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Hot Hot Scheduling Action · Serious Trouble

0:08
SPEAKER_00: Hi, it's Ken White.
0:09
SPEAKER_00: And it's Josh Barrow.
0:10
SPEAKER_00: And this is Serious Trouble.
0:12
SPEAKER_00: Ken, there's a note here in the script.
0:14
SPEAKER_00: I want to know, you wrote this note.
0:16
SPEAKER_00: And it says, hot, hot, hot scheduling action.
0:19
SPEAKER_01: Yeah, in retrospect, it should have been a hot, hot scheduling order action.
0:23
SPEAKER_00: Ah, yes, yes.
0:24
SPEAKER_00: Hot, hot, hot scheduling order action.
0:27
SPEAKER_00: So the reason we have these hot scheduling orders is that the Supreme Court issued
0:31
SPEAKER_00: a ruling a few weeks ago in the case on presidential immunity.
0:35
SPEAKER_00: And that was a case that a number of the cases we follow were waiting for.
0:39
SPEAKER_00: I mean, one of them, it was in the DC election interference case.
0:43
SPEAKER_00: That's what the Supreme Court was considering.
0:45
SPEAKER_00: But it also matters for essentially any criminal case that involved activity
0:49
SPEAKER_00: That former President Trump engaged in while he was president.
0:52
SPEAKER_00: And it affects those cases,
0:53
SPEAKER_00: even if the meat of those cases was about things that happened either before he
0:57
SPEAKER_00: took office or afterwards,
0:58
SPEAKER_00: so long as they were discussing at all things that happened while he was in office.
1:01
SPEAKER_00: Yeah.
1:02
SPEAKER_00: And so now that order has come down.
1:04
SPEAKER_00: And in all those individual cases, the judges are having to figure out what to do about that.
1:08
SPEAKER_00: I actually want to start with Georgia just because the effect that this has is a sad,
1:13
SPEAKER_00: funny commentary on how that case is,
1:14
SPEAKER_00: because the Georgia case is so fucked up that it wasn't even really delayed by the
1:20
SPEAKER_00: Supreme Court consideration because it had all of these other things that were
1:24
SPEAKER_00: delaying it.
1:25
SPEAKER_01: No, it wasn't delayed by that.
1:27
SPEAKER_01: It was delayed by the elected district attorney having a relationship with the
1:32
SPEAKER_01: special prosecutor in charge of the case.
1:36
SPEAKER_01: As you recall,
1:37
SPEAKER_01: that matter,
1:38
SPEAKER_01: whether or not the DA should be recused or what should happen,
1:42
SPEAKER_01: is on appeal and will be probably for a couple of years,
1:46
SPEAKER_01: after which it can come back down and then it can get appealed on the grounds that
1:49
SPEAKER_01: there's an argument that Trump is protected by presidential immunity.
1:53
SPEAKER_00: Donald Trump was being interviewed by one of his acolytes about that case.
1:57
SPEAKER_00: And Donald Trump took the occasion to say that young thug is being treated very
2:00
SPEAKER_00: unfairly by the courts in Georgia,
2:02
SPEAKER_00: which,
2:03
SPEAKER_00: I mean,
2:03
SPEAKER_00: has the virtue of being true.
2:05
SPEAKER_00: But I guess Donald Trump has been following not just his own,
2:07
SPEAKER_00: but the other absurd RICO case that is happening down there.
2:10
SPEAKER_01: Yeah.
2:11
SPEAKER_01: And I mean,
2:11
SPEAKER_01: it takes quite a lot to have a prosecution that is so absurd,
2:16
SPEAKER_01: so badly handled that it kind of makes Donald Trump into a sympathetic figure.
2:20
SPEAKER_01: But, you know, there's a way in which it does.
2:23
SPEAKER_01: But the bottom line is the court won't even have to try to reconcile the Supreme
2:28
SPEAKER_01: Court immunity decision and how it affects the Georgia RICO prosecution for years
2:33
SPEAKER_01: because it's up on appeal on a completely different issue.
2:36
SPEAKER_01: So that one's in limbo functionally forever.
2:39
SPEAKER_01: Yeah.
2:40
SPEAKER_00: And then the Florida Documents case is, in theory, dismissed at this point.
2:44
SPEAKER_00: So that one is also technically not affected by the immunity decision,
2:48
SPEAKER_00: although that case may well be resurrected by an appeals court,
2:53
SPEAKER_00: the dismissal reversed,
2:54
SPEAKER_00: at which point then we'd have to figure out,
2:56
SPEAKER_00: does the immunity decision
2:58
SPEAKER_00: affect this case that is principally about things Donald Trump did after he left office.
3:02
SPEAKER_00: But there might be evidence of things that he did while in office that would be
3:06
SPEAKER_00: important for figuring out whether he's guilty of willfully doing X,
3:10
SPEAKER_00: Y,
3:10
SPEAKER_00: Z things with these documents.
3:12
SPEAKER_00: You might want to show what he knew about when he was president about their
3:15
SPEAKER_00: sensitivity or their classification.
3:17
SPEAKER_00: And there might be difficulty getting that evidence in if that case ever actually goes to trial.
3:21
SPEAKER_01: Right, exactly.
3:22
SPEAKER_01: So recall that Judge Cannon dismissed that case on the theory that Clarence Thomas
3:27
SPEAKER_01: set forth in his concurrence in the immunity decision,
3:30
SPEAKER_01: saying basically Jack Smith,
3:33
SPEAKER_01: special counsel,
3:34
SPEAKER_01: is improperly appointed in a way that violates the Constitution.
3:39
SPEAKER_01: And so she dismissed it on those grounds.
3:42
SPEAKER_01: We've talked before.
3:42
SPEAKER_01: I think it's likely the 11th Circuit will
3:46
SPEAKER_01: reverse that.
3:47
SPEAKER_01: I think that it's plausible that United States Supreme Court,
3:51
SPEAKER_01: as presently constituted,
3:52
SPEAKER_01: will wind up agreeing with it,
3:54
SPEAKER_01: but one never knows.
3:56
SPEAKER_01: But if it does come back down,
3:57
SPEAKER_01: assuming it doesn't get sent to another judge,
3:59
SPEAKER_01: which I think is unlikely,
4:01
SPEAKER_01: I think when it comes back,
4:02
SPEAKER_01: Judge Cannon will probably find a way to dismiss it again under the immunity decision.
4:07
SPEAKER_01: And the way I would guess is that
4:10
SPEAKER_01: even if there's not going to be a lot of evidence in the case from things that
4:16
SPEAKER_01: happened while Trump was president,
4:18
SPEAKER_01: I'm pretty sure there was evidence presented to the grand jury when it indicted him
4:22
SPEAKER_01: on this case that was related to what he did while president.
4:28
SPEAKER_01: I suspect that Cannon will use a theory that that taints at least this indictment
4:33
SPEAKER_01: because they used improper evidence in obtaining it and will dismiss on that theory.
4:38
SPEAKER_00: And so if it came to that, would that be a dismissal without prejudice?
4:42
SPEAKER_00: Would they be able to bring it up again before another grand jury,
4:45
SPEAKER_00: not show them the prohibited evidence and obtain a new indictment?
4:49
SPEAKER_01: In theory,
4:49
SPEAKER_01: although I question whether they would,
4:53
SPEAKER_01: given how problematical the whole thing is now with how you prove things and how
4:58
SPEAKER_01: broad the immunity decision is and that type of thing.
5:01
SPEAKER_00: It's a mess.
5:02
SPEAKER_00: Although it's interesting.
5:03
SPEAKER_00: We'll talk later in this episode about Senator Robert Menendez's conviction,
5:07
SPEAKER_00: which had in some ways some parallel evidence issues where there were things about
5:10
SPEAKER_00: his official acts as a senator that you couldn't show in the case.
5:13
SPEAKER_00: There was concern that that was going to make it difficult for prosecutors to make
5:16
SPEAKER_00: the case up and show people that he'd done all the necessary elements of the crimes
5:21
SPEAKER_00: associated with these bribes.
5:22
SPEAKER_00: In that case, they were able to get a conviction.
5:24
SPEAKER_01: Yeah, they were.
5:24
SPEAKER_01: And so it's not so much a question, I think, of whether you can convince a jury.
5:29
SPEAKER_01: I think it's more a question of
5:31
SPEAKER_01: whether the road here is so disconnected with evidence they put in about what
5:38
SPEAKER_01: happened when he was president on the theory that it showed knowledge or intent,
5:41
SPEAKER_01: that it's going to be a problem.
5:42
SPEAKER_01: And the problems I've said before is,
5:45
SPEAKER_01: again,
5:45
SPEAKER_01: we just don't really know the full scope of what that immunity decision by the
5:49
SPEAKER_01: Supreme Court means.
5:50
SPEAKER_01: They've left so many things open to decide in the future.
5:55
SPEAKER_01: It really just seems like something that's going to keep going up and down
5:59
SPEAKER_01: to the Supreme Court before trial, if any of these go forward.
6:04
SPEAKER_00: Yeah.
6:04
SPEAKER_00: So let's talk about the two that are sort of first going to go through that actual
6:07
SPEAKER_00: process where the live question in the case is,
6:09
SPEAKER_00: what does this immunity decision allow us to do?
6:12
SPEAKER_00: And so, first of all, you have Judge Chutkan in the D.C.
6:16
SPEAKER_00: documents case that the Supreme Court was looking at in the first place.
6:19
SPEAKER_00: So there's going to be a hearing later this month and they're going to discuss the
6:22
SPEAKER_00: schedule on which they're going to hear motions.
6:25
SPEAKER_00: So they're basically making a plan to figure out what the plan is?
6:29
SPEAKER_01: Exactly.
6:29
SPEAKER_01: And that's like,
6:30
SPEAKER_01: you know,
6:30
SPEAKER_01: frankly,
6:31
SPEAKER_01: 70% of legal proceedings is delaying things or continuing them or asking to be
6:36
SPEAKER_01: continued or orders saying when you're going to do something you haven't done yet.
6:40
SPEAKER_01: So that's the hot, hot scheduling order reference.
6:44
SPEAKER_01: So because that's what the law is really like.
6:46
SPEAKER_01: But yes,
6:48
SPEAKER_01: Judge Chutkan scheduled a hearing basically,
6:51
SPEAKER_01: and she didn't even make it that clear exactly what's going to happen.
6:56
SPEAKER_01: fine, let's sit down and figure all this shit out.
6:58
SPEAKER_01: You know,
6:59
SPEAKER_01: so I think they're going to come up with a briefing schedule for Trump to attack
7:06
SPEAKER_01: the indictment based on the Supreme Court's decision,
7:09
SPEAKER_01: which left all sorts of things open for further proceedings in the trial court.
7:14
SPEAKER_01: There's no way I think that briefing, let alone any hearings, is going to be done before the election.
7:21
SPEAKER_01: And so, you know, it kind of hangs on that.
7:24
SPEAKER_01: And whatever Judge Chutkin's decision is about how this case is or is not impacted
7:32
SPEAKER_01: by the Supreme Court's immunity decision,
7:35
SPEAKER_01: not to mention the Supreme Court's decision about the obstruction statute.
7:39
SPEAKER_01: Remember, they found – they narrowed it.
7:41
SPEAKER_01: It's going to go back up again.
7:42
SPEAKER_01: It's going to go back up again to the D.C.
7:44
SPEAKER_01: Circuit and then up to the Supreme Court again.
7:47
SPEAKER_01: So this is just sort of a series of hearings that's going to result in some more
7:52
SPEAKER_01: rulings are going to get sent back up on appeal again for a few years.
7:57
SPEAKER_00: And so that that has to be a fairly complicated analysis, right?
7:59
SPEAKER_00: Because isn't it sort of act by act?
8:01
SPEAKER_00: There's a whole bunch of different acts by the former president that are described in there.
8:06
SPEAKER_00: And you have to figure out for each of them, was this an official act?
8:09
SPEAKER_00: And if it was an official act, but not within the core of the president's constitutional power?
8:15
SPEAKER_00: I can't even remember the test.
8:16
SPEAKER_00: I mean,
8:16
SPEAKER_00: the test was we talked about was sort of designed to be incredibly complicated,
8:21
SPEAKER_00: not answer all of the relevant questions.
8:23
SPEAKER_00: It sort of seemed like Judge Justice Roberts hoped that,
8:25
SPEAKER_00: you know,
8:25
SPEAKER_00: well,
8:26
SPEAKER_00: the court hasn't had to consider this for 250 years and maybe it won't get back up
8:30
SPEAKER_00: to us.
8:30
SPEAKER_00: Maybe this prosecution won't come back and we'll never have to flesh all of this out.
8:34
SPEAKER_00: But they'll have to figure out if they're if they're not within the core of the
8:37
SPEAKER_00: president's constitutional powers,
8:38
SPEAKER_00: then he can still be tried over them only in some circumstances.
8:42
SPEAKER_01: Yeah, it is super complicated.
8:44
SPEAKER_01: So there's the core stuff that he's absolutely immune from.
8:49
SPEAKER_01: There's another layer where he's not absolutely immune, but probably immune.
8:56
SPEAKER_01: And the court didn't even really,
8:59
SPEAKER_01: in that category,
9:00
SPEAKER_01: articulate all the factors or all the standards saying that,
9:04
SPEAKER_01: you know,
9:04
SPEAKER_01: it's not for us to do that yet,
9:05
SPEAKER_01: should be done based on a full record.
9:08
SPEAKER_01: So Judge Chutkan, to some extent, is sort of shooting in the dark here.
9:11
SPEAKER_01: And that's why I think it's certain that whatever she decides,
9:16
SPEAKER_01: it's going to go up on appeal and it's going to be stuck there for a long time.
9:21
SPEAKER_01: I think the urgency is largely gone because I think that there was a sense before that.
9:26
SPEAKER_01: This needed to be resolved quickly before the election,
9:30
SPEAKER_01: even though that's probably not a factor that should motivate courts.
9:32
SPEAKER_01: I think practically speaking it did.
9:34
SPEAKER_01: But now that it's clear that's not going to happen,
9:36
SPEAKER_01: then I think the attitude is going to be sort of who gives a shit.
9:39
SPEAKER_01: Let's just do this on the normal schedule.
9:41
SPEAKER_01: What does it matter?
9:43
SPEAKER_01: So, yeah, I think this is going for a very long time.
9:47
SPEAKER_00: Years, right?
9:48
SPEAKER_00: Like it could be years of motion practice before this goes to trial?
9:51
SPEAKER_00: Well, motion practice and appeals.
9:53
SPEAKER_01: Yes,
9:53
SPEAKER_01: because I think you're going to have a round of motion practice now,
9:57
SPEAKER_01: maybe some evidentiary hearings to figure out what exactly are the statements we're
10:01
SPEAKER_01: talking about,
10:01
SPEAKER_01: what are the acts we're talking about,
10:03
SPEAKER_01: what exactly is the evidence of them.
10:05
SPEAKER_01: Then you've got appeals of her decisions based on that, applying the Supreme Court decision to the case.
10:11
SPEAKER_01: And then, you know, that appeal to the D.C.
10:15
SPEAKER_01: Circuit and the D.C.
10:17
SPEAKER_01: Circuit's decision on a normal schedule probably takes a year.
10:20
SPEAKER_01: Then you've got them trying to go to the Supreme Court and see what the Supreme Court does.
10:25
SPEAKER_01: That's if the Supreme Court takes it.
10:27
SPEAKER_01: Again, probably not an accelerated schedule this time.
10:30
SPEAKER_01: It's another year.
10:31
SPEAKER_01: So, you know, I'm just saying, Josh, we've got guaranteed full-time employment here for a while.
10:38
SPEAKER_00: Yeah.
10:39
SPEAKER_00: I mean,
10:39
SPEAKER_00: and that's the thing,
10:40
SPEAKER_00: like people,
10:41
SPEAKER_00: including us,
10:41
SPEAKER_00: have been very focused on this idea of,
10:42
SPEAKER_00: you know,
10:43
SPEAKER_00: well,
10:43
SPEAKER_00: if Donald Trump wins this election,
10:45
SPEAKER_00: then there's going to be yet another constitutional crisis in which he,
10:49
SPEAKER_00: you know,
10:50
SPEAKER_00: seeks to dismiss these charges or pardons himself or what have you.
10:54
SPEAKER_00: We focus less on the eventuality where he loses the election.
10:57
SPEAKER_00: Right.
10:58
SPEAKER_00: And these prosecutions are all continuing,
11:01
SPEAKER_00: presumably,
11:02
SPEAKER_00: but it's not like they're going to get wrapped up in 2025.
11:05
SPEAKER_00: It's quite possible that this, you know, goes through an entire Kamala Harris term.
11:09
SPEAKER_00: even if the prosecutions are proceeding,
11:11
SPEAKER_00: especially because of the complications the Supreme Court has created here.
11:14
SPEAKER_01: I think that's perfectly plausible that it goes on for
11:18
SPEAKER_01: I don't know if another four years, but most of that, I think, could easily go on.
11:23
SPEAKER_01: So you're right.
11:24
SPEAKER_01: I think the vibe previously was,
11:28
SPEAKER_01: well,
11:28
SPEAKER_01: Trump's going to get into office and none of this is going to matter.
11:31
SPEAKER_01: Now that there seems to be something resembling hope in the Democratic ranks that
11:37
SPEAKER_01: maybe this thing will work out,
11:39
SPEAKER_01: I think people are realizing,
11:40
SPEAKER_01: oh,
11:40
SPEAKER_01: shit,
11:40
SPEAKER_01: it doesn't really matter,
11:42
SPEAKER_01: at least with respect to Trump.
11:43
SPEAKER_01: Why does it not really matter?
11:44
SPEAKER_01: Because it's going to be stuck.
11:46
SPEAKER_01: on appeal and in hearings forever, at least as to the federal cases.
11:51
SPEAKER_00: And then finally, let's talk about the New York case where Trump has been convicted.
11:55
SPEAKER_00: He's supposed to be sentenced next month.
11:58
SPEAKER_00: And there's some question about whether the immunity decision affects that case,
12:02
SPEAKER_00: because even though the hush payment to Stormy Daniels was made before he took office,
12:07
SPEAKER_00: Many of the acts that were at issue in that case were while he was president,
12:10
SPEAKER_00: you know,
12:10
SPEAKER_00: the reimbursements and the false checks and invoices over which he was convicted.
12:14
SPEAKER_00: Largely, those were done in 2017 while he was president.
12:18
SPEAKER_00: And so there's some question about whether that conviction needs to be thrown out,
12:21
SPEAKER_00: whether he would need a new trial that didn't have any of the evidence of those
12:24
SPEAKER_00: those acts while he was president or that...
12:27
SPEAKER_00: I mean,
12:27
SPEAKER_00: for example,
12:27
SPEAKER_00: there was testimony from his official staff about what he was up to that would seem
12:31
SPEAKER_00: to have something to do with official acts.
12:33
SPEAKER_00: But so anyway, it appears they're going to proceed to sentencing regardless of those outstanding issues.
12:38
SPEAKER_01: Yes.
12:38
SPEAKER_01: So Judge Mershon now saying, fine, we're going to sort all this out.
12:43
SPEAKER_01: I'm scheduling a date by which I'm going to.
12:46
SPEAKER_01: rule on the latest motion to recuse me and a date by which I'm going to rule on
12:51
SPEAKER_01: Trump's motion,
12:52
SPEAKER_01: uh,
12:53
SPEAKER_01: to vacate the conviction and lie the Supreme court decision.
12:56
SPEAKER_01: Uh, but by the way, I'm still keeping the sentencing on, uh, September 18th on schedule.
13:04
SPEAKER_01: That's a go,
13:05
SPEAKER_01: which strongly suggests which way he's going to rule on the motion to,
13:08
SPEAKER_01: uh,
13:09
SPEAKER_01: vacate the conviction.
13:11
SPEAKER_01: So whatever else I think you're likely going to have, uh,
13:16
SPEAKER_01: Trump sentencing in that case in September.
13:21
SPEAKER_01: I do think it's going to leave some plausible arguments for appeal for Trump in
13:26
SPEAKER_01: light of the Supreme Court decision and other issues.
13:30
SPEAKER_01: I mean, it was a complicated trial.
13:32
SPEAKER_01: I think he'll have a fairly robust set of arguments to make on appeal.
13:37
SPEAKER_01: And that,
13:37
SPEAKER_01: remember,
13:38
SPEAKER_01: could,
13:38
SPEAKER_01: after it goes to New York's highest court,
13:42
SPEAKER_01: whatever the fuck it is you people call that.
13:44
SPEAKER_00: It's the Court of Appeals.
13:47
SPEAKER_00: The Supreme Court is the regular trial court because we're special.
13:50
SPEAKER_00: And every court is at least supreme.
13:52
SPEAKER_01: Okay.
13:53
SPEAKER_01: Anyway, it could then eventually be they could try to take it to the Supreme Court.
13:58
SPEAKER_01: which would give the Supreme Court another bite at trying to apply this crazy immunity standard.
14:04
SPEAKER_00: The Supreme Court of the United States.
14:05
SPEAKER_00: Yes, exactly.
14:06
SPEAKER_00: Not to be confused with Supreme Court in New York,
14:09
SPEAKER_00: which is the one where,
14:10
SPEAKER_00: you know,
14:10
SPEAKER_00: you get the chung chung and they go in on law and order.
14:12
SPEAKER_01: Yeah, exactly.
14:13
SPEAKER_01: So,
14:13
SPEAKER_01: yeah,
14:13
SPEAKER_01: I think that he's tipping his hand a little bit in this case by his tone and is
14:18
SPEAKER_01: saying that we're still doing sentencing.
14:20
SPEAKER_01: But I have no idea how it's going to go on appeal.
14:23
SPEAKER_01: Even within the New York courts,
14:25
SPEAKER_01: because I think it's just so cloudy how you apply the Supreme Court immunity decision.
14:30
SPEAKER_01: I think they're not that the decision itself is plausible,
14:34
SPEAKER_01: but I think there are plausible applications of it.
14:37
SPEAKER_01: Once you take it as, you know, the decision of the highest court in the United States that's enforceable.
14:42
SPEAKER_01: Once you take it as that,
14:43
SPEAKER_01: I think they're very plausible arguments that it means that they should not have
14:48
SPEAKER_01: entered in certain evidence that they did in this trial.
14:52
SPEAKER_00: And so I think a lot of people are assuming that if Mershon is going to go ahead
14:55
SPEAKER_00: with sentencing,
14:57
SPEAKER_00: people look at that as,
14:57
SPEAKER_00: well,
14:58
SPEAKER_00: you know,
14:58
SPEAKER_00: come hell or high water,
14:59
SPEAKER_00: this is the opportunity to sentence Donald Trump to jail,
15:03
SPEAKER_00: regardless of the election outcome.
15:05
SPEAKER_00: I think we should also be prepared for the possibility that Judge Mershon is going
15:09
SPEAKER_00: forward with the sentencing and that it's going to be a non-custodial sentence.
15:13
SPEAKER_00: And I think that the political effect of that will be a little bit odd and that it
15:16
SPEAKER_00: might actually take the temperature down a little bit because it will show people that,
15:19
SPEAKER_00: you know,
15:20
SPEAKER_00: whatever we're fighting over here in this New York case,
15:22
SPEAKER_00: it's not actually about sending Trump to jail.
15:26
SPEAKER_00: The nature of the offense for which he's been convicted, we would sort of expect a typical defendant
15:30
SPEAKER_00: first-time offender,
15:32
SPEAKER_00: as elderly as Donald Trump is with this nonviolent crime,
15:35
SPEAKER_00: it would be sort of ordinary to have a non-custodial sentence here,
15:37
SPEAKER_00: right?
15:38
SPEAKER_00: Now,
15:38
SPEAKER_00: obviously,
15:38
SPEAKER_00: there's unusual circumstances about this case and his prominence and reasons why
15:43
SPEAKER_00: you might think it's good for deterrence to give him a custodial sentence.
15:47
SPEAKER_00: He certainly behaved very badly in the course of the trial.
15:50
SPEAKER_00: But even in spite of that,
15:52
SPEAKER_00: it's at least a fairly likely outcome that Merchan will sentence him to probation
15:56
SPEAKER_00: or something,
15:56
SPEAKER_00: right?
15:57
SPEAKER_01: Yes, I think that's the most probable outcome.
15:59
SPEAKER_01: I think most
16:01
SPEAKER_01: New York criminal practitioners I've talked to have said that's the sentence they
16:05
SPEAKER_01: would expect for a 78-year-old guy with no criminal record prior to being president
16:12
SPEAKER_01: being sentenced on this type of case where probation is an acceptable sentence.
16:18
SPEAKER_01: That would be the norm.
16:20
SPEAKER_01: And the thing is,
16:21
SPEAKER_01: even though I think we're seeing some serious norm shattering and things like the
16:27
SPEAKER_01: Supreme Court's
16:28
SPEAKER_01: I mean,
16:29
SPEAKER_01: the decision and Judge Cannon's dismissal of the Florida case,
16:32
SPEAKER_01: I don't think we're seeing it from the side that is prosecuting Trump.
16:38
SPEAKER_01: So I haven't seen any of the judges do anything.
16:41
SPEAKER_01: You know what?
16:41
SPEAKER_01: This is so outside the norms.
16:42
SPEAKER_01: I'm going to put this guy in jail immediately.
16:45
SPEAKER_01: type spirit.
16:45
SPEAKER_01: They're still kind of stubbornly sticking to institutionalism,
16:51
SPEAKER_01: which some people would say it was foolish to do and that if the conservatives have
16:56
SPEAKER_01: abandoned institutionalism,
16:58
SPEAKER_01: why should we stick to it?
17:00
SPEAKER_01: Are you endorsing that view or you're just relaying it?
17:02
SPEAKER_01: No, I'm just noting it.
17:04
SPEAKER_01: I think that you can't save the courts by destroying them.
17:07
SPEAKER_01: I don't think you can
17:08
SPEAKER_01: save institutions by destroying them.
17:10
SPEAKER_01: But I understand the argument that things like the Supreme Court immunity decision
17:15
SPEAKER_01: call into question the whole concept of relying on institutions if they're going to
17:19
SPEAKER_01: do things like that.
17:20
SPEAKER_01: But I don't see that spirit in any of the judges who are handling any of the Trump cases,
17:25
SPEAKER_01: that they're willing to go outside of norms against Trump in the way that some
17:30
SPEAKER_01: courts have gone outside norms for Trump.
17:33
SPEAKER_00: Well, I mean, with one interesting exception,
17:35
SPEAKER_00: which is that the issue we discussed a little while back about the effort to get
17:40
SPEAKER_00: the documents case off of Eileen Cannon's desk,
17:44
SPEAKER_00: Judge Cecilia Altnaga,
17:45
SPEAKER_00: who actually had a favorable ruling for Trump that we discussed last week in one of
17:48
SPEAKER_00: these defamation cases,
17:50
SPEAKER_00: that she basically tried to nudge Eileen Cannon and say,
17:53
SPEAKER_00: wouldn't you rather not have this case that you might be in over your head a little bit?
17:57
SPEAKER_00: That's sort of the one example that I think you took as,
18:00
SPEAKER_00: you know,
18:00
SPEAKER_00: actually treating Trump in a way that was unusual and improper.
18:04
SPEAKER_00: And interestingly,
18:04
SPEAKER_00: it came from a George W.
18:05
SPEAKER_00: Bush appointee who has shown,
18:08
SPEAKER_00: at least in one other case,
18:09
SPEAKER_00: a willingness to act favorably toward Trump.
18:12
SPEAKER_01: Sure.
18:13
SPEAKER_01: That was very much a soft power type of thing.
18:15
SPEAKER_01: That was a behind the scenes influence and attempt to use institutional relationships.
18:22
SPEAKER_01: It was not a sentence him to be frog marched out of the courtroom in handcuffs type of exercise of power.
18:28
SPEAKER_01: It was not a public thing.
18:30
SPEAKER_01: So I don't read him as being willing to shatter norms in that way,
18:36
SPEAKER_01: however much he might want to in his heart and however much
18:39
SPEAKER_01: So many people might want him to.
18:40
SPEAKER_01: I think he's going to do probation.
18:42
SPEAKER_01: Now,
18:42
SPEAKER_01: he may do conditions of probation that are more humiliating or more restrictive
18:49
SPEAKER_01: than normal based on Trump's behavior.
18:51
SPEAKER_01: But no, I don't think he's going to jail.
18:53
SPEAKER_00: What kind of conditions could those be?
18:55
SPEAKER_01: Oh,
18:56
SPEAKER_01: you know,
18:57
SPEAKER_01: the level of supervision by probation,
19:00
SPEAKER_01: prohibitions on his behavior,
19:03
SPEAKER_01: disclosure requirements,
19:05
SPEAKER_01: prohibitions on the types of activities he can do,
19:08
SPEAKER_01: all that type of thing.
19:10
SPEAKER_00: Wouldn't that cause all sorts of practical problems if he were, in fact, elected president?
19:14
SPEAKER_00: Yes.
19:15
SPEAKER_01: Although, I mean, in a way, you could have a probation requirement that in effect would
19:22
SPEAKER_01: Yeah.
19:23
SPEAKER_01: Yeah.
19:42
SPEAKER_00: That would probably lead to some more interesting appellate issues, right?
19:46
SPEAKER_00: Where,
19:47
SPEAKER_00: you know,
19:47
SPEAKER_00: you sort of you have a state body,
19:49
SPEAKER_00: a New York state court purporting to regulate the activities of the president of
19:53
SPEAKER_00: the United States and decide what's,
19:55
SPEAKER_00: you know,
19:55
SPEAKER_00: in and outside his official purview.
19:57
SPEAKER_00: I assume that that seems like the sort of thing the Supreme Court might take interest in.
20:01
SPEAKER_00: I think it would.
20:02
SPEAKER_00: I think that the Supreme Court,
20:04
SPEAKER_01: particularly this Supreme Court,
20:06
SPEAKER_01: would take up the question of whether the sentence imposed prior to being elected
20:12
SPEAKER_01: president can be maintained against a person who's been elected president.
20:17
SPEAKER_01: That is,
20:18
SPEAKER_01: whether or not the state of New York has the power to continue to enforce a
20:23
SPEAKER_01: sentence against somebody during their term as president.
20:26
SPEAKER_01: That sounds kind of preposterous to say it, but I think that is
20:30
SPEAKER_01: given the spirit of that immunity decision very much a live question well so we'll
20:35
SPEAKER_00: i think we're finished theorizing about that for this week but certainly that's
20:38
SPEAKER_00: something we'll be watching next month when that sentence comes down i want to go
20:42
SPEAKER_00: back and talk about one more thing with judge chucken because aside from this
20:45
SPEAKER_00: immunity issue there was another question before her trump had said that he was
20:49
SPEAKER_00: being selectively prosecuted and vindictively prosecuted for his efforts to
20:53
SPEAKER_00: interfere with the the conduct of the 2020 election and she basically said no you
20:58
SPEAKER_00: were not
20:59
SPEAKER_01: Right.
20:59
SPEAKER_01: So he filed a motion to dismiss the case for selective and vindictive prosecution.
21:06
SPEAKER_01: Selective means the government has selected you out for something impermissible,
21:11
SPEAKER_01: like your race or your exercise of free speech,
21:14
SPEAKER_01: your politics.
21:16
SPEAKER_01: Vindictive
21:17
SPEAKER_01: means that the government is retaliating for some sort of exercise of a
21:21
SPEAKER_01: constitutional right in the context of the case.
21:25
SPEAKER_01: So for instance,
21:26
SPEAKER_01: you file a motion to suppress evidence,
21:28
SPEAKER_01: the government retaliates by filing a superseding indictment,
21:31
SPEAKER_01: adding more charges.
21:33
SPEAKER_01: That's the idea.
21:34
SPEAKER_01: Judge Chutkin, the tone is very much, I can't believe I have to spend 16 pages denying this bullshit.
21:43
SPEAKER_01: So she says basically the selective theory...
21:47
SPEAKER_01: The defendant is required to show that similarly situated people are not being
21:51
SPEAKER_01: prosecuted for the same thing.
21:53
SPEAKER_01: And that doesn't just mean vaguely similarly situated.
21:56
SPEAKER_01: Like you can make an analogy in some weird way.
21:59
SPEAKER_01: You have to show people in pretty close circumstances where the government would
22:03
SPEAKER_01: have similar motives against similar people haven't done it.
22:07
SPEAKER_01: Trump shows absolutely nothing like that.
22:10
SPEAKER_01: Nobody who has done post-election things like him has.
22:14
SPEAKER_01: was not prosecuted.
22:15
SPEAKER_01: He pointed to someone,
22:17
SPEAKER_01: a member of Congress who filed an objection to counting George W.
22:22
SPEAKER_01: Bush's Ohio votes in 2004.
22:26
SPEAKER_01: But they went through legal channels.
22:28
SPEAKER_01: They didn't try to defraud anybody.
22:30
SPEAKER_01: They didn't do fake slates of electors.
22:33
SPEAKER_01: That person wasn't prosecuted.
22:34
SPEAKER_01: But Judge
22:37
SPEAKER_01: So basically, there's no showing of any similarly situated people.
22:41
SPEAKER_01: She said there's no showing of any improper motive, which is the other requirement.
22:45
SPEAKER_01: And as for vindictive,
22:47
SPEAKER_01: Trump's argument on vindictive is that they brought the Florida documents case for
22:53
SPEAKER_01: improperly retaining and having these secret documents.
22:58
SPEAKER_01: He pled not guilty to it.
23:00
SPEAKER_01: And then Jack Smith retaliated by charging him in DC.
23:04
SPEAKER_01: I mean, that's pretty much on its face nonsense.
23:06
SPEAKER_01: Obviously the DC investigation had been going on for a long time,
23:10
SPEAKER_01: even longer than the Florida investigation.
23:12
SPEAKER_01: There's no connection between the two, no plausible.
23:15
SPEAKER_01: Like he did that because,
23:16
SPEAKER_01: you know,
23:17
SPEAKER_01: he didn't warm up,
23:18
SPEAKER_01: uh,
23:19
SPEAKER_01: the DC indictment in a month,
23:20
SPEAKER_01: uh,
23:21
SPEAKER_01: because he was mad that Trump pled not guilty.
23:24
SPEAKER_01: So yeah, it was a dumb motion.
23:25
SPEAKER_01: Uh, and, uh,
23:28
SPEAKER_01: It was rightfully rejected.
23:29
SPEAKER_01: And frankly,
23:30
SPEAKER_01: I don't know that Trump will even bother appealing that because he has so many much
23:35
SPEAKER_01: stronger arguments with the immunity decision.
23:39
SPEAKER_00: On the selective prosecution issue with the 2004 objections to George W. Bush's reelection.
23:45
SPEAKER_00: I mean,
23:45
SPEAKER_00: sort of the key example that we've had all along here of an activity you can engage
23:51
SPEAKER_00: in challenging the outcome of an election that is obviously legal is to file
23:55
SPEAKER_00: lawsuits over it.
23:57
SPEAKER_00: That's the legal process and you have a right to go into court.
23:59
SPEAKER_00: And even if you don't have a good argument in the court,
24:02
SPEAKER_00: you're still not committing a crime by going there and saying,
24:05
SPEAKER_00: you know,
24:06
SPEAKER_00: I challenge this election result.
24:08
SPEAKER_00: When you get to actions in the Congress where you're trying to,
24:11
SPEAKER_00: you know,
24:12
SPEAKER_00: there's a duly elected slate of electors that comes out of a state and you're
24:16
SPEAKER_00: trying not to count those electoral votes.
24:19
SPEAKER_00: I would assume that the reason that Stephanie Tubbs Jones,
24:22
SPEAKER_00: the member of Congress at issue here,
24:25
SPEAKER_00: that,
24:25
SPEAKER_00: you know,
24:25
SPEAKER_00: she couldn't have committed a crime because she's protected by the speech or debate clause.
24:29
SPEAKER_00: And so whatever she does on the floor of the House of Representatives is immune from prosecution.
24:34
SPEAKER_00: But I thought one of the key issues here was that,
24:36
SPEAKER_00: you know,
24:37
SPEAKER_00: trying to get the Congress to reject electors who have been duly elected,
24:41
SPEAKER_00: that that,
24:42
SPEAKER_00: you know,
24:43
SPEAKER_00: that is some sort of criminal obstruction of the proceeding is the distinction that,
24:47
SPEAKER_00: you know,
24:47
SPEAKER_00: as a member of Congress,
24:48
SPEAKER_00: you can definitely do that.
24:49
SPEAKER_00: But if you're pushing the members of Congress to do it, then that might be a crime.
24:52
SPEAKER_00: Or is the distinction that you have to be promoting a different slate of fraudulent
24:56
SPEAKER_00: electors rather than just trying to reject the duly elected valid slate of electors?
25:01
SPEAKER_00: I I'm a little confused about exactly what the distinction is there.
25:04
SPEAKER_01: So I think there are a number of distinctions and one of them is what phase of the activity
25:10
SPEAKER_01: the charge focuses on.
25:12
SPEAKER_01: In this case,
25:13
SPEAKER_01: Jack Smith is more focused on the collateral things that Trump is doing to prepare
25:18
SPEAKER_01: to make an argument for Congress.
25:20
SPEAKER_01: So he is trying to get the FBI and DOJ to do bogus investigations of non-existent voter fraud.
25:30
SPEAKER_01: He is collaborating with people outside to set up
25:34
SPEAKER_01: the bogus slates of electors and to get them involved.
25:39
SPEAKER_01: And he's trying to like bully Mike Pence in order to try to convince him to go in
25:44
SPEAKER_01: and do something in Congress.
25:45
SPEAKER_01: So it's not focused on that moment when you appear in front of Congress and make a pitch.
25:51
SPEAKER_01: It's focused on the preparation for that that involves fraud.
25:54
SPEAKER_01: That at least is the argument I think Jack Smith would make.
25:57
SPEAKER_01: And yeah, so there's not a speech and debate clause issue for Trump.
26:02
SPEAKER_01: There would be,
26:02
SPEAKER_01: I guess,
26:03
SPEAKER_01: if anyone who was charged was a member of Congress based on what they tried to do
26:10
SPEAKER_01: in Congress.
26:11
SPEAKER_01: But I think that's the main distinction.
26:19
SPEAKER_00: Let's talk about the QAnon shaman.
26:22
SPEAKER_00: This is a guy I haven't thought about in a while.
26:24
SPEAKER_00: January 6th, riots happening.
26:26
SPEAKER_00: This guy with the face paint and the headdress and all this stuff.
26:29
SPEAKER_00: Very noticeable.
26:31
SPEAKER_00: He's getting his headdress back.
26:32
SPEAKER_00: And his spear.
26:33
SPEAKER_00: And his spear.
26:35
SPEAKER_00: He had to sue in court.
26:36
SPEAKER_00: The government wanted to keep those things.
26:38
SPEAKER_00: And apparently it's his right to have them back.
26:41
SPEAKER_00: So Jacob Anthony Chansley...
26:45
SPEAKER_01: The QAnon shaman,
26:46
SPEAKER_01: who was,
26:46
SPEAKER_01: you know,
26:47
SPEAKER_01: the star of so many pictures and videos,
26:49
SPEAKER_01: very enthusiastic fellow,
26:52
SPEAKER_01: went to trial,
26:53
SPEAKER_01: was sentenced,
26:55
SPEAKER_01: appealed,
26:55
SPEAKER_01: but then dismissed his appeal,
26:56
SPEAKER_01: did some sort of collateral attack on his sentence that got rejected.
27:01
SPEAKER_01: But then he filed what's called a Rule 41 motion.
27:04
SPEAKER_01: He filed a motion for return of his property.
27:08
SPEAKER_01: So the concept is that sooner or later,
27:09
SPEAKER_01: if the government seizes your property in a criminal case,
27:12
SPEAKER_01: you're allowed to get it back unless it's like a big old pile of meth or unless
27:18
SPEAKER_01: it's something that the government has asked to forfeit or unless they're still
27:22
SPEAKER_01: using it in a case.
27:24
SPEAKER_01: And I like this decision because the judge's sort of irritation with the government
27:28
SPEAKER_01: is palpable because this is the sort of thing where if the government makes the
27:32
SPEAKER_01: most transparently basic effort to come up with an argument,
27:37
SPEAKER_01: the judge is going to grant it.
27:38
SPEAKER_01: If the government had come up with any decent argument how actually we might need
27:42
SPEAKER_01: this thing that's described as a six-foot pole with the American flag zip-tied to
27:46
SPEAKER_01: the shaft and a metal spearhead fixed to the top,
27:49
SPEAKER_01: if they had come up with any remotely plausible argument why they still needed it,
27:53
SPEAKER_01: this would have been,
27:54
SPEAKER_01: routinely denied, but they didn't.
27:57
SPEAKER_01: All they said was, well, we might decide to do, to forfeit it in the future.
28:01
SPEAKER_01: And, you know, like three years on, that's not going to move the judge, that you might do it.
28:05
SPEAKER_01: They don't explain why they might need a trial.
28:07
SPEAKER_01: They say,
28:08
SPEAKER_01: well,
28:08
SPEAKER_01: this dude might come back and challenge his conviction because of that obstruction
28:12
SPEAKER_01: ruling by the Supreme Court.
28:13
SPEAKER_01: And the judge is like, yeah, but you got pictures of the thing.
28:16
SPEAKER_01: Why do you need the actual spear?
28:18
SPEAKER_01: Do you really need to wave it around in front of the jury?
28:21
SPEAKER_01: I see so many cases where the government just throws in some boilerplate bullshit
28:26
SPEAKER_01: to defeat a defense motion.
28:28
SPEAKER_01: It's really it really warms the cold corners of my heart to see a federal judge
28:33
SPEAKER_01: stand up and say,
28:35
SPEAKER_01: no,
28:35
SPEAKER_01: OK,
28:35
SPEAKER_01: that's bullshit.
28:36
SPEAKER_00: We should note,
28:37
SPEAKER_00: by the way,
28:37
SPEAKER_00: that the judge in this case is Royce Lamberth,
28:39
SPEAKER_00: who's a Ronald Reagan appointee.
28:42
SPEAKER_00: He's he's like 80 years old.
28:44
SPEAKER_00: And he also,
28:45
SPEAKER_00: we talked about him previously,
28:46
SPEAKER_00: he made that comment in one of his decisions about how shocked he is to see public
28:51
SPEAKER_00: figures like Elise Stefanik rewriting history by calling the January 6th defendants
28:56
SPEAKER_00: hostages and how preposterous that is.
28:59
SPEAKER_00: So he's been distressed about the way that some of the rhetoric about these people
29:03
SPEAKER_00: has been,
29:04
SPEAKER_00: but nonetheless,
29:05
SPEAKER_00: even if you are a bad actor who was doing a damaging thing to the Republic,
29:09
SPEAKER_00: you may still be entitled to the return of your headdress once the government is
29:14
SPEAKER_00: done with trying you.
29:15
SPEAKER_01: Yeah.
29:15
SPEAKER_01: I mean,
29:16
SPEAKER_01: Judge Lambert,
29:16
SPEAKER_01: who's incredibly experienced,
29:18
SPEAKER_01: very well respected,
29:19
SPEAKER_01: is definitely drifting into the I'm old enough to say absolutely anything I want
29:24
SPEAKER_01: phase of his judicial career.
29:26
SPEAKER_01: And I think that's occasionally bracing and a good thing for the judiciary.
29:31
SPEAKER_00: Speaking of people who've had a bad time since their roles related to the events of
29:35
SPEAKER_00: January six,
29:36
SPEAKER_00: Jeffrey Clark,
29:39
SPEAKER_00: who is an environmental lawyer.
29:40
SPEAKER_00: He was the acting head of the civil division at the Department of Justice,
29:43
SPEAKER_00: which is a role he got into because he was running the subdivision related to
29:48
SPEAKER_00: environmental matters.
29:50
SPEAKER_00: He came up with these ideas that,
29:51
SPEAKER_00: you know,
29:52
SPEAKER_00: well,
29:52
SPEAKER_00: he should be the acting attorney general and he can ensure that the Department of
29:56
SPEAKER_00: Justice ensures that Donald Trump has his rightful second term after the 2020 election,
30:01
SPEAKER_00: which was stolen from him.
30:03
SPEAKER_00: And he was thwarted by these various other senior Republican appointees along with
30:08
SPEAKER_00: him at the Department of Justice.
30:09
SPEAKER_00: And actually,
30:10
SPEAKER_00: in a way,
30:10
SPEAKER_00: thwarted by Donald Trump himself,
30:11
SPEAKER_00: who turned down Jeffrey Clark's proposal for an 11th hour effort to steal the
30:16
SPEAKER_00: election for him in one specific way.
30:19
SPEAKER_00: So anyway,
30:19
SPEAKER_00: Jeffrey Clark is now being suspended from the practice of law for getting in over
30:25
SPEAKER_00: his head in a way.
30:26
SPEAKER_00: I was interested in this decision out of the – what is this, the D.C.
30:31
SPEAKER_00: Bar or whichever the oversight body is in the District of Columbia?
30:36
SPEAKER_00: It is the D.C.
30:37
SPEAKER_01: Bar.
30:37
SPEAKER_01: It's only a committee of the bar making a recommendation to suspend him.
30:41
SPEAKER_01: Right.
30:42
SPEAKER_00: And they echo something that Jeffrey Rosen said, which is basically you're an environmental lawyer.
30:46
SPEAKER_00: What the fuck are you doing here with these crazy theories about criminal law?
30:50
SPEAKER_01: Right.
30:51
SPEAKER_01: And saying basically we'll call you if there's an oil spill.
30:56
SPEAKER_01: You know, we thought that was a super harsh burn.
30:58
SPEAKER_01: But when you read this decision by this bar committee that heard.
31:03
SPEAKER_01: the complaint against Jeffrey Clark, all of a sudden it seems much more justified.
31:09
SPEAKER_01: This is 200 pages of absolutely terrifying shit, let me just say.
31:14
SPEAKER_01: So like you said,
31:15
SPEAKER_01: Jeffrey Clark was in charge of environmental things in the Department of Justice
31:21
SPEAKER_01: under Trump at this point,
31:22
SPEAKER_01: which is a little like
31:24
SPEAKER_01: putting Michael Myers in charge of the division of not stabbing co-eds.
31:30
SPEAKER_01: And Clark, during all the stuff after the election, just went kind of berserk.
31:35
SPEAKER_01: And he came up with this theory that as he,
31:39
SPEAKER_01: because of all the people who were leaving and the chaos got more and more
31:42
SPEAKER_01: influence and aspired to be acting attorney general,
31:47
SPEAKER_01: He came up with this theory that Trump should send a letter or the Department of
31:51
SPEAKER_01: Justice should send a letter to the key contested states saying basically,
31:56
SPEAKER_01: we urge your legislature to have hearings to look into whether or not those
32:03
SPEAKER_01: electors should be sent to Washington because we believe there's evidence of
32:07
SPEAKER_01: serious fraud that we will be investigating.
32:10
SPEAKER_01: So really it was an attempt to just blow everything up,
32:13
SPEAKER_01: to have Georgia,
32:14
SPEAKER_01: which was going to be the first letter
32:16
SPEAKER_01: and these other states like Arizona,
32:18
SPEAKER_01: for instance,
32:19
SPEAKER_01: to have them,
32:20
SPEAKER_01: like the legislature,
32:21
SPEAKER_01: step in,
32:23
SPEAKER_01: take over the process,
32:24
SPEAKER_01: and send different electors on this fraud theory.
32:28
SPEAKER_01: This was incredibly incendiary.
32:30
SPEAKER_01: And this was an example.
32:32
SPEAKER_01: And the story,
32:34
SPEAKER_01: again,
32:34
SPEAKER_01: told in these 200 pages is pretty terrifying because of how easily you could see it
32:38
SPEAKER_01: could have worked.
32:40
SPEAKER_01: It illuminates why Project 22
32:43
SPEAKER_01: 25 and all these Trump people talking now are so intent on the idea of we've got to
32:48
SPEAKER_01: weed out all the traitors and the non-Trump people out of government because it
32:53
SPEAKER_01: shows how relatively few institutional people stop this from happening by saying
32:58
SPEAKER_01: this is outrageous,
33:00
SPEAKER_01: this is going to cause riots in the streets,
33:03
SPEAKER_01: there's no evidence for these claims of fraud.
33:06
SPEAKER_01: If you do this,
33:06
SPEAKER_01: I'm going to resign so much so that Trump eventually,
33:10
SPEAKER_01: although initially inclined to think,
33:12
SPEAKER_01: yeah,
33:12
SPEAKER_01: that sounds cool,
33:13
SPEAKER_01: back down and said,
33:14
SPEAKER_01: no,
33:15
SPEAKER_01: we're not doing it.
33:16
SPEAKER_00: But I'm sorry, when you say it could have worked, worked to what end?
33:19
SPEAKER_00: I mean, it was after the safe harbor deadline for the selection of electors.
33:23
SPEAKER_00: I don't know how you would have.
33:25
SPEAKER_00: I mean, you could have caused a lot of chaos and you might have had more civil unrest, but
33:30
SPEAKER_00: I don't see how this plan could have led to Trump's inauguration for a second term.
33:35
SPEAKER_01: Okay, certainly chaos, which was probably the point.
33:39
SPEAKER_01: But I think that if all these state legislatures that were Republican majority had
33:46
SPEAKER_01: stood up and said,
33:49
SPEAKER_01: no,
33:49
SPEAKER_01: we think that these electors are elected by fraud,
33:52
SPEAKER_01: we're disclaiming them,
33:53
SPEAKER_01: we want to send this different slate,
33:55
SPEAKER_01: then it's not clear,
33:56
SPEAKER_01: I think,
33:57
SPEAKER_01: what would have happened in Congress.
33:58
SPEAKER_01: Certainly, you could have argued that there was no legal way for Trump to take office.
34:03
SPEAKER_01: But for instance,
34:04
SPEAKER_01: what would Mike Pence have done at that point if he had the cover of the state
34:08
SPEAKER_01: legislatures saying this?
34:10
SPEAKER_01: What would Congress have done?
34:12
SPEAKER_01: Yeah, I understand you're saying that there's no legal route for it to happen.
34:16
SPEAKER_01: I just don't know what happens at that point.
34:18
SPEAKER_01: I think at a minimum, it's chaos.
34:22
SPEAKER_01: It's dramatically more doubts and challenges the legitimacy of a Biden presidency.
34:29
SPEAKER_01: A lot more violence, that type of thing.
34:32
SPEAKER_00: I mean,
34:32
SPEAKER_00: the other thing is this wasn't the only effort to get state legislatures to take
34:36
SPEAKER_00: actions like this.
34:38
SPEAKER_00: And there were a number of reasons why they didn't do it,
34:40
SPEAKER_00: including literally that like state legislatures are generally not in session in December.
34:44
SPEAKER_00: Right.
34:44
SPEAKER_00: And so you have to you someone has to call the special session.
34:48
SPEAKER_00: There was a lot of sort of inertial resistance to the idea of doing this.
34:53
SPEAKER_00: And so I don't I don't know that this this letter going out at the 11th hour.
34:57
SPEAKER_00: would have been likely to actually produce that outcome from these legislatures,
35:00
SPEAKER_00: certainly not all six of them.
35:02
SPEAKER_01: Well,
35:03
SPEAKER_01: a number of people in the Department of Justice and even in the Trump
35:08
SPEAKER_01: administration thought the minimum,
35:10
SPEAKER_01: it would cause chaos.
35:12
SPEAKER_01: Sure.
35:12
SPEAKER_01: And it would cause likely rioting and violence.
35:16
SPEAKER_01: And Jeffrey Clark's
35:19
SPEAKER_01: reaction to them pointing that out is to say,
35:22
SPEAKER_01: well,
35:22
SPEAKER_01: that's what the Insurrection Act is for,
35:24
SPEAKER_01: meaning we can call up the army,
35:25
SPEAKER_01: which I think is one of the things that solidifies him as a real villain in
35:30
SPEAKER_01: American history after this.
35:32
SPEAKER_01: So the bottom line on this case,
35:35
SPEAKER_01: this proceeding before the bar,
35:37
SPEAKER_01: is that the bar committee finds that he was – whether or not he sincerely believed
35:42
SPEAKER_01: all the bullshit in the letter –
35:44
SPEAKER_01: fraud that didn't actually exist they said he was reckless to try to push it so it
35:50
SPEAKER_01: was it was he attempted to engage in conduct that was deceitful and dishonest by
35:56
SPEAKER_01: recklessly pushing a course of action to it that would have relied on bogus
36:01
SPEAKER_01: allegations of fraud they reject some of the theories that the bar prosecutors
36:06
SPEAKER_01: raised
36:07
SPEAKER_01: But basically,
36:08
SPEAKER_01: they said that this was an attempt to make very significant false claims that were,
36:15
SPEAKER_01: at a minimum,
36:15
SPEAKER_01: recklessly adopted by him,
36:17
SPEAKER_01: and they recommend a two-year suspension.
36:26
SPEAKER_00: Let's talk about Bob Menendez.
36:28
SPEAKER_00: We neglected to do this last week.
36:29
SPEAKER_00: So first of all, I want to apologize.
36:30
SPEAKER_00: But Senator Robert Menendez convicted of a number of counts related to bribery,
36:35
SPEAKER_00: the receipt of gold bars from people with various interests,
36:39
SPEAKER_00: whether on behalf of the Egyptian government or a criminal defendant who wanted...
36:44
SPEAKER_00: some assistance with the, you know, interfering in his in his case in New Jersey.
36:49
SPEAKER_00: And so this is the second time that Bob Menendez has been tried for corruption related to his office.
36:54
SPEAKER_00: The last one in 2017 ended in a mistrial.
36:56
SPEAKER_00: This time he's now been convicted.
36:59
SPEAKER_00: He's still a U.S.
36:59
SPEAKER_00: senator.
37:00
SPEAKER_00: He says he says he's going to resign effective August 20,
37:02
SPEAKER_00: which I love this because senators are paid on the fifth and the 20th of each month.
37:07
SPEAKER_00: And so Bob Menendez,
37:08
SPEAKER_00: on his way out the door,
37:10
SPEAKER_00: presumably heading to federal prison,
37:11
SPEAKER_00: is trying to collect a couple of last paychecks out of the U.S.
37:14
SPEAKER_00: Senate before he finally goes.
37:16
SPEAKER_01: Lawyers aren't cheap, Josh.
37:19
SPEAKER_00: Are we surprised by this conviction?
37:21
SPEAKER_00: I mean,
37:21
SPEAKER_00: because again,
37:22
SPEAKER_00: as I noted earlier in the episode,
37:24
SPEAKER_00: there was some evidentiary problems for the government here.
37:26
SPEAKER_00: There was evidence they wanted in.
37:28
SPEAKER_00: They were told no because of the speech debate clause.
37:31
SPEAKER_00: There's evidence about his official acts that you can't bring into this case.
37:35
SPEAKER_00: There was some concern that that would make it difficult to draw the quid pro quo for the jury.
37:39
SPEAKER_00: Does not seem to have been a problem for the jury in practice here.
37:42
SPEAKER_01: Right.
37:43
SPEAKER_01: And this is,
37:44
SPEAKER_01: I think,
37:44
SPEAKER_01: an occupational hazard of doing deep dives in the cases the way we do,
37:48
SPEAKER_01: Josh,
37:49
SPEAKER_01: is that you can lose sight of the fact that 95% of all federal criminal cases plead
37:55
SPEAKER_01: and the ones that go to trial,
37:57
SPEAKER_01: the vast,
37:58
SPEAKER_01: vast majority wind up in convictions.
38:00
SPEAKER_01: And that often is structural damage.
38:04
SPEAKER_01: based on the government's power and on jury's attitudes about crime,
38:08
SPEAKER_01: and not so much based on the intricacies of the particular case.
38:12
SPEAKER_01: So there's a real,
38:14
SPEAKER_01: to make it interesting,
38:15
SPEAKER_01: there's this real media temptation to turn it into the horse race,
38:20
SPEAKER_01: to create drama.
38:22
SPEAKER_01: When you really talk about how the system operates, maybe there's not as much drama as you thought.
38:27
SPEAKER_01: So ultimately, the jury did not have any problem
38:31
SPEAKER_01: with figuring that a guy whose wife got a Mercedes and who had gold bars in his
38:36
SPEAKER_01: walk-in closet was up to something shady,
38:39
SPEAKER_01: and they convicted him.
38:41
SPEAKER_01: I think I said back when that even though there seemed to be some real issues with
38:45
SPEAKER_01: what evidence the government can put on about what communications were made,
38:50
SPEAKER_01: with the co-conspirators,
38:51
SPEAKER_01: that jurors tend to process things as big stories and they may not get down to that level.
38:56
SPEAKER_01: And they didn't.
38:58
SPEAKER_01: They wound up just saying, oh, yeah, okay, gold bars.
39:01
SPEAKER_01: Yeah, this guy's guilty.
39:03
SPEAKER_01: And he's left saying, you know, I thought this was America.
39:06
SPEAKER_01: I thought you could have gold bars that were previously registered as stolen with
39:10
SPEAKER_01: the FBI in your closet and not have anyone make any nasty,
39:14
SPEAKER_01: unfortunate presumptions about you.
39:16
SPEAKER_00: Does this cause you to reconsider at all your view that the Supreme Court decision
39:20
SPEAKER_00: on presidential immunity makes it as a practical matter impossible to bring
39:24
SPEAKER_00: prosecutions related to sets of actions like,
39:26
SPEAKER_00: for example,
39:26
SPEAKER_00: those in the January 6th case?
39:28
SPEAKER_00: I mean,
39:28
SPEAKER_00: because it seems to me you could make an argument that you can still present to a
39:32
SPEAKER_00: jury a big picture.
39:34
SPEAKER_00: about how Donald Trump tried to steal the 2020 election.
39:37
SPEAKER_00: And some significant subset of his actions related to that were unofficial acts
39:41
SPEAKER_00: that you can charge him over and that you can bring in evidence about.
39:44
SPEAKER_00: And if there are gaps in the evidence of official acts that are related to this or
39:48
SPEAKER_00: go to intent that you can't bring in,
39:50
SPEAKER_00: that maybe that's not an insurmountable barrier because you're still able to tell
39:55
SPEAKER_00: that overall picture.
39:56
SPEAKER_00: And that's really what the jury is focused on.
39:58
SPEAKER_01: No, I don't think that.
39:59
SPEAKER_01: I think that the Supreme Court's decision on immunity is not tied explicitly or
40:04
SPEAKER_01: really even implicitly to the speech and debate clause analysis,
40:09
SPEAKER_01: that it's freestanding,
40:10
SPEAKER_01: it's broader,
40:11
SPEAKER_01: it's also currently vaguer.
40:13
SPEAKER_01: So you have to deal with the fact that you don't really know how the Supreme Court
40:17
SPEAKER_01: is going to tighten up the standard later and how to thread that needle.
40:21
SPEAKER_01: There are sort of exceptions to this whole idea of collateral evidence in the
40:25
SPEAKER_01: speech and debate clause area.
40:27
SPEAKER_01: Uh,
40:28
SPEAKER_01: and you know,
40:28
SPEAKER_01: most of the time you're not going to have the president with gold bars,
40:32
SPEAKER_01: uh,
40:33
SPEAKER_01: the way you have here,
40:34
SPEAKER_01: you're not going to have the same quantum of evidence,
40:37
SPEAKER_01: uh,
40:37
SPEAKER_01: concerning the president's actions that you may concerning some of the,
40:41
SPEAKER_01: uh,
40:42
SPEAKER_01: miscreants who wind up in the United States Congress.
40:45
SPEAKER_01: So, uh, I think that I imagine that, uh,
40:50
SPEAKER_01: Menendez is going to make some arguments on appeal,
40:53
SPEAKER_01: focusing on that speech and debate issue,
40:55
SPEAKER_01: and he's going to try to make analogies to the immunity decision,
40:58
SPEAKER_01: talking about how that shows how important it is to keep out evidence related to
41:02
SPEAKER_01: speech and debate functions,
41:04
SPEAKER_01: even if it's not the basis of the conviction.
41:06
SPEAKER_01: I don't know how far that's going to go.
41:10
SPEAKER_01: His lawyer came out swinging and said that they were going to appeal aggressively against
41:18
SPEAKER_01: Which means you're going to bill a whole lot more.
41:21
SPEAKER_01: And so his wife hasn't gone to trial yet.
41:24
SPEAKER_01: She unfortunately has been battling cancer.
41:26
SPEAKER_01: So it's not clear when she'll go to trial, but she may wind up pleading after this spectacle.
41:33
SPEAKER_01: Bob Menendez,
41:34
SPEAKER_01: I think that this was always the likely outcome when you took a step back and
41:39
SPEAKER_01: viewed the federal system in a big picture way as opposed to the sort of horse race
41:44
SPEAKER_01: type of way.
41:45
SPEAKER_01: Josh?
41:46
SPEAKER_00: Yes.
41:46
SPEAKER_01: Speaking of Egypt and alleged bribes therefrom.
41:50
SPEAKER_00: Yes.
41:51
SPEAKER_00: Right.
41:51
SPEAKER_00: This big,
41:52
SPEAKER_00: odd Washington Post story about $10 million and this idea that maybe President Sisi
41:58
SPEAKER_00: of Egypt tried to get a $10 million bribe to former President Trump.
42:03
SPEAKER_00: And the FBI investigated this for a while, but no charges were ever brought.
42:07
SPEAKER_00: I don't know what to make of this story,
42:09
SPEAKER_00: because at least on the basis of what's reported in The Washington Post,
42:13
SPEAKER_00: it's,
42:14
SPEAKER_00: you know,
42:15
SPEAKER_00: all the reporting is there is,
42:16
SPEAKER_00: you know,
42:16
SPEAKER_00: CeCe wanted to do this and then someone withdrew a tremendous amount of cash.
42:21
SPEAKER_00: from a bank in Egypt,
42:23
SPEAKER_00: but there's no connection drawn there that shows like how that money is alleged
42:28
SPEAKER_00: ever to have gotten to then President Trump or then candidate Trump.
42:32
SPEAKER_00: I don't understand if you're trying to get a $10 million bribe to a U.S.
42:35
SPEAKER_00: politician why you would withdraw an immense amount of cash from an Egyptian bank.
42:39
SPEAKER_00: Like, are you going to send it to him in boxes?
42:42
SPEAKER_00: And so,
42:42
SPEAKER_00: you know,
42:43
SPEAKER_00: I'm looking at this and I don't there's,
42:46
SPEAKER_00: you know,
42:46
SPEAKER_00: a lot of people are like,
42:47
SPEAKER_00: oh,
42:47
SPEAKER_00: my God,
42:47
SPEAKER_00: you know,
42:48
SPEAKER_00: huge bribe allegation.
42:49
SPEAKER_00: How has this not been looked into more thoroughly?
42:51
SPEAKER_00: It just didn't look like very much evidence to me.
42:55
SPEAKER_00: I don't understand where the smoking gun is purported to be here.
42:59
SPEAKER_00: So I think it fit into a narrative.
43:01
SPEAKER_01: So what happened apparently is that the CIA got intel from an asset who had been
43:08
SPEAKER_01: reliable before saying that he had heard that Egypt's president wanted to bribe
43:14
SPEAKER_01: Trump or give him $10 million to assist his campaign for president in 2016.
43:21
SPEAKER_01: And so Department of Justice did – it was assigned to somebody to do some looking into it.
43:30
SPEAKER_01: They had a battle with the Bank of Egypt in court over a period of years and
43:35
SPEAKER_01: eventually developed information that –
43:37
SPEAKER_01: Five days before Trump took office,
43:41
SPEAKER_01: some shadowy entity,
43:43
SPEAKER_01: the province of which is completely unclear,
43:46
SPEAKER_01: withdrew $10 million,
43:47
SPEAKER_01: or I think it was technically $9,980,000 something.
43:53
SPEAKER_00: out of, well, you had to buy the Fendi case, right.
43:56
SPEAKER_01: Uh, in, in United States currency out of the bank in Egypt.
44:00
SPEAKER_01: And after that,
44:01
SPEAKER_01: basically a series of decisions are made not to pursue this,
44:05
SPEAKER_01: not to subpoena Trump's bank records and not to do further things that you might do.
44:11
SPEAKER_01: That's all we really know.
44:13
SPEAKER_01: We
44:20
SPEAKER_01: We don't know that there's any corroborating information,
44:24
SPEAKER_01: but it's made it spun very much to seem as if former Attorney General Barr is
44:30
SPEAKER_01: oppressing it,
44:31
SPEAKER_01: and that when different people are running the investigation who are more pro-Trump,
44:36
SPEAKER_01: that they decide it doesn't have merit.
44:39
SPEAKER_01: I'm perfectly willing to be suspicious of all those people,
44:41
SPEAKER_01: but this doesn't really blow the wind up my skirts,
44:43
SPEAKER_01: Josh.
44:43
SPEAKER_01: I don't hear a lot of evidence other than just supposition here, and I think you're right.
44:47
SPEAKER_01: It seems highly improbable that if
44:50
SPEAKER_01: The government of Egypt were going to bribe Trump.
44:52
SPEAKER_01: They do it by taking out $10 million in cash in Egypt.
44:56
SPEAKER_01: That doesn't make a huge amount of sense to me.
44:58
SPEAKER_01: And they could be using that money.
45:01
SPEAKER_01: First of all, we don't know it was the government of Egypt.
45:02
SPEAKER_01: It's some shadowy corporation.
45:04
SPEAKER_01: We don't know what they could be doing.
45:05
SPEAKER_01: They could be hiring Nicolas Cage to steal stuff back from the British Museum.
45:09
SPEAKER_01: They could be doing any number of things.
45:14
SPEAKER_01: But I think it fits into this narrative about how corrupt...
45:18
SPEAKER_01: people were under Trump and how much the Justice Department favored him.
45:21
SPEAKER_01: But even that isn't really true,
45:23
SPEAKER_01: because even under this scenario that they admit to,
45:27
SPEAKER_01: Barr assigned someone to investigate it,
45:30
SPEAKER_01: and that went on for a number of years,
45:33
SPEAKER_01: just like Barr permitted the Mueller investigation and other things to go forward.
45:38
SPEAKER_01: So you have to kind of believe that there was this bribe, that it was done in cash, and Egypt somehow
45:46
SPEAKER_01: And that bar to support Trump allowed it to be investigated,
45:50
SPEAKER_01: but only for a while,
45:51
SPEAKER_01: and then closed it down.
45:53
SPEAKER_01: It's not really a coherent narrative to me.
45:55
SPEAKER_00: Well,
45:56
SPEAKER_00: and the other piece of quote unquote evidence that's marshaled here is that Trump
45:59
SPEAKER_00: took a very favorable foreign policy line toward President Sisi,
46:02
SPEAKER_00: who had taken power in a coup some years earlier.
46:05
SPEAKER_00: But that's also consistent with Trump's stated foreign policy with regard to the
46:09
SPEAKER_00: Middle East,
46:09
SPEAKER_00: which is that he does not care about human rights or democracy.
46:14
SPEAKER_00: And what he does care about is the government's alignment toward U.S.
46:17
SPEAKER_00: interests.
46:17
SPEAKER_00: And Sisi was was more favorable to U.S.
46:19
SPEAKER_00: interests than
46:20
SPEAKER_00: than, you know, Mohamed Morsi, the prior democratically elected president.
46:23
SPEAKER_00: Trump, of course, also far from the only U.S.
46:26
SPEAKER_00: president to take a view toward Mideast power that we might care about things other
46:31
SPEAKER_00: than who's democratic and who's respectful of human rights.
46:33
SPEAKER_00: So I don't I don't find that terribly convincing either.
46:38
SPEAKER_00: It seems like there's all sorts of other reasons other than a bribe that Trump
46:41
SPEAKER_00: would have taken the line he did with Sisi.
46:43
SPEAKER_00: Absolutely.
46:44
SPEAKER_01: I mean,
46:44
SPEAKER_01: the article and a lot of people talking about it make a big deal of Trump referring
46:47
SPEAKER_01: to Sisi as,
46:48
SPEAKER_01: you know,
46:48
SPEAKER_01: my favorite dictator.
46:50
SPEAKER_01: But I mean, Trump constantly sucks up to dictators.
46:53
SPEAKER_01: He loves Kim Jong-un.
46:55
SPEAKER_01: He loves Putin.
46:56
SPEAKER_01: He loves all these people he sees as the strong man he wants to be.
46:59
SPEAKER_01: He's always praising them.
47:01
SPEAKER_01: So you don't need $10 million to do that.
47:03
SPEAKER_01: You just need a silly hat, basically.
47:06
SPEAKER_00: Well, why don't we leave it there this week?
47:07
SPEAKER_00: Ken, thank you for speaking with me as always.
47:09
SPEAKER_00: Thank you, Josh.
47:10
SPEAKER_00: Serious Trouble is created and produced by Very Serious Media.
47:13
SPEAKER_00: That's me and Sarah Faye.
47:14
SPEAKER_00: Jennifer Swadik mixed this episode.
47:15
SPEAKER_00: Our theme music is by Joshua Mosier.
47:17
SPEAKER_00: Thanks for listening.
47:18
SPEAKER_00: We'll be back with more soon.
47:20
SPEAKER_00: See you next time.