Latest / Serious Trouble / Yo Momma So Dumb She Thought These Trials Were Happening Before The Election

Transcript

Yo Momma So Dumb She Thought These Trials Were Happening Before The Election · Serious Trouble

• 0:08
  SPEAKER_00: Hi, it's Ken White.
• 0:10
  SPEAKER_00: And it's Josh Barro, and this is Serious Trouble.
• 0:13
  SPEAKER_00: Ken, so the testimony is ongoing in Donald Trump's criminal trial in New York City.
• 0:18
  SPEAKER_00: And we've learned that when he and Stormy Daniels had sex,
• 0:20
  SPEAKER_00: according to Daniels,
• 0:21
  SPEAKER_00: they were in the missionary position.
• 0:22
  SPEAKER_00: They didn't use a condom.
• 0:25
  SPEAKER_01: God, I did not want to know that.
• 0:27
  SPEAKER_01: Although...
• 0:28
  SPEAKER_01: Yes.
• 0:29
  SPEAKER_01: So Judge Merchan made some rulings about what Stormy Daniels would or would not be
• 0:34
  SPEAKER_01: permitted to testify about.
• 0:35
  SPEAKER_01: And she was permitted to testify about the sexual encounter briefly and without too
• 0:40
  SPEAKER_01: much detail,
• 0:41
  SPEAKER_01: which apparently means the glorious term Yeti pubes was not to be made a part of
• 0:46
  SPEAKER_01: the record of the Supreme Court of the state of New York.
• 0:50
  SPEAKER_00: You know, I had forgotten.
• 0:51
  SPEAKER_00: Ken reminded me that there's been other detail from Stormy Daniels.
• 0:54
  SPEAKER_00: allegations about the exact you know shape and geography of donald trump's
• 0:58
  SPEAKER_00: genitalia that we won't get into here um and they didn't get into in the courtroom
• 1:02
  SPEAKER_00: although they got into a number of other things that judge mershon seemed to find
• 1:05
  SPEAKER_00: regrettable that they ended up discussing yes there are a few things regrettable
• 1:09
  SPEAKER_01: that Judge Merchan sustained a objection to that testimony about the particular
• 1:14
  SPEAKER_01: position
• 1:16
  SPEAKER_01: And one thing that went badly is that the way Stormy Daniels' story came out really
• 1:23
  SPEAKER_01: made this sex seem nonconsensual,
• 1:25
  SPEAKER_01: really made it seem more like sexual assault or rape,
• 1:28
  SPEAKER_01: where she said she regretted not telling him to stop and not objecting and that,
• 1:34
  SPEAKER_01: you know,
• 1:35
  SPEAKER_01: he just did it.
• 1:36
  SPEAKER_01: And after that,
• 1:37
  SPEAKER_01: Trump's attorneys made a motion for a mistrial saying,
• 1:40
  SPEAKER_01: you know,
• 1:41
  SPEAKER_01: hey,
• 1:41
  SPEAKER_01: we didn't understand the evidence would come in like our guy's a big rapist.
• 1:45
  SPEAKER_01: as if that should be a surprise to anybody.
• 1:47
  SPEAKER_01: And Judge Mershon said more or less,
• 1:49
  SPEAKER_01: yeah,
• 1:50
  SPEAKER_01: some of that's regrettable it came in,
• 1:51
  SPEAKER_01: but you guys didn't object much during it.
• 1:55
  SPEAKER_01: Right, because he's not on trial for sexual assault here.
• 1:58
  SPEAKER_01: He's not.
• 1:59
  SPEAKER_01: And he's been on trial before for lying about sexual assault.
• 2:02
  SPEAKER_01: And he's been found by a jury to have committed sexual assault, but this is not a sexual assault trial.
• 2:09
  SPEAKER_01: So that is pretty incendiary to come in.
• 2:12
  SPEAKER_01: And it's kind of wild that
• 2:14
  SPEAKER_01: Trump's team didn't anticipate that.
• 2:17
  SPEAKER_01: But there it is.
• 2:18
  SPEAKER_01: Even if the attorneys did object,
• 2:20
  SPEAKER_01: apparently Trump was reacting quite visibly because Judge Mershon chastised lawyers
• 2:26
  SPEAKER_01: and said,
• 2:27
  SPEAKER_01: basically,
• 2:27
  SPEAKER_01: you guys down there,
• 2:28
  SPEAKER_01: he's muttering obscenities audibly and shaking his head and making faces.
• 2:33
  SPEAKER_01: And I'm not going to put up with that.
• 2:35
  SPEAKER_01: He's going to intimidate witnesses.
• 2:45
  SPEAKER_00: He said bullshit under his breath, apparently.
• 2:48
  SPEAKER_00: He said bullshit under his breath.
• 2:50
  SPEAKER_01: Do you recall the magazine?
• 2:51
  SPEAKER_01: I can't recall the magazine at this stage.
• 2:53
  SPEAKER_00: I don't know.
• 2:54
  SPEAKER_00: Probably Architectural Digest or something.
• 2:56
  SPEAKER_00: Yeah.
• 2:56
  SPEAKER_00: Ow.
• 3:00
  SPEAKER_01: So that's lost to history.
• 3:03
  SPEAKER_01: Anyway,
• 3:03
  SPEAKER_01: this is turned into quite the in some ways,
• 3:07
  SPEAKER_01: quite the regrettable circus humiliating for the United States that we feared it
• 3:12
  SPEAKER_01: would be.
• 3:13
  SPEAKER_01: On the other hand, parts of it are turned serious.
• 3:15
  SPEAKER_00: Well,
• 3:15
  SPEAKER_00: so about that testimony from Stormy Daniels,
• 3:18
  SPEAKER_00: which the prosecutors,
• 3:19
  SPEAKER_00: when they were discussing afterward.
• 3:21
  SPEAKER_00: Trump's team moved for mistrial,
• 3:23
  SPEAKER_00: basically saying,
• 3:23
  SPEAKER_00: you know,
• 3:24
  SPEAKER_00: this stuff is so prejudicial and it's not relevant.
• 3:26
  SPEAKER_00: And, you know, what the the jury's heard this.
• 3:29
  SPEAKER_00: There's no putting the genie back in the bottle.
• 3:31
  SPEAKER_00: We need to have a mistrial here.
• 3:32
  SPEAKER_00: And one of the things prosecutors said,
• 3:34
  SPEAKER_00: I mean,
• 3:34
  SPEAKER_00: first of all,
• 3:35
  SPEAKER_00: while Daniels had had this testimony about,
• 3:37
  SPEAKER_00: you know,
• 3:38
  SPEAKER_00: feeling uncomfortable and feeling pressured,
• 3:39
  SPEAKER_00: she also said,
• 3:40
  SPEAKER_00: you know,
• 3:40
  SPEAKER_00: that he was bigger and blocking the way.
• 3:42
  SPEAKER_00: But I was not threatened either verbally or physically.
• 3:44
  SPEAKER_00: And so she did, you know, she in some ways walk back.
• 3:48
  SPEAKER_00: Right.
• 3:48
  SPEAKER_00: Right.
• 4:12
  SPEAKER_00: And so I guess,
• 4:13
  SPEAKER_00: first of all,
• 4:13
  SPEAKER_00: how do you deal with a situation like this where you have a witness who's not
• 4:16
  SPEAKER_00: necessarily acting to implement either side's strategy and who might be talking
• 4:20
  SPEAKER_00: more than either side's attorneys want?
• 4:23
  SPEAKER_01: Well, it depends on who the witness is and what your connection to them is.
• 4:26
  SPEAKER_01: So if it's someone aligned with you or your client or something like that,
• 4:30
  SPEAKER_01: you generally want to prepare them.
• 4:32
  SPEAKER_01: And so when I'm preparing the client for testimony, I drill into them.
• 4:36
  SPEAKER_00: I'm sorry, when you're preparing a witness for testimony?
• 4:37
  SPEAKER_01: When I'm preparing a client or witness for testimony,
• 4:41
  SPEAKER_01: I'm trying to drill into them,
• 4:42
  SPEAKER_01: just answer the question,
• 4:43
  SPEAKER_01: answer it briefly,
• 4:44
  SPEAKER_01: answer it directly.
• 4:46
  SPEAKER_01: Don't go off on tangents,
• 4:49
  SPEAKER_01: don't add color,
• 4:50
  SPEAKER_01: no stories,
• 4:52
  SPEAKER_01: no supporting players,
• 4:54
  SPEAKER_01: no anecdotes,
• 4:55
  SPEAKER_01: just answer it directly.
• 4:57
  SPEAKER_01: And generally, that's the best way to do things.
• 4:59
  SPEAKER_01: But in a case like this, when it's not...
• 5:02
  SPEAKER_01: necessarily a completely friendly witness and it's a witness whose veracity is going to be attacked.
• 5:07
  SPEAKER_01: You really can't manage their testimony too much or it's going to come out that you,
• 5:11
  SPEAKER_01: you know,
• 5:11
  SPEAKER_01: in effect told them what to say and that's going to go badly.
• 5:14
  SPEAKER_01: So,
• 5:14
  SPEAKER_01: yeah,
• 5:15
  SPEAKER_01: this is a very common problem where the way you want someone to talk during court
• 5:20
  SPEAKER_01: testimony or a deposition is not at all the way people tend to talk in real life.
• 5:26
  SPEAKER_01: And that can be an issue.
• 5:27
  SPEAKER_01: And she was a witness who was, you know,
• 5:29
  SPEAKER_01: answering more than the question, and that can cut both ways.
• 5:33
  SPEAKER_00: Did Trump's attorneys have a good argument for mistrial here?
• 5:35
  SPEAKER_00: I mean, would you have moved for a mistrial if you were the defense attorney here?
• 5:38
  SPEAKER_01: I probably would have to make the record.
• 5:40
  SPEAKER_01: I would not have expected to prevail for the reasons you said,
• 5:44
  SPEAKER_01: that the details were probably not grotesque enough.
• 5:49
  SPEAKER_01: that there's enough other bad stuff that it fades into the background and that her,
• 5:55
  SPEAKER_01: you know,
• 5:55
  SPEAKER_01: she sort of walked it back a little bit.
• 5:57
  SPEAKER_01: And because they didn't object enough during, I would not have expected to prevail.
• 6:03
  SPEAKER_01: I would have expected to preserve the issue for appeal.
• 6:05
  SPEAKER_01: And that's what they did in effect.
• 6:08
  SPEAKER_01: So in a way, there's going to be a whole lot of evidence of bad behavior by Trump.
• 6:13
  SPEAKER_01: There's already a lot of bad behavior evidence by him.
• 6:16
  SPEAKER_01: And the sense of the judge probably is that this is not something that is so
• 6:21
  SPEAKER_01: outside the realm of what the jury is going to hear about anyway,
• 6:24
  SPEAKER_01: that it's so extremely prejudicial that it needs a mistrial.
• 6:28
  SPEAKER_00: Why does the truth of the matter about what happened in that hotel suite in Lake
• 6:31
  SPEAKER_00: Tahoe matter in this case about falsification of business records?
• 6:34
  SPEAKER_00: I mean,
• 6:35
  SPEAKER_00: one of the things the prosecution said about why they needed to go into some amount
• 6:37
  SPEAKER_00: of detail is that Stormy Daniels' credibility is important here.
• 6:41
  SPEAKER_00: And then you had Trump's attorney,
• 6:43
  SPEAKER_00: Susan Nicholas,
• 6:44
  SPEAKER_00: basically trying to suggest that Stormy Daniels was out for money and trying to
• 6:47
  SPEAKER_00: extort Donald Trump.
• 6:49
  SPEAKER_00: If he was making this payment for a campaign purpose...
• 6:53
  SPEAKER_00: And he falsified the purpose of the payment.
• 6:55
  SPEAKER_00: And he was making the payment because he was concerned that this story was going to come out.
• 6:58
  SPEAKER_00: Isn't the prosecution's theory of why that's a crime,
• 7:00
  SPEAKER_00: isn't that equally true regardless of whether the allegation that underlay it was
• 7:04
  SPEAKER_00: true or false?
• 7:06
  SPEAKER_01: It does.
• 7:06
  SPEAKER_01: And this is a consequence of basically Trump's defense strategy from a
• 7:11
  SPEAKER_01: political point of view, which is kind of denying with a wink and a nod that it happened.
• 7:17
  SPEAKER_01: It's really something for his ego.
• 7:19
  SPEAKER_01: I agree that it would be much cleaner if the defense could say, look, there's no dispute.
• 7:24
  SPEAKER_01: There was a relationship.
• 7:25
  SPEAKER_01: So that's irrelevant.
• 7:27
  SPEAKER_01: But Trump won't let them do that.
• 7:29
  SPEAKER_01: So they're kind of stuck into this thing where it goes to his credibility, it goes to her credibility.
• 7:34
  SPEAKER_01: And
• 7:34
  SPEAKER_01: I guess it's also part of the question of it's more credible that he would pay hush
• 7:39
  SPEAKER_01: money to cover up something that happened than yield to extortion on something that
• 7:43
  SPEAKER_01: didn't happen.
• 7:44
  SPEAKER_01: So that's probably where we are.
• 7:46
  SPEAKER_01: But yeah,
• 7:47
  SPEAKER_01: if I were representing him,
• 7:49
  SPEAKER_01: I would suggest,
• 7:50
  SPEAKER_01: you know,
• 7:50
  SPEAKER_01: you want to back away from the vigorous denials that happened and just rely on it
• 7:55
  SPEAKER_01: doesn't matter.
• 7:55
  SPEAKER_00: Oh, so that's interesting.
• 7:56
  SPEAKER_00: If he had admitted that he had sex with Stormy Daniels,
• 7:59
  SPEAKER_00: they would have been able to keep this stuff out entirely.
• 8:01
  SPEAKER_00: Yeah.
• 8:01
  SPEAKER_00: Yeah,
• 8:02
  SPEAKER_01: I think you could have kept out the details if he had simply conceded that there
• 8:08
  SPEAKER_01: was a relationship.
• 8:10
  SPEAKER_01: But since he's determined to lie and say that it didn't happen,
• 8:15
  SPEAKER_01: then he's in effect making things relevant that otherwise would not be relevant.
• 8:21
  SPEAKER_00: So other matters that have come up in testimony over the last few days,
• 8:24
  SPEAKER_00: this is a falsification of business records case.
• 8:26
  SPEAKER_00: And so there's this discussion of the payments to Michael Cohen and how they were,
• 8:30
  SPEAKER_00: quote unquote,
• 8:31
  SPEAKER_00: grossed up,
• 8:31
  SPEAKER_00: which is to say that,
• 8:32
  SPEAKER_00: you know,
• 8:32
  SPEAKER_00: the the payment to Stormy Daniels was one hundred and thirty thousand dollars.
• 8:35
  SPEAKER_00: But because the payment was disguised as as labor income for Michael Cohen, he ended up incurring taxes.
• 8:43
  SPEAKER_00: He had to borrow the money in order to pay it out and then receive the reimbursements back.
• 8:47
  SPEAKER_00: And so they basically paid Michael Cohen twice the total amount in order to cover those expenses.
• 8:52
  SPEAKER_00: And one of the arguments from Trump's side is basically that's really expensive.
• 8:55
  SPEAKER_00: Donald Trump is cheap.
• 8:56
  SPEAKER_00: Why would he do that?
• 8:57
  SPEAKER_01: Right.
• 8:58
  SPEAKER_01: And now he's being sort of hoist by that argument.
• 9:01
  SPEAKER_01: So the prosecution has done an effective job,
• 9:04
  SPEAKER_01: I think,
• 9:04
  SPEAKER_01: here putting on evidence of fundamentally boring stuff in an interesting way.
• 9:10
  SPEAKER_01: I mean,
• 9:10
  SPEAKER_01: all these business records things are can be deadly dull,
• 9:13
  SPEAKER_01: but they found a way to sort of mix up the witnesses and the order they put them on
• 9:18
  SPEAKER_01: and that sort of thing to build up this case about Donald Trump knowing.
• 9:22
  SPEAKER_01: And they've done that with things like, you know, notes from Allen Weisselberg.
• 9:27
  SPEAKER_01: documenting the gross up of that amount,
• 9:31
  SPEAKER_01: testimony about what Trump knew or didn't know,
• 9:34
  SPEAKER_01: even Michael Cohen's secretly recorded conversations with Donald Trump,
• 9:40
  SPEAKER_01: which were about a different person,
• 9:42
  SPEAKER_01: not Stormy Daniels.
• 9:43
  SPEAKER_01: They were about Karen McDougal, another person who was apparently bribed.
• 9:47
  SPEAKER_01: But it sort of corroborates the whole thing that he was out there knowingly having
• 9:51
  SPEAKER_01: people bribed in order to...
• 9:54
  SPEAKER_01: in order to keep this stuff quiet.
• 9:56
  SPEAKER_01: So it's been more substantive than a lot of people expected, I think.
• 10:01
  SPEAKER_01: And you had,
• 10:02
  SPEAKER_01: you know,
• 10:02
  SPEAKER_01: all the way up to,
• 10:03
  SPEAKER_01: you know,
• 10:03
  SPEAKER_01: Hope Hicks weeping on the stand about the relationship with the Trump family and
• 10:08
  SPEAKER_01: that type of thing.
• 10:09
  SPEAKER_01: But the prosecution has been doing a good job of establishing Trump did this and that he knew about it.
• 10:17
  SPEAKER_01: And the question will be,
• 10:18
  SPEAKER_01: I think we've said before,
• 10:20
  SPEAKER_01: whether or not they can convincingly turn it into a felony.
• 10:24
  SPEAKER_00: One other thing that they've been doing is taking excerpts from Trump's books.
• 10:28
  SPEAKER_00: And he talks about how he pays very close attention to all of the expenses that he makes.
• 10:33
  SPEAKER_00: And he has to sign his own checks because he wants to know where the money is going.
• 10:36
  SPEAKER_00: And they use this to argue that he must have known what was being done with his
• 10:40
  SPEAKER_00: money because he wrote it in the book.
• 10:43
  SPEAKER_00: And so then you had Trump's team come up and say something that is true,
• 10:47
  SPEAKER_00: but probably inconvenient for Trump as a PR matter,
• 10:50
  SPEAKER_00: which is basically these books are written by a ghostwriter.
• 10:53
  SPEAKER_00: And then the prosecution comes back up and has the acknowledgements from one of the
• 10:56
  SPEAKER_00: books thanking the ghostwriter and about how she took such great notes on what he
• 11:00
  SPEAKER_00: said to her.
• 11:02
  SPEAKER_00: And so the idea that if something is in a book under Trump's name,
• 11:06
  SPEAKER_00: he must know what was in the book and it must be true seems like a little bit of a
• 11:10
  SPEAKER_00: tall order to sell.
• 11:12
  SPEAKER_01: It does.
• 11:13
  SPEAKER_01: I don't think this is their strongest argument.
• 11:15
  SPEAKER_01: I think it would be a great argument for a person in the abstract that we didn't know.
• 11:19
  SPEAKER_01: But I don't think it's a good argument for anyone familiar with Trump.
• 11:22
  SPEAKER_01: I don't find it particularly plausible that Trump has read his books all the way through,
• 11:27
  SPEAKER_01: let alone that he routinely reads documents.
• 11:30
  SPEAKER_01: I think everything,
• 11:32
  SPEAKER_01: certainly all the testimony and everything we've heard about the way he governed and,
• 11:36
  SPEAKER_01: you know,
• 11:37
  SPEAKER_01: did very minimal review of documents and things like that.
• 11:40
  SPEAKER_01: So I see why they're doing it.
• 11:42
  SPEAKER_01: It's not that it hurts Trump.
• 11:44
  SPEAKER_00: But I don't think it's terribly persuasive.
• 11:46
  SPEAKER_00: And Donald Trump has also been held in contempt again by Judge Marchand,
• 11:49
  SPEAKER_00: who's saying,
• 11:50
  SPEAKER_00: you know,
• 11:50
  SPEAKER_00: that I'm very serious.
• 11:52
  SPEAKER_00: I may jail you, but hasn't put him in jail yet.
• 11:54
  SPEAKER_01: Right now.
• 11:55
  SPEAKER_01: So the prosecution,
• 11:56
  SPEAKER_01: you might remember,
• 11:57
  SPEAKER_01: had done a series of motions for contempt based on a series of different statements
• 12:03
  SPEAKER_01: on truth social.
• 12:04
  SPEAKER_01: And this time there were two about Michael Cohen.
• 12:07
  SPEAKER_01: There was one about David Pecker.
• 12:10
  SPEAKER_01: saying he was a nice guy, but the government was arguing in a menacing way.
• 12:14
  SPEAKER_01: And one about the jurors complaining that, you know, 95% Democrats or something like that.
• 12:19
  SPEAKER_01: And Judge Merchant,
• 12:21
  SPEAKER_01: to his credit,
• 12:22
  SPEAKER_01: did a very careful analysis,
• 12:23
  SPEAKER_01: said that he couldn't find beyond a reasonable doubt
• 12:25
  SPEAKER_01: that the ones about Cohen weren't just hitting back against Cohen hitting him.
• 12:29
  SPEAKER_01: And so he wasn't going to find this contempt,
• 12:31
  SPEAKER_01: that the one about David Pecker was equivocal,
• 12:33
  SPEAKER_01: but that the one about the jurors basically attacking them for being allegedly
• 12:38
  SPEAKER_01: Democrats was a violation.
• 12:41
  SPEAKER_01: Now,
• 12:41
  SPEAKER_01: the judge pointed out that this happened before his last contempt ruling,
• 12:48
  SPEAKER_01: before he last uprated Trump.
• 12:51
  SPEAKER_01: So it was not reasonable to expect him to escalate now.
• 12:54
  SPEAKER_01: But he made it pretty clear,
• 12:55
  SPEAKER_01: you know,
• 12:56
  SPEAKER_01: I don't think these fines are going to be effective and incarceration is coming.
• 13:01
  SPEAKER_01: And if you continue to do this.
• 13:04
  SPEAKER_01: So it was a unusually abrupt statement that he's going to escalate.
• 13:11
  SPEAKER_01: Now,
• 13:11
  SPEAKER_01: Josh,
• 13:12
  SPEAKER_01: there's a huge amount of hand-wringing and upsetness out there about why do you
• 13:17
  SPEAKER_01: keep letting him get away with it?
• 13:21
  SPEAKER_01: Why doesn't the judge jail him now?
• 13:22
  SPEAKER_01: Everyone is super thirsty for Trump to get walked out in handcuffs in this.
• 13:27
  SPEAKER_01: And the truth is, judges typically want to do that only as a last resort.
• 13:32
  SPEAKER_01: It is incredibly disruptive to the case.
• 13:35
  SPEAKER_01: It creates all sorts of collateral issues in terms of,
• 13:38
  SPEAKER_01: you know,
• 13:39
  SPEAKER_01: not having it happen in front of the jury and not having handcuffs in front of the jury.
• 13:44
  SPEAKER_01: It slows everything down.
• 13:46
  SPEAKER_01: And generally, judges just don't like to do it.
• 13:48
  SPEAKER_01: They do want to make it a last resort.
• 13:50
  SPEAKER_01: So I really don't think that the criticism of Judge Marchand that he's going to
• 13:55
  SPEAKER_01: slowly on this is good criticism.
• 13:57
  SPEAKER_00: I mean,
• 13:58
  SPEAKER_00: one other thing that I think would happen if you put Trump in jail is jurors are
• 14:02
  SPEAKER_00: always told not to read news about the case,
• 14:04
  SPEAKER_00: not to follow it.
• 14:05
  SPEAKER_00: Right.
• 14:05
  SPEAKER_00: But that would be unavoidable.
• 14:07
  SPEAKER_00: I mean,
• 14:07
  SPEAKER_00: you'd walk to the courthouse and it would be the cover of The New York Post and The
• 14:11
  SPEAKER_00: Daily News on the newsstands.
• 14:13
  SPEAKER_00: You would hear it, you know, on the radio.
• 14:15
  SPEAKER_00: It would be it would be inevitable that the jury would see that this had happened.
• 14:19
  SPEAKER_00: Well, exactly.
• 14:20
  SPEAKER_01: And one of the things I think that's going on with people's frustration is that
• 14:23
  SPEAKER_01: people watching this case are bringing into their analysis of it everything Trump's
• 14:28
  SPEAKER_01: ever done.
• 14:29
  SPEAKER_01: His entire history and the very strong kind of right sense that he constantly skates on things.
• 14:36
  SPEAKER_01: You know, he's
• 14:37
  SPEAKER_01: Teflon Don.
• 14:39
  SPEAKER_01: But that's not what Judge Mershon can rely on.
• 14:41
  SPEAKER_01: He can't rely on the sort of holistic sense of the life and career of Donald Trump.
• 14:46
  SPEAKER_01: He's got a focus in making this ruling on what Trump has specifically done in his
• 14:50
  SPEAKER_01: court before him while under his authority.
• 14:53
  SPEAKER_01: And that's a very different matter.
• 14:54
  SPEAKER_01: So it does not surprise me.
• 14:57
  SPEAKER_01: It does not convey weakness to me that he's moving methodically on this.
• 15:02
  SPEAKER_00: Mayor Eric Adams was asked at a press conference about,
• 15:05
  SPEAKER_00: you know,
• 15:05
  SPEAKER_00: are you ready for the former president to be taken to Rikers?
• 15:07
  SPEAKER_00: And he said,
• 15:08
  SPEAKER_00: yes,
• 15:08
  SPEAKER_00: that they have plans in place that they,
• 15:10
  SPEAKER_00: you know,
• 15:10
  SPEAKER_00: that they're ready in case they have to do this odd thing.
• 15:13
  SPEAKER_00: I assume,
• 15:13
  SPEAKER_00: I mean,
• 15:14
  SPEAKER_00: we talked about,
• 15:15
  SPEAKER_00: you know,
• 15:15
  SPEAKER_00: they could jail him very briefly if they did it as a first matter.
• 15:18
  SPEAKER_00: I assume that initially,
• 15:19
  SPEAKER_00: if it was something for a matter of hours,
• 15:21
  SPEAKER_00: they would do that at the courthouse rather than actually sending him to Rikers.
• 15:23
  SPEAKER_00: Yeah.
• 15:24
  SPEAKER_01: yes so generally there is a lockup at a courthouse multiple lockups where people
• 15:29
  SPEAKER_01: can be held while they're waiting to go into court or coming out of court and so
• 15:34
  SPEAKER_01: most people who get held for contempt wind up held there for a brief period of time
• 15:39
  SPEAKER_01: uh you know whether it's a lawyer who needs to cool off for a bit or a litigant or
• 15:44
  SPEAKER_01: something like that so that's what i expect would likely happen that the first time
• 15:49
  SPEAKER_01: it happened
• 15:50
  SPEAKER_01: it would be a brief period of time just to sort of get his attention.
• 15:55
  SPEAKER_00: It's funny,
• 15:56
  SPEAKER_00: when you go to LaGuardia Airport,
• 15:58
  SPEAKER_00: you often see Donald Trump's plane sitting there and it parks right at the end of
• 16:01
  SPEAKER_00: the airport that's close to Rikers.
• 16:03
  SPEAKER_00: Yes.
• 16:03
  SPEAKER_00: And so presumably,
• 16:04
  SPEAKER_00: if you're in exactly the right place at Rikers,
• 16:06
  SPEAKER_00: you may be able to see Trump Force One out through jail bars,
• 16:11
  SPEAKER_00: out just half a mile away or a mile away,
• 16:14
  SPEAKER_00: whatever it is.
• 16:15
  SPEAKER_00: We really do have the worst writers.
• 16:24
  SPEAKER_00: Let's talk a little bit about Georgia.
• 16:27
  SPEAKER_00: So in that case, of course, we had this whole soap opera thing with with Fannie Willis and Nathan Wade.
• 16:33
  SPEAKER_00: And Judge McAfee ruled that Fannie Willis was not disqualified from prosecuting
• 16:37
  SPEAKER_00: that case,
• 16:37
  SPEAKER_00: but that she had to remove her former lover from the prosecution of it,
• 16:42
  SPEAKER_00: which she did.
• 16:44
  SPEAKER_00: And Trump and some other defendants appealed.
• 16:46
  SPEAKER_00: And the Court of Appeals in Georgia has taken this case.
• 16:50
  SPEAKER_00: And so there's first of all,
• 16:51
  SPEAKER_00: they're going to reopen the question of whether Fannie Willis needs to be disqualified.
• 16:54
  SPEAKER_00: And then also this causes some delays.
• 16:56
  SPEAKER_00: Sure.
• 16:56
  SPEAKER_01: So what happened here is Judge McAfee allowed them to seek an interlocutory appeal.
• 17:03
  SPEAKER_01: Normally, things are only appealable at the end of a case with certain exceptions.
• 17:08
  SPEAKER_01: Here, they asked to appeal this issue.
• 17:10
  SPEAKER_01: The Court of Appeal has now agreed to take up this issue.
• 17:14
  SPEAKER_01: And so the Court of Appeal will look at the record and see if they disagree with Judge McAfee.
• 17:19
  SPEAKER_01: He was pretty careful and he came up with a sort of a middle ground type approach to it.
• 17:23
  SPEAKER_01: So I think it's unlikely they'll overturn it,
• 17:26
  SPEAKER_01: but it will question whether it really delays the case or not.
• 17:30
  SPEAKER_01: So it can't go to trial while this is going on, but the pretrial stuff keeps going.
• 17:35
  SPEAKER_01: And it wasn't going to go to trial anytime soon anyway, as we've been saying from the start.
• 17:39
  SPEAKER_01: This is not a case calculated to go to trial.
• 17:42
  SPEAKER_01: It is a case calculated to drag out forever.
• 17:46
  SPEAKER_01: So,
• 17:47
  SPEAKER_01: you know,
• 17:48
  SPEAKER_01: everyone is wailing and gnashing their teeth that now this is another case pushed
• 17:52
  SPEAKER_01: beyond the election.
• 17:53
  SPEAKER_01: There's no chance this case was going to certainly conclude before the election and
• 17:58
  SPEAKER_01: almost certainly not even start before the election.
• 18:00
  SPEAKER_00: How long do you think it's going to take for them to decide that interlocutory?
• 18:03
  SPEAKER_00: I mean, you know, they could do it quickly.
• 18:05
  SPEAKER_01: They could do it slow anywhere from, you know, three months to a year.
• 18:08
  SPEAKER_00: OK.
• 18:09
  SPEAKER_00: And the long timeline here is long, right?
• 18:11
  SPEAKER_00: It was already going to be a year before they went to trial anyway.
• 18:13
  SPEAKER_01: Yeah.
• 18:13
  SPEAKER_01: I mean,
• 18:14
  SPEAKER_01: consider that in recent RICO cases with multi-defense like these ones,
• 18:18
  SPEAKER_01: you know,
• 18:18
  SPEAKER_01: jury selection has taken a year.
• 18:19
  SPEAKER_01: Right.
• 18:21
  SPEAKER_01: So there's no plausible way this case was going to be over.
• 18:24
  SPEAKER_01: Meanwhile, Mr. Wade, the person who had a relationship with Fannie Willis.
• 18:31
  SPEAKER_00: The very special counsel.
• 18:32
  SPEAKER_01: Yeah.
• 18:32
  SPEAKER_01: I really wish you wouldn't use the term lover.
• 18:34
  SPEAKER_01: That's just harshing my morning.
• 18:35
  SPEAKER_00: My lover.
• 18:36
  SPEAKER_01: My lover.
• 18:37
  SPEAKER_01: Anyway,
• 18:39
  SPEAKER_01: he has made his first press statements and said something to the effect of like
• 18:44
  SPEAKER_01: workplace relationships or something.
• 18:46
  SPEAKER_01: American as apple pie,
• 18:48
  SPEAKER_01: which,
• 18:49
  SPEAKER_01: you know,
• 18:51
  SPEAKER_01: employment lawyers across the country heard that and immediately started pricing
• 18:56
  SPEAKER_01: beach houses.
• 18:58
  SPEAKER_01: So, yeah, it goes on sort of this constant parade of bad judgment.
• 19:05
  SPEAKER_00: And then down in Florida,
• 19:06
  SPEAKER_00: Eileen Cannon has canceled the trial date that was scheduled in the document case.
• 19:10
  SPEAKER_00: I mean, it was the trial date was supposed to be this month, which obviously was not going to happen.
• 19:14
  SPEAKER_00: But she hasn't set a new date.
• 19:16
  SPEAKER_00: She has not.
• 19:18
  SPEAKER_01: There are a bunch of pending motions,
• 19:20
  SPEAKER_01: everything from Trump's motion to get discovery from the Biden administration to
• 19:26
  SPEAKER_01: try to show selective prosecution to motions concerning the complicated matters of
• 19:32
  SPEAKER_01: how classified information is going to be handled,
• 19:35
  SPEAKER_01: what the defense can look at,
• 19:37
  SPEAKER_01: what's going to be admitted to evidence.
• 19:38
  SPEAKER_01: And she said, we just have this huge group of motions.
• 19:40
  SPEAKER_01: I'm going to take the trial date off calendar until we resolve these.
• 19:44
  SPEAKER_01: I'm setting hearings for some of them this summer.
• 19:46
  SPEAKER_01: Again, this is not a surprise.
• 19:48
  SPEAKER_01: There was no plausible way this trial was going to go in May.
• 19:51
  SPEAKER_01: I don't think there was ever any plausible way it was going to go before the election.
• 19:56
  SPEAKER_01: And this type of delay is not surprising.
• 19:59
  SPEAKER_01: Of course, people are absolutely freaking the fuck out.
• 20:03
  SPEAKER_01: I saw people calling for her to be arrested immediately and similarly levels of seriousness.
• 20:09
  SPEAKER_01: So I'm
• 20:10
  SPEAKER_01: I think that you can criticize the way she's handled it overall,
• 20:14
  SPEAKER_01: but I think the criticism here would be that she didn't come up with a schedule
• 20:19
  SPEAKER_01: earlier that moved things forward faster.
• 20:21
  SPEAKER_01: Not that she makes this decision now.
• 20:23
  SPEAKER_01: It's really the only decision to make.
• 20:25
  SPEAKER_00: It's clearly the case that she's biased toward Trump.
• 20:28
  SPEAKER_00: One thing that I was wondering is,
• 20:29
  SPEAKER_00: you know,
• 20:29
  SPEAKER_00: even if you had an unbiased judge in this case,
• 20:31
  SPEAKER_00: was there a plausible way for the trial to happen before the election?
• 20:34
  SPEAKER_00: Because these issues with the classified evidence where you have to figure out what
• 20:38
  SPEAKER_00: the defense can even see,
• 20:39
  SPEAKER_00: let alone what the jury can see.
• 20:42
  SPEAKER_00: Those things always take forever to work out in a case where classified evidence is
• 20:46
  SPEAKER_00: at the core of it,
• 20:47
  SPEAKER_00: right?
• 20:48
  SPEAKER_00: They do.
• 20:48
  SPEAKER_01: It's all very complicated.
• 20:50
  SPEAKER_01: This has a lot of complicated moving parts.
• 20:53
  SPEAKER_01: And I think to the extent that she had really cracked the whip—
• 20:59
  SPEAKER_01: and really made things go forward fast, that would simply make it more vulnerable to appellate review.
• 21:05
  SPEAKER_01: I think an 11th Circuit that saw a judge moving this forward faster than a case of
• 21:11
  SPEAKER_01: this nature would normally go would be more inclined to intervene.
• 21:15
  SPEAKER_01: So, you know, the thing is, white collar cases take a long time.
• 21:20
  SPEAKER_01: They routinely do.
• 21:21
  SPEAKER_01: And especially ones with these classified documents issues are some of the slowest
• 21:27
  SPEAKER_01: proceedings with some of the most moving parts of any type of case.
• 21:30
  SPEAKER_01: So it's really not surprising.
• 21:33
  SPEAKER_01: With respect to both this and the delays in D.C.
• 21:39
  SPEAKER_01: and the delays in New York and all this stuff,
• 21:42
  SPEAKER_01: one thing you see is people being outraged and saying there's something
• 21:45
  SPEAKER_01: fundamentally wrong with the system because he can delay it so long.
• 21:49
  SPEAKER_01: But let me point out,
• 21:51
  SPEAKER_01: this is only really an issue because we're afraid he's going to get elected as
• 21:56
  SPEAKER_01: president again and pardon himself.
• 21:58
  SPEAKER_01: So it's kind of weird to use that extreme outlier to criticize a system that takes
• 22:05
  SPEAKER_01: its time,
• 22:06
  SPEAKER_01: allows appeals,
• 22:07
  SPEAKER_01: allows due process.
• 22:08
  SPEAKER_01: But unfortunately, that's the way the system often works.
• 22:10
  SPEAKER_01: We take these outlier cases and you use it to attack people.
• 22:14
  SPEAKER_01: fundamental elements of the system, whether you use, you know, O.J.
• 22:19
  SPEAKER_01: Simpson to attack the concept of a jury trial or use this to attack the concept of
• 22:24
  SPEAKER_01: appeals of appellate courts carefully considering issues.
• 22:28
  SPEAKER_01: The people,
• 22:29
  SPEAKER_01: when we reconsider whether we want to afford these procedural protections,
• 22:33
  SPEAKER_01: the people get screwed are not people like Donald Trump.
• 22:35
  SPEAKER_00: But isn't he getting more delays than certain ordinary defendants would?
• 22:39
  SPEAKER_00: I mean,
• 22:40
  SPEAKER_00: sometimes it's because he inherently raises legal issues that would not come up in
• 22:44
  SPEAKER_00: a normal case,
• 22:45
  SPEAKER_00: like the question of the scope of the immunity of a president of the United States.
• 22:48
  SPEAKER_00: But it also seems like the courts feel compelled to be more careful and pay more
• 22:53
  SPEAKER_00: attention to these cases at the appellate level because of who the defendant is.
• 22:56
  SPEAKER_00: So he is in a way he's he's getting a different experience than an ordinary
• 23:00
  SPEAKER_00: defendant would even an ordinary defendant who had lots of money and lots of high
• 23:04
  SPEAKER_00: priced lawyers.
• 23:05
  SPEAKER_01: You're right.
• 23:05
  SPEAKER_01: The first level of difference is the money.
• 23:07
  SPEAKER_01: And you can't overemphasize the way that allows you to take advantage of procedural
• 23:11
  SPEAKER_01: opportunities that most people can't afford to do.
• 23:14
  SPEAKER_01: And most people just don't have – I mean an ordinary person with four public
• 23:20
  SPEAKER_01: defenders and four jurisdictions is just going to be overwhelmed by this situation.
• 23:25
  SPEAKER_01: The public defender is going to be overwhelmed.
• 23:26
  SPEAKER_01: He's got unlimited resources where he can hire these attorneys to constantly be
• 23:30
  SPEAKER_01: doing these very aggressive things.
• 23:31
  SPEAKER_01: That makes a huge difference.
• 23:33
  SPEAKER_01: But you're right.
• 23:33
  SPEAKER_01: I mean,
• 23:34
  SPEAKER_01: the fact that he was the president,
• 23:35
  SPEAKER_01: that there are constantly privilege issues and things like that in these cases does
• 23:40
  SPEAKER_01: slow it down.
• 23:41
  SPEAKER_01: And not all the issues he raises are frivolous.
• 23:45
  SPEAKER_01: So there are sometimes genuine questions.
• 23:50
  SPEAKER_00: We have a new character this week.
• 23:52
  SPEAKER_01: Oh, joy.
• 23:52
  SPEAKER_00: Yeah.
• 23:53
  SPEAKER_00: Congressman Henry Cuellar,
• 23:55
  SPEAKER_00: who is a conservative Democrat,
• 23:57
  SPEAKER_00: represents a district in South Texas running up to the San Antonio area,
• 24:01
  SPEAKER_00: longtime member of Congress,
• 24:04
  SPEAKER_00: almost 20 years in Congress,
• 24:06
  SPEAKER_00: and now joining the indicted members of Congress Club.
• 24:09
  SPEAKER_00: Henry Cuellar has been indicted for bribery and Foreign Agent Registration Act
• 24:14
  SPEAKER_00: violations and honest services,
• 24:17
  SPEAKER_00: wire fraud,
• 24:18
  SPEAKER_00: money laundering,
• 24:19
  SPEAKER_00: along with his wife.
• 24:20
  SPEAKER_00: This is a theme we saw in the Bob Menendez case.
• 24:23
  SPEAKER_00: And now here we see that Henry Cuellar and his wife Imelda have been indicted for a
• 24:28
  SPEAKER_00: scheme to receive bribes from an Azerbaijani oil company and from a Mexican bank.
• 24:33
  SPEAKER_00: And the allegation is that basically these foreign interests
• 24:37
  SPEAKER_00: had things they wanted the Congress to do.
• 24:39
  SPEAKER_00: Henry Cuellar agreed to advance their interests in legislation in the Congress.
• 24:43
  SPEAKER_00: In exchange,
• 24:44
  SPEAKER_00: they hired his wife with sham consulting contracts,
• 24:47
  SPEAKER_00: paying hundreds of thousands of dollars for the benefit of the Cuellars.
• 24:51
  SPEAKER_00: And so,
• 24:51
  SPEAKER_00: first of all,
• 24:51
  SPEAKER_00: one thing that strikes me about this is it looks like they were trying to be
• 24:55
  SPEAKER_00: careful in a way that Bob Menendez didn't try to be careful.
• 24:58
  SPEAKER_00: They didn't receive payment in gold bars.
• 25:01
  SPEAKER_00: And so they tried to make it look like it was some sort of business arrangement.
• 25:04
  SPEAKER_00: And even Henry Quire's one aspect of his statements defending himself is basically, how dare you?
• 25:09
  SPEAKER_00: My wife is a very accomplished woman.
• 25:10
  SPEAKER_00: Her consulting services are valuable because the government keeps saying that she
• 25:14
  SPEAKER_00: didn't provide any real services.
• 25:15
  SPEAKER_00: That's how you know this is a bribe.
• 25:17
  SPEAKER_00: So it looks like they tried to paper the file in a way that they'd be able to say
• 25:22
  SPEAKER_00: this was a legitimate business.
• 25:23
  SPEAKER_00: Right.
• 25:24
  SPEAKER_01: Kind of.
• 25:25
  SPEAKER_01: I mean,
• 25:27
  SPEAKER_01: so there are ways that getting paid with a gold bar is safer than getting paid
• 25:33
  SPEAKER_01: through your wife's shell company,
• 25:35
  SPEAKER_01: okay?
• 25:35
  SPEAKER_01: Because they leave different types of trails.
• 25:37
  SPEAKER_01: Right.
• 25:38
  SPEAKER_01: So the type of trail that the shell company leaves is one that plays into the
• 25:44
  SPEAKER_01: particular competitive advantages of federal investigators and federal prosecutors.
• 25:49
  SPEAKER_01: They're good at rooting that stuff out.
• 25:51
  SPEAKER_01: Mm-hmm.
• 25:52
  SPEAKER_01: You know,
• 25:52
  SPEAKER_01: if someone has gold bars in the closet,
• 25:54
  SPEAKER_01: you need some sort of insider or some other way to to find that out and go after it.
• 25:59
  SPEAKER_00: So, well, actually, I mean, remember, in the Menendez case was the gold bars had serial numbers.
• 26:03
  SPEAKER_00: And at one point, the guy who paid the bribe had reported the gold bar stolen.
• 26:08
  SPEAKER_00: So they were able to show that it was there actually was a paper trail on the gold
• 26:12
  SPEAKER_00: bars in a way that was unusual.
• 26:13
  SPEAKER_01: Yeah.
• 26:13
  SPEAKER_01: I mean, ideally, you don't make bribes with gold bars that you've registered with the FBI.
• 26:18
  SPEAKER_00: That's true.
• 26:19
  SPEAKER_01: I guess what I'm saying is there's really no completely safe way to engage in a
• 26:23
  SPEAKER_01: large scale bribery scheme.
• 26:26
  SPEAKER_01: Word to the wise out there.
• 26:28
  SPEAKER_01: Yeah.
• 26:29
  SPEAKER_01: And this one,
• 26:30
  SPEAKER_01: yes,
• 26:30
  SPEAKER_01: the excuses or justifications coming from Congressman Cuellar are not terribly persuasive.
• 26:37
  SPEAKER_01: Josh,
• 26:37
  SPEAKER_01: you mentioned earlier that one of his complaints was that they offered to meet with
• 26:41
  SPEAKER_01: the federal prosecutors and they declined.
• 26:44
  SPEAKER_01: They don't have to meet with you.
• 26:45
  SPEAKER_01: And usually when they do that,
• 26:48
  SPEAKER_01: it's because everything's about to be wrapped up and they don't want you to delay it.
• 26:51
  SPEAKER_00: But yeah,
• 26:51
  SPEAKER_00: I thought they always want to talk to you because you might incriminate yourself if
• 26:54
  SPEAKER_00: you talk to them.
• 26:55
  SPEAKER_00: We're always talking about don't talk to the federal prosecutors.
• 26:57
  SPEAKER_00: And here Cuellar is saying, I offered to meet with federal prosecutors and they wouldn't even talk to me.
• 27:01
  SPEAKER_01: Well, yes.
• 27:01
  SPEAKER_01: So the norm would be to bring you in and let you hang yourself.
• 27:05
  SPEAKER_01: But if they are close enough that they don't want to slow it down,
• 27:08
  SPEAKER_01: they're moving parts,
• 27:09
  SPEAKER_01: then they might decline.
• 27:10
  SPEAKER_01: And probably the offer wasn't that Congressman Cuellar was going to march in
• 27:15
  SPEAKER_01: himself immediately and give a statement.
• 27:18
  SPEAKER_01: It was the lawyers were going to come in first and they were going to negotiate the
• 27:21
  SPEAKER_01: terms and blah,
• 27:22
  SPEAKER_01: blah,
• 27:22
  SPEAKER_01: blah.
• 27:23
  SPEAKER_01: Josh, yeah, I mean, this is an interesting indictment.
• 27:27
  SPEAKER_01: There's a lot of gory details in there.
• 27:29
  SPEAKER_01: This goes into the Department of Justice's recent trend towards speaking
• 27:34
  SPEAKER_01: indictments that we've talked about,
• 27:35
  SPEAKER_01: indictments with a lot of factual detail,
• 27:37
  SPEAKER_01: really telling the story in great detail.
• 27:41
  SPEAKER_01: You know, one of my reactions was, you know, I love this as as.
• 27:45
  SPEAKER_01: As a modern American,
• 27:47
  SPEAKER_01: as a parent of Asian American children,
• 27:49
  SPEAKER_01: I love that America is a place where Azerbaijani oil companies and Mexican bankers
• 27:54
  SPEAKER_01: can all get together in this great melting pot to bribe our congressmen.
• 27:59
  SPEAKER_00: So God bless America.
• 28:01
  SPEAKER_00: And so the one thing that was interesting to me reading the indictment is and I'm
• 28:05
  SPEAKER_00: interested in how you present this case to a jury is that,
• 28:08
  SPEAKER_00: you know,
• 28:08
  SPEAKER_00: there's there's no text that basically says here we're going to receive this bribe
• 28:12
  SPEAKER_00: and then I'm going to go,
• 28:13
  SPEAKER_00: you know,
• 28:13
  SPEAKER_00: the exchange for the bribe,
• 28:15
  SPEAKER_00: insert this language in a bill.
• 28:17
  SPEAKER_00: One of the things they keep talking about is how they they arrange the meetings and the payments.
• 28:21
  SPEAKER_00: And it's like no one ever discussed any work that Imelda Cuellar was actually going
• 28:24
  SPEAKER_00: to perform in exchange for this.
• 28:26
  SPEAKER_00: And so you basically have to show the jury,
• 28:27
  SPEAKER_00: like,
• 28:27
  SPEAKER_00: you know,
• 28:28
  SPEAKER_00: here are the payments and here are the legislative actions and acquires
• 28:31
  SPEAKER_00: conversations with the foreign parties about the legislative actions.
• 28:35
  SPEAKER_00: And here's the lack of evidence of any bona fide work being performed here.
• 28:39
  SPEAKER_00: And that's you use that to build the narrative that there was a quid pro quo.
• 28:43
  SPEAKER_01: Yes, although don't presume that the indictment has all the juicy stuff.
• 28:47
  SPEAKER_01: So that may be all they have yet.
• 28:49
  SPEAKER_01: But at this stage, they're still shaking the bars and see who's going to come out.
• 28:54
  SPEAKER_01: They may have incriminating emails or texts.
• 28:57
  SPEAKER_01: They may have witnesses who are cooperating.
• 28:59
  SPEAKER_01: You just don't know.
• 29:00
  SPEAKER_01: But just all of that is a fairly strong case.
• 29:04
  SPEAKER_01: So they'll be happy even if that's all they have.
• 29:07
  SPEAKER_00: Another interesting thing in there is that they ended up deciding at some point
• 29:11
  SPEAKER_00: that the money trail was not disguised enough and they needed more layers of shell
• 29:14
  SPEAKER_00: for it to go through.
• 29:15
  SPEAKER_00: And so they start having payments go through someone who had been Cuellar's campaign manager.
• 29:18
  SPEAKER_00: And according to the indictment, they lied to the campaign manager about what the payments were for.
• 29:23
  SPEAKER_00: in a way that concealed from him that he was participating in a money laundering scheme.
• 29:27
  SPEAKER_00: And so that sort of seems like a way to create someone who's likely to be mad at
• 29:31
  SPEAKER_00: you and want to testify against you.
• 29:32
  SPEAKER_01: Well, exactly.
• 29:33
  SPEAKER_01: And that's like the German saying, too clever is dumb.
• 29:36
  SPEAKER_01: So that's exactly the sort of,
• 29:39
  SPEAKER_01: you think you're being smart,
• 29:40
  SPEAKER_01: but you're adding on this level of complexity that just looks incriminating when it
• 29:44
  SPEAKER_01: comes to light,
• 29:44
  SPEAKER_01: because you wouldn't do that unless you had some reason to try to hide this.
• 29:48
  SPEAKER_00: And so it winds up hanging you.
• 29:50
  SPEAKER_00: And so Cuellar, as we know, has has denied the charges such as that denial is right.
• 29:56
  SPEAKER_00: And he's in theory still seeking reelection,
• 29:58
  SPEAKER_00: even though a number of his staffers have resigned in the wake of this indictment
• 30:02
  SPEAKER_00: coming out.
• 30:03
  SPEAKER_00: But so I assume if you're in his position, you're trying to figure out what kind of deal you can get.
• 30:09
  SPEAKER_01: Well, it depends on which way he's going to play it.
• 30:10
  SPEAKER_01: He can play the damn the torpedoes.
• 30:12
  SPEAKER_01: You know, I'm taking this to trial.
• 30:15
  SPEAKER_01: And so far, that's his messaging.
• 30:18
  SPEAKER_01: But as we've said before, if you're a sitting member of Congress, that's a big bargaining chip.
• 30:24
  SPEAKER_01: And that's worth a few years of your life, most likely, in terms of sentencing.
• 30:29
  SPEAKER_01: So he may decide that's worth it, particularly when his wife is also indicted.
• 30:35
  SPEAKER_01: And, you know, this threatens her life.
• 30:38
  SPEAKER_01: Flourishing consulting business.
• 30:41
  SPEAKER_01: So, yeah.
• 30:42
  SPEAKER_01: You know, this is more in your wheelhouse than mine, Josh.
• 30:44
  SPEAKER_01: But my understanding is that there was a federal search of him some time ago.
• 30:50
  SPEAKER_01: And that despite that and it being known that he was being investigated,
• 30:55
  SPEAKER_01: that the Democratic leadership prevented a primary challenger.
• 31:01
  SPEAKER_00: Well, I mean, there was a primary challenger in that cycle.
• 31:03
  SPEAKER_00: I mean, they back incumbents almost always.
• 31:07
  SPEAKER_00: And he hadn't been indicted.
• 31:08
  SPEAKER_00: And his claim at the time was that he was not a target of the investigation,
• 31:11
  SPEAKER_00: that it was an investigation to someone around him.
• 31:14
  SPEAKER_00: And, you know, it was two years on from that that he actually got indicted.
• 31:18
  SPEAKER_00: And so I think for a while people thought that might even have been true.
• 31:21
  SPEAKER_00: But obviously, here is the indictment.
• 31:23
  SPEAKER_00: But he had a primary challenge, which he narrowly won.
• 31:25
  SPEAKER_00: It's this, I mean, not to get too deep into it.
• 31:28
  SPEAKER_00: Half the district is deep in South Texas and is pretty culturally conservative.
• 31:31
  SPEAKER_00: Cuellar is the most conservative Democrat in the House.
• 31:34
  SPEAKER_00: The other half of the district is in the San Antonio area and is more progressive.
• 31:38
  SPEAKER_00: And so there was that political valence to the fight.
• 31:40
  SPEAKER_00: But it's,
• 31:41
  SPEAKER_00: you know,
• 31:41
  SPEAKER_00: if you had a more progressive Democrat in the district,
• 31:43
  SPEAKER_00: the Republicans might actually win it.
• 31:45
  SPEAKER_00: It's that kind of close district.
• 31:46
  SPEAKER_00: So-
• 31:47
  SPEAKER_01: Well, you know what they say, you know, a progressive is a conservative who's been indicted.
• 31:50
  SPEAKER_01: So maybe Cuellar is going to swing more to the left now.
• 31:54
  SPEAKER_00: Finally, we have a listener question this week, and the question is about Drake.
• 31:58
  SPEAKER_00: Is this an area of your expertise, Ken?
• 32:00
  SPEAKER_00: Are you into rap?
• 32:02
  SPEAKER_01: It would not shock you to know this is not an area of primary expertise, Josh.
• 32:06
  SPEAKER_00: So listeners may be aware there's currently a beef between Drake and Kendrick Lamar,
• 32:11
  SPEAKER_00: And this question actually appeared in the comments section at SeriousTrouble.show.
• 32:15
  SPEAKER_00: By the way, you know, one way that people can reach us is by email.
• 32:18
  SPEAKER_00: Ken, what's the email address that people can contact us?
• 32:20
  SPEAKER_01: The email address is RicoHotline at SeriousTrouble.show.
• 32:25
  SPEAKER_00: That's right.
• 32:26
  SPEAKER_00: But also for paying subscribers to the show,
• 32:28
  SPEAKER_00: we have a very lively comments section where people discuss the show and they ask
• 32:32
  SPEAKER_00: questions and sometimes we even pull questions out of that.
• 32:34
  SPEAKER_00: And so this is a question that showed up in the comments section from Toastmaker Tyson.
• 32:38
  SPEAKER_00: And he says, can we get thoughts on the Drake Kendrick Lamar situation?
• 32:42
  SPEAKER_00: Kendrick is alleging super serious stuff like Diddy level stuff.
• 32:45
  SPEAKER_00: I assume if Kendrick's allegations aren't substantially true or rather true enough
• 32:49
  SPEAKER_00: under New York Times v.
• 32:50
  SPEAKER_00: Sullivan,
• 32:51
  SPEAKER_00: then he's probably looking at a serious defamation case.
• 32:54
  SPEAKER_00: And so specifically, you know, Diddy obviously has this indictment for sex trafficking.
• 33:00
  SPEAKER_00: And then what Toastmaker Tyson is referring to there,
• 33:03
  SPEAKER_00: the allegation from Kendrick Lamar in one of these diss tracks that they've been
• 33:06
  SPEAKER_00: passing back and forth.
• 33:08
  SPEAKER_00: He says that Drake is a certified pedophile.
• 33:11
  SPEAKER_00: And he also says that Drake is trying to strike a chord and it's probably a minor.
• 33:15
  SPEAKER_00: That's an oldie but a goodie, Josh.
• 33:16
  SPEAKER_00: Yeah.
• 33:18
  SPEAKER_00: And so, I mean, presuming that Drake is not, in fact, a pedophile, has Kendrick Lamar defamed Drake?
• 33:25
  SPEAKER_00: Probably not, because this is a diss track.
• 33:28
  SPEAKER_01: OK, so this is the modern audio equivalent of playing the dozens with someone.
• 33:34
  SPEAKER_01: And it's so whenever you determine defamation,
• 33:38
  SPEAKER_01: remember,
• 33:38
  SPEAKER_01: the first thing you ask is,
• 33:39
  SPEAKER_01: is this a provably false statement of fact or is it opinion,
• 33:44
  SPEAKER_01: hyperbole,
• 33:44
  SPEAKER_01: insult,
• 33:45
  SPEAKER_01: rhetoric,
• 33:45
  SPEAKER_01: et cetera?
• 33:46
  SPEAKER_01: The whole point of a diss track is that the whole audience understands that it's a
• 33:51
  SPEAKER_01: performative exchange of exaggerated insults.
• 33:54
  SPEAKER_01: And the reasonable audience would probably not take it all literally.
• 34:04
  SPEAKER_01: So they understand that I'm not being literal and so forth.
• 34:11
  SPEAKER_01: So just as if someone were playing the dozens live or engaging in a rap battle live
• 34:16
  SPEAKER_01: with exaggerated insults,
• 34:17
  SPEAKER_01: the audience is reasonably going to understand most likely.
• 34:22
  SPEAKER_01: that these are not meant to be taken literally.
• 34:24
  SPEAKER_01: And the way they respond to each other tends to emphasize that.
• 34:28
  SPEAKER_01: So if someone puts something in the paper saying you're a pedophile,
• 34:32
  SPEAKER_01: you're going to respond with legal threats.
• 34:34
  SPEAKER_01: But if you respond with return insults and jokes,
• 34:37
  SPEAKER_01: then that sort of solidifies the idea that these are not meant to be taken literally.
• 34:42
  SPEAKER_00: But isn't what makes a diss track sting that there is truth to at least some of the
• 34:46
  SPEAKER_00: allegations in the track?
• 34:48
  SPEAKER_00: I mean,
• 34:48
  SPEAKER_00: that's that's why it burns to have someone say something about you,
• 34:52
  SPEAKER_00: because they are they're getting it,
• 34:54
  SPEAKER_00: you know,
• 34:54
  SPEAKER_00: something that's actually wrong with you.
• 34:56
  SPEAKER_00: So sometimes what's in a diss track is literally true.
• 34:59
  SPEAKER_01: But is it – I mean is the particular allegation literally true or – so if someone
• 35:05
  SPEAKER_01: likes younger women,
• 35:06
  SPEAKER_01: that doesn't mean they're a pedophile.
• 35:08
  SPEAKER_01: They may just be a libertarian.
• 35:10
  SPEAKER_01: So –
• 35:14
  SPEAKER_01: Yeah, it depends on the context, Josh.
• 35:16
  SPEAKER_01: You could absolutely have a situation where it was specific enough and grounded
• 35:20
  SPEAKER_01: enough in reference to something that actually happened with surrounding
• 35:25
  SPEAKER_01: circumstances to make.
• 35:26
  SPEAKER_01: I think actually people would understand this as a factual statement.
• 35:29
  SPEAKER_01: I don't really see that in this.
• 35:31
  SPEAKER_01: I see that as two people having an enormous amount of fun trash talking each other.
• 35:36
  SPEAKER_00: Because,
• 35:37
  SPEAKER_00: I mean,
• 35:37
  SPEAKER_00: one trend that we've been seeing in some criminal trials is the use of rap lyrics
• 35:40
  SPEAKER_00: as evidence of crimes.
• 35:42
  SPEAKER_00: And that's and that,
• 35:43
  SPEAKER_00: again,
• 35:43
  SPEAKER_00: is because sometimes the lyrics do,
• 35:45
  SPEAKER_00: in fact,
• 35:46
  SPEAKER_00: describe actual crimes that have been committed.
• 35:48
  SPEAKER_00: And so I guess but that's a context specific analysis where you're figuring out,
• 35:51
  SPEAKER_00: is this is this actually a statement about something that's really happened or is it,
• 35:55
  SPEAKER_00: you know,
• 35:56
  SPEAKER_00: just fiction?
• 35:57
  SPEAKER_01: Right.
• 35:58
  SPEAKER_01: Is it sort of performative puffery?
• 36:00
  SPEAKER_01: And it's actually a hugely controversial issue and has been for decades because
• 36:05
  SPEAKER_01: prosecutors love to portray African-American defendants as remorseless thugs who
• 36:11
  SPEAKER_01: only want to do violence.
• 36:13
  SPEAKER_01: And using culture as part of it to do that is something that is very controversial.
• 36:18
  SPEAKER_01: There have been some laws passed in some jurisdictions limiting your ability to use
• 36:22
  SPEAKER_01: artistic output as evidence in a case against someone.
• 36:26
  SPEAKER_01: And I think that's
• 36:28
  SPEAKER_01: Although I think,
• 36:28
  SPEAKER_01: you know,
• 36:29
  SPEAKER_01: ideally a judge would do that already under the balancing of probity versus prejudice.
• 36:34
  SPEAKER_01: So, yeah, it's an old story ultimately.
• 36:37
  SPEAKER_01: But no,
• 36:37
  SPEAKER_01: also just responding with a lawsuit would seem to be like the ultimate way to lose
• 36:42
  SPEAKER_01: a diss track battle.
• 36:43
  SPEAKER_01: That would just be like, you know, waving the white flag.
• 36:47
  SPEAKER_01: So I doubt that's going to happen.
• 36:49
  SPEAKER_00: Yeah.
• 36:50
  SPEAKER_00: I also I'd be remiss if we didn't mention because we've already covered this issue of,
• 36:54
  SPEAKER_00: you know,
• 36:54
  SPEAKER_00: is it defamation to call someone a pedophile?
• 36:56
  SPEAKER_00: Because Elon Musk called that diver in the like Thai boys rescue case, pedo guy.
• 37:03
  SPEAKER_00: And the decision by a court,
• 37:06
  SPEAKER_00: I think we think correctly,
• 37:07
  SPEAKER_00: was that pedo guy is a term of abuse and an insult.
• 37:10
  SPEAKER_00: And it is not a necessarily a literal allegation that someone is a pedophile.
• 37:15
  SPEAKER_01: Right.
• 37:15
  SPEAKER_01: And there,
• 37:15
  SPEAKER_01: I mean,
• 37:16
  SPEAKER_01: we can't get into the jury's head in that case,
• 37:18
  SPEAKER_01: but they're probably,
• 37:21
  SPEAKER_01: Elon Musk being the type of guy who says shit like that all the time,
• 37:25
  SPEAKER_01: who is kind of out of control,
• 37:26
  SPEAKER_01: probably influenced the jury's thinking that reasonable people wouldn't listen to
• 37:30
  SPEAKER_01: this and take it literally.
• 37:32
  SPEAKER_00: I think we can leave it there this week.
• 37:33
  SPEAKER_00: Ken, thank you so much for speaking with me.
• 37:34
  SPEAKER_00: Thank you, Josh.
• 37:35
  SPEAKER_00: Serious Trouble is created and produced by Very Serious Media.
• 37:38
  SPEAKER_00: That's me and Sarah Faye.
• 37:39
  SPEAKER_00: Jennifer Swadik mixed this episode.
• 37:40
  SPEAKER_00: Our theme music is by Joshua Mosier.
• 37:42
  SPEAKER_00: Thanks for listening, and we'll be back with more soon.
• 37:44
  SPEAKER_00: See you next time.