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G.A. Law · Serious Trouble

• 0:08
  SPEAKER_02: Hi, it's Ken White.
• 0:10
  SPEAKER_02: And it's Josh Barrow, and this is Serious Trouble.
• 0:13
  SPEAKER_02: Ken, less furry content on the show this week, I'm sorry to say.
• 0:16
  SPEAKER_01: Yeah, Josh, although I have to say a lot of the audience is eager to have us declare our fursonas.
• 0:24
  SPEAKER_02: Do you have one, Ken?
• 0:25
  SPEAKER_02: Ken, Sarah and I were surprised to learn that you have actually a fair amount of background knowledge about the furry fandom,
• 0:31
  SPEAKER_02: including that you were already familiar with the meaning of the term yiff before we had a legal reason to discuss it.
• 0:38
  SPEAKER_01: Josh, I can only plead Twitter and that there's actually a fairly large intersection between the furry community and the online legal community
• 0:45
  SPEAKER_01: for reasons that are not entirely clear to me.
• 0:47
  SPEAKER_01: But to answer your question, Eeyore, definitely Eeyore as my fursona, I think.
• 0:52
  SPEAKER_02: Okay, that's fascinating.
• 0:55
  SPEAKER_02: Let's start this week in Atlanta.
• 0:58
  SPEAKER_02: There have been a couple of interesting developments in the Rico case there.
• 1:03
  SPEAKER_02: Of course, the focus in the coverage of this Rico case in the last few weeks has been nothing to do with the 2020 election
• 1:09
  SPEAKER_02: and Donald Trump's actions to try to steal Georgia's votes.
• 1:12
  SPEAKER_02: It has to do with District Attorney Fannie Willis and Nathan Wade, the special counsel who she hired to prosecute this case,
• 1:19
  SPEAKER_02: who was her one-time lover, and this question of whether her office should be disqualified from the case on the grounds that she has,
• 1:25
  SPEAKER_02: and that's a conflict of interest because of her personal relationship with Wade and because of the possibility that he used some of the proceeds
• 1:31
  SPEAKER_02: of the hundreds of thousands of dollars he's been paid to prosecute the case, spending it on Fannie Willis, taking her on trips and that sort of thing.
• 1:39
  SPEAKER_02: And so there's been a series of hearings and the two developments that have occurred in the last few days,
• 1:44
  SPEAKER_02: one of them has to do with phone records.
• 1:46
  SPEAKER_02: Donald Trump's attorneys obtained extensive phone records with geolocation data, which they say suggests that Nathan Wade,
• 1:55
  SPEAKER_02: spent quite a bit of time in the vicinity of Fannie Willis's home before the date on which they claim their relationship started.
• 2:02
  SPEAKER_02: One of their key claims is that they didn't actually get romantically involved until after he'd already been hired.
• 2:07
  SPEAKER_02: And the other development had to do with some less dramatic than expected testimony.
• 2:13
  SPEAKER_02: Nathan Wade's former law partner, Terrence Bradley, had appeared at a hearing previously, had asserted attorney-client privilege,
• 2:21
  SPEAKER_02: saying he couldn't discuss certain matters about what he knew about Nathan Wade's relationship.
• 2:25
  SPEAKER_02: Because he had been Nathan Wade's divorce attorney for a time.
• 2:28
  SPEAKER_02: The judge met in camera, one-on-one with Terrence Bradley, determined that in fact the privilege did not apply.
• 2:35
  SPEAKER_02: And so Terrence Bradley was brought back to testify about what he knew.
• 2:38
  SPEAKER_02: But he basically said he didn't know very much and that when he had texted one of the defense attorneys,
• 2:43
  SPEAKER_02: saying that he absolutely thought the relationship had started before they claimed it did,
• 2:47
  SPEAKER_02: that he was just speculating and he didn't really know anything about anything.
• 2:51
  SPEAKER_02: Ken, is court usually this dramatic?
• 2:54
  SPEAKER_02: This is way before the court was.
• 2:55
  SPEAKER_02: This is way more compelling on a human level than I normally expect these things to be.
• 2:59
  SPEAKER_01: Yeah, I mean generally criminal cases do not have this type of interpersonal and romantic relationship drama.
• 3:08
  SPEAKER_01: And part of what I think is going on here is that there's a significant level of, I'm just going to call it incompetence,
• 3:16
  SPEAKER_01: and say that what's happening here in a way is that the script has been flipped and prosecutors do not know how to defend.
• 3:24
  SPEAKER_01: And defense lawyers do not know how to prosecute and sort of the classic thing you learn as a young prosecutor defense lawyer
• 3:34
  SPEAKER_01: is that prosecutors can't cross-examine worth a damn and defense lawyers can't do a direct worth a damn.
• 3:40
  SPEAKER_01: But we have someone I think who can even better show some insight into what it's actually like in court there in Georgia.
• 3:46
  SPEAKER_02: Yes, we do.
• 3:47
  SPEAKER_02: We have Andrew Fleischman back with us.
• 3:49
  SPEAKER_02: I'm really happy about that.
• 3:50
  SPEAKER_02: Andrew is an attorney in Atlanta.
• 3:53
  SPEAKER_02: He does criminal defense services on trial in Florida.
• 4:18
  SPEAKER_00: Thanks so much. Nobody ever went broke underestimating the Fulton County Prosecutor's Office. I will say that.
• 4:25
  SPEAKER_02: So what what have you made of this? I mean, because a lot of the commentary I've seen about this is basically like this is so embarrassing.
• 4:34
  SPEAKER_02: You know, this is politically damaging to the case. But ultimately, as a matter of Georgia law, none of this actually constitutes a conflict of interest and that we're likely to get through to the end of this.
• 4:45
  SPEAKER_02: And then Fannie Willis will limp on into this prosecution.
• 4:48
  SPEAKER_02: With the judge having decided that there was no conflict of interest under Georgia law.
• 4:53
  SPEAKER_00: Well, it's not super clear to me what is and is not a conflict.
• 4:56
  SPEAKER_00: But what Georgia law seems to require is either an actual conflict or the appearance of impropriety.
• 5:01
  SPEAKER_00: And there's some cases that use both language here.
• 5:04
  SPEAKER_00: I think that the actual conflict is that her romantic partner made seven hundred and twenty eight thousand dollars as a result of work she directed towards him.
• 5:12
  SPEAKER_00: And she had a personal interest in enriching him because of who he was.
• 5:16
  SPEAKER_00: Maybe she didn't get that money back.
• 5:17
  SPEAKER_00: I think she made a good argument.
• 5:18
  SPEAKER_00: But that personal connection is not permissible.
• 5:21
  SPEAKER_00: And if you look at the federal rules for prosecutors, you can't participate in a case where someone you have a strong personal connection to has a substantial financial stake for good and obvious reasons.
• 5:31
  SPEAKER_01: Right. Because we don't want the prosecutor to be saying, let's charge this in as convoluted a way as possible so that my romantic partner has to work many more hours and get paid more.
• 5:42
  SPEAKER_00: And imagine how much he would make if this case took the one year or two years that we sort of anticipate it will take to try.
• 5:47
  SPEAKER_00: I mean, you're talking.
• 5:48
  SPEAKER_00: You're talking about an extra million dollars, maybe.
• 5:51
  SPEAKER_01: Let me quote something you said on Blue Sky.
• 5:54
  SPEAKER_01: And you said, you know what's so fun about all this Fannie Willis stuff?
• 5:57
  SPEAKER_01: A bunch of lifelong prosecutors without an ounce of mercy in their hearts had to do criminal defense work for a week and immediately shit the bed.
• 6:05
  SPEAKER_01: Can you unpack that a little bit?
• 6:07
  SPEAKER_01: Say what you mean.
• 6:08
  SPEAKER_00: Well, a defense attorney would have coached their client right about whether to testify.
• 6:14
  SPEAKER_00: And they'd say, well, you probably shouldn't testify.
• 6:16
  SPEAKER_00: We already have evidence on the record here.
• 6:18
  SPEAKER_00: It probably won't help your case.
• 6:19
  SPEAKER_00: We have some stuff to help you.
• 6:20
  SPEAKER_00: And if you do testify, please be like as respectful and as nice to everybody as possible because we want people to like and trust you.
• 6:28
  SPEAKER_00: And my goodness, nobody did that here, did they?
• 6:31
  SPEAKER_02: Well, I mean, it's funny.
• 6:32
  SPEAKER_02: Ken and I talked about this a couple of weeks ago.
• 6:34
  SPEAKER_02: Are you suggesting that Fannie Willis should have taken the fifth year?
• 6:36
  SPEAKER_02: Because that strikes me as politically untenable for the district attorney to get up there and say, I can't testify about this matter because I might incriminate myself.
• 6:43
  SPEAKER_00: No, but I think the judge was like literally on the verge of saying you don't have to testify.
• 6:48
  SPEAKER_00: Fannie Willis, when she bust into that room at top speed.
• 6:51
  SPEAKER_00: So and her lawyers looked surprised.
• 6:53
  SPEAKER_00: So I think the judge was inclined to say, you don't have to testify.
• 6:56
  SPEAKER_00: We have Nathan Wade.
• 6:57
  SPEAKER_00: He's testified to that relationship.
• 6:59
  SPEAKER_00: At the very least, she could have waited to hear what he said before she got on there.
• 7:03
  SPEAKER_01: I mean, it seems like a lot of the moves they've made resisting this motion have had the natural probable consequence of dragging it out, creating more drama and creating more suspicion.
• 7:14
  SPEAKER_01: Like it seemed like the attorney client privilege assertion was abominable.
• 7:18
  SPEAKER_01: It was a bad idea and just served to draw more attention.
• 7:20
  SPEAKER_01: And then a lot of sort of the moves they've made, they would have been better served with just none of this matters as a matter of law as a defense.
• 7:29
  SPEAKER_02: I mean, they also asked the judge to sanction Ashley Merchant, the attorney for Mike Roman, one of the defendants here.
• 7:35
  SPEAKER_02: And it seems to me like, you know, part of the reason that we've had to delve into some of these details is almost to clear her name in that regard to say that, you know, that, you know, regardless of the ultimate merits of the motion.
• 7:48
  SPEAKER_02: I mean, I think that's something that we've been hearing from her for a long time.
• 7:56
  SPEAKER_00: Yeah, it took some real chutzpah to make that motion.
• 7:58
  SPEAKER_00: When they knew full well Mr. Bradley had told her these things and, you know, they spoke to Nathan Wade.
• 8:04
  SPEAKER_00: They knew what he did and did not tell his lawyer.
• 8:06
  SPEAKER_02: For the background here, for people who have not been following all the intricate gossipy details of this, Terrence Bradley, who had been Nathan Wade's law partner, and they had a business falling out.
• 8:16
  SPEAKER_02: He's no longer Nathan Wade's law partner.
• 8:18
  SPEAKER_02: But as Ashley Merchant was preparing to move to disqualify Fannie Willis's office on the grounds of this personal relationship, she was texting with Terrence Bradley.
• 8:26
  SPEAKER_02: And Terrence Bradley told her that he believed that Fannie Willis and Nathan Wade had, contrary to their statements to the court, had in fact started their relationship earlier than Wade had been hired to take on the case.
• 8:37
  SPEAKER_02: That was the background for how Ashley Merchant came to believe the story that she believes about the timeline of the relationship.
• 8:44
  SPEAKER_00: Here's what really stuck in my craw.
• 8:45
  SPEAKER_00: They picked.
• 8:46
  SPEAKER_00: They picked Terrence Bradley to be on the taint team for Fulton County for $150,000 of taxpayer money.
• 8:51
  SPEAKER_02: Taint team?
• 8:51
  SPEAKER_00: A taint team.
• 8:52
  SPEAKER_00: Yes.
• 8:53
  SPEAKER_00: You know, a taint team sorts out what's privileged and what's not.
• 8:55
  SPEAKER_00: Your whole job is to know what privilege is.
• 8:58
  SPEAKER_00: And privilege is a communication from the client to the lawyer in the course and scope of representation, right?
• 9:02
  SPEAKER_00: Or vice versa.
• 9:04
  SPEAKER_00: Terrence Bradley gets up there and swears that it's privileged.
• 9:07
  SPEAKER_00: And then two days later, he testifies, I don't know where I learned the information.
• 9:10
  SPEAKER_00: Well, if you didn't learn it from Nathan Wade, why did you think it was privileged?
• 9:14
  SPEAKER_01: Well, exactly.
• 9:16
  SPEAKER_01: I mean, doesn't that undermine them all when they're making these complete bullshit privilege?
• 9:20
  SPEAKER_01: It just seems like a barrier and sort of losing Judge McAfee's patience and trust by doing so.
• 9:26
  SPEAKER_00: I mean, if I were the defense, I would be arguing in closing when the state told you this was privileged.
• 9:30
  SPEAKER_00: The only thing that could mean is that Nathan Wade told him this.
• 9:33
  SPEAKER_00: That was what they told you.
• 9:34
  SPEAKER_00: So either they lied to you to keep this out or, hey, this was actually coming from a pretty reliable source and you should hold it against them.
• 9:42
  SPEAKER_02: Could we talk about the phone records for a moment?
• 9:44
  SPEAKER_02: Sure.
• 9:44
  SPEAKER_02: The location.
• 9:46
  SPEAKER_02: The location data suggesting that if Nathan Wade was not at Fonny Willis's apartment late at night, he was he was very close to it.
• 9:52
  SPEAKER_02: I think a lot of people have been really surprised that it was even possible to obtain this data.
• 9:57
  SPEAKER_02: Among the people who were surprised seems to have been the Fulton County District Attorney's Office, who suggested that they must have done something illegal or improper to obtain the cell phone data.
• 10:06
  SPEAKER_02: But how is it, you know, if I'm, you know, if I'm a defendant in a case, can I just go to Verizon and get the prosecutor's cell phone location data with a.
• 10:16
  SPEAKER_02: Like that?
• 10:16
  SPEAKER_02: Am I legally entitled to that?
• 10:18
  SPEAKER_00: You're legally entitled to ask.
• 10:19
  SPEAKER_00: You go to the clerk's office, you get a blank subpoena, you put the stuff in, you send it there.
• 10:24
  SPEAKER_00: Now, the person has an opportunity to move to quash that.
• 10:27
  SPEAKER_00: And for some reason, Nathan Wade didn't.
• 10:29
  SPEAKER_00: Maybe because he's not well represented or didn't notice.
• 10:33
  SPEAKER_00: But that's normally the process that you use to keep that stuff from happening.
• 10:36
  SPEAKER_00: And it didn't happen.
• 10:37
  SPEAKER_01: See, that's why he shouldn't have Bradley as his lawyer.
• 10:40
  SPEAKER_01: Clearly.
• 10:40
  SPEAKER_02: It's a mistake.
• 10:42
  SPEAKER_00: Wait.
• 10:43
  SPEAKER_00: So would he have been able to get that subpoena quashed if he tried?
• 10:46
  SPEAKER_00: He could have certainly made an argument that it was, you know, going into more stuff than needed or that it was bad.
• 10:50
  SPEAKER_00: And I don't know.
• 10:51
  SPEAKER_00: The judge probably would have seriously considered granting a motion to quash.
• 10:54
  SPEAKER_01: On the other hand, the stuff that came back is fairly probative.
• 10:58
  SPEAKER_01: I mean, this one quote here, and I'm quoting from the Trump team's motion.
• 11:04
  SPEAKER_01: It says on September 11th, 2021, Mr.
• 11:06
  SPEAKER_01: Wade's phone left his area, arrived within the geo fence located on the near Ms.
• 11:12
  SPEAKER_01: Willis's home at 1045 p.m.
• 11:15
  SPEAKER_01: Remain there until.
• 11:16
  SPEAKER_01: September 12 at 328 a.m.
• 11:18
  SPEAKER_01: It was time it traveled directly to the towers at his address.
• 11:23
  SPEAKER_01: And then he sent a text to her at 405 a.m.
• 11:26
  SPEAKER_01: Now, that's to me fairly suggestive.
• 11:29
  SPEAKER_01: That's funny.
• 11:29
  SPEAKER_01: Willis is 9-11.
• 11:31
  SPEAKER_01: All right.
• 11:32
  SPEAKER_01: Well, Josh, you're too young to remember this, but 9-11 was really tough.
• 11:35
  SPEAKER_01: And a lot of us on the anniversary like to be with other people.
• 11:39
  SPEAKER_00: So, yes.
• 11:40
  SPEAKER_00: Well, there are murder cases out of Fulton County that with no eyewitnesses that have been affirmed on.
• 11:46
  SPEAKER_00: Similar evidence.
• 11:46
  SPEAKER_00: Oh, you called the victim.
• 11:48
  SPEAKER_00: You went over there.
• 11:50
  SPEAKER_00: This shows that you went over near his area.
• 11:52
  SPEAKER_00: You left.
• 11:52
  SPEAKER_00: The victim was dead.
• 11:53
  SPEAKER_00: You murdered him.
• 11:54
  SPEAKER_00: There are cases that have been upheld on that.
• 11:57
  SPEAKER_00: If you have other evidence of the relationship.
• 11:59
  SPEAKER_01: Yeah, but the D.A. seems to disagree, don't they, Josh?
• 12:01
  SPEAKER_02: Yeah, there's a filing from the district attorney's office that you highlighted, Andrew, and they're they're responding to this data, which, again, you know, it's you know, it's it's about what cell phone towers you're pinging.
• 12:11
  SPEAKER_02: It has some level of specificity about the location of your phone.
• 12:15
  SPEAKER_02: But.
• 12:16
  SPEAKER_02: The district attorney's office says bolded and underlined.
• 12:18
  SPEAKER_02: The records do not prove in any way the content of the communications between special prosecutor Wade and district attorney Willis.
• 12:25
  SPEAKER_02: They do not prove that special prosecutor Wade was ever at any particular location or address.
• 12:29
  SPEAKER_02: They do not prove that special prosecutor Wade and district attorney Willis were ever in the same place during any of the times listed.
• 12:35
  SPEAKER_02: And in fact, on multiple relevant dates and times, evidence clearly demonstrates the district attorney Willis was elsewhere, including at work at the Fulton County district attorney's office.
• 12:44
  SPEAKER_02: And now it's.
• 12:46
  SPEAKER_02: Bolded, underlined and in all caps, it says and visiting the three crime scenes where a mass murder motivated by race and gender bias had taken place.
• 12:56
  SPEAKER_01: So this is an Arby's.
• 12:58
  SPEAKER_02: Andrew, you were saying you were going to blow this up on poster board and use it as an exhibit in cases where you're defending and the D.A.'s office is using this kind of evidence.
• 13:06
  SPEAKER_00: A hundred percent.
• 13:07
  SPEAKER_00: And also, alibis are not more true if they are more vivid.
• 13:10
  SPEAKER_00: Like.
• 13:14
  SPEAKER_00: She could have just been getting a.
• 13:15
  SPEAKER_00: Sandwich.
• 13:16
  SPEAKER_00: And that's also just as good.
• 13:17
  SPEAKER_00: You don't have to say she was hanging out with Elvis or whatever else this is.
• 13:21
  SPEAKER_01: So do you agree that with me that it seems as if the D.A. made this whole process much worse by the way they respond to this motion?
• 13:31
  SPEAKER_00: Yeah.
• 13:31
  SPEAKER_00: You know, if you don't have any BME Bethel Church speech and her filing and she just says, hey, listen, yes, I was romantically involved with this guy.
• 13:38
  SPEAKER_00: That relationship is over.
• 13:39
  SPEAKER_00: It didn't affect my decision.
• 13:41
  SPEAKER_00: I'm sorry if it created an appearance of impropriety.
• 13:43
  SPEAKER_00: But, you know, I just want to go forward with this case.
• 13:45
  SPEAKER_00: The judge would have almost certainly said, OK, yeah, good enough.
• 13:48
  SPEAKER_00: For some reason, they have to insist that the relationship started in 2022, which doesn't even seem that relevant to the outcome, given that his contract was renewed after that point.
• 13:59
  SPEAKER_00: So I think she made things much worse than they had to be.
• 14:01
  SPEAKER_02: I realize it's going to sound like a dumb question.
• 14:03
  SPEAKER_02: How does it matter if District Attorney Willis or Nathan Wade perjured themselves in these proceedings?
• 14:10
  SPEAKER_02: Because, I mean, the standard about the conflict of interest is not about that.
• 14:13
  SPEAKER_02: Right.
• 14:13
  SPEAKER_02: But I assume it's a problem.
• 14:15
  SPEAKER_02: Right.
• 14:15
  SPEAKER_02: If the D.A. gets on the stand and lies.
• 14:17
  SPEAKER_00: So there's actually a great case that Ashley Merchant also won where she moved to recuse a judge and the judge responded to that recusal motion by making a lot of defenses for himself.
• 14:25
  SPEAKER_00: And the Supreme Court of Georgia said, well, that defense of himself, that created a new reason for recusal.
• 14:30
  SPEAKER_00: And so he had to recuse.
• 14:31
  SPEAKER_00: And here, if in their defense they are perjuring themselves, then that seriously undermines confidence that they are doing things for the right reasons.
• 14:39
  SPEAKER_00: And that, to me at least, creates an appearance of impropriety.
• 14:42
  SPEAKER_00: Now, I've heard Georgia prosecutors say, no, that's just collateral.
• 14:45
  SPEAKER_00: It doesn't matter.
• 14:46
  SPEAKER_00: And that seems colloquially crazy pants to me.
• 14:49
  SPEAKER_00: I don't understand that.
• 14:50
  SPEAKER_00: Ken, what do you make of that?
• 14:52
  SPEAKER_01: Yeah.
• 14:53
  SPEAKER_01: I mean, it's hard because Georgia law on this point is not as developed or as like explained in the cases as I would expect.
• 15:02
  SPEAKER_01: So it kind of seems to me like Judge McAfee has a fair amount of discretion about decision making here, particularly under the appearance of impropriety prong.
• 15:12
  SPEAKER_01: And I just can't help but be left with.
• 15:15
  SPEAKER_01: I mean, I think that's a very overwhelming feeling that they've made it much worse to the way they've handled that.
• 15:19
  SPEAKER_01: And really, to the extent the motion works, it may not be so much because of the motions good, but because of the blundering way the DA went about it.
• 15:29
  SPEAKER_01: And to me, that's that's very much characteristic in that prosecutor reactions to accusations of misconduct can be way over the top.
• 15:36
  SPEAKER_01: And, you know, defense lawyers, of course, are used to themselves and their clients being accused of horrible things.
• 15:43
  SPEAKER_01: And we don't lose our cool.
• 15:44
  SPEAKER_01: Cool.
• 15:44
  SPEAKER_02: We talked about prosecutors being terrible across examination.
• 15:48
  SPEAKER_02: We talked briefly about defense attorneys being bad at prosecuting because I was struck watching some of these proceedings with especially Ashley Merchant seeming to have difficulty figuring out how to conduct a direct examination and figuring out what order you had to ask questions.
• 16:03
  SPEAKER_02: And I don't know how consequential this was, but it seemed like she kept facing sustained objections about, you know, you didn't lay the foundation for this.
• 16:11
  SPEAKER_02: You can't ask that question that way, et cetera, et cetera.
• 16:14
  SPEAKER_00: Yeah, it was almost like she went without a plan.
• 16:17
  SPEAKER_00: She expected maybe to own up to what he had texted her and he just wasn't going to do that.
• 16:21
  SPEAKER_00: And it wasn't until Trump's attorney got up there that it was like, oh, that's how you do that.
• 16:25
  SPEAKER_00: That's how you confront the person with the implausibility that they suddenly don't remember why they said this or that maybe they were speculating for no reason and lying about that.
• 16:33
  SPEAKER_00: That was that that was a question for me.
• 16:34
  SPEAKER_00: Do you lie about your friends in cases of national importance?
• 16:37
  SPEAKER_00: He's like, I don't know, maybe sometimes.
• 16:39
  SPEAKER_02: Yeah, I mean, that's the crazy thing.
• 16:40
  SPEAKER_02: The claim from Terrence Bradley is that, you know, when when he said that they.
• 16:44
  SPEAKER_02: Started their relationship soon after they met at this conference in 2019, and he later said he was speculating.
• 16:49
  SPEAKER_02: I mean, does he ordinarily do this sort of damaging and frivolous speculation about the activities of his close friends in their high stakes professional situations?
• 16:57
  SPEAKER_02: I mean, that would in addition to not seeming like a very good attorney, that would make Terrence Bradley seem like a really bad friend.
• 17:03
  SPEAKER_01: Yeah, his testimony made him come out terribly.
• 17:05
  SPEAKER_01: I mean, he's constantly saying he doesn't remember.
• 17:07
  SPEAKER_01: He doesn't remember.
• 17:08
  SPEAKER_01: And one of the reporters noted that Judge McAfee seemed to be keeping track of how many times he said he didn't remember.
• 17:14
  SPEAKER_01: Which is never a good sign.
• 17:15
  SPEAKER_01: And he just seems like, you know, best case scenario.
• 17:18
  SPEAKER_01: He's someone who shit talks his friends with no basis.
• 17:21
  SPEAKER_01: His friends and his former clients.
• 17:24
  SPEAKER_02: Yeah.
• 17:25
  SPEAKER_02: And the other thing that I loved in the examinations, and I forget whose attorney this was.
• 17:29
  SPEAKER_02: It wasn't Merchant or Sado.
• 17:31
  SPEAKER_02: Trump's attorney was talking about one of the things that Terrence Bradley said he didn't know was why Ashley Merchant was interested in this information about the timing of the relationship.
• 17:41
  SPEAKER_02: And Merchant had sent him the draft motion.
• 17:44
  SPEAKER_02: And the lawyer was like, did you read the title of the draft motion?
• 17:47
  SPEAKER_02: Did you see that the title was motion for disqualification of district attorney's office?
• 17:56
  SPEAKER_00: Yeah.
• 17:57
  SPEAKER_00: It's not good.
• 17:58
  SPEAKER_00: Everything about that.
• 17:59
  SPEAKER_00: I just hated it.
• 18:00
  SPEAKER_00: I just hated.
• 18:02
  SPEAKER_00: I wanted to ask so many more questions of this guy who, if his memory is that bad, probably cannot function as a lawyer for his clients.
• 18:11
  SPEAKER_01: I mean, so many people are saying that this is all.
• 18:17
  SPEAKER_01: And many people are saying it's basically like, you know, misogynistic.
• 18:21
  SPEAKER_01: It's attacking.
• 18:23
  SPEAKER_01: It is attacking her because she's a woman.
• 18:26
  SPEAKER_01: It's attacking her romantic relationships.
• 18:28
  SPEAKER_01: And I think you can make those arguments.
• 18:30
  SPEAKER_01: But I don't think you could deny that a large reason that we're here.
• 18:33
  SPEAKER_01: This deep into it is because of the way they decided to respond to it in a how dare you and a we're going to make any argument no matter how fucking stupid it is.
• 18:45
  SPEAKER_01: And drag you into this.
• 18:46
  SPEAKER_02: Well, I mean, yes, but the errors in judgment go back to hiring your lover for this job.
• 18:53
  SPEAKER_02: I mean, you know, I don't given given that entry error in judgment.
• 18:57
  SPEAKER_02: I don't know that I'm surprised by any of the any of the follow on ones.
• 19:00
  SPEAKER_02: Can we talk about what's coming next?
• 19:02
  SPEAKER_02: Because this this hearing with Terrence Bradley, this was just about his testimony.
• 19:05
  SPEAKER_02: There's going to be another hearing on Friday where they're going to talk about the cell phone records and whether they're admissible.
• 19:11
  SPEAKER_02: And then Judge McAfee has said he will not make a ruling.
• 19:13
  SPEAKER_02: From the bench at the at the Friday hearing.
• 19:17
  SPEAKER_02: So we're not going to have a decision from him on what's happening with funny wills in this prosecution until what do you think Andrew next week or maybe even later than that?
• 19:25
  SPEAKER_00: It could be.
• 19:26
  SPEAKER_00: And actually, it kind of makes sense to me.
• 19:27
  SPEAKER_00: The judge might not want to hear from the witness.
• 19:29
  SPEAKER_00: If there's certified business records that show this, the lawyers can argue about what they mean and the judge will get it.
• 19:34
  SPEAKER_00: So he might just be trying to streamline this whole process.
• 19:37
  SPEAKER_01: Josh, I think he's waiting for us to record and then he's going to drop the rule immediately after that.
• 19:42
  SPEAKER_00: Well, the thing is, there's a.
• 19:43
  SPEAKER_00: Hidden time bomb here.
• 19:44
  SPEAKER_00: People haven't talked about some of the people in this case are Georgia legislators and they can't be forced to file motions until the end of session.
• 19:51
  SPEAKER_00: So even if the judge rules against here, any new evidence they discover up until April could be a new motion to disqualify.
• 19:58
  SPEAKER_00: And he can't very well hold it against them.
• 20:00
  SPEAKER_00: They didn't file it sooner.
• 20:01
  SPEAKER_00: So it's a lot more fun coming.
• 20:04
  SPEAKER_02: Huh?
• 20:05
  SPEAKER_02: Okay.
• 20:06
  SPEAKER_02: Well, I mean, even before this particular scandal, one of the themes that we've had when we talk when talking about this case is it's hideously and.
• 20:13
  SPEAKER_02: And impossibly complex structure and other not even quite as complex Rico cases in Georgia that take years and years and the young thug case where it took them almost a year to see the jury.
• 20:23
  SPEAKER_02: So I guess, you know, this is adding time and complexity.
• 20:26
  SPEAKER_02: And if funny Willis is removed, who knows how long it will take for a replacement prosecutor to be appointed.
• 20:31
  SPEAKER_02: But basically, I mean, we're talking about something that never had any chance of going to trial before the election to begin with.
• 20:37
  SPEAKER_02: And now it's it's later.
• 20:38
  SPEAKER_02: But to some extent, you know, how much later is almost an academic question.
• 20:42
  SPEAKER_00: Yeah.
• 20:43
  SPEAKER_00: Again, you know, Donald Trump said that 5000 dead people voted and that's not true.
• 20:47
  SPEAKER_00: And that's a crime.
• 20:49
  SPEAKER_00: Yeah.
• 20:49
  SPEAKER_00: And you could prove that, you know, January 2nd, 2021.
• 20:54
  SPEAKER_00: So having a special grand jury and all this stuff and 19 co-defendants seems like a baffling decision, even if you didn't know about the other stuff.
• 21:01
  SPEAKER_02: Andrew, we have a question from a listener that I was hoping you could help us address.
• 21:05
  SPEAKER_02: Sam wrote in and said, I think the answer here is tough shit.
• 21:09
  SPEAKER_02: But what happens to the defendants who've already pleaded guilty in the Georgia Rico case?
• 21:12
  SPEAKER_02: If the case unravels?
• 21:14
  SPEAKER_00: I mean, they could always move to withdraw and say the lawyers were somehow ineffective for pleading them out.
• 21:19
  SPEAKER_00: But that's a pretty tough road to hoe.
• 21:20
  SPEAKER_00: I mean, ultimately, they got amazing deals.
• 21:23
  SPEAKER_00: They got first offender probation, misdemeanor or felony cases that doesn't count against them as a felony.
• 21:29
  SPEAKER_00: That might not even get them in trouble with our state bars.
• 21:31
  SPEAKER_00: I'm not really sure how that's going to work.
• 21:33
  SPEAKER_00: And so they're probably satisfied.
• 21:35
  SPEAKER_00: They probably don't want to spend a million dollars trying this case anyway.
• 21:37
  SPEAKER_01: Yeah, I think that's the point is that if they succeed in withdrawing their plea, then they're back charged with Rico.
• 21:42
  SPEAKER_01: And all this other stuff.
• 21:45
  SPEAKER_01: But I've seen situations where a case falls apart and the judges let people who already entered a plea withdraw their plea and even dismiss them on the same grounds.
• 21:54
  SPEAKER_01: But this is just about disqualification.
• 21:56
  SPEAKER_01: So it just be like facing a different prosecutor.
• 21:57
  SPEAKER_00: Right.
• 21:58
  SPEAKER_00: And whoever that prosecutor is, who knows?
• 22:00
  SPEAKER_00: Maybe they can make a call on it.
• 22:01
  SPEAKER_02: Well, there's much to be baffled about here.
• 22:03
  SPEAKER_02: Andrew, I really want to thank you for coming back to talk to us about this again.
• 22:06
  SPEAKER_00: Thanks so much for having me.
• 22:07
  SPEAKER_02: Thanks for coming.
• 22:15
  SPEAKER_02: Ken, let's talk about the Manhattan D.A. criminal case against Donald Trump.
• 22:19
  SPEAKER_02: This is set to go to trial starting March 25th.
• 22:22
  SPEAKER_02: That's when they're going to start jury selection.
• 22:23
  SPEAKER_02: So this is this is getting really close.
• 22:25
  SPEAKER_02: And prosecutors have asked for a gag order in this case to restrict the manner in which Donald Trump can talk about it.
• 22:32
  SPEAKER_02: So this is the way I feel like we've seen this several times.
• 22:35
  SPEAKER_02: Maybe the law here is a little better developed than it was a few months ago.
• 22:38
  SPEAKER_02: Will this be a more straightforward issue than the gag order has been in some of the other proceedings?
• 22:42
  SPEAKER_01: I think it will.
• 22:43
  SPEAKER_01: So, yeah, I mean, Josh, this is going to trial.
• 22:45
  SPEAKER_01: The judge made it very clear we're going to trial in March.
• 22:49
  SPEAKER_01: He seemed to be determined that there aren't going to be delays.
• 22:51
  SPEAKER_01: And I think the D.A. has sort of seized the opportunity caused by delays in other cases to move forward.
• 22:57
  SPEAKER_01: Every indication is they really mean to go.
• 22:59
  SPEAKER_01: And so now the D.A. has filed a motion asking for a three point gag order.
• 23:05
  SPEAKER_01: Two of those points are the ones that were already entered by Judge Chutkan in.
• 23:12
  SPEAKER_01: Washington, D.C., and then upheld by the D.C. Circuit.
• 23:16
  SPEAKER_01: And those are making statements about witnesses concerning their potential testimony in the case.
• 23:24
  SPEAKER_01: The next is making public statements about any of the attorneys or the court staff with the intent to interfere with them or their job.
• 23:32
  SPEAKER_01: And then the third point is making or directing others to make public statements about any prospective juror or any juror in this criminal proceeding.
• 23:40
  SPEAKER_01: So.
• 23:41
  SPEAKER_01: That's not a rule.
• 23:43
  SPEAKER_01: You can't say anything to the press because that goes to the jury pool.
• 23:46
  SPEAKER_01: That's a rule that you can't say, oh, we've looked at these prospective jurors and one of them, you know, voted from a governor or something stupid like that.
• 23:53
  SPEAKER_01: He's not allowed to do that.
• 23:55
  SPEAKER_01: The real weight in the motion is they do a very good job collecting all the things Trump has said about the prosecution and about the D.A.
• 24:03
  SPEAKER_01: And a lot of it, when you shove it all in one place, is pretty scary.
• 24:06
  SPEAKER_01: So I think it's, if anything, a better record justifying against the D.A.
• 24:13
  SPEAKER_01: Because there's more references to violence.
• 24:15
  SPEAKER_01: There's more sort of dehumanization and suggestion that violence might be necessary against the D.A.
• 24:22
  SPEAKER_01: And against the government.
• 24:23
  SPEAKER_01: So I think this is a motion that is likely to work.
• 24:26
  SPEAKER_01: And according to a higher court, it probably passes First Amendment muster.
• 24:31
  SPEAKER_02: Restricting statements about jurors and potential jurors strikes me as an easier lift than restricting statements about witnesses or the court staff.
• 24:39
  SPEAKER_02: I mean, because, you know, I mean.
• 24:40
  SPEAKER_02: And the issues that you have to balance here about you being able to argue about your own
• 24:44
  SPEAKER_02: innocence and, you know, one of the things you might do is claim that witnesses are not
• 24:48
  SPEAKER_02: credible.
• 24:49
  SPEAKER_02: You might want to say that prosecutions of you are unfair.
• 24:52
  SPEAKER_02: And Trump does have rights in those areas, which is a reason that some of the restrictions
• 24:57
  SPEAKER_02: that were initially imposed were narrowed by the appeals court.
• 25:01
  SPEAKER_02: But it seems to me like there's much less of an interest in public interest in being
• 25:05
  SPEAKER_02: able to talk shit about the jurors.
• 25:07
  SPEAKER_01: Maybe, although, I mean, Trump and his lawyers would probably say that one of his main defenses
• 25:11
  SPEAKER_01: is he can't get a fair trial in New York, that it's terribly biased against him, that
• 25:16
  SPEAKER_01: every one of these people has an NPR tote bag and, you know, they're all going to be
• 25:20
  SPEAKER_01: against him from the first moment and he should be able to argue.
• 25:23
  SPEAKER_02: And let's be fair, some of them have NPR tote bags and some of them are black.
• 25:26
  SPEAKER_01: OK, so fair.
• 25:29
  SPEAKER_01: So he's going to say he should be able to complain about the jury pool and even specific
• 25:33
  SPEAKER_01: instances of jurors.
• 25:34
  SPEAKER_01: But this is one where courts have generally allowed.
• 25:37
  SPEAKER_01: Restrictions on releasing public information about jurors in high profile cases.
• 25:43
  SPEAKER_01: So I don't think that's an argument that's going to work for him.
• 25:47
  SPEAKER_02: Let's talk about this interesting situation in Las Vegas.
• 25:52
  SPEAKER_02: Something that happened in Las Vegas is not staying there, is going to Los Angeles.
• 25:56
  SPEAKER_02: This is that Alexander Smirnov case, the accuser.
• 26:00
  SPEAKER_02: Sarah just rolled her eyes at me about that happens in Vegas comment.
• 26:04
  SPEAKER_02: Sorry, Sarah.
• 26:05
  SPEAKER_02: Alexander Smirnov.
• 26:06
  SPEAKER_02: The accuser who said that there was an effort to pay a very large bribe from Burisma to
• 26:11
  SPEAKER_02: Joe Biden when Joe Biden was still vice president.
• 26:13
  SPEAKER_02: He's been criminally charged for making up accusations, making false statements to the
• 26:18
  SPEAKER_02: government.
• 26:19
  SPEAKER_02: And so he was arrested in Las Vegas when he was trying to fly out of the country.
• 26:23
  SPEAKER_02: And Ken, you said very confidently, you know, they'll never release him.
• 26:26
  SPEAKER_02: That's the sort of the textbook thing where you're a flight risk when they when they get
• 26:30
  SPEAKER_02: you at the airport.
• 26:31
  SPEAKER_02: But in fact, a magistrate judge did release him.
• 26:34
  SPEAKER_02: And that really seemed to upset.
• 26:36
  SPEAKER_02: A federal judge in L.A. who set about to reverse that decision.
• 26:39
  SPEAKER_01: Yeah.
• 26:40
  SPEAKER_01: First of all, I mean, Smirnov hired David Chesnoff, who's a very effective federal defense
• 26:46
  SPEAKER_01: attorney.
• 26:47
  SPEAKER_01: He was a defense attorney when I was a prosecutor.
• 26:48
  SPEAKER_01: And he's exactly who I would hire if I arrested in Vegas while flying to another country.
• 26:54
  SPEAKER_01: He did a great job.
• 26:56
  SPEAKER_01: And he convinced the magistrate judge in Vegas that even if this guy's a flight risk, which
• 27:00
  SPEAKER_01: he clearly is, that you could deal with that with terms of release, like an ankle bracelet,
• 27:06
  SPEAKER_01: tracking, all this type of thing.
• 27:08
  SPEAKER_01: And remember, the standard for federal bail is that you presume that you release unless
• 27:13
  SPEAKER_01: there's no conditions that can possibly assure that you won't be a danger and that you'll
• 27:18
  SPEAKER_01: come back for court.
• 27:19
  SPEAKER_01: So the magistrate judge did that.
• 27:21
  SPEAKER_01: That did surprise me quite a bit, given the guy was about to go to another country and
• 27:25
  SPEAKER_01: he has all these foreign contacts.
• 27:28
  SPEAKER_01: Prosecutors, not surprisingly, went apeshit over this.
• 27:31
  SPEAKER_01: They immediately appealed in Los Angeles.
• 27:33
  SPEAKER_01: And as it turns out, the district judge in Los Angeles, the district judge in Los Angeles,
• 27:36
  SPEAKER_01: who's been assigned to this, is a judge named Otis Wright.
• 27:41
  SPEAKER_01: We've talked about long suffering federal judges.
• 27:45
  SPEAKER_01: Otis Wright is sort of a long ass kicking federal judge.
• 27:49
  SPEAKER_01: He's a bit of a maverick.
• 27:50
  SPEAKER_01: He definitely goes out on his own.
• 27:53
  SPEAKER_01: He is a Vietnam era Marine and a deputy sheriff and central casting for what you would expect
• 28:00
  SPEAKER_01: from a background like that.
• 28:01
  SPEAKER_01: Very tough.
• 28:03
  SPEAKER_01: Very willing to go after anyone.
• 28:05
  SPEAKER_01: Whether it's the government or the defense.
• 28:07
  SPEAKER_01: So he's famous for doing things like kicking out gun prosecutions because the ATF was basically
• 28:16
  SPEAKER_01: completely fabricating the conspiracies, making up a case and getting people interested in
• 28:21
  SPEAKER_01: it and then charging them for it.
• 28:22
  SPEAKER_01: And he said that was entrapment, which whether or not it is, I think he's morally correct.
• 28:27
  SPEAKER_01: He's also famous for having completely demolished a pretty infamous copier of the American police.
• 28:44
  SPEAKER_01: security is parched up for the escaped Mun mesh, Etc represent MVP.
• 28:49
  SPEAKER_01: So his point is, is there an older owned letter here?
• 28:51
  SPEAKER_01: Do we, you know, I'm just seeing, I mean, I know what that sort of
• 28:54
  SPEAKER_01: shrimps and eggs mean?
• 28:55
  SPEAKER_01: Think a little bit of, you know, from now on, right.
• 28:56
  SPEAKER_01: Maybe I have to do some good stuff and then say, Oh, I would murder 50 dollars on Thanksgiving
• 28:58
  SPEAKER_01: not my own favorite.
• 28:59
  SPEAKER_01: But would that be an appropriate way of doing that?
• 29:04
  SPEAKER_01: No.
• 29:04
  SPEAKER_01: And when Judge Otis Wright got wind of that, he issued this amazing new order that says basically the defense has filed this order, and I'm quoting here, likely to facilitate his absconding from the United States.
• 29:18
  SPEAKER_01: So that's a federal judge saying the defense is trying to help their client flee the country, which is big.
• 29:24
  SPEAKER_02: That's quite an accusation against this guy who you describe as a really successful and well-respected criminal defense lawyer, right?
• 29:30
  SPEAKER_02: Isn't he accusing him of professional misconduct, the judge?
• 29:32
  SPEAKER_01: Well, I mean, it's mavericky, and maverick federal judges are great until one's pointed at you, as we'll discuss also a little later in this episode.
• 29:42
  SPEAKER_01: And that's kind of a sort of intemperate comment that sometimes you get from Judge Wright.
• 29:47
  SPEAKER_01: But yeah, it's more bark than bite, but it's definitely bark.
• 29:53
  SPEAKER_01: So Judge Wright says basically there will be no further orders.
• 29:56
  SPEAKER_01: U.S. Marshals, you are instructed no deviations from this order to bring him back.
• 30:02
  SPEAKER_01: He's back here immediately, and he's big mad.
• 30:07
  SPEAKER_01: So that does not bode well for Mr. Smirnov's fortunes in front of Judge Wright.
• 30:14
  SPEAKER_02: Is it true that it is necessary to hold him in custody to prevent his flight from the United States?
• 30:19
  SPEAKER_02: I mean, that question of the least restrictive means possible.
• 30:23
  SPEAKER_02: I guess Fat Leonard had an ankle bracelet, and he just cut it off and ran to Venezuela.
• 30:27
  SPEAKER_02: So we've seen examples of people who were supposed to be held.
• 30:32
  SPEAKER_02: And it doesn't work.
• 30:34
  SPEAKER_02: Is it true that this guy really needs to be held in custody?
• 30:37
  SPEAKER_01: Well, I mean, if you've got the resources and the will, you can absolutely abscond from any number of conditions of release short of actually being incarcerated.
• 30:47
  SPEAKER_01: So, yeah, it's supposed to be a calculus, not so much about whether the measures will physically prevent you, but whether there are sufficient things that will make you say, you know, I would have to give up my whole life to do this.
• 31:00
  SPEAKER_01: So I'm not going to do that.
• 31:02
  SPEAKER_01: And I mean, I certainly wouldn't let it out on Bond, despite me being, you know, a 23 year defense attorney, because I think all the indications are that that he would flee to Russia.
• 31:11
  SPEAKER_01: But I think Chesnoff did a great job of advocating on his behalf and made a good case.
• 31:17
  SPEAKER_01: And it's good that magistrates are not locked into whatever the prosecution asks for.
• 31:22
  SPEAKER_02: The funny thing with that Fat Leonard case, which we should talk about more more than we have, is, you know, he was it was this Navy corruption case.
• 31:29
  SPEAKER_02: And not only did he flee, but they like they brought a U-Haul to his house.
• 31:32
  SPEAKER_02: And removed all his stuff.
• 31:33
  SPEAKER_02: And still the government didn't notice that.
• 31:34
  SPEAKER_02: So anyway, he flees.
• 31:35
  SPEAKER_02: He goes to Venezuela.
• 31:36
  SPEAKER_02: But the Venezuelans, they see him and they're basically like, well, Fat Leonard's not useful to us.
• 31:41
  SPEAKER_02: So they arrest him and then use him as a bargaining chip to send back to the United States in exchange for people they wanted brought back to Venezuela.
• 31:48
  SPEAKER_02: So I guess one thing, if you flee the country, is you should probably try to make sure that you have somewhere to go that's not just going to arrest you to use as a piece of collateral.
• 31:58
  SPEAKER_02: Right.
• 31:58
  SPEAKER_01: And Fat Leonard was cooperating.
• 32:00
  SPEAKER_01: I mean, he did this while he was cooperating.
• 32:02
  SPEAKER_01: He was a cooperator, which is one reason the government had its guard down.
• 32:04
  SPEAKER_01: But you're exactly right.
• 32:05
  SPEAKER_01: And that's supposed to be one of the things that keeps people from fleeing is that there aren't a lot of great options for places to flee to where you will be treated well, but not extradited.
• 32:16
  SPEAKER_02: Well, but that may not be the case for Alexander Smirnoff.
• 32:19
  SPEAKER_02: I mean, one of the things that they argued about in court is could he just flee to Russia?
• 32:23
  SPEAKER_02: Right.
• 32:23
  SPEAKER_02: And the magistrate judge basically said, well, it seems like he blabbed about what he was doing for Russia and the Russian intelligence services would probably be pretty mad at him about that.
• 32:32
  SPEAKER_02: And so he probably wouldn't want to go to Russia.
• 32:34
  SPEAKER_02: I'm not a counterintelligence expert, neither is this magistrate judge.
• 32:37
  SPEAKER_02: Right.
• 32:38
  SPEAKER_02: But it seems to me like there's at least some possibility that Putin would be glad to take this guy back and he does have somewhere to go.
• 32:44
  SPEAKER_02: Yeah, I think that's right.
• 32:47
  SPEAKER_02: Let's talk about that other maverick federal judge that you mentioned there, Cormac Carney.
• 32:51
  SPEAKER_02: That's quite a name.
• 32:52
  SPEAKER_01: It's a great name.
• 32:53
  SPEAKER_02: These guys, Robert Rundo and Robert Bowman, who were members of a neo-Nazi movement, the Rise Above movement, they were charged with some crimes under the Anti-Riot Act.
• 33:02
  SPEAKER_02: And so he's the federal judge overseeing their case, which he's tried to dismiss in a couple of ways.
• 33:08
  SPEAKER_02: The latest one was he basically said, well, Antifa does all sorts of stuff like this and they haven't been prosecuted for that.
• 33:14
  SPEAKER_02: Therefore, you can't prosecute these guys.
• 33:16
  SPEAKER_02: That's selective prosecution.
• 33:17
  SPEAKER_02: And I feel like one of the themes that we come back to most on this show is that basically nothing is selective prosecution.
• 33:22
  SPEAKER_02: You will almost never be able to successfully argue in court that it's unfair that they got you for this crime when all these other people did it and didn't get in trouble.
• 33:31
  SPEAKER_02: Right.
• 33:31
  SPEAKER_02: Right.
• 33:35
  SPEAKER_01: Yeah.
• 33:35
  SPEAKER_01: Although it's not the first one he accepted.
• 33:37
  SPEAKER_01: He first dismissed the case on the grounds that the Anti-Riot Act violated the First Amendment.
• 33:43
  SPEAKER_01: So the theory of the prosecution of these guys are going around to different protests for the purpose of causing violence.
• 33:50
  SPEAKER_01: You know, they're going to anti-Trump or pro-Trump or whatever protests for the purpose of starting fights and violence.
• 33:57
  SPEAKER_01: And he said, you know, there's a First Amendment violation.
• 33:59
  SPEAKER_01: The Ninth Circuit said, no, it's not.
• 34:01
  SPEAKER_01: Sent it back.
• 34:02
  SPEAKER_01: So on the second time, the second time he got a cut at it.
• 34:05
  SPEAKER_01: Yes.
• 34:06
  SPEAKER_01: The defense attorneys at the public defender's office actually made this selective prosecution argument that, you know, they don't prosecute Antifa people who, you know, get into riots.
• 34:18
  SPEAKER_01: They're only prosecuting these guys because they don't like Nazis.
• 34:21
  SPEAKER_01: And that violates the First Amendment.
• 34:23
  SPEAKER_01: And Judge Carney bought it.
• 34:26
  SPEAKER_01: And he he not only, you know, granted this motion.
• 34:33
  SPEAKER_01: He also rejected a guilty plea for one of the guys, basically on the grounds that, you know, during the plea colloquy, the guy started going sideways a little bit about the details, which happens sometimes.
• 34:45
  SPEAKER_01: He wasn't really willing to admit to all the facts.
• 34:48
  SPEAKER_01: Carney starts interrogating him and kind of to the point, well, weren't there Antifa people there?
• 34:53
  SPEAKER_01: Weren't you defending people from Antifa people?
• 34:56
  SPEAKER_01: That type of stuff.
• 34:57
  SPEAKER_01: Well, this may be self-defense.
• 34:58
  SPEAKER_01: I'm not going to take this plea.
• 34:59
  SPEAKER_01: Yeah.
• 35:00
  SPEAKER_01: Yeah.
• 35:01
  SPEAKER_01: Yeah.
• 35:05
  SPEAKER_01: It's everything it could be.
• 35:06
  SPEAKER_01: But like you said, these almost never get granted.
• 35:09
  SPEAKER_01: And that's because the burden is not just to say in general other people aren't being prosecuted.
• 35:16
  SPEAKER_01: It's to come up with specific plausible cases that could have should have been prosecuted but weren't.
• 35:22
  SPEAKER_01: So Judge Carney, with all respect, his his position is sort of more grandpa at Thanksgiving.
• 35:28
  SPEAKER_01: Why isn't Antifa getting prosecuted?
• 35:31
  SPEAKER_01: As opposed to here's a specific case in which they knew who the person behind the black mask was.
• 35:37
  SPEAKER_01: And he did a series of things at a series of public events.
• 35:43
  SPEAKER_01: And they made a decision not to charge him.
• 35:45
  SPEAKER_01: And when this guy did the same thing, they made the decision to charge him.
• 35:48
  SPEAKER_01: That's the type of granularity you need to get into to win a selective prosecution motion.
• 35:54
  SPEAKER_01: And he just hasn't.
• 35:55
  SPEAKER_01: He and in his comments about this is just very sort of political surface.
• 36:00
  SPEAKER_01: Level that he's upset that he feels that Antifa hasn't been prosecuted enough.
• 36:05
  SPEAKER_01: So he granted the motion.
• 36:07
  SPEAKER_01: He sprung this guy.
• 36:08
  SPEAKER_01: And the prosecutors immediately did an emergency motion to the Ninth Circuit, which immediately granted it and had the defendant Rondo arrested again.
• 36:20
  SPEAKER_01: He surrendered.
• 36:21
  SPEAKER_01: And that's not permanent.
• 36:23
  SPEAKER_01: But while they consider whether to make it permanent pending appeal, which is frankly a sign that they think the appeal has.
• 36:31
  SPEAKER_01: Significant merit.
• 36:32
  SPEAKER_02: Yeah, I never know quite what to do with some of these wacky decisions that come out of federal trial courts.
• 36:39
  SPEAKER_02: I mean, to take one that would be a little bit outside our wheelhouse.
• 36:42
  SPEAKER_02: There was another one just this week throwing out like one of the omnibus appropriations bills that funds the whole federal government on the grounds that there wasn't a quorum on the floor of the House of Representatives at the time that it was passed.
• 36:54
  SPEAKER_02: Some of these decisions come down and you can look at them and basically say, well, you know, obviously the appeals courts are going to clean this up.
• 36:59
  SPEAKER_02: Is that?
• 37:00
  SPEAKER_02: You know, are there just a certain number of cranks on the federal bench that do stuff that's going to get them slapped around and they, you know, they persist in doing it, even though the appeals court is going to reverse them?
• 37:11
  SPEAKER_01: Well, Josh, in the district courts in which I appear, there are certainly currently no sitting cranks.
• 37:17
  SPEAKER_01: There are only judges for whom I have the deepest respect and admiration, as does any member of the bar.
• 37:23
  SPEAKER_01: That said, yeah, sometimes judges kind of get a reputation as cranks.
• 37:29
  SPEAKER_01: With their circuits and that starts to have a noticeable impact on the way their cases get reviewed.
• 37:37
  SPEAKER_01: And sometimes judges get into what amount to power struggles with the circuit.
• 37:42
  SPEAKER_01: And that I kind of perceive is a little bit what's going on here.
• 37:45
  SPEAKER_01: Judge Carney apparently is retiring this year, not going senior, but retiring entirely.
• 37:50
  SPEAKER_01: And that's a very typical point where judges just start deciding I've taken all the shit from the circuit I'm going to take.
• 37:56
  SPEAKER_01: I'm going to do what I want.
• 37:58
  SPEAKER_01: Yeah.
• 37:58
  SPEAKER_01: So he would not be the first judge to get into a power struggle with the circuit where he has very strong views about how a case should go.
• 38:05
  SPEAKER_01: And sooner or later, what's probably going to happen is the circuit is going to say, you know what, we're sending this to a different judge.
• 38:11
  SPEAKER_01: So, you know, the second time he dismisses it, probably the point where that happens.
• 38:16
  SPEAKER_01: Some people are trying to portray this as he's some sort of wild eyed far right winger who likes Nazis.
• 38:21
  SPEAKER_01: He's clearly not.
• 38:22
  SPEAKER_01: He has lots of language about how these are terrible people.
• 38:25
  SPEAKER_01: They're doing violent things.
• 38:27
  SPEAKER_01: But he definitely.
• 38:28
  SPEAKER_01: He definitely does have a feeling about government policy, about who they're prosecuting and who they're not.
• 38:34
  SPEAKER_01: It's not so much he thinks Nazis should be let free as he thinks that, you know, the terrible Antifa who are here for our women and children should be prosecuted more.
• 38:43
  SPEAKER_01: And he's in a power struggle over that feeling and about how much power he has with the circuit.
• 38:49
  SPEAKER_01: It's not even so much a power struggle with the government, I think, as it is a power struggle with the judges supervising him.
• 38:55
  SPEAKER_02: Let's leave it there this week.
• 38:56
  SPEAKER_02: There's a couple of ongoing stories.
• 38:58
  SPEAKER_02: There's a couple of ongoing stories that are happening literally as we're taping that we're going to pick up in next week's show.
• 39:02
  SPEAKER_02: One of those is Hunter Biden's testimony before Congress, which is literally happening as we're taping.
• 39:06
  SPEAKER_02: And rather than speculate about it, we will see if we see that transcript and can talk about what actually happened in that hearing, including, you know, maybe how many times he took the fifth.
• 39:15
  SPEAKER_02: And then there's also this issue of the very large bond that Donald Trump is expected to post related to the two huge judgments against him in New York.
• 39:25
  SPEAKER_02: Or if he doesn't post that bond, you know, the ensuing efforts.
• 39:28
  SPEAKER_02: That will happen to seize his various assets.
• 39:31
  SPEAKER_02: His attorneys just filed a motion saying, well, instead of several hundred million dollars, what if he posts a bond just for one hundred million dollars?
• 39:38
  SPEAKER_02: My understanding is that that's not really how this works.
• 39:41
  SPEAKER_02: But anyway, we're going to we're going to look into that and we're going to see what else happens in Judge Engeron's courtroom regarding that.
• 39:46
  SPEAKER_02: And we'll talk about that next week.
• 39:48
  SPEAKER_02: But, Ken, thank you so much for talking with me this week, as always.
• 39:51
  SPEAKER_02: Thank you, Josh.
• 39:53
  SPEAKER_02: Serious Trouble is created and produced by Very Serious Media.
• 39:55
  SPEAKER_02: That's me and Sarah Faye.
• 39:56
  SPEAKER_02: Jennifer Swadik mixed this episode.
• 39:58
  SPEAKER_02: Our theme music is by Joshua Mosier.
• 39:59
  SPEAKER_02: Thanks for listening.
• 40:00
  SPEAKER_02: We'll be back with more soon.
• 40:01
  SPEAKER_02: See you next time.
• 40:03
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