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The Happiest Place on Earth (a Courtroom) · Serious Trouble

• 0:00
  [music]
• 0:08
  SPEAKER_01: Hi, it's Ken White.
• 0:10
  SPEAKER_01: And it's Josh Barrow, and this is Serious Trouble.
• 0:13
  SPEAKER_01: Ken, let's start today with the Walt Disney Company.
• 0:15
  SPEAKER_01: They are now in litigation with the Federal Communications Commission,
• 0:18
  SPEAKER_01: Disney and its subsidiary ABC and some of its further subsidiaries,
• 0:23
  SPEAKER_01: local television stations that are owned by ABC.
• 0:28
  SPEAKER_01: There's been an effort by the FCC to basically punish them politically,
• 0:32
  SPEAKER_01: or at least,
• 0:32
  SPEAKER_01: I mean, that's true, but it's also what ABC is going to be arguing in court.
• 0:37
  SPEAKER_01: Initiating an early review of the broadcast licenses for these stations,
• 0:41
  SPEAKER_01: which looks like a preview to trying to revoke those licenses.
• 0:44
  SPEAKER_01: Now the FCC is in court saying this is a violation of our First Amendment rights
• 0:49
  SPEAKER_01: because of the reason that the FCC is doing this.
• 0:51
  SPEAKER_00: You know, Josh,
• 0:52
  SPEAKER_00: I remember when we said,
• 0:53
  SPEAKER_00: if someone said,
• 0:54
  SPEAKER_00: let's start with a Walt Disney company, it was going to be a happy story.
• 0:57
  SPEAKER_00: Like animals and that sort of thing.
• 0:59
  SPEAKER_00: And skunks called flour.
• 1:01
  SPEAKER_00: Well, there are some animals here.
• 1:02
  SPEAKER_00: That's true.
• 1:03
  SPEAKER_00: So, yeah.
• 1:04
  SPEAKER_00: So ABC, after lots of threats to do so,
• 1:07
  SPEAKER_00: has sued the FCC and Brendan Carr and the Trump-aligned FCC commissioners,
• 1:17
  SPEAKER_00: not the one who's on their side and feeding them inside information.
• 1:21
  SPEAKER_00: All in federal court in D.C. And they are seeking...
• 1:27
  SPEAKER_00: Two things,
• 1:27
  SPEAKER_00: an injunction,
• 1:29
  SPEAKER_00: basically cut that out,
• 1:30
  SPEAKER_00: stop bullying the Walt Disney Company type of injunction,
• 1:33
  SPEAKER_00: and declaratory relief,
• 1:35
  SPEAKER_00: asserting that this early relicensing scheme that the FCC has pushed is unlawful.
• 1:43
  SPEAKER_00: So stations have to renew licenses periodically.
• 1:49
  SPEAKER_00: Here, according to Disney,
• 1:51
  SPEAKER_00: for the first time in half a century,
• 1:54
  SPEAKER_00: the FCC basically ordered a bunch of Disney slash ABC stations to renew early
• 2:00
  SPEAKER_00: to sort of put their license into question early.
• 2:04
  SPEAKER_00: And the public comment period on that is just ending.
• 2:09
  SPEAKER_00: And they're concerned the FCC is going to yank the licenses just
• 2:13
  SPEAKER_00: for no other reason, Josh,
• 2:15
  SPEAKER_00: just pure paranoia,
• 2:16
  SPEAKER_00: just because the president of the United States and the commissioner of
• 2:19
  SPEAKER_00: the FCC have repeatedly said they're going to.
• 2:22
  SPEAKER_00: So this is a case like so many in this era where,
• 2:27
  SPEAKER_00: Its credibility largely rests on the complete lack of discipline of the president
• 2:34
  SPEAKER_00: and of the people who serve the president.
• 2:37
  SPEAKER_00: So Trump has repeatedly said in different contexts that stations
• 2:42
  SPEAKER_00: that do things he doesn't like should have their license revoked.
• 2:48
  SPEAKER_00: And those are everything from Jimmy Kimmel's actually fairly mild joke.
• 2:56
  SPEAKER_00: To his belief that all the stations are against him and they never put him in the right light.
• 3:02
  SPEAKER_00: And his statement that if late night shows are always against me,
• 3:07
  SPEAKER_00: then those networks should have their licenses revoked.
• 3:11
  SPEAKER_00: And so the argument of the lawsuit is that this is really
• 3:15
  SPEAKER_00: an explicitly retaliatory campaign for They haven't actually revoked any licenses
• 3:23
  SPEAKER_00: yet.
• 3:36
  SPEAKER_00: That's true.
• 3:37
  SPEAKER_00: They haven't.
• 3:38
  SPEAKER_00: Although I think the idea is that when it comes to government retaliation,
• 3:46
  SPEAKER_00: at some point jawboning,
• 3:47
  SPEAKER_00: just getting out there and threatening and talking and blustering can rise to
• 3:51
  SPEAKER_00: the level of a First Amendment violation because the idea is that even
• 3:55
  SPEAKER_00: if you haven't yet carried through with a threat,
• 3:57
  SPEAKER_00: at some point it is such a deterrent,
• 4:00
  SPEAKER_00: such a chill on free speech that it's going to suppress speech.
• 4:04
  SPEAKER_00: And again, I think in a normal administration, we wouldn't be approaching that line.
• 4:08
  SPEAKER_00: And here it's perfectly a credible argument that we're way over that line.
• 4:14
  SPEAKER_00: So yes, one argument that the United States will make in response is
• 4:18
  SPEAKER_00: that we haven't done anything yet.
• 4:21
  SPEAKER_00: You know,
• 4:22
  SPEAKER_00: the president and the SEC commission are just expressing viewpoints,
• 4:25
  SPEAKER_00: which they're allowed to do, blah, blah, blah.
• 4:28
  SPEAKER_00: And I think that it's not a great argument just because the threats have been
• 4:34
  SPEAKER_00: so explicit, so repeated and so severe.
• 4:37
  SPEAKER_00: So but you could still see a judge going for it and basically punting
• 4:41
  SPEAKER_00: by saying this is premature.
• 4:43
  SPEAKER_00: You know,
• 4:43
  SPEAKER_00: come back to me if they actually revoke your license or put you on some sort
• 4:47
  SPEAKER_00: of Administrative procedure path to revoke the license or something like that.
• 4:52
  SPEAKER_00: Because there are all sorts of administrative things the FCC can do to make you jump
• 4:57
  SPEAKER_00: through hoops to do investigations that can basically make you spend tons of money
• 5:05
  SPEAKER_00: in attorney's fees and go through all this stuff.
• 5:08
  SPEAKER_00: But Disney's position is we're already there.
• 5:12
  SPEAKER_00: They have already been using,
• 5:14
  SPEAKER_00: you know,
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  SPEAKER_00: demands for information,
• 5:16
  SPEAKER_00: demands for production of documents,
• 5:18
  SPEAKER_00: that sort of administrative demand to impose gigantic costs and burdens on people
• 5:25
  SPEAKER_00: through this FCC abuse.
• 5:27
  SPEAKER_00: And so really we're already there.
• 5:29
  SPEAKER_00: It is right because, you know, we're actually being required to do tangible things.
• 5:34
  SPEAKER_01: Well, and another thing that ABC contends is
• 5:37
  SPEAKER_00: that their speech has already been chilled.
• 5:38
  SPEAKER_01: Right.
• 5:39
  SPEAKER_01: And they talk in particular,
• 5:40
  SPEAKER_01: a lot of this fight centers around The View, the mid-morning talk show.
• 5:47
  SPEAKER_01: And some of the question with regard to The View is, is The View a news program?
• 5:51
  SPEAKER_01: Because there are rules about equal time that only apply on programs that are not news programs.
• 5:56
  SPEAKER_01: And sometimes you get things that are in a gray area there.
• 5:58
  SPEAKER_01: But anyway, they say...
• 6:00
  SPEAKER_01: That they've already stopped booking certain political guests on The View
• 6:04
  SPEAKER_01: because they're concerned about what sort of enforcement action is going
• 6:07
  SPEAKER_01: to be taken.
• 6:07
  SPEAKER_01: Now,
• 6:08
  SPEAKER_01: my sense had been that it's sort of frowned upon in courts for a litigant to point
• 6:12
  SPEAKER_01: to their own behavior and say that's what causes the case.
• 6:17
  SPEAKER_01: I have not spoken and therefore I have been chilled.
• 6:21
  SPEAKER_01: Because obviously you can manufacture that.
• 6:24
  SPEAKER_01: But on the other hand,
• 6:25
  SPEAKER_01: it sounds plausible that they are in fact changing their behavior in response
• 6:30
  SPEAKER_01: to regulatory risk.
• 6:31
  SPEAKER_00: It is.
• 6:31
  SPEAKER_00: And the chill analysis usually is not based on a purely subjective reaction.
• 6:36
  SPEAKER_00: It's based on an objective reaction, how reasonable people would react.
• 6:41
  SPEAKER_00: And again,
• 6:41
  SPEAKER_00: the problem for the administration is that they are so extravagant in their threats
• 6:46
  SPEAKER_00: and their bluster that I think
• 6:48
  SPEAKER_00: a reasonable person would start Carefully weighing what they're going to do
• 6:52
  SPEAKER_00: and is exercising our speech this way worth – is it worth the risk?
• 6:59
  SPEAKER_00: Is it worth the extra legal expense and work and prospect of investigations
• 7:05
  SPEAKER_00: and things like that?
• 7:06
  SPEAKER_00: But of all the stupid reasons to really hate the view though,
• 7:09
  SPEAKER_00: I just have to say – Anyway,
• 7:12
  SPEAKER_01: the line you keep hearing from Carr,
• 7:14
  SPEAKER_01: the FCC chair and from other people lined with him,
• 7:17
  SPEAKER_01: is that broadcasters have an obligation to act in the public interest
• 7:21
  SPEAKER_01: with their broadcast license and that it is not in the public interest to be biased
• 7:26
  SPEAKER_01: or to be inaccurate when they allege that news organizations have been inaccurate.
• 7:31
  SPEAKER_01: And so I guess my question here is that is that.
• 7:36
  SPEAKER_01: Are they possibly going to be doing an unconstitutional application of
• 7:40
  SPEAKER_01: the public interest standard where the public interest standard is taken to require
• 7:43
  SPEAKER_01: a certain viewpoint and the federal government can't do that?
• 7:46
  SPEAKER_01: Or is it the public interest standard is itself unconstitutional?
• 7:50
  SPEAKER_00: I would say it's both.
• 7:52
  SPEAKER_00: So the public interest standard,
• 7:54
  SPEAKER_00: bear in mind, we keep throwing around the term broadcast and that's important.
• 8:00
  SPEAKER_00: So The origin of this concept that the FCC could
• 8:04
  SPEAKER_00: to some extent regulate content is premised on this concept
• 8:09
  SPEAKER_00: that broadcast wavelengths are a finite resource that the government is controlling.
• 8:16
  SPEAKER_00: So there are only so many frequencies or wavelengths or whatever the hell it is,
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  SPEAKER_00: and the government parcels it out.
• 8:22
  SPEAKER_00: Because it's a finite resource that the government manages,
• 8:26
  SPEAKER_00: the government can In return,
• 8:28
  SPEAKER_00: expect some level of public service or public contribution.
• 8:34
  SPEAKER_00: So there are a couple of problems with that in the modern era.
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  SPEAKER_00: The first one is that such a relatively small slice of
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  SPEAKER_00: the total media pie is now broadcast as opposed to cable or streaming or,
• 8:46
  SPEAKER_00: you know,
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  SPEAKER_00: things not using things out over the airwaves as opposed to other methods
• 8:51
  SPEAKER_00: of distribution.
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  SPEAKER_00: So the kind of the One of the premises of the whole doctrine is being steadily eroded.
• 9:00
  SPEAKER_00: The other issue is that traditionally the doctrine has been founded not on viewpoint
• 9:08
  SPEAKER_00: or things that are too close to viewpoint.
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  SPEAKER_00: It's been...
• 9:13
  SPEAKER_00: You know,
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  SPEAKER_00: contribution of a certain amount of time to the general subject matter of,
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  SPEAKER_00: you know,
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  SPEAKER_00: public interest or politics or things like that for the purposes of educating
• 9:24
  SPEAKER_00: the public.
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  SPEAKER_00: But it has not been an explicitly viewpoint or ideologically based green light to
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  SPEAKER_00: the FCC to regulate.
• 9:32
  SPEAKER_00: And so the question is,
• 9:34
  SPEAKER_00: you know, how would a modern Supreme Court react to that coming up again?
• 9:39
  SPEAKER_00: And notwithstanding the far right leaning of the current Supreme Court,
• 9:45
  SPEAKER_00: they are more protective of First Amendment rights than they are of other rights.
• 9:51
  SPEAKER_00: And I think that the chance that the broadcast generating a right
• 9:57
  SPEAKER_00: to regulate doctrine would survive is not 100%.
• 10:01
  SPEAKER_00: And also,
• 10:02
  SPEAKER_00: I think the concept that the FCC can stray into really what is You know,
• 10:09
  SPEAKER_00: regulating viewpoint under the guise of regulating accuracy or that type of thing is
• 10:16
  SPEAKER_00: a dubious argument that the Supreme Court's likely not going to like.
• 10:21
  SPEAKER_00: And we can see that in hints of that in things like the case law about,
• 10:25
  SPEAKER_00: you know,
• 10:26
  SPEAKER_00: whether the First Amendment protects false statements with the decision in
• 10:31
  SPEAKER_00: that stolen valor case being,
• 10:33
  SPEAKER_00: you know, false statements are not inherently outside First Amendment protection.
• 10:37
  SPEAKER_00: Uh, things like that.
• 10:38
  SPEAKER_00: I think that the Supreme Court is not by any means a sure win for
• 10:42
  SPEAKER_00: the Trump administration on the concept that the FCC can take a broad view
• 10:47
  SPEAKER_00: of regulating what they see as, uh, as false speech or biased speech.
• 10:53
  SPEAKER_00: And you could see why,
• 10:54
  SPEAKER_00: you know,
• 10:54
  SPEAKER_00: you could see,
• 10:55
  SPEAKER_00: uh, an aggressive, uh, democratic, uh, administration if such a thing existed.
• 11:00
  SPEAKER_00: Uh, Going after Fox News or something like that on the exact same theory,
• 11:07
  SPEAKER_00: the exact same argument.
• 11:08
  SPEAKER_01: Well, Fox News doesn't hold any broadcast licenses.
• 11:10
  SPEAKER_01: I mean, Fox Corporation does.
• 11:12
  SPEAKER_01: They air Fox News Sunday on some broadcast stations that are Fox network stations.
• 11:17
  SPEAKER_00: Sure, I should say Fox Corporation or similar more right-wing media enclaves.
• 11:23
  SPEAKER_01: Yeah, I mean,
• 11:23
  SPEAKER_01: I would think the flip side of that argument could be that because there are
• 11:26
  SPEAKER_01: so many different ways to disseminate information now,
• 11:30
  SPEAKER_01: Rules about how you use the broadcast spectrum are actually less limiting of speech
• 11:35
  SPEAKER_01: than they would have been in 1955 when you really needed the broadcast spectrum
• 11:38
  SPEAKER_01: to reach people.
• 11:39
  SPEAKER_01: I mean, they could say, well,
• 11:41
  SPEAKER_01: if ABC doesn't want to be subject to this regulation,
• 11:44
  SPEAKER_01: it can give up its broadcast licenses.
• 11:46
  SPEAKER_01: I assume at some point in the future, these companies will give up their broadcast licenses.
• 11:50
  SPEAKER_01: I don't fully understand the aspect of the business where the tiny fraction
• 11:54
  SPEAKER_01: of people who are still getting it through broadcast are important enough
• 11:57
  SPEAKER_01: that they want to Remains subject to this FCC regulation.
• 12:00
  SPEAKER_00: But in any case, they have made that choice.
• 12:02
  SPEAKER_00: Well, as to that, Josh,
• 12:04
  SPEAKER_00: the argument of alternative avenues of expression is usually
• 12:09
  SPEAKER_00: an argument that's applied to content neutral limitations.
• 12:13
  SPEAKER_00: So like, you know, no loudspeakers in the park or something like that.
• 12:19
  SPEAKER_00: Or similar things that aren't explicitly going after viewpoint.
• 12:22
  SPEAKER_00: Generally,
• 12:23
  SPEAKER_00: you can't get away with viewpoint conscious content regulation on the basis
• 12:30
  SPEAKER_00: that there are also other avenues where you could express that viewpoint.
• 12:33
  SPEAKER_01: Let's talk about this case out of the NIAID,
• 12:37
  SPEAKER_01: the National Institute of Allergy and Infectious Diseases,
• 12:39
  SPEAKER_01: which had, you know, for several decades was headed up by Dr. Anthony Fauci.
• 12:44
  SPEAKER_01: He's had some difficulties related to the Fifth Amendment to Congress
• 12:48
  SPEAKER_01: that we have talked about recently.
• 12:50
  SPEAKER_01: And now someone who used to work for him,
• 12:51
  SPEAKER_01: David Morins, has pleaded guilty to conspiracy to defraud the United States.
• 12:57
  SPEAKER_01: And this is in an ongoing scandal where the There were internal communications
• 13:03
  SPEAKER_01: about various kinds of research related to gain of function and other things
• 13:08
  SPEAKER_01: that were disfavored in the time around the start of the COVID pandemic.
• 13:13
  SPEAKER_01: And there were discussions about,
• 13:15
  SPEAKER_01: you know,
• 13:16
  SPEAKER_01: What the origins of COVID were and what sort of research could be done and funded
• 13:19
  SPEAKER_01: by NAAD in the future that certain people did not really want getting out into
• 13:24
  SPEAKER_01: the press or into the hands of lawmakers.
• 13:26
  SPEAKER_01: And so Mr. Morins,
• 13:27
  SPEAKER_01: who was a senior advisor at NAAD,
• 13:30
  SPEAKER_01: wrote down in a bunch of places stuff about,
• 13:33
  SPEAKER_01: you know,
• 13:33
  SPEAKER_01: we'll send this to my Gmail and I will make sure that this doesn't get to
• 13:39
  SPEAKER_01: the FOIA lady.
• 13:40
  SPEAKER_01: This is not something that will ultimately get disclosed.
• 13:43
  SPEAKER_01: And you're not allowed to do that.
• 13:45
  SPEAKER_01: You can't take your government communications that are supposed to be subject to
• 13:50
  SPEAKER_01: the Freedom of Information Act and hide them by putting them in your personal Gmail.
• 13:55
  SPEAKER_01: Can I vaguely remember this being an issue in the 2016 presidential election?
• 13:59
  SPEAKER_00: Yeah, something – it came up in some way, some sort of servers or something.
• 14:03
  SPEAKER_01: So in any case,
• 14:04
  SPEAKER_01: he's pleading guilty now for having done that and we don't know
• 14:07
  SPEAKER_01: yet what he'll be sentenced to.
• 14:09
  SPEAKER_00: Yeah, so he pled guilty to conspiracy to defraud the United States.
• 14:14
  SPEAKER_00: Remember, the general federal conspiracy statute, 18 U.S.C.
• 14:19
  SPEAKER_00: 371, has two theories.
• 14:21
  SPEAKER_00: One is you conspired with people to defraud just folks in general,
• 14:25
  SPEAKER_00: and the You conspired to defraud the United States.
• 14:28
  SPEAKER_00: Here the theory was he conspired to defraud the United States
• 14:32
  SPEAKER_00: by taking communications out of channels where they were supposed to be
• 14:38
  SPEAKER_00: and defrauding things so that the Freedom of Information Act
• 14:41
  SPEAKER_00: and other mechanisms would not successfully reveal communications.
• 14:46
  SPEAKER_00: He pled to that in the District of Maryland after being charged back in April.
• 14:51
  SPEAKER_00: His guideline sentence, it looks to me, is around 12 to 18 months.
• 14:55
  SPEAKER_00: But given his age and lack of record and circumstances,
• 14:59
  SPEAKER_00: I would expect likely a probationary sentence,
• 15:01
  SPEAKER_00: maybe home detention or something like that, most likely.
• 15:04
  SPEAKER_00: But what's really striking here is how stupid and arrogant and client-ish this is
• 15:12
  SPEAKER_00: because he – He and the company that he was conspiring with
• 15:16
  SPEAKER_00: to keep these communications off of discoverable channels were just super explicit
• 15:22
  SPEAKER_00: about it.
• 15:22
  SPEAKER_00: I mean, so he was sending emails about how, you know, he's referring to secret back channels.
• 15:28
  SPEAKER_00: He's talking about how learn from his FOIA lady,
• 15:31
  SPEAKER_00: about how to keep things away from FOIA,
• 15:34
  SPEAKER_00: about keeping communications off government devices and the company he's working
• 15:42
  SPEAKER_00: with.
• 15:43
  SPEAKER_00: Sends a fantastic email,
• 15:44
  SPEAKER_00: fantastic in the sense of if you're a prosecutor and you want to have a good day,
• 15:48
  SPEAKER_00: saying basically,
• 15:49
  SPEAKER_00: you know,
• 15:50
  SPEAKER_00: they're sending him wine and saying,
• 15:51
  SPEAKER_00: thanks for your help with the behind-the-scenes shenanigans in my battle
• 15:57
  SPEAKER_00: against your boss's boss, his bosses, and the ultimate boss on the hill.
• 16:01
  SPEAKER_00: Right.
• 16:02
  SPEAKER_00: So basically confessing that they are keeping things out of the public record
• 16:07
  SPEAKER_00: for political reasons and I'm sending you wine because you've done it in
• 16:10
  SPEAKER_00: a shenanigan.
• 16:12
  SPEAKER_00: Not great evidence on the defense side.
• 16:14
  SPEAKER_00: And it's really striking to me how much this contributes to theories
• 16:20
  SPEAKER_00: that may be completely bogus.
• 16:22
  SPEAKER_00: In other words,
• 16:22
  SPEAKER_00: there's still a lot of people out there who are absolutely convinced that COVID was
• 16:28
  SPEAKER_00: a lab leak.
• 16:29
  SPEAKER_00: And I'm not a scientist.
• 16:30
  SPEAKER_00: I'm not able to do.
• 16:31
  SPEAKER_00: I think I'm probably most convinced by the people
• 16:33
  SPEAKER_00: who say it sure looks like it's not, but it's not impossible.
• 16:38
  SPEAKER_00: But this type of stuff, this type of gratuitous, arrogant, secrecy, like the people...
• 16:43
  SPEAKER_00: Shouldn't know about this frank discussion because they may take it wrong
• 16:47
  SPEAKER_00: because they're not smart.
• 16:48
  SPEAKER_00: That type of thing absolutely promotes conspiracy theories and promotes lack
• 16:54
  SPEAKER_00: of trust in, you know, government scientists and experts and things like that.
• 16:58
  SPEAKER_00: It's like,
• 16:58
  SPEAKER_00: you know,
• 16:58
  SPEAKER_00: if you send an email saying,
• 17:00
  SPEAKER_00: let's make sure to suppress that file about whether or not
• 17:02
  SPEAKER_00: the moon landing is faked,
• 17:04
  SPEAKER_00: even if the file says, of course it wasn't fake, you idiot.
• 17:07
  SPEAKER_00: The fact that you're suppressing it is going to make everyone think the moon landing was faked.
• 17:10
  SPEAKER_00: So this is like the most undermining thing to public science and government science
• 17:16
  SPEAKER_00: that you could do, really.
• 17:17
  SPEAKER_01: Does it matter from – I guess I mostly mean does it matter from the perspective of
• 17:22
  SPEAKER_01: the sentencing judge that violations of rules around record keeping
• 17:26
  SPEAKER_01: and record discovery are extremely widespread?
• 17:29
  SPEAKER_01: I mean,
• 17:30
  SPEAKER_01: this is a regular item for Matt Levine at Bloomberg because there are all sorts
• 17:35
  SPEAKER_01: of rules for financial institutions that you have to keep.
• 17:39
  SPEAKER_01: You know,
• 17:39
  SPEAKER_01: you have to do your messaging about the deals that you're doing on systems
• 17:43
  SPEAKER_01: that are archived internally.
• 17:44
  SPEAKER_01: And at every investment bank and fund everywhere,
• 17:47
  SPEAKER_01: employees are sending text messages to each other about things.
• 17:52
  SPEAKER_01: And the way Matt Levine puts it is basically this means
• 17:55
  SPEAKER_01: that any government regulator can fine any firm in any amount that it wants
• 17:58
  SPEAKER_01: at any time because everybody is violating the rule.
• 18:10
  SPEAKER_01: She was doing what Colin Powell had advised her to do about the emails.
• 18:14
  SPEAKER_01: Now, Colin Powell wasn't allowed to do it either.
• 18:16
  SPEAKER_01: Right.
• 18:16
  SPEAKER_01: But in some cases,
• 18:18
  SPEAKER_01: there's just really widespread lawbreaking where if you go look for it,
• 18:23
  SPEAKER_01: you're probably going to find it.
• 18:25
  SPEAKER_01: Now,
• 18:25
  SPEAKER_01: I guess the difference with FOIA is that if you make something non-discoverable in
• 18:30
  SPEAKER_01: a way that's non-willful,
• 18:31
  SPEAKER_01: that's probably not a crime in the way that this willful stuff is a crime.
• 18:35
  SPEAKER_00: Right.
• 18:36
  SPEAKER_00: I think there are a few factors here.
• 18:37
  SPEAKER_00: And you'll notice that although there was some rhetoric,
• 18:41
  SPEAKER_00: the defense didn't try some sort of big,
• 18:43
  SPEAKER_00: gigantic,
• 18:44
  SPEAKER_00: vindictive prosecution push or anything like that,
• 18:48
  SPEAKER_00: in part because it appears it was being investigated during
• 18:51
  SPEAKER_00: the Biden administration.
• 18:52
  SPEAKER_00: So this is an investigation that's been going on for a while.
• 18:54
  SPEAKER_00: But there are a few factors.
• 18:56
  SPEAKER_00: First of all,
• 18:56
  SPEAKER_00: this is hiding stuff about a huge nationally traumatic event,
• 19:01
  SPEAKER_00: you know, the COVID pandemic and the government's reaction to it.
• 19:05
  SPEAKER_00: Where everyone would agree this is something that should be in the open
• 19:09
  SPEAKER_00: and discoverable and it's bad for government functionaries to be hiding what
• 19:13
  SPEAKER_00: the truth is and what the discussions about it were.
• 19:16
  SPEAKER_00: Second of all,
• 19:17
  SPEAKER_00: it's just so in your face explicit and gratuitous that sooner or later,
• 19:24
  SPEAKER_00: even if it usually doesn't get prosecuted, this does.
• 19:27
  SPEAKER_00: You know,
• 19:27
  SPEAKER_00: the analogy I've used before for this, Josh,
• 19:29
  SPEAKER_00: is that the campus police at my school usually wouldn't arrest you for drunk
• 19:32
  SPEAKER_00: in public unless,
• 19:33
  SPEAKER_00: like my friend,
• 19:34
  SPEAKER_00: You jaywalked in front of a police car wearing a Bud Light carton over your head.
• 19:38
  SPEAKER_00: You know,
• 19:38
  SPEAKER_00: at some point you were just demanding to be prosecuted and they're going
• 19:42
  SPEAKER_00: to take your demand.
• 19:44
  SPEAKER_00: So I think this stuff was,
• 19:45
  SPEAKER_00: when they found it,
• 19:47
  SPEAKER_00: was just so extraordinarily arrogant and gratuitous in,
• 19:53
  SPEAKER_00: you know, we decide what's public as opposed to this.
• 19:56
  SPEAKER_00: Hey, I'm not, you know, I don't want to be bothered with this.
• 19:59
  SPEAKER_00: The indication here was not merely that we don't want to have the headache of FOIA.
• 20:03
  SPEAKER_00: It's, We want to keep this information out of the public record.
• 20:06
  SPEAKER_00: We don't want people to know about it.
• 20:08
  SPEAKER_00: And I think it's that type of attitude that is most likely to draw a prosecution.
• 20:13
  SPEAKER_01: Yeah.
• 20:14
  SPEAKER_01: Let's talk about Luigi Mangione.
• 20:16
  SPEAKER_01: Somewhat surprising,
• 20:17
  SPEAKER_01: he's just pleading guilty,
• 20:19
  SPEAKER_01: or he has pleaded guilty in federal court, and not with a plea deal.
• 20:23
  SPEAKER_01: Yes, he pled guilty straight up.
• 20:26
  SPEAKER_01: Why would you do that?
• 20:28
  SPEAKER_01: Yeah.
• 20:32
  SPEAKER_01: That's it for this week's free episode of Serious Trouble.
• 21:01
  SPEAKER_01: Of a federal lawsuit against Harvard,
• 21:04
  SPEAKER_01: DOJ had tried to go after them for allowing discrimination against Jewish
• 21:08
  SPEAKER_01: and Israeli students.
• 21:09
  SPEAKER_01: But what a court says is you have to try first to secure voluntary compliance.
• 21:14
  SPEAKER_01: And it's not clear that you didn't get that here.
• 21:16
  SPEAKER_01: We have new AI shenanigan cases,
• 21:18
  SPEAKER_01: including one where 3M had an expert witness blow up in their face because
• 21:23
  SPEAKER_01: of his use of AI.
• 21:24
  SPEAKER_01: And finally,
• 21:25
  SPEAKER_01: should you rifle through somebody's mailbox when you are knocking on their door
• 21:30
  SPEAKER_01: to campaign at their house?
• 21:32
  SPEAKER_01: Spoiler alert, no, you shouldn't.
• 21:34
  SPEAKER_01: But not necessarily because it's a crime.
• 21:36
  SPEAKER_01: You may actually not commit a federal crime if you do that, but still don't do it anyway.
• 21:39
  SPEAKER_01: Anyway...
• 21:39
  SPEAKER_01: If you want to hear all of that, go to serioustrouble.show for $6 a month or $60 a year.
• 21:44
  SPEAKER_01: You can get that full episode and every full episode you'll be part of our community.
• 21:47
  SPEAKER_01: You can join our comments section.
• 21:48
  SPEAKER_01: We would love to have you.
• 21:49
  SPEAKER_01: Thanks.