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9-0, but also 5-4 · Serious Trouble

• 0:09
  SPEAKER_00: Hello it's Ken White and it's Josh Barro and this is Serious Trouble.
• 0:13
  SPEAKER_00: There's been quite a bit of news since you and I last spoke Ken.
• 0:17
  SPEAKER_00: It's when it rains it pours and it's been pouring.
• 0:20
  SPEAKER_00: Why don't we start with the Supreme Court which has dispensed with these issues of the 14th Amendment and whether Donald Trump is disqualified from serving as president and what the Supreme Court
• 0:32
  SPEAKER_00: held was that if you're going to disqualify people for participating in an insurrection Congress has to do that they have to pass a law that creates such a disqualification that they haven't done that and therefore he's not disqualified states are not able to make this determination on their own what did you make of this decision from the court
• 0:52
  SPEAKER_01: Well, it was deeply unsatisfying to many people, including some of the people on the court.
• 0:58
  SPEAKER_01: So remember, this is an appeal of the Colorado Supreme Court, which found that Trump was disqualified from the Colorado ballot, found that the court there did have the authority to recognize his disqualification based on him participating in insurrection.
• 1:16
  SPEAKER_01: and that he was covered by that insurrection clause of Section 3 of the 14th Amendment.
• 1:21
  SPEAKER_01: The Supreme Court, you know, we had the oral arguments a few weeks ago.
• 1:25
  SPEAKER_01: It didn't look good.
• 1:27
  SPEAKER_01: It seemed like there was a consensus that maybe a state can't do that and that's certainly the way it turned out.
• 1:33
  SPEAKER_01: All nine justices agreed that a state can't be the one to disqualify somebody under Section 3 of the 14th Amendment.
• 1:43
  SPEAKER_01: So to the extent that it is what we've called self executing, it's not a self execution that can be recognized by the state.
• 1:51
  SPEAKER_01: And the sentiment that seems to have prevailed even with the liberal wing of the court is that there would be too much chaos if states could all make their own decisions about this on federal candidates for federal elections.
• 2:05
  SPEAKER_01: so all the justices agree that Colorado can't do this but that's where the consensus ends so five of the justices went arguably further than they needed to they said not only can a state not do it but if anyone in the federal government tries to do it it could only be Congress
• 2:26
  SPEAKER_01: using its power under section 5 of the 14th amendment to enact legislation to enforce the 14th amendment and that has the not the dissenters but the people concurring but objecting
• 2:42
  SPEAKER_01: very upset so justices Kagan, Jackson and Sotomayor all say that basically the majority completely gratuitously reached an issue that wasn't before it about which federal entity and how could recognize disqualification from insurrection and that basically they were abandoning the principle of judicial conservatism that is the principle you don't reach issues as a judge you don't have to reach
• 3:09
  SPEAKER_01: and going too far in a way they didn't agree with.
• 3:13
  SPEAKER_01: And then, of course, there's Justice Amy Coney Barrett, who basically did what I do when my wife's mad and I say, don't you think you should try to calm down?
• 3:25
  SPEAKER_01: And it worked out just about as well.
• 3:27
  SPEAKER_00: And so the interesting thing is Barrett agreed with the three liberals on the substance of this question, right, of whether the court ought to reach this, whether they ought to rule on it.
• 3:35
  SPEAKER_01: but she basically said you know we don't we don't need to be so mad about the fact that we disagree on this yeah she agreed that the court had gratuitously reached this issue of how if the feds do it they would have to do it but she says in my judgment this is not the time to amplify disagreement with stridency the court has settled a politically charged issue in the volatile season of a presidential election
• 4:00
  SPEAKER_01: particularly in this circumstance writing on the court should turn the national temperature down not up for present purposes our differences are far less important than our unanimity all nine justices agree on the outcome of this case that is the message Americans should take home so in my mind a deeply irritating tone policing where basically it's it's in a situation where I think many people in the court feel that there was an insurrection
• 4:29
  SPEAKER_01: and this this minority on the court feels that basically they are heading off future attempts and trying to make it harder to disqualify someone for insurrection and what that minority says is that structurally it doesn't make sense because Congress can
• 4:48
  SPEAKER_01: overcome this can vote to overcome this disqualification by a two-thirds vote but somehow with this if they just don't do anything the disqualification never happens and they're saying that doesn't really make logical sense but but the upshot of it is this ends the ability of Colorado or any of the other states that have dabbled in this to disqualify Trump based on their own procedures whether by state officials or by state judges
• 5:16
  SPEAKER_00: The idea that the court shouldn't reach questions that it doesn't really need to is a theme that I would tend to associate with the Chief Justice.
• 5:24
  SPEAKER_00: But he's one of the people here who chose to address this question.
• 5:29
  SPEAKER_00: And I guess my question is, what exactly is being foreclosed here?
• 5:33
  SPEAKER_00: I assume one of the advantages of doing what the court did and going and saying this is how the federal government would have to enforce this if it were going to, is that you might reduce the likelihood of some constitutional crisis later this year where you had some
• 5:46
  SPEAKER_00: Serious Trouble featuring Josh Barro
• 6:04
  SPEAKER_00: um where the Biden administration would have said you know actually Trump is disqualified that strikes me as quite unlikely that that there would be that effort is it is it forestalling some sort of federal litigation in a federal court where a federal judge could order that uh that Trump had been disqualified from the ballot what are what are they forestalling here exactly
• 6:21
  SPEAKER_01: i think they're forestalling two things one is any federal court ruling uh any lower court saying that he's disqualified and the second would be yes even congress in theory couldn't vote to say that he's disqualified now without first voting to create enabling legislation allowing them to vote that he's disqualified so those are some of the things that would not be permitted and the majority's point is that that was
• 6:50
  SPEAKER_01: completely gratuitous they did not need to reach that and under normal principles arguably honored more in the breach than the observance they would not
• 7:01
  SPEAKER_00: because it's interesting to me the sort of we're going to talk in a moment about this presidential immunity issue.
• 7:08
  SPEAKER_00: And Jack Smith had asked the Supreme Court to take that issue up directly before the appeals court even ruled on it and basically said, you know, this is an issue of such importance and the expediency is important here.
• 7:20
  SPEAKER_00: And so the court
• 7:21
  SPEAKER_00: for Serious Trouble featuring Josh Barro.
• 7:40
  SPEAKER_00: The value in there's value in the Supreme Court settling this issue so that we don't spend the next eight months fighting over it.
• 7:46
  SPEAKER_00: I guess you could say that about most any issue that might come before the court, though, that there's value in settling these things in advance.
• 7:52
  SPEAKER_00: And generally, that's not the way it's supposed to work.
• 7:54
  SPEAKER_01: Well, exactly.
• 7:55
  SPEAKER_01: And the idea is that, I mean, in the immunity case, the issue was presented in the case.
• 8:01
  SPEAKER_01: It was live.
• 8:02
  SPEAKER_01: It was ripe.
• 8:03
  SPEAKER_01: And the concern would be here.
• 8:05
  SPEAKER_01: You didn't have any party with the interest
• 8:09
  SPEAKER_01: in arguing the position of any federal official or federal court to make the decision.
• 8:15
  SPEAKER_01: Colorado didn't have any interest in that.
• 8:17
  SPEAKER_01: They were only arguing their own interests in this.
• 8:20
  SPEAKER_01: So basically the court is reaching out on issues that are not even completely briefed by a party that has a motivation to litigate them.
• 8:28
  SPEAKER_01: That's part of the concern.
• 8:30
  SPEAKER_00: Let's talk about that immunity issue because the Supreme Court also decided they are going to consider this question of the scope of presidential immunity, whether Donald Trump is immune from prosecution over the actions that he took in the wake of the 2020 election in the lead up to January 6th.
• 8:47
  SPEAKER_00: We had talked about this and we thought that the court might pass on this, that there's no circuit split here, they might not have any issues with the reasoning of the appeals court, the DC Circuit Court of Appeals panel that ruled that he was not immune.
• 9:00
  SPEAKER_00: They did not take a pass on it.
• 9:01
  SPEAKER_00: The court has decided that they are going to consider this question and they have stayed those proceedings further by not returning the mandate to Judge Chuckkin.
• 9:09
  SPEAKER_00: and therefore that at least we're probably here until June waiting for the Supreme Court to rule before that can be handed back to her to go to trial.
• 9:16
  SPEAKER_00: What do you make of the fact the court decided to take this up?
• 9:20
  SPEAKER_01: well they did set a fairly quick briefing schedule I mean they they took it up last week still in February I believe when they made the ruling and they set the briefings the first brief is due on March 18th the response April 8th the reply April 15th and argument the week of the 22nd of April that's fast
• 9:44
  SPEAKER_01: so they're recognizing that but the concern is that yes this kicks the can down the road further it means that there may not be a decision until the end of June when the court's term ends
• 9:58
  SPEAKER_01: and then people have been saying well Judge Chutkin has been recognizing that there's still a few months of work left to do before trial of motion practice and things like that so all of a sudden you're talking about not starting the trial until maybe the end of September the beginning of October then there's a question about whether the trial can even be finished
• 10:20
  SPEAKER_01: uh before election day and certainly Trump cannot be under the scenario convicted I mean he can be found guilty by a jury but someone isn't convicted until they're sentenced and that is kicked out further to the point where it may not be possible for him to be uh sentenced before if he's re-elected he takes office
• 10:41
  SPEAKER_01: which would mean, you know, not that he couldn't still take office and then pardon himself anyway, but this definitely kicks the can down the road some.
• 10:52
  SPEAKER_01: The language they use is that they limited it to whether and to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
• 11:09
  SPEAKER_01: uh so it's not a complete open immunity question it's limited to that and there's a whole lot of commentary back and forth what did they mean by that so some commentators like uh Jack Goldsmith who's a professor at Harvard uh suggested that means maybe
• 11:25
  SPEAKER_01: they are going to come up with some sort of rule that only applies to core presidential functions you'd have immunity about that about say you know appointments or pardons or things like that you couldn't be convicted for
• 11:41
  SPEAKER_01: but other people think it may be broader and so we will have to see but the main heartburn about this for many critics has been that the Supreme Court could have kept things moving faster by accepting it earlier and instead they waited accepted it now and as a result the trial is going to be very much hard upon the election
• 12:03
  SPEAKER_00: When you talk about the possibility that there could be a ruling here that says, you know, there's some scope of immunity, but it's not nearly as broad as the former president claims that it is.
• 12:15
  SPEAKER_00: Does that potentially set up a situation where the court has created a new standard?
• 12:20
  SPEAKER_00: and then they have to send it back to Judge Chukin to apply the standard to the specific accusations against the former president and decide is he immune to any of these charges based on the standard the court set out and then Judge Chukin would have to rule on that and then conceivably Trump could appeal again and say that she had applied the standard incorrectly and that he is immune under the reasoning put forward by the court and then we'd have to have a whole new round of appeals again.
• 12:48
  SPEAKER_01: I'm sure he would try that but I think that likely the court here is going to again reach as far as it can and do it based on the specific allegations about what he did and those allegations really aren't about core presidential functions and that's something that's been consistently observed in all the cases dealing with Trump so this is not him you know appointing someone that he has a constitutional power to appoint or
• 13:19
  SPEAKER_01: Right, but even if he doesn't have a very good argument about it, and even if he doesn't have an argument that the Supreme Court is likely to be interested in hearing, isn't he still entitled to an appeal back to the DC Circuit?
• 13:44
  SPEAKER_01: and that there would be you know that that would stop the clock for some number of weeks as they consider that again I don't know that he would be entitled to another appeal so this is his appeal that he gets on the issue of immunity the the right not to be tried so if they send it back
• 14:05
  SPEAKER_01: unless they do it in a weird way like we send it back for further proceedings consistent with this for you to find out then I think it means that the judges are going to resolve whether or not the alleged conduct here triggers immunity or not
• 14:19
  SPEAKER_00: okay oh I see so so so you're saying it's not likely to be the sort of thing where they say here's our standard and we send this back to Judge Chuck and to do fact-finding to see how it applies here you expect them to set out the standard and to say how it applies to the set of facts here I've been wrong before but yes that's what I do expect
• 14:36
  SPEAKER_00: OK.
• 14:36
  SPEAKER_00: And so then to go back and talk about the calendar there, should we assume that they're going to take all the way until the end of the term?
• 14:42
  SPEAKER_00: I realize that even if they wait until June, that's fast by normal standards.
• 14:46
  SPEAKER_00: You might expect them not even to hear the case this term and you'd have a much longer period.
• 14:50
  SPEAKER_00: But given that they've decided to hear it this term, to hear it in April, you think they're probably going to take about two months to issue the ruling after the after the arguments?
• 14:59
  SPEAKER_01: Well, I think you have at least some justices who are interested in dragging it out to help Trump.
• 15:05
  SPEAKER_01: And I think that they'll be able to do so.
• 15:08
  SPEAKER_01: And it's a, you know, extremely historically significant question and it's a complicated one.
• 15:14
  SPEAKER_01: So it's not the sort of one you would normally expect to go lightning quick.
• 15:18
  SPEAKER_01: And for something like this, you know, getting it done in two months is not a lot of time.
• 15:24
  SPEAKER_00: and so if the case is handed back to Judge Chuck in in late June you're saying you know that there's thought there's about three months of pre-trial stuff to do that takes you into late September conceivably this bizarre situation where you have a trial that is ongoing up to and through Election Day
• 15:41
  SPEAKER_00: That's right.
• 15:42
  SPEAKER_00: And Judge Shutkin has been talking about, you know, the as as she's trying to schedule this trial, the fact that the defendant is busy is not something that stands in the way of going to trial.
• 15:51
  SPEAKER_00: And, you know, we're supposed to be scheduling this basically pretending like there isn't this election going on around it.
• 15:57
  SPEAKER_00: and you have some extent to that fiction in the courts but not entirely I mean for example the Supreme Court even though people are mad about the time they're taking up here they are going a lot faster than they could and they than they otherwise ordinarily would and I assume that is a reaction to the fact that we are on this election timeline so is Judge Shutkin really gonna not blink and go ahead and do that and say we're gonna start trial on September 27 or whatever it is and set a schedule such that
• 16:24
  SPEAKER_00: Donald Trump is on trial through the most key weeks of the election.
• 16:29
  SPEAKER_01: I think she will.
• 16:29
  SPEAKER_01: I think she's given every indication that that's the way she sees it and that the, you know, the president, the former president's trying to become president again is not a reason to deviate.
• 16:42
  SPEAKER_01: And that would be quite a spectacle, though, because, you know, as you know, presidential campaign is incredibly hectic.
• 16:49
  SPEAKER_01: and a president being trapped you know in in DC for the last month of it the busiest part of it is going to be dramatically different than the norm
• 17:00
  SPEAKER_00: Former President Trump has been voluntarily attending a lot of hearings and proceedings in cases where he's not strictly required to be present.
• 17:06
  SPEAKER_00: He was in a courtroom down in Fort Pierce, Florida before Judge Eileen Cannon last week when they were talking about some scheduling matters and other relatively mundane aspects of these cases.
• 17:18
  SPEAKER_00: He will actually have to attend his own criminal trial, right?
• 17:22
  SPEAKER_01: Well, he's required to under the federal rules.
• 17:27
  SPEAKER_01: It's one of the things that generally you're not allowed to waive.
• 17:32
  SPEAKER_01: But once he's been there for the first day, if he doesn't show up again, the court can keep going.
• 17:41
  SPEAKER_01: So if you voluntarily absent yourself, the court can keep trying you.
• 17:45
  SPEAKER_00: I assume a judge could have him held in custody for not showing up, but wouldn't have to?
• 17:51
  SPEAKER_00: correct okay conceivably a judge could so at this point we're just gonna we're gonna watch as these briefs come in we'll talk about them to the extent that they're interesting things to talk about there we'll see the argument come in in April but basically we're all we're all waiting until June for the next key decision point here we could be surprised they could decide quickly and say may but I wouldn't count on it
• 18:14
  SPEAKER_00: Let's talk about money and this issue of, you know, the bonds that Donald Trump is going to need to put up totaling hundreds of millions of dollars to do with judgments that have been entered against him in two cases.
• 18:25
  SPEAKER_00: One is the second E. Jean Carroll case, nearly $100 million there, approximately $400 million in the New York Attorney General case.
• 18:34
  SPEAKER_00: And so he's been Trump has been trying to negotiate a discount here.
• 18:37
  SPEAKER_00: which i find sort of amusing he said well what if i put up a bond for 100 million dollars uh new york appeals court did not go for that what are what are we waiting for here in terms of when when these bonds actually need to be put up well really we're almost at the breaking point i think we are
• 18:53
  SPEAKER_01: at the 30-day point in the Eugene Carroll case and Trump characteristically waited to the very last minute to file something there saying you know could you suspend my obligation for 30 days to post a bond or reduce it and the judge somewhat acidly noted that he'd waited to the last minute and so far has not granted him any relief and every indication is the judge will say no in the
• 19:17
  SPEAKER_01: The New York State case and the Attorney General case, he filed something with the Court of Appeal and the court said, no, you're not posting 100 million instead of 400 million.
• 19:28
  SPEAKER_01: But what the Court of Appeal judge did do temporarily is suspend the part of the judgment that said that he and the other defendants can't seek loans.
• 19:37
  SPEAKER_01: from certain entities right from certain entities that are registered with New York State so that allows them to seek someone to put up this bond for them as a loan but still no joy in terms of his very optimistic requests you know my life would be much more pleasant if this were a hundred million rather than four hundred million so I he's down to it he's got to do it pretty quickly
• 20:00
  SPEAKER_00: So when do we start seeing actions to collect on the judgment?
• 20:05
  SPEAKER_00: When do we start seeing liens put on his properties and that sort of thing?
• 20:08
  SPEAKER_01: This month, I think, in March.
• 20:10
  SPEAKER_01: I think he's run out of time in the E. Jean Carroll case.
• 20:13
  SPEAKER_01: The judge will probably definitively reject his request there within the next few days.
• 20:21
  SPEAKER_01: You'll see some enforcement action starting to take place unless the Court of Appeals does something, which I doubt it will.
• 20:29
  SPEAKER_01: and then once the 30 days hits for the New York case, I believe it's 30 days there, you'll start seeing the Attorney General there I suspect be even more aggressive and going after things.
• 20:40
  SPEAKER_00: Or I mean I would note he could post the bond in the E. Jean Carroll case.
• 20:43
  SPEAKER_00: He might.
• 20:44
  SPEAKER_00: We've talked about what his actual capacity to do this is.
• 20:47
  SPEAKER_00: He did offer to put up a $100 million bond in the New York Attorney General case which would suggest that he may have the capacity to put up a bond of approximately $100 million.
• 20:56
  SPEAKER_01: um in which case he might do that in the E. Gene Carroll case but then you know we'd still have this whole issue of the uh of the much larger judgment in the New York Attorney General case right and you've got the fact that as we talked about last time a lot of his assets are tangled up with other people other entities he can't just pledge them easily but nor can they be sold easily nor can the Attorney General necessarily get to them and liquidate them easily so it's going to be a mess
• 21:25
  SPEAKER_00: There's another major asset of his that we haven't talked about that is really an oversight because one of the most valuable assets that he holds, which is his equity stake in Trump Media, the company that owns the Truth Social social media platform.
• 21:40
  SPEAKER_00: And I'm not going to speak to what the long run business prospects are for Truth Social in terms of advertising revenue and such, but there is this other entity called Digital World Acquisition Corporation.
• 21:53
  SPEAKER_00: which is a SPAC.
• 21:54
  SPEAKER_00: A SPAC is an alternative way for a company to go public.
• 21:57
  SPEAKER_00: This was a fad on Wall Street a few years ago.
• 22:01
  SPEAKER_00: The bubble for SPACs has largely popped, but people would be very excited.
• 22:04
  SPEAKER_00: Oh, this private company is going to go public.
• 22:06
  SPEAKER_00: Does it have profits?
• 22:07
  SPEAKER_00: Who cares?
• 22:08
  SPEAKER_00: Let's bid it up.
• 22:09
  SPEAKER_00: and so there's one of those for Trump Media and it suggests that Donald Trump's stake in Trump Media is worth several billion dollars again you know regardless of whether the company's actually gonna make profits in the long run there is investor excitement there are people out there who have bought shares in this company Digital World Acquisition which is supposed to merge with Trump Media and then they will own a piece of Truth Social but most of it will still be owned by Donald Trump and so if that
• 22:33
  SPEAKER_00: Transaction Actually Happens and some SEC hiccups that they've had have been cleared and they're supposed to be able to do that, you know, sometime within the next few months.
• 22:43
  SPEAKER_00: That will give Donald Trump a lot of stock in a publicly traded company, several billion dollars worth of stock in that company.
• 22:48
  SPEAKER_00: And so there's some question about exactly when he's allowed to sell that stock.
• 22:52
  SPEAKER_00: There's a window that you have to wait, but they might be able to waive that requirement.
• 22:57
  SPEAKER_00: Anyway, he has this valuable asset that he could use, for example, to satisfy the judgments in these cases.
• 23:03
  SPEAKER_00: and so one of the questions basically is is he going to get his hands on that money in time to use it for that rather than you know having people doing these collection things against him through the courts and trying to lay their hands on his other properties
• 23:15
  SPEAKER_01: well it's unclear to me I mean first of all the actual I guess the thing is worth what people will pay for it even if the person's a moron but you know the notion that truth social itself as the value driving the asset is worth billions of dollars I think it's fairly questionable I guess people feel like they missed out on the opportunity to
• 23:36
  SPEAKER_01: get a share in Francisco Franco's Spain or something and so they want to be able to to do this but you know it's it's not a particularly successful social media platform even with the Trump name behind it it doesn't seem to drive a lot of advertising or other normal traditional avenues of value but
• 23:55
  SPEAKER_01: you're right but the thing is Josh right now it's super tied up in a bunch of different litigation so you know some of the partners are suing Trump and Trump media claiming that they their value was reduced out improperly Trump media is suing someone else over their role in this planned merger there's a third lawsuit so there's just like a cluster of litigation as you expect with a Trump project and it's not at all clear what's going to happen with this
• 24:23
  SPEAKER_00: But I mean, it is possible that that's going to solve a lot of these financial problems for Donald Trump.
• 24:29
  SPEAKER_00: You know, the hundreds of millions of dollars in judgments against him, hundreds of millions of dollars in legal bills and maybe exhausting some of the political entities that were created that have been paying some of those legal bills.
• 24:42
  SPEAKER_00: This is a large piggy bank that he can dip into or that he may soon be able to dip into if he needs to.
• 24:49
  SPEAKER_01: Well, you know, you're better at the stock market than I am Josh, but can he sell enough stock of this thing without tanking the value to get all that money out of it?
• 24:59
  SPEAKER_00: it's a good question I mean it has to do with you know exactly what is the depth of that consumer enthusiasm I mean you've you've seen it with stocks like AMC the movie theater exhibitor company that is not a great business but they managed to create a fandom more or less I mean they with GameStop they made a whole movie about it and the stupid movie basically paints all of these fad people as heroes and
• 25:23
  SPEAKER_00: right saying you know we're standing up to Wall Street by bidding up the stock of this dying business that'll show you Wall Street anyway I mean these things happen sure and they're stupid but that doesn't mean that you know if the stock is trading at a hundred dollars a share and someone's willing to buy it for that then that's what it's worth and you can sell it for that and if the market for this is deep enough and the Donald Trump has lots of fans
• 25:45
  SPEAKER_00: who are quite passionate about him I don't think it's obvious that if he needs to dump several hundred million dollars worth of shares that's going to be so much that it will overwhelm the market I mean and there's also this additional advantage that you know often if the founder of a business is desperate to sell a lot of the stock
• 26:01
  SPEAKER_00: that might be taken by market participants as a sign there's something wrong with the business but if you can point to an external matter like I lost all these lawsuits and I owe hundreds of billions of dollars and I need the cash it's in a way it's a story about why you're selling all this stock and Trump media that is not a story about Trump media being a bad business
• 26:17
  SPEAKER_00: That might actually help with the market acceptance of saying, you know, here's Donald Trump out here selling these shares, not because he doesn't have confidence in the business, but because he needs the money.
• 26:27
  SPEAKER_00: And hey, let's go out and support him by buying shares in his in his good business.
• 26:30
  SPEAKER_00: I find it, you know, it's actually in a way it's it's it's less stupid than GameStop.
• 26:35
  SPEAKER_01: That is a sadly persuasive answer, Josh.
• 26:38
  SPEAKER_01: And yeah, I mean, it's not like his supporters are particularly critical of the credibility of his stories anyway.
• 26:45
  SPEAKER_01: And plus, I mean, he's selling lots of those ass ugly $400 shoes.
• 26:49
  SPEAKER_01: So I don't know why he couldn't sell a bunch.
• 26:50
  SPEAKER_01: Is he selling a lot of those shoes?
• 26:52
  SPEAKER_01: Apparently, yes.
• 26:53
  SPEAKER_01: So and so maybe he will sell a bunch of the stock and this will solve all his temporary money problems.
• 27:06
  SPEAKER_00: Let's talk about Allen Weisselberg.
• 27:08
  SPEAKER_00: Poor Allen Weisselberg.
• 27:10
  SPEAKER_00: I shouldn't feel bad for Allen Weisselberg.
• 27:12
  SPEAKER_00: There's something weird about that.
• 27:14
  SPEAKER_00: Of all of the people in the Trump orbit to face substantial consequences for their actions, I'm a little bit surprised that it's him.
• 27:21
  SPEAKER_00: Donald Trump gets away with all of this stuff and his poor CFO is the one who ends up taking the fall for everything.
• 27:28
  SPEAKER_00: And so Allen Weisselberg perjured himself, as one does, in these legal proceedings, the New York Attorney General
• 27:35
  SPEAKER_00: case about the Trump businesses.
• 27:37
  SPEAKER_00: And so he's pleading guilty again.
• 27:39
  SPEAKER_00: He's getting another five months sentence related to that.
• 27:44
  SPEAKER_00: I guess he should stop lying on the stand.
• 27:46
  SPEAKER_01: He should.
• 27:47
  SPEAKER_01: So remember, he he pled guilty earlier to various tax schemes related to
• 27:53
  SPEAKER_01: running the Trump businesses and now he's pleading guilty to lying in deposition at a trial in the whole New York Attorney General case basically by lying about when they knew that the infamous 10,000 square foot apartment was actually 10 and not 30,000 square feet so yeah he keeps getting caught so this is kind of the classic situation where
• 28:20
  SPEAKER_01: the dumb lower level guy is left holding the bag criminally when the higher up people skate and I guess that happens a lot it does but you still you're right you feel like that's not fair but it's not that you feel sorry for him it's like it's like when Darth Vader force chokes Admiral Ozzel right it's not that Admiral Ozzel is a good guy you just kind of feel a little the pathos about it so yeah
• 28:50
  SPEAKER_00: And then speaking of lower level idiots, let's talk about Kenneth Chesebro, this attorney who none of us had heard of before January 6th, 2021, who seems to have been the guy behind a lot of the theories about how Donald Trump is above votes and that they could, you know, they could just reject the slates of electors and they, you know, Mike Pence can decide who really is going to be the next president.
• 29:14
  SPEAKER_00: and so he had made certain claims about that you know he wasn't really into a lot of these ideas and now there there have been a number of text messages and emails that we've seen as a result of certain litigation that show him you know really being the guy behind a lot of these schemes that that were created the huge mess that led up to January 6 and then also a Twitter account
• 29:37
  SPEAKER_00: in which he was tweeting very aggressively about these ideas and you know that Mike Pence you know ought to do his job and and reject the the electoral votes um and he was supposed to disclose to investigators what all of his social media accounts were and he like forgot to tell them about that one what are the consequences here Kenneth Chesbrough has been he's been charged in that Georgia Rico uh situation which as we've discussed extensively is going really sideways
• 30:04
  SPEAKER_01: to what extent does it matter if Kenneth Chesebro lied about what he really thought at what time well it does matter so yes he was charged in Georgia and as I recall he took a plea there an early easy plea that gets him no jail time then he's now got two things going on in Wisconsin and Michigan it's Michigan where he apparently lied to investigators and told them oh no I don't have any Twitter accounts on which I
• 30:34
  SPEAKER_01: promoted these ideas and encouraged insurrection and CNN did investigation found out basically yeah he did not a particularly well hidden one and he was using that Twitter account to promote these ideas like all you have to do is you know flood the zone with shit and that throws it over to the house or other political solutions to this and the the Michigan investigators have responded basically how very interesting we'll look at this further
• 31:01
  SPEAKER_01: so he could be in trouble for lying to investigators which can be a crime in the state as much as it can be with the feds in Wisconsin it seems like it's wrapped up so some people sued over this and he's settled it
• 31:17
  SPEAKER_00: The real electors from Wisconsin sued.
• 31:19
  SPEAKER_00: You know, that's one of the states where they had the fake slate of electors and the real electors were obviously they're like, hey, I'm I'm that's my electoral vote that you have to count.
• 31:28
  SPEAKER_01: Yeah.
• 31:28
  SPEAKER_01: So the real electors sue over, you know, bitch stole my look.
• 31:32
  SPEAKER_01: And that that produces all these texts and things.
• 31:36
  SPEAKER_01: And he's now settled that by, as far as I can tell, basically promising not to insurrect anymore.
• 31:42
  SPEAKER_01: that showed a lot of the details of how this worked and a lot of those text messages may come in handy in the assuming the feds don't already have them in the case in front of Judge Chutkan and in the Georgia case against you know Tesborough's co-defendants there because it really shows the sausage being made with them basically saying look all we got to do is come up with all these BS things that we don't believe to create distraction
• 32:10
  SPEAKER_01: and then get people based on that to put in new electors
• 32:14
  SPEAKER_00: We talk a lot about USC 1001, the federal statute that prohibits lying to a federal investigator.
• 32:20
  SPEAKER_00: You mentioned there that often it's also illegal to lie to a state investigator.
• 32:24
  SPEAKER_00: What is the scope of those laws generally?
• 32:26
  SPEAKER_00: Like if you're pulled over and you say, officer, no, actually, I don't know how fast I was going.
• 32:30
  SPEAKER_00: Is that a crime?
• 32:31
  SPEAKER_00: Is that a state crime?
• 32:32
  SPEAKER_01: It might be technically one.
• 32:35
  SPEAKER_01: For day to day encounters like that, it's really going to be, did you piss off the cop?
• 32:40
  SPEAKER_01: as to whether or not they throw something at you.
• 32:43
  SPEAKER_01: But if there's like a full-blown official investigation and you lie to that, then that's the type of thing where they may use that as a tool.
• 32:53
  SPEAKER_01: Generally, the states, at least not the ones I follow and familiar with, don't seem to use this as a tool to the same extent federal prosecutors do.
• 33:03
  SPEAKER_01: But if I were Chesborough's lawyers, I would be very concerned about how Michigan is going to react
• 33:09
  SPEAKER_01: to learning they were lied to.
• 33:12
  SPEAKER_00: I mentioned the Rico case where Kenneth Chesebro pled.
• 33:17
  SPEAKER_00: The saga continues with regard to the personal relationship between Fannie Willis and Nathan Wade and what, if anything, Judge Scott McAfee is going to do in relation to that.
• 33:27
  SPEAKER_00: There were closing arguments on Friday from defense attorneys and also from the district attorney's office about whether the district attorney should be disqualified.
• 33:37
  SPEAKER_00: But one interesting thing about these being closing is that you still have defendants trying to bring in new evidence, new testimony here.
• 33:45
  SPEAKER_00: So are we actually about to reach the end of the road on this question of whether Fonny Willis may prosecute this case?
• 33:50
  SPEAKER_01: one theory one of the other defendants who hasn't made the motion yet could renew it with new evidence but I think once the judge once judge McAfee makes his legal determinations about what the right standard is and whether or not these facts meet it then I think that's going to
• 34:08
  SPEAKER_01: pretty much determine how the rest of them will go barring any substantial new evidence that directly addresses what the court sees as the proper standard so it was a very long set of closing arguments for this type of thing very unusual for state court in this type of motion
• 34:23
  SPEAKER_01: and um the judge clearly thought that he's going to have to make some factual determinations and some legal determinations he seemed skeptical of the more broad interpretation of the laws that the defense lawyers were urging the concept that
• 34:40
  SPEAKER_01: he can disqualify based on the appearance of impropriety in particular he seemed a little skeptical of but he he was certainly engaged he's certainly taking this very seriously and he said he was gonna rule within two weeks so which would put it around the 14th of March or so now one thing that happened is that after the hearing one of the co-defendants David Schaefer
• 35:06
  SPEAKER_01: um filed something saying they wanted to introduce new evidence in all this and and this was a claim it was not an affidavit from the person but a claim that there's a deputy district attorney who will say that Terrence Bradley who you remember is the former law partner and divorce attorney
• 35:24
  SPEAKER_01: of Mr. Wade, had told her, this deputy DA, that the relationship started way back before Wade's hiring.
• 35:34
  SPEAKER_01: And also she claims that she overheard a call from Fannie Willis to Bradley saying that, you know, people are going to be coming for us and asking questions and you don't have to answer.
• 35:44
  SPEAKER_01: any questions um it's notable they didn't introduce this person's declaration or affidavit and a lot of it seems awfully collateral so it just seems more the same about what did Bradley know and if if if they're just saying Bradley said this well Bradley's already said on the stand basically hey I say a lot of shit and I don't necessarily mean it and I don't necessarily have the facts for it so I don't really know that's going to move the judge or or even that it should
• 36:11
  SPEAKER_01: Now, if it were statements directly from Wade or Fonny Willis, that might be different.
• 36:15
  SPEAKER_00: I should note by this Cindy Yeager, the potential witness who will allegedly testify to this.
• 36:19
  SPEAKER_00: She's a deputy district attorney in Cobb County nearby, so she doesn't she doesn't work for Fonny Willis.
• 36:25
  SPEAKER_00: That would be an extra awkward thing.
• 36:26
  SPEAKER_00: She's a she is a prosecutor, but she's not a prosecutor in the same jurisdiction.
• 36:31
  SPEAKER_00: One other thing that Judge McAfee was asking about and he was questioning the attorneys as they made their closing arguments here.
• 36:38
  SPEAKER_00: is he was saying, you know, well, if some of these people lied or engaged in other kinds of misconduct, isn't that a question for the bar and saying, you know, well, you know, I don't know that he wasn't sure why, whether he was the one who was supposed to do anything about that, even if wrongdoing had been shown here.
• 36:54
  SPEAKER_01: Right, because one of the themes here has been people accusing Fannie Willis and Nathan Wade of lying in the course of opposing this motion and suggesting that somehow that requires disqualification.
• 37:07
  SPEAKER_01: And I think probably the judge is right.
• 37:09
  SPEAKER_01: He also noted that if you accepted that argument, it wasn't clear why it would apply only in this case.
• 37:12
  SPEAKER_01: He was saying, do I have to disqualify the Fulton County DA from every case that is currently before this court?
• 37:30
  SPEAKER_01: well exactly and you generally don't want to get into the business of determining when prosecutors lie as a judge so I think that the whole they lied argument is maybe he'll reach it but I think a more
• 37:46
  SPEAKER_01: Judicially conservative thing to do in the in the traditional sense of not reaching things you don't have to reach is saying I don't need to make a finding about whether or not they lied because whether or not the allegations true I find it's not sufficient to mandate disqualification so he might do that or he may make factual findings on the theory that an appellate court should have factual findings to look at when this gets appealed which it certainly will
• 38:13
  SPEAKER_00: Finally this week, why don't we talk about Hunter Biden?
• 38:15
  SPEAKER_00: Hunter Biden appeared before a congressional committee for a hearing on the record.
• 38:21
  SPEAKER_00: They released a full transcript.
• 38:22
  SPEAKER_00: That was part of the agreement when Hunter Biden finally agreed to come and comply with the subpoena that he'd received and sit for this interview about his business activities was that they would not release selective information about how he had testified.
• 38:35
  SPEAKER_00: They released a full transcript of it.
• 38:37
  SPEAKER_00: and the full transcript shows you know he didn't take the fifth he answered quite a lot of questions about what he had been up to business-wise and he's combative but also he's talking a lot in a way that would normally not seem advisable for someone who is a criminal defendant well yeah I mean his theme is sort of I was dumb and drunk and high all the time which is sort of bad for his defense of the case about you know buying a gun while a drug addict
• 39:04
  SPEAKER_01: and yes you absolutely wouldn't normally do this but we've been talking for months about how he's taking this dramatically different strategy a very in your face strategy trying I think to discredit and undermine the potential future prosecutions of him that might happen under a Trump administration but he was
• 39:22
  SPEAKER_01: He absolutely fell on the sword with respect to his father, the president of the United States, saying his father wasn't in any of this stuff, that he was constantly, you know, drunk and high and pretending like to have influence with his father.
• 39:37
  SPEAKER_01: But he said his father wasn't involved in his business stuff at all.
• 39:40
  SPEAKER_01: And that when there were meetings, there were meetings because, you know, these were people his dad already knew and was friends with.
• 39:47
  SPEAKER_01: um and he and the democrats who were present took a lot of shots at the republicans and so he said things like you know unlike Jared Kushner i've never received money from a foreign government and that's very typical the types of shots he was taking and some of the democrats asked him a series of questions basically you know taking everything bad trump's already done and said did you do this did you do this did you do this so he could say no no no for that that contrast so i i don't really know what the republicans think they got out of this
• 40:18
  SPEAKER_00: You mentioned the gun case, and we've talked a lot about the difficulties for the government with the gun case.
• 40:22
  SPEAKER_00: It's not even clear that the law they've charged him under is constitutional.
• 40:25
  SPEAKER_00: I was looking at this transcript and wondering how it affects the tax case, because I mean, the questioning wasn't really about Hunter Biden's taxes.
• 40:33
  SPEAKER_00: It was about his business activities and who was paying him and why and for what.
• 40:37
  SPEAKER_00: But it seems like if you're going to have to go into trial and maybe claim that you didn't know certain things about your finances and that you didn't make any intentionally false statements to the government about your income that caused you to pay less tax,
• 40:53
  SPEAKER_00: Going and sitting for a long interview in which you make a lot of statements about your financial activities during the years for which you're being tried over your tax returns, it seems like that might open you up to some difficulty in your criminal case.
• 41:06
  SPEAKER_01: Absolutely.
• 41:07
  SPEAKER_01: So, you know, normally you could take the fifth to any question that could provide a link in the chain
• 41:13
  SPEAKER_01: that leads to your prosecution and here where he's talking about his knowledge his activities his finances part of the tax case is about you know he took deductions for things that amounted to you know hookers and blow which which are not actually deductible under the United States tax code as business expenses not after the 1986 reforms
• 41:34
  SPEAKER_01: No, it's a tragedy.
• 41:36
  SPEAKER_01: So at any rate, yeah, it is dangerous, but it is the path he and his lawyers have embarked on.
• 41:44
  SPEAKER_01: And you kind of see where they're going if they think the real danger here is not so much the consequences of these cases.
• 41:50
  SPEAKER_01: The real danger is Trump getting into office and launching some sort of gigantic, ridiculous
• 41:55
  SPEAKER_01: you know treason and espionage and all this sort of crap which I wouldn't put it past a Justice Department staff the way Trump has been talking about staffing the Justice Department doing
• 42:10
  SPEAKER_00: yeah I don't know I mean that's that's an interesting strategic question right because those charges you know that you could have a much more aggressive Justice Department they could be charges for more serious crimes Hunter Biden knows more than we do about whether he engaged in any criminal activity right other than not paying taxes on income but the tax charges are real and serious in their own right
• 42:31
  SPEAKER_00: um and he doesn't have some of the same defenses available to them i mean you know i i assume he might have uh a plausible selective prosecution or vindictive prosecution claim if it's the trump administration going after him on some of these very political matters his father's own administration prosecuting him for tax crimes that are significantly you know more garden variety um you know it seems like
• 42:53
  SPEAKER_00: he ought to be very worried about that too now obviously you know he's he's in a difficult situation he's a criminal defendant he may not have a good way out where there aren't risks that he has to take but it does you know it seems like he should be concerned about the extent to which he may get prison time over the tax charges themselves
• 43:08
  SPEAKER_01: Well, whenever I'm talking to a client who's in a disaster situation like this, I always say our job is to find the least bad way out of this.
• 43:16
  SPEAKER_01: And that may be the strategy they're pursuing.
• 43:19
  SPEAKER_01: I think that he thinks that probably the penalty in the gun case if it survives is going to be minor.
• 43:25
  SPEAKER_01: He might think that the penalty in the tax cases, even if he's convicted there, will be relatively minor.
• 43:32
  SPEAKER_01: But the sort of exposure he'd face and the cost, the expense of defending some sort of crazy ass Republican driven Burisma theory prosecution could be gigantic and disastrous.
• 43:47
  SPEAKER_00: why don't we leave it there this week Ken thank you so much for speaking with me thank you Josh Serious Trouble is created and produced by Very Serious Media that's me and Sarah Faye Jennifer Swadik mixed this episode our theme music is by Joshua Mosier thanks for listening and we'll be back with more soon see you all next time