13:41
  SPEAKER_01: And this is kind of what happens if you've got unhinged conduct
• 13:46
  SPEAKER_01: by someone like Max Miller,
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  SPEAKER_01: who after he did this,
• 13:50
  SPEAKER_01: he went on CNN and did an interview that was just breathtakingly bad judgment
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  SPEAKER_01: and completely out of control.
• 13:57
  SPEAKER_01: And also against the lawyer who,
• 13:59
  SPEAKER_01: you know,
• 14:00
  SPEAKER_01: whose involvement in this seems to be Getting all the docs from Max Miller,
• 14:05
  SPEAKER_01: organizing them and putting them into a Dropbox and giving him the link.
• 14:09
  SPEAKER_01: And then it's Max Miller who decides to publicize it, but still.
• 14:12
  SPEAKER_01: That's not something you do with an unhinged client.
• 14:16
  SPEAKER_01: You know, hand them a Dropbox like that they're likely to do something like that for.
• 14:19
  SPEAKER_01: So I think there is definitely a political element here.
• 14:23
  SPEAKER_01: I think there's also definitely,
• 14:24
  SPEAKER_01: you know,
• 14:25
  SPEAKER_01: an ex-wife who has been mistreated fighting for her life and the kid's life.
• 14:29
  SPEAKER_01: But it's serious.
• 14:30
  SPEAKER_01: I mean,
• 14:32
  SPEAKER_01: this is – you would probably get into an analysis ultimately of is this just,
• 14:37
  SPEAKER_01: you know, a kid in the bathtub family picture type thing.
• 14:41
  SPEAKER_01: Right.
• 14:46
  SPEAKER_00: One of the things that has stuck out at me following this case and
• 14:51
  SPEAKER_00: the serious abuse allegations against Max Miller is how he still has joint custody.
• 14:58
  SPEAKER_00: And that's one of the things he points to in his arguments.
• 15:00
  SPEAKER_00: You know, if I was such a bad father, why has the family court given me joint custody?
• 15:05
  SPEAKER_00: I know you're not a family lawyer, but I was wondering what you make of the fact that
• 15:11
  SPEAKER_00: Apparently,
• 15:12
  SPEAKER_00: whatever we've seen in public and Stephanie Grisham,
• 15:15
  SPEAKER_00: his ex-girlfriend,
• 15:16
  SPEAKER_00: having previously accused him of physical abuse,
• 15:19
  SPEAKER_00: that the family court doesn't seem to have acted here,
• 15:22
  SPEAKER_00: which is part of what has paralyzed Bernie Moreno, the senator from Ohio.
• 15:28
  SPEAKER_00: He's been under criticism about, well,
• 15:30
  SPEAKER_00: this man is mistreating your daughter and you don't want to say anything about it
• 15:34
  SPEAKER_00: because you're in the same political party.
• 15:36
  SPEAKER_00: What he has pointed to,
• 15:36
  SPEAKER_00: I think,
• 15:37
  SPEAKER_00: fairly is that they're still in a court situation where Miller still has custody
• 15:42
  SPEAKER_00: and they're still trying to manage through that.
• 15:44
  SPEAKER_00: But I think it's surprising,
• 15:45
  SPEAKER_00: at least to me from the outside, to see that he still has partial custody.
• 15:50
  SPEAKER_01: Well, I mean,
• 15:51
  SPEAKER_01: if we've seen anything in the years we've been working together, Josh,
• 15:54
  SPEAKER_01: is that the system doesn't always work well and that someone with resources
• 16:00
  SPEAKER_01: and good lawyers is can get results that other people might not.
• 16:04
  SPEAKER_01: Now,
• 16:04
  SPEAKER_01: there's this narrative out there that fathers constantly get screwed in family court
• 16:08
  SPEAKER_01: and that moms get full custody and dads don't get rights.
• 16:12
  SPEAKER_01: That's not really actually true.
• 16:14
  SPEAKER_01: And particularly when you have fathers with substantial resources and the ability
• 16:19
  SPEAKER_01: to bring good lawyers into the mix,
• 16:21
  SPEAKER_01: then the courts are supposed to maintain So it could be tricky to deprive somebody
• 16:33
  SPEAKER_01: of any custody,
• 16:34
  SPEAKER_01: especially when they have well-funded lawyers and they're articulate
• 16:39
  SPEAKER_01: and he's not like a drug dealer living on the street.
• 16:42
  SPEAKER_01: He's someone with a job.
• 16:43
  SPEAKER_01: Under those circumstances,
• 16:45
  SPEAKER_01: actually,
• 16:46
  SPEAKER_01: victims of abuse can face an uphill battle to extinguish somebody's custody
• 16:51
  SPEAKER_01: or limit it dramatically.
• 16:53
  SPEAKER_00: Yeah.
• 16:54
  SPEAKER_00: Let's talk about a couple of cases directly involving the administration.
• 16:59
  SPEAKER_00: We talked about the birthright citizenship decision that came down a couple
• 17:03
  SPEAKER_00: of months ago from the Supreme Court, fractured.
• 17:06
  SPEAKER_00: I mean, there was a majority of five justices who found that there was
• 17:10
  SPEAKER_00: a constitutional right to birthright citizenship.
• 17:12
  SPEAKER_00: But the four justices who disagreed with that each had their own view on what was going on here.
• 17:17
  SPEAKER_00: Brett Kavanaugh said, well,
• 17:19
  SPEAKER_00: there's not a constitutional right, but there's a statute that creates the right.
• 17:23
  SPEAKER_00: And you had three justices who thought that there was not an absolute right
• 17:27
  SPEAKER_00: to birthright citizenship,
• 17:28
  SPEAKER_00: but all of them seemed to have a view of it that was probably narrower than
• 17:31
  SPEAKER_00: the administration's in terms of exactly who you could exclude.
• 17:34
  SPEAKER_00: So now the administration is back with trying for another bite at the apple with
• 17:38
  SPEAKER_00: an executive order saying, OK,
• 17:40
  SPEAKER_00: there's birthright citizenship,
• 17:41
  SPEAKER_00: the Supreme Court says,
• 17:43
  SPEAKER_00: but we're not going to extend that to people in these categories.
• 17:46
  SPEAKER_00: And they say people born to foreign government employees.
• 17:49
  SPEAKER_00: Now, I know there's already a narrow carve out for children of diplomats
• 17:52
  SPEAKER_00: because they are not subject to the jurisdiction of the United States.
• 17:56
  SPEAKER_00: But they want to say anyone who works for foreign government,
• 17:58
  SPEAKER_00: anyone who is an alien enemy,
• 18:01
  SPEAKER_00: You know,
• 18:02
  SPEAKER_00: in a way that the administration chooses or anyone who engaged in
• 18:05
  SPEAKER_00: a commercial transaction to access birthright citizenship.
• 18:08
  SPEAKER_00: This is so-called birth tourism.
• 18:10
  SPEAKER_00: Can they do this under the Supreme Court decision?
• 18:13
  SPEAKER_00: I thought that, you know, the I mean, you can have a policy argument about birth tourism.
• 18:17
  SPEAKER_00: I understand why people think that you shouldn't be able to fly here
• 18:20
  SPEAKER_00: when you're seven months pregnant and give birth to a U.S. citizen.
• 18:22
  SPEAKER_00: But it seemed like the court was pretty clear about,
• 18:25
  SPEAKER_00: you know,
• 18:25
  SPEAKER_00: if you're born here and you're not in a very narrow category of people not subject
• 18:29
  SPEAKER_00: to our government jurisdiction, your kid is a citizen.
• 18:32
  SPEAKER_01: Yeah, I don't think they can under the Supreme Court decision.
• 18:35
  SPEAKER_01: And the litigants in the cases that went to the Supreme Court have already filed.
• 18:41
  SPEAKER_01: New motions in the trial court saying we want you to revisit
• 18:44
  SPEAKER_01: the preliminary injunction and we want you to reopen the case.
• 18:47
  SPEAKER_01: We want you to broaden the injunction to include these new categories because
• 18:51
  SPEAKER_01: the Supreme Court decision doesn't allow this.
• 18:53
  SPEAKER_01: Because the five people majority basically said that birthright citizenship is constitutional.
• 19:01
  SPEAKER_01: And if there are exceptions to it,
• 19:02
  SPEAKER_01: they are only established exceptions in law from a century of tradition,
• 19:10
  SPEAKER_01: which you and I would say is ultimately kind of made up.
• 19:13
  SPEAKER_01: But it's established made up, not recently made up is the point.
• 19:18
  SPEAKER_01: So this,
• 19:19
  SPEAKER_01: the administration saying that we're going to come up with some more categories
• 19:22
  SPEAKER_01: that should be added.
• 19:24
  SPEAKER_01: I think they are looking for courts to fight out and find the utmost boundaries
• 19:28
  SPEAKER_01: to what they can get away with.
• 19:47
  SPEAKER_01: This probably wouldn't work even with Kavanaugh because he said this was statutory
• 19:51
  SPEAKER_01: and not executive order based.
• 19:54
  SPEAKER_01: But, you know, there might be a hypothetical future justice to whom it makes a difference.
• 19:59
  SPEAKER_01: And they might get courts to sort of establish, well,
• 20:03
  SPEAKER_01: let's test those established traditional historical exceptions to the rule and see
• 20:09
  SPEAKER_01: whether or not these fit in and that type of thing.
• 20:11
  SPEAKER_01: But these are all exceptions.
• 20:13
  SPEAKER_01: You know, some of them are not...
• 20:14
  SPEAKER_01: Are not that big because as you pointed out to me,
• 20:16
  SPEAKER_01: I don't think a whole lot of people are running to Guam to give birth.
• 20:20
  SPEAKER_00: Well, it wouldn't even work.
• 20:22
  SPEAKER_00: This is a fourth exception they put in here is that a person is born in a territory
• 20:25
  SPEAKER_00: or territorial waters of the U.S.
• 20:27
  SPEAKER_00: where citizenship is not conferred by federal statute.
• 20:29
  SPEAKER_00: But federal statute confers citizenship on people born in all of the inhabited U.S.
• 20:34
  SPEAKER_00: territories except for American Samoa.
• 20:37
  SPEAKER_00: So I guess, you know, you could have someone born to non-citizens in American Samoa.
• 20:42
  SPEAKER_00: Although I think that person already wouldn't be a U.S. citizen.
• 20:44
  SPEAKER_00: They'd be a U.S. national like the American Samoans themselves.
• 20:47
  SPEAKER_01: Anyway, that seems like a weird edge case.
• 20:49
  SPEAKER_01: It is a weird edge case, but I think it's almost the point.
• 20:52
  SPEAKER_01: They're looking for all the weird edge cases that could provide an argument that
• 20:57
  SPEAKER_01: the executive can make decisions about this.
• 20:59
  SPEAKER_01: And they're looking to get the court to analyze it to see
• 21:02
  SPEAKER_01: if they can push those lines as far as they can.
• 21:05
  SPEAKER_01: And a lot
• 21:05
  SPEAKER_01: of these exceptions are ones you could totally see how they could be abused,
• 21:08
  SPEAKER_01: like any employee of a foreign government or You know,
• 21:12
  SPEAKER_01: the foreign enemy thing we've been seeing about how they're trying to push
• 21:15
  SPEAKER_01: that definition as far as they possibly can.
• 21:17
  SPEAKER_01: And really their rhetoric suggests that any person who is not here legally is
• 21:22
  SPEAKER_01: in effect a foreign enemy.
• 21:24
  SPEAKER_01: I don't think it goes anywhere.
• 21:26
  SPEAKER_01: I don't think it's a successful end run around the Supreme Court decision.
• 21:31
  SPEAKER_01: And I think that the administration loses on it, but it allows them to keep it in the news.
• 21:35
  SPEAKER_01: It allows them to continue to try to test the limits and fish for sympathetic judges.
• 21:42
  SPEAKER_01: Yeah.
• 21:43
  SPEAKER_00: Meanwhile, Trump did not get two sympathetic judges on the D.C.
• 21:47
  SPEAKER_00: Circuit for the appeal of Judge Richard Leon's exclamation mark
• 21:52
  SPEAKER_01: filled order stopping.
• 21:58
  SPEAKER_00: That's it for this week's free episode of Serious Trouble.
• 22:01
  SPEAKER_00: If you want more updates,
• 22:02
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• 22:06
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• 22:06
  SPEAKER_00: Circuit siding with trial judge Richard Leon,
• 22:09
  SPEAKER_00: the exclamation mark enthusiast, and saying that that has to be put on hold.
• 22:13
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• 22:28
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• 22:31
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• 22:35
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