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This Is Going to Ruin the Tour · Serious Trouble

0:08
SPEAKER_00: Hi, it's Ken White.
0:10
SPEAKER_00: And I'm Josh Barrow, and this is Serious Trouble.
0:12
SPEAKER_00: Ken, we have quite the parade of idiots on display this week for our listeners' ears.
0:17
SPEAKER_00: We're going to be talking later in the show about Justin Timberlake,
0:21
SPEAKER_00: about Nathan Wade,
0:22
SPEAKER_00: about Alex Jones,
0:23
SPEAKER_00: about Jacob Wohl.
0:24
SPEAKER_00: It's really a rogues gallery that we have this week.
0:27
SPEAKER_00: But I guess,
0:28
SPEAKER_00: you know,
0:28
SPEAKER_00: in the parade of idiots,
0:30
SPEAKER_00: the Grand Marshal,
0:31
SPEAKER_00: I think we will start,
0:32
SPEAKER_00: as we start most weeks,
0:33
SPEAKER_00: with Donald Trump,
0:34
SPEAKER_00: who has a couple of gag order-related issues for us to discuss.
0:38
SPEAKER_00: So first of all, in New York, the case before Judge Mershon, that case obviously is over.
0:44
SPEAKER_00: Trump has been convicted on $3,450.
0:45
SPEAKER_00: felony counts and his lawyers have said, well, the case is over.
0:48
SPEAKER_00: You should release me from this gag order.
0:50
SPEAKER_00: And Judge Marchand has agreed to narrow the gag order.
0:52
SPEAKER_00: He says it won't apply anymore to witnesses or to jurors because they're done working,
0:56
SPEAKER_00: but they're still sentencing and appeals and stuff.
0:58
SPEAKER_00: And so the gag order is still going to apply to court staff and to people who work
1:03
SPEAKER_00: under District Attorney Alvin Bragg.
1:05
SPEAKER_01: Yeah.
1:05
SPEAKER_01: So the theory is that the proceedings are still ongoing with respect to preparing
1:10
SPEAKER_01: for the sentencing later in July.
1:13
SPEAKER_01: And therefore,
1:14
SPEAKER_01: it makes sense to protect the court staff and the prosecutor staff from threats and
1:20
SPEAKER_01: things that might prevent the orderly administration of justice,
1:23
SPEAKER_01: but that the jurors have been discharged and the witnesses have testified.
1:27
SPEAKER_01: So it's a somewhat cautious cutback of the gag order, more or less what we predicted.
1:33
SPEAKER_00: And so what does this mean as a practical matter?
1:36
SPEAKER_00: I assume that there will be a Trump appeal of this because Trump is very litigation
1:42
SPEAKER_00: happy and likes to appeal things that he can appeal.
1:45
SPEAKER_00: Do you think that this is something that I mean,
1:46
SPEAKER_00: because,
1:47
SPEAKER_00: again,
1:47
SPEAKER_00: as we've discussed a lot on here,
1:48
SPEAKER_00: we've gotten some better law on this in recent months created in these Donald Trump cases.
1:54
SPEAKER_00: Is an appeals court likely to uphold the gag order in that narrowed form based on that reasoning?
1:58
SPEAKER_00: Well,
1:59
SPEAKER_01: I think he may try,
2:00
SPEAKER_01: but he's gotten absolutely no relief from the courts of appeal in New York for any
2:06
SPEAKER_01: of the gag orders.
2:06
SPEAKER_01: He's gotten shot down consistently,
2:09
SPEAKER_01: and there's not much time before the sentencing,
2:11
SPEAKER_01: after which the gag order will presumably dissolve.
2:15
SPEAKER_01: So he doesn't have a lot of time to litigate it.
2:17
SPEAKER_01: So he may not be able to.
2:19
SPEAKER_00: Okay.
2:20
SPEAKER_00: And then we have other gag order proceedings this week down in Florida.
2:23
SPEAKER_00: There's been a request to Judge Eileen Cannon in the documents case for a gag order
2:27
SPEAKER_00: there with prosecutors saying that Donald Trump's public comments have been
2:31
SPEAKER_00: interfering with their efforts to try that case.
2:33
SPEAKER_00: And Judge Cannon seemed pretty unreceptive to that in a hearing and also got quite
2:37
SPEAKER_00: testy with a government attorney.
2:39
SPEAKER_01: That's right.
2:40
SPEAKER_01: The special counsel attorney, a guy named David Harbaugh, uh,
2:45
SPEAKER_01: got pretty annoyed with the judge during arguments because she was asking him what specific proof
2:54
SPEAKER_01: he had to support this idea that Trump's statements were putting law enforcement in danger.
2:59
SPEAKER_01: Remember,
2:59
SPEAKER_01: this is about Trump basically saying,
3:01
SPEAKER_01: you know,
3:01
SPEAKER_01: the FBI had a kill plan to zap me,
3:05
SPEAKER_01: when in fact they just had a very standard use of force policy in the search
3:09
SPEAKER_01: warrant plan.
3:11
SPEAKER_01: And the government's been saying,
3:12
SPEAKER_01: oh,
3:12
SPEAKER_01: well,
3:12
SPEAKER_01: you know,
3:13
SPEAKER_01: that means that he's basically inciting people to attack federal law enforcement agents.
3:18
SPEAKER_01: And Judge Cannon was skeptical, as I think is appropriate for her to be,
3:22
SPEAKER_01: She kept interrupting Harbach when he was trying to list examples.
3:27
SPEAKER_01: He got very testy, and she came back to him with, I need you to basically act better in the courtroom.
3:35
SPEAKER_01: Your tone is inappropriate.
3:36
SPEAKER_01: If necessary, I'll have one of your colleagues take over.
3:39
SPEAKER_01: So eventually he apologizes as you need to.
3:42
SPEAKER_01: Part of this is that you just got to be used to judges interrupting you and being annoying.
3:49
SPEAKER_01: That's part of the job.
3:50
SPEAKER_01: And judges do it.
3:51
SPEAKER_01: They're focused on whatever they are focused on.
3:55
SPEAKER_01: The other part of it is there's this ongoing sort of cultural issue that we've touched on before, Josh.
4:00
SPEAKER_01: Which is kind of the tragic flaw of the federal prosecutors is that sometimes they
4:07
SPEAKER_01: can be arrogant and sometimes that arrogance can bleed through when they're talking
4:11
SPEAKER_01: to a federal judge they think is not qualified and not familiar with the area.
4:16
SPEAKER_01: And not seeing how obviously right they are.
4:19
SPEAKER_01: So it's one of their kind of classic weaknesses.
4:22
SPEAKER_01: And that seemed to be part of this,
4:23
SPEAKER_01: of a very experienced federal prosecutor being somewhat impatient with a federal judge,
4:28
SPEAKER_01: which even if the impatience is earned,
4:31
SPEAKER_01: you don't get to be impatient.
4:33
SPEAKER_01: You got to sit there and take it.
4:35
SPEAKER_01: So and you combine that with with Judge Cannon,
4:39
SPEAKER_01: who's under relentless fire,
4:41
SPEAKER_01: you know,
4:42
SPEAKER_01: constant articles in The New York Times,
4:44
SPEAKER_01: things about how she's unqualified,
4:46
SPEAKER_01: doesn't know what she's doing.
4:47
SPEAKER_01: She's overwhelmed.
4:49
SPEAKER_01: And you get kind of a perfect storm for these types of spats between judge and attorney.
4:54
SPEAKER_01: And so, you know, as an attorney, you got to be ready for the judge to be mad at you.
4:58
SPEAKER_01: And I say, if the judge is never mad at you, you're probably not doing your job.
5:02
SPEAKER_01: But you also have to just realize you have to eat a certain amount of shit sandwich
5:06
SPEAKER_01: dealing with a federal judge.
5:07
SPEAKER_01: And even if they're not listening to you or interrupting you,
5:10
SPEAKER_01: you just have to calmly go through it and not get pissed off at them.
5:14
SPEAKER_00: I mean, some of this seems very human, right?
5:16
SPEAKER_00: I mean, like, it has to be a very frustrating experience to be in front of a judge who you don't respect.
5:21
SPEAKER_00: And, you know, we're not going to ask you to name any names, but I'm sure that's happened to you.
5:25
SPEAKER_00: Is there,
5:25
SPEAKER_00: you know,
5:25
SPEAKER_00: do you have like affirmations or like Zen exercises or anything that you do when
5:30
SPEAKER_00: you're going into that courtroom and knowing that you have to sit there under this
5:34
SPEAKER_00: person of authority who you think is kind of a moron?
5:36
SPEAKER_00: Did you say Zen exercises or Xanax?
5:40
SPEAKER_01: I mean, I, so the answer is yes.
5:44
SPEAKER_01: Sometimes there will be judges that you think,
5:47
SPEAKER_01: um,
5:48
SPEAKER_01: you know,
5:48
SPEAKER_01: don't understand the issue or aren't sufficiently qualified or just wrong on something.
5:53
SPEAKER_01: And you just have to remind yourself to have a level of humility that ultimately
5:57
SPEAKER_01: that they're to judge your role is to advocate.
6:00
SPEAKER_01: And also the humility to know that sometimes you're wrong and you know,
6:03
SPEAKER_01: I've been wrong and indignantly wrong and I will be again.
6:06
SPEAKER_01: And, uh,
6:08
SPEAKER_01: You just have to realize it's not effective advocacy for your client to blow up and
6:13
SPEAKER_01: lose your cool as opposed to,
6:16
SPEAKER_01: you know,
6:17
SPEAKER_01: vigorously arguing your point in a way that may sometimes irritate the judge,
6:22
SPEAKER_01: which is just part of the game.
6:23
SPEAKER_00: As we continue with our parade of idiots,
6:25
SPEAKER_00: Julian Assange,
6:26
SPEAKER_00: I think,
6:26
SPEAKER_00: might be the biggest legal proceeding news this week.
6:28
SPEAKER_00: He is pleaded guilty to one felony count of violating the Espionage Act.
6:33
SPEAKER_00: And he came sort of into the United States,
6:35
SPEAKER_00: pleaded guilty to that,
6:36
SPEAKER_00: and is on his way back to his native Australia.
6:39
SPEAKER_00: And so I guess first, there's an interesting geographical aspect to this deal.
6:43
SPEAKER_00: We actually got a question in from listener Andrew wanting to know why Julian
6:48
SPEAKER_00: Assange was going to be pleading guilty in the northern Mariana Islands.
6:51
SPEAKER_00: He went to Saipan from the U.K.,
6:54
SPEAKER_00: halfway around the world near Guam,
6:56
SPEAKER_00: into the federal court there and pleaded guilty.
7:00
SPEAKER_00: And so, Ken, I love it when listeners write in about venue.
7:03
SPEAKER_00: If you have any other listeners have questions about venue,
7:05
SPEAKER_00: please feel free to send them to RicoHotline at SeriousTrouble.show.
7:10
SPEAKER_00: Ken, I'm giving you that one for free.
7:12
SPEAKER_00: Why was this plea entered in Saipan?
7:14
SPEAKER_01: Well, there are two factors going on here, Josh.
7:17
SPEAKER_01: One is that for offenses that are committed against the United States from outside
7:22
SPEAKER_01: the United States,
7:24
SPEAKER_01: technically you can venue it wherever you want.
7:28
SPEAKER_01: under some theories for some types of offenses.
7:30
SPEAKER_01: So the argument here is that because the things he allegedly did to take
7:37
SPEAKER_01: information from Chelsea Manning and publish it,
7:40
SPEAKER_01: he did when he was outside the US,
7:41
SPEAKER_01: that you could kind of decide to prosecute him
7:45
SPEAKER_01: The other factor is that he doesn't want to come to the continental United States.
7:50
SPEAKER_01: And he apparently,
7:51
SPEAKER_01: during the plea negotiations,
7:52
SPEAKER_01: insisted that he plead here in this,
7:55
SPEAKER_01: you know,
7:56
SPEAKER_01: to us,
7:57
SPEAKER_01: somewhat remote United States territory,
8:01
SPEAKER_01: very far away.
8:01
SPEAKER_01: And I think his idea was that he was worried that if he came to the continental United States...
8:08
SPEAKER_01: that maybe some of the states might try to take a crack at him and arrest him for
8:14
SPEAKER_01: stuff and try to prosecute him on a state level,
8:17
SPEAKER_01: or that just the pressure to get him on something else,
8:20
SPEAKER_01: given the somewhat lenient terms of the resolution,
8:24
SPEAKER_01: would be too much.
8:26
SPEAKER_01: Now,
8:26
SPEAKER_01: to me,
8:27
SPEAKER_01: agreeing to travel voluntarily to a remote tropical outpost shows a certain level
8:33
SPEAKER_01: of comfort with the CIA that I wouldn't necessarily give when they want to kill somebody.
8:39
SPEAKER_01: But there you go.
8:41
SPEAKER_01: So he did plead guilty in Saipan.
8:44
SPEAKER_01: It all went smoothly.
8:45
SPEAKER_01: He basically satisfied the plea by saying that he feels that the Espionage Act and
8:52
SPEAKER_01: the First Amendment are in conflict with each other,
8:55
SPEAKER_01: but he understands that they'd be able to prosecute him and it would be very
8:59
SPEAKER_01: difficult to defend.
9:00
SPEAKER_01: So kind of edging up to the end, to the edge of what's called a no contest plea.
9:05
SPEAKER_01: Basically saying, I don't admit it, but I can see the government could prove it.
9:10
SPEAKER_01: And then he goes off to Australia.
9:13
SPEAKER_01: Now,
9:13
SPEAKER_01: he has to pay,
9:14
SPEAKER_01: apparently,
9:15
SPEAKER_01: the very hefty bill for the special flight from England to Saipan,
9:21
SPEAKER_01: which is apparently like $520,000.
9:23
SPEAKER_01: So, you know.
9:27
SPEAKER_01: Try spirit air next time.
9:29
SPEAKER_01: The interesting thing about this to me is it's very much ending with a whimper rather than a bang.
9:35
SPEAKER_01: So,
9:36
SPEAKER_01: you know,
9:36
SPEAKER_01: the United States,
9:37
SPEAKER_01: the power apparatus,
9:38
SPEAKER_01: the United States people in both parties really talked very big about Julian
9:44
SPEAKER_01: Assange and about how.
9:46
SPEAKER_01: Terribly he harmed the national security of the United States and all this type of thing.
9:52
SPEAKER_01: This time-served resolution,
9:55
SPEAKER_01: and no doubt he spent some years in jail in England,
9:57
SPEAKER_01: but this time-served resolution is much milder than the rhetoric that was being
10:02
SPEAKER_01: used before.
10:04
SPEAKER_01: And I think that represents the government sort of recognizing that they're having
10:08
SPEAKER_01: persistent problems with the government of the UK convincing the courts there to
10:13
SPEAKER_01: allow him to be extradited.
10:16
SPEAKER_01: And that probably they have issues with the prosecution.
10:20
SPEAKER_00: Is it also possible that a concern that entered into this is that if Donald Trump
10:24
SPEAKER_00: is elected,
10:25
SPEAKER_00: that there's been some people pushing him to pardon Julian Assange,
10:28
SPEAKER_00: that if they're concerned about deterring people from committing future acts like this?
10:33
SPEAKER_00: that the deterrence value could be higher from a time-served resolution where the
10:37
SPEAKER_00: government has sort of shown that even if they don't ultimately take you to trial,
10:40
SPEAKER_00: they can get you held in jail for many years and cause you a great deal of trouble,
10:45
SPEAKER_00: versus if they kept this going until Trump came in and Trump just dropped the
10:50
SPEAKER_00: charges or pardoned him or something like that,
10:53
SPEAKER_00: that would send a considerably weaker message toward people who might consider
10:57
SPEAKER_00: entering into conspiracies to obtain and disclose classified information.
11:00
SPEAKER_00: Yeah.
11:01
SPEAKER_01: I don't know.
11:01
SPEAKER_01: I mean,
11:01
SPEAKER_01: is it weaker if Trump takes office and then wipes out the conviction sentence with
11:06
SPEAKER_01: a pardon versus Assange having spent all that time in jail and then having it wiped
11:15
SPEAKER_01: out before he pleads?
11:16
SPEAKER_01: I don't know if that makes a big difference in the way normal people think about deterrence,
11:20
SPEAKER_01: about whether or not they're going to engage in this.
11:23
SPEAKER_01: Josh, remember the key issue here, the First Amendment issue, is the distinction between
11:28
SPEAKER_01: People publishing leaked items and people soliciting leaked items.
11:34
SPEAKER_01: So it's a longstanding concept that the press can generally publish items that are
11:41
SPEAKER_01: leaked by someone,
11:42
SPEAKER_01: even if they're leaked in violation of that person's duties.
11:45
SPEAKER_01: So that's the Pentagon Papers type of issue.
11:47
SPEAKER_01: The question is,
11:48
SPEAKER_01: at what point do you cross a line into instructing them how to get around
11:53
SPEAKER_01: government safeguards,
11:55
SPEAKER_01: conspiring with them?
11:56
SPEAKER_01: to do things to defeat security,
12:00
SPEAKER_01: things like that,
12:01
SPEAKER_01: so that you're no longer just passively receiving leaks,
12:05
SPEAKER_01: but causing,
12:06
SPEAKER_01: orchestrating,
12:07
SPEAKER_01: directing leaks.
12:09
SPEAKER_01: That was going to be the substance of this case.
12:12
SPEAKER_01: And it may be the government decided that was going to be very hard to prove.
12:17
SPEAKER_00: It's been a while since we've talked about Alex Jones, and there's some news in his bankruptcy.
12:22
SPEAKER_00: Of course,
12:22
SPEAKER_00: he had these very large judgments entered against him for defamation of various
12:27
SPEAKER_00: Sandy Hook families claiming that they'd been part of a conspiracy to fake their
12:30
SPEAKER_00: own children's deaths.
12:32
SPEAKER_00: And so one of his biggest assets, obviously, is his broadcasting company, InfoWars.
12:37
SPEAKER_00: And so there's been an announcement that the bankruptcy trustee in his bankruptcy
12:42
SPEAKER_00: case wants to liquidate InfoWars and says that he's decided that's the best way to
12:48
SPEAKER_00: generate value for the creditors is to sell InfoWars off for pieces.
12:52
SPEAKER_00: I mean,
12:52
SPEAKER_00: it's been this ongoing sort of strange situation where Alex Jones has continued to
12:56
SPEAKER_00: broadcast for InfoWars even though he doesn't really own it.
12:58
SPEAKER_00: The bankruptcy estate owns it.
13:00
SPEAKER_00: And so now there's dispute over this,
13:02
SPEAKER_00: you know,
13:02
SPEAKER_00: this question of value of,
13:03
SPEAKER_00: you know,
13:04
SPEAKER_00: do you really recover more money by liquidating it or not?
13:07
SPEAKER_00: But then there's also this thing operating in the background that he,
13:09
SPEAKER_00: you know,
13:09
SPEAKER_00: he does a lot of stuff on InfoWars that's gross and that presumably the families
13:13
SPEAKER_00: who are the beneficiaries especially think is gross.
13:16
SPEAKER_00: And I assume that has to be in the back of people's minds as they decide whether
13:20
SPEAKER_00: InfoWars should keep operating,
13:21
SPEAKER_00: even though,
13:22
SPEAKER_00: of course,
13:22
SPEAKER_00: it's worth noting,
13:23
SPEAKER_00: shutdown InfoWars,
13:24
SPEAKER_00: it doesn't stop Alex Jones from talking.
13:26
SPEAKER_00: He can talk somewhere else,
13:27
SPEAKER_00: but he might not have quite the same breadth of carriage that he does with this
13:31
SPEAKER_00: platform that he built.
13:33
SPEAKER_01: Right.
13:33
SPEAKER_01: So we've had the spectacle of Alex Jones,
13:35
SPEAKER_01: you know,
13:36
SPEAKER_01: weeping literally and wailing about how he's going to be silenced and his life's
13:41
SPEAKER_01: work shut down,
13:42
SPEAKER_01: all this by the evil courts.
13:45
SPEAKER_01: While the said evil courts are deciding what's going to happen, the network he's doing it on.
13:50
SPEAKER_01: And there's been suspense as there's been talk back and forth about whether the
13:55
SPEAKER_01: best option is to continue to run InfoWars online.
14:00
SPEAKER_01: And have it make money to maximize returns to the creditors or whether to strip it
14:03
SPEAKER_01: down for parts and sell it.
14:05
SPEAKER_01: And sometimes in cases like this,
14:07
SPEAKER_01: there's this weird moral issue about,
14:10
SPEAKER_01: you know,
14:11
SPEAKER_01: do you want to continue to run a company that's doing bad things and selling junk products?
14:17
SPEAKER_01: Because a lot of what InfoWars,
14:20
SPEAKER_01: you know,
14:20
SPEAKER_01: sells,
14:20
SPEAKER_01: a lot of what it makes money off of is selling hokums and tinctures and products
14:28
SPEAKER_01: that keep your frogs from being gay.
14:30
SPEAKER_01: and that type of stuff.
14:31
SPEAKER_01: Uh,
14:31
SPEAKER_01: so,
14:32
SPEAKER_01: you know,
14:33
SPEAKER_00: there's kind of a moral dimension there too,
14:35
SPEAKER_00: but it's funny,
14:36
SPEAKER_00: you know,
14:36
SPEAKER_00: we've never talked about whether we should get into that business.
14:38
SPEAKER_00: I wonder if we could make money with our own line of supplements.
14:41
SPEAKER_01: Oh, we could have such a great line of merch, Josh.
14:44
SPEAKER_00: Absolutely.
14:45
SPEAKER_01: Yeah.
14:45
SPEAKER_01: Like a ball gag, you know, having trouble setting up, use our ball gag.
14:50
SPEAKER_01: Anyway,
14:51
SPEAKER_01: um,
14:51
SPEAKER_01: so,
14:52
SPEAKER_01: but the trustee has now broadcast that he thinks the way to go is to dissolve info
14:57
SPEAKER_01: or strip it and sell it for parts.
14:59
SPEAKER_01: Uh,
15:00
SPEAKER_01: So,
15:00
SPEAKER_01: you know,
15:00
SPEAKER_01: you always wonder,
15:01
SPEAKER_01: is this genuine exercise of the trustees serious business acumen and experience and
15:10
SPEAKER_01: fiduciary duty to maximize,
15:13
SPEAKER_01: you know,
15:14
SPEAKER_01: return to creditors?
15:15
SPEAKER_01: Or is this the legal doctrine of or loosely translated because fuck that guy?
15:25
SPEAKER_01: So I don't know if we'll ever know.
15:27
SPEAKER_00: Yeah.
15:28
SPEAKER_00: Yeah.
15:28
SPEAKER_00: I mean,
15:29
SPEAKER_00: on that subject,
15:30
SPEAKER_00: the New York Times coverage on this,
15:32
SPEAKER_00: they say they note that Alex Jones's lawyers have been saying that the company,
15:36
SPEAKER_00: which is called Free Speech Systems that owns InfoWars,
15:40
SPEAKER_00: says they've been bringing in a million dollars a week in those,
15:42
SPEAKER_00: you know,
15:43
SPEAKER_00: sales of like frog conversion therapy supplements and those sorts of things.
15:47
SPEAKER_00: So it's a non-trivial amount of money.
15:49
SPEAKER_00: But as you know, it has to be weighed against, you know, the ick factor.
15:52
SPEAKER_00: Yeah.
15:52
SPEAKER_01: Well,
15:53
SPEAKER_01: the other thing is,
15:53
SPEAKER_01: I'm not sure if that spike in sales is not about Jones making himself a martyr and
16:00
SPEAKER_01: drawing this all attention to how he's going to be shut down.
16:03
SPEAKER_01: So how long does that last?
16:11
SPEAKER_00: Ken, let's talk about Senator Bob Menendez.
16:14
SPEAKER_00: This trial has been going on for weeks at this point, and the prosecutors are wrapping up their case.
16:20
SPEAKER_00: One of the things that's been striking about this,
16:22
SPEAKER_00: and we've seen this in a number of the recent cases,
16:25
SPEAKER_00: most notably the Hunter Biden gun case,
16:27
SPEAKER_00: these sort of very public airings of uncomfortable aspects of people's personal lives.
16:34
SPEAKER_00: And so this is one of these cases where Menendez's defense is my wife, my wife, my wife.
16:39
SPEAKER_00: And look, my evil wife did all of these things.
16:41
SPEAKER_00: And so obviously that's, you know, an unpleasant airing of one's marriage in public.
16:46
SPEAKER_00: And then,
16:46
SPEAKER_00: of course,
16:46
SPEAKER_00: there's the seedy details about the financial specifics and the gold bars and the
16:51
SPEAKER_00: car and things like that.
16:53
SPEAKER_00: What do we make of the case that's been made so far here?
16:56
SPEAKER_00: Is it a strong case for a conviction for Senator Menendez?
17:01
SPEAKER_01: Well,
17:01
SPEAKER_01: as I think we addressed before,
17:02
SPEAKER_01: Josh,
17:02
SPEAKER_01: it's not as strong as the government hoped because the trial judge has been keeping
17:07
SPEAKER_01: out some evidence of some communications with the conspirators,
17:13
SPEAKER_01: the bribers,
17:14
SPEAKER_01: under the Speech and Debate Clause.
17:16
SPEAKER_01: So remember,
17:16
SPEAKER_01: the Speech and Debate Clause not only prevents anyone from prosecuting a senator or
17:22
SPEAKER_01: a member of Congress for things that they do that are core legislative functions,
17:26
SPEAKER_01: like making a speech on the floor or voting.
17:30
SPEAKER_01: It also prevents introducing evidence of that stuff on the theory that that is a
17:34
SPEAKER_01: burden on those functions.
17:35
SPEAKER_01: So the judge really disappointed and angered the prosecutors by keeping out some
17:41
SPEAKER_01: references in some of those communications with co-conspirators to what he was
17:45
SPEAKER_01: going to do or might do.
17:47
SPEAKER_01: And that, according to the prosecutors, significantly weakened their case.
17:53
SPEAKER_01: But yes, the sort of
17:55
SPEAKER_01: personalities and mental issues that have been brought in are deeply uncomfortable and very sordid.
18:01
SPEAKER_01: So you've got Menendez trying to portray himself as enthrall of a hotter wife and
18:11
SPEAKER_01: making dumb decisions because of that.
18:12
SPEAKER_01: And she's the bad person.
18:14
SPEAKER_01: And the prosecution has been trying to portray it as actually he's in control of her.
18:19
SPEAKER_01: And he rings a bell to summon her to meetings.
18:21
SPEAKER_01: And
18:22
SPEAKER_01: So that's all been very sorted.
18:26
SPEAKER_01: Menendez has been pushing very forcefully on the mental state defenses.
18:31
SPEAKER_01: He offered an expert who was going to testify that he had a mental condition that
18:37
SPEAKER_01: caused him to want to hoard money.
18:40
SPEAKER_01: I believe that that state is called adulthood.
18:42
SPEAKER_01: But the judge kept that out because, you know, it was non-scientific bullshit, probably.
18:48
SPEAKER_01: So,
18:50
SPEAKER_01: you know,
18:50
SPEAKER_01: ultimately,
18:51
SPEAKER_01: you still got those core facts that this is a dude with a huge amount of cash and
18:54
SPEAKER_01: gold bars in his closet.
18:58
SPEAKER_01: And it's just about how the jury absorbs stories, you know, do they...
19:02
SPEAKER_01: Which story do they kind of absorb as the narrative of the case?
19:06
SPEAKER_00: Ken, I think it's fair to say you were not especially excited for this week's show.
19:10
SPEAKER_00: And a reason for that is, you know, we have a kind of parade of idiots to talk about.
19:13
SPEAKER_00: And Bob Menendez is an idiot, but even even more idiotic than this.
19:16
SPEAKER_00: We have a number of these of incidents to talk about here that are really embarrassing.
19:23
SPEAKER_00: And, you know, it's kind of on some level feel beneath us.
19:26
SPEAKER_00: But I'm, for one, excited about.
19:27
SPEAKER_00: for this journey into the underbelly of serious trouble.
19:30
SPEAKER_00: Well, as long as you're happy, Josh.
19:32
SPEAKER_00: Yes.
19:33
SPEAKER_00: Let's start, actually, just a brief update on Nathan Wade, because we talked about this last week.
19:37
SPEAKER_00: We don't have new idiotic things that Nathan Wade has done in the past week,
19:42
SPEAKER_00: but we did have a reader write in making a very good point that Nathan Wade,
19:45
SPEAKER_00: who,
19:45
SPEAKER_00: as we discussed last week,
19:46
SPEAKER_00: went on CNN and had to be interrupted by his handlers because he was about to
19:50
SPEAKER_00: answer a question that he really shouldn't have answered,
19:53
SPEAKER_00: and then he went on The Daily Show.
19:55
SPEAKER_00: Marlon Wayans gets him into this question about, you know, well, you slept with your boss.
20:01
SPEAKER_00: Isn't that cool?
20:01
SPEAKER_00: Blah, blah, blah.
20:02
SPEAKER_00: And he basically explains, no, she's not my boss.
20:04
SPEAKER_00: It's more like she was my client.
20:05
SPEAKER_00: Yeah.
20:06
SPEAKER_00: Which obviously is not an OK thing to do.
20:09
SPEAKER_00: And so we had a reader accurately point out that we previously gave Nathan Wade an award.
20:14
SPEAKER_00: We gave him the Senate Twink Memorial Award for belatedly good judgment.
20:18
SPEAKER_00: And that was because some weeks ago, Nathan Wade was supposed to go on Meet the Press to explain himself.
20:23
SPEAKER_00: And then he changed his mind and didn't go on Meet the Press.
20:25
SPEAKER_00: And that was a good decision.
20:27
SPEAKER_00: If he had repeated that decision regarding CNN and regarding The Daily Show,
20:30
SPEAKER_00: maybe he could keep that award.
20:32
SPEAKER_00: But we are withdrawing the Senate Twink Memorial Award from Nathan Wade because
20:37
SPEAKER_00: clearly we gave it to him prematurely.
20:39
SPEAKER_00: You see,
20:39
SPEAKER_01: my position remains that we should simply retroactively change it to the Senate
20:44
SPEAKER_01: Twink Memorial Award for belated and perhaps temporary good judgment.
20:49
SPEAKER_01: Right.
20:51
SPEAKER_00: Yeah,
20:51
SPEAKER_00: we haven't gotten any updates on the Senate,
20:53
SPEAKER_00: who,
20:53
SPEAKER_00: of course,
20:54
SPEAKER_00: gets this award for not speaking to the Capitol Police about what he did in that
20:59
SPEAKER_00: hearing room in the in the Hart Senate building.
21:02
SPEAKER_00: That was that was one good choice the Senate twink made.
21:05
SPEAKER_00: He's probably out there making bad choices, but they haven't gotten in the paper.
21:08
SPEAKER_00: So at least that that's good for him on some level.
21:11
SPEAKER_00: Jacob Wohl.
21:13
SPEAKER_00: Jacob Wohl,
21:15
SPEAKER_00: who still has not been indicted for a big boy federal felony but keeps getting into
21:18
SPEAKER_00: legal trouble in the states for this conspiracy he had with his co-idiot Jack
21:22
SPEAKER_00: Berkman to make these racist robocalls trying to convince black voters not to turn
21:28
SPEAKER_00: out and vote in the 2020 election.
21:30
SPEAKER_00: He actually got a little bit of a victory, sort of.
21:33
SPEAKER_00: there's a,
21:34
SPEAKER_00: in Michigan,
21:35
SPEAKER_00: he faces,
21:37
SPEAKER_00: he's been charged under the statute that prohibits interference with voting.
21:42
SPEAKER_00: And I guess there's this First Amendment question about,
21:44
SPEAKER_00: you know,
21:45
SPEAKER_00: what exactly you're prohibited from saying to people about voting.
21:48
SPEAKER_00: And now he's going to,
21:49
SPEAKER_00: it's being remanded to the trial court to figure out whether he really violated the law.
21:54
SPEAKER_01: Right.
21:54
SPEAKER_01: So for relatively newer listeners, Jacob Wall is the young man who's blundered through a series of
22:01
SPEAKER_01: Unfortunate events and crimes, in my view, in a quest to eventually become a federal felon.
22:08
SPEAKER_01: He and Jack Berkman, you might recall, have engaged in various rat fucking campaigns to, you know.
22:15
SPEAKER_01: try to accuse people of all sorts of nonsense.
22:17
SPEAKER_00: They accused Elizabeth Warren of being a cougar, for example.
22:20
SPEAKER_00: Yes, exactly.
22:22
SPEAKER_01: But they did this robocall basically targeting black voters,
22:26
SPEAKER_01: saying that,
22:26
SPEAKER_01: did you know if you registered to vote,
22:28
SPEAKER_01: they're going to check your warrants,
22:29
SPEAKER_01: they're going to force you to get a COVID vaccine,
22:31
SPEAKER_01: all this type of thing.
22:33
SPEAKER_01: He pled to that, to a crime in Ohio.
22:36
SPEAKER_01: In Michigan,
22:37
SPEAKER_01: they made a First Amendment challenge to the statute,
22:40
SPEAKER_01: the election interference statute,
22:43
SPEAKER_01: and they did get a partial win.
22:45
SPEAKER_01: So the Michigan court said basically,
22:47
SPEAKER_01: well,
22:48
SPEAKER_01: this statute has this very broad language saying you can't interfere with,
22:52
SPEAKER_01: quote,
22:53
SPEAKER_01: other corrupt means or devices, unquote.
22:56
SPEAKER_01: So that's too broad.
22:58
SPEAKER_01: They say politics is full of lies and corrupt stuff, and the First Amendment protects most of it.
23:04
SPEAKER_01: So we're going to narrow it so that section can only refer to intentionally false
23:08
SPEAKER_01: speech that is related to voting requirements or procedures and is made in an
23:13
SPEAKER_01: attempt to deter influence in an elector's vote,
23:16
SPEAKER_01: which sounds pretty much like the court describing Jacob Law.
23:19
SPEAKER_01: Yeah.
23:20
SPEAKER_01: So they remanded it to the trial court to see basically is the complaint sufficient
23:26
SPEAKER_01: to allege facts that fall into that narrow definition,
23:33
SPEAKER_01: which it probably does.
23:34
SPEAKER_01: So all he's done is delay it for a while.
23:37
SPEAKER_01: I doubt he'll go to trial in this case because that's expensive and he'd be a
23:44
SPEAKER_01: terrible witness and terrible defendant.
23:46
SPEAKER_01: But he does get kind of a moral victory of having –
23:50
SPEAKER_01: helped the court narrow the election interference statute and you know this is like
23:55
SPEAKER_01: you know if you got a kid you really love sometimes you have to realize that some
23:59
SPEAKER_01: kids when they bring home a c- you got to celebrate that because that's the best a
24:03
SPEAKER_01: kid can do and that's how i feel about this this is the best that jacob wall can do
24:08
SPEAKER_01: uh so let's celebrate him for that
24:11
SPEAKER_00: You keep referring to Jacob Wohl as a kid and a young man.
24:14
SPEAKER_00: I guess he's still a young man, but we've been following his idiocy for so many years now.
24:19
SPEAKER_00: He's not as young as he once was.
24:20
SPEAKER_00: He's 26 years old.
24:21
SPEAKER_00: He's old enough to rent a car.
24:23
SPEAKER_00: He's a young 26, Josh.
24:24
SPEAKER_00: He's clearly...
24:28
SPEAKER_01: He is not someone that you want to give a position of responsibility to still.
24:33
SPEAKER_00: Speaking of people you probably shouldn't let behind the wheel of a car,
24:36
SPEAKER_00: Justin Timberlake got arrested in Sag Harbor in the Hamptons in New York for DUI.
24:42
SPEAKER_00: He got pulled over.
24:44
SPEAKER_00: He claimed that he had had only one martini at dinner.
24:47
SPEAKER_00: But he refused three times to take a breath test.
24:50
SPEAKER_00: And he was ultimately arrested by this Sag Harbor police officer for DUI.
24:55
SPEAKER_00: So I guess the first question can, you know, obviously, first of all, people shouldn't drive drunk.
25:00
SPEAKER_00: The Hamptons is the stupidest thing in the world, by the way.
25:02
SPEAKER_00: The Hamptons is basically this giant suburb.
25:05
SPEAKER_00: The traffic is awful.
25:06
SPEAKER_00: People go out there to party, but they don't your house is not actually near anything.
25:10
SPEAKER_00: So you have to drive to everything in this awful traffic and people drive drunk everywhere.
25:15
SPEAKER_00: It's a nonsense thing that only straight people could possibly do.
25:18
SPEAKER_00: But so anyway, he's in the Hamptons like many people who vacation in the Hamptons.
25:22
SPEAKER_00: He's driving drunk out there and he gets stopped.
25:25
SPEAKER_00: And so I guess the question, you know, for the plan is you definitely should not drive drunk.
25:29
SPEAKER_00: But if you're driving and you're probably going to fail the breath test, should you refuse the test?
25:34
SPEAKER_01: Well, here's the thing.
25:35
SPEAKER_01: First of all, you should refuse to talk to the cop and say things like, I only had X number of drinks.
25:42
SPEAKER_01: You have a Fifth Amendment right not to answer questions like that about whether or
25:46
SPEAKER_01: not you've been drinking.
25:47
SPEAKER_01: Whether or not to refuse the breathalyzer is a complex tactical decision.
25:51
SPEAKER_01: So you don't have a Fifth Amendment right to refuse a breathalyzer.
25:56
SPEAKER_01: The idea is that the Fifth Amendment only protects you from making statements that
26:01
SPEAKER_01: are communicative or testimonial.
26:03
SPEAKER_01: And things like fingerprints and stuff like that are not communicative or testimonial.
26:09
SPEAKER_01: And the Supreme Court has said that breathalyzers fall into that category.
26:13
SPEAKER_01: It's not incriminating yourself by speech, just by air.
26:18
SPEAKER_01: Okay.
26:19
SPEAKER_01: However,
26:20
SPEAKER_01: that said,
26:21
SPEAKER_01: most states like New York have a law that says that if you refuse a breath lighter,
26:25
SPEAKER_01: you forfeit your driver's license on the theory that driving is a privilege and not
26:29
SPEAKER_01: a right.
26:30
SPEAKER_01: So New York,
26:31
SPEAKER_01: like many states,
26:32
SPEAKER_01: it automatically,
26:32
SPEAKER_01: you take a hit,
26:33
SPEAKER_01: you're going to lose it for six months unless you convince the Department of Motor
26:36
SPEAKER_01: Vehicles otherwise.
26:38
SPEAKER_01: And a lot of DUI cases,
26:40
SPEAKER_01: Josh,
26:41
SPEAKER_01: these days have parallel criminal and Department of Motor Vehicles proceedings
26:46
SPEAKER_01: where you're having to deal with both.
26:48
SPEAKER_01: And the consequences in both.
26:50
SPEAKER_01: But so you have to make the decision,
26:52
SPEAKER_01: am I going to forfeit my driver's license by refusing a breathalyzer?
26:56
SPEAKER_01: And so, you know, what's my strategy?
26:59
SPEAKER_01: So, you know, if you knew that you had not been drinking, you'd probably take the breathalyzer.
27:04
SPEAKER_01: If you were a little unclear about your blood alcohol level, you might refuse it.
27:08
SPEAKER_01: Let me just say people don't realize,
27:10
SPEAKER_01: I think,
27:10
SPEAKER_01: the extent to which breathalyzers can be controversial as a reliable evidence.
27:16
SPEAKER_01: They've reached this point like fingerprints where everyone assumes they're
27:20
SPEAKER_01: completely accurate and completely reliable.
27:22
SPEAKER_01: Right.
27:23
SPEAKER_01: But the truth is there's a very wide range of reliability,
27:26
SPEAKER_01: and there are lawyers who specialize in challenging them.
27:30
SPEAKER_01: They could be more or less reliable based on the training of the officers
27:33
SPEAKER_01: administering them,
27:34
SPEAKER_01: the design of the machine,
27:35
SPEAKER_01: the maintenance of the machine,
27:37
SPEAKER_01: how the test is read,
27:38
SPEAKER_01: all this sort of thing.
27:39
SPEAKER_01: And sometimes that stuff can make a difference if you're at the margin.
27:43
SPEAKER_01: If you're blowing a 2.4 or something, it's not going to make a difference.
27:47
SPEAKER_01: But if you're right on that edge of that 0.08, then those types of things can make a difference.
27:52
SPEAKER_01: And many DUI attorneys make a good living challenging breathalyzer results on that basis.
28:00
SPEAKER_00: But so, I mean, they can also charge you and try you even if you refuse the breathalyzer.
28:04
SPEAKER_00: I mean, as this happens to Justin Timberlake, he didn't take the breathalyzer.
28:07
SPEAKER_00: He's still been charged with DUI.
28:09
SPEAKER_00: How big an advantage is it when you're going to trial for there to be no
28:12
SPEAKER_00: breathalyzer result versus a breathalyzer result you might try to cast doubt upon?
28:17
SPEAKER_01: It is an advantage because then you're just dealing with the officer's testimony.
28:22
SPEAKER_01: Now,
28:23
SPEAKER_01: let me say DUIs are notorious cases where the officer has sort of like a checklist
28:29
SPEAKER_01: of classic drunkenness symptoms that they parrot.
28:33
SPEAKER_01: And you can see officers outside courtrooms waiting to testify, memorizing it.
28:38
SPEAKER_01: Glassy eyes, red eyes, slurred speech, sweating.
28:44
SPEAKER_01: So they have this classic list they associate with drunkenness.
28:47
SPEAKER_01: And suspiciously, in a DUI, all of them always seem to be present.
28:53
SPEAKER_01: And they also said, I think, that he didn't perform well on the field sobriety test.
28:58
SPEAKER_01: I mean, he's not a young man anymore, so I think that's a little harsh.
29:00
SPEAKER_01: But anyway, yeah, you'd rather not have that.
29:08
SPEAKER_01: But anyway.
29:09
SPEAKER_01: Juries,
29:09
SPEAKER_01: as a rule,
29:10
SPEAKER_01: don't like drunk driving and are not as skeptical as they should be about officer
29:18
SPEAKER_01: testimony about drunk driving.
29:20
SPEAKER_00: And then the jury is not allowed to draw an adverse inference from the fact that
29:24
SPEAKER_00: you assert a Fifth Amendment right.
29:25
SPEAKER_00: But as you note, there's no Fifth Amendment right not to take the breathalyzer test.
29:28
SPEAKER_00: Can they draw an adverse inference from the fact that you didn't take the test?
29:31
SPEAKER_01: There's different law in some jurisdictions, but generally, yes.
29:34
SPEAKER_00: Okay.
29:35
SPEAKER_00: One thing that's
29:35
SPEAKER_00: been fun about this justin timberlake issue has been the coverage in the new york
29:39
SPEAKER_00: post which has been all over this story this is a classic new york post story and
29:43
SPEAKER_00: one of the things they've covered is that the officer who arrested him uh his name
29:46
SPEAKER_00: is michael arkinson is very young he's 23 years old and they have sources that
29:51
SPEAKER_00: claim to the new york post that he didn't recognize justin timberlake or know who
29:55
SPEAKER_00: he was and that justin timberlake said under his breath this is going to ruin the
29:59
SPEAKER_00: tour and that the officer asked him what tour and he goes the world tour and
30:06
SPEAKER_00: And so I guess 23 years old means Officer Atkinson was born in 2001 after Justin
30:12
SPEAKER_00: Timberlake had already been famous for several years.
30:14
SPEAKER_00: So I guess, you know, now I feel old too, but it is possible they didn't recognize him.
30:19
SPEAKER_00: And they also report that Officer Atkinson has gotten a reputation in Sag Harbor
30:25
SPEAKER_00: for very vigorously enforcing the traffic laws in a way that some people are
30:28
SPEAKER_00: offended by.
30:29
SPEAKER_00: And they say nicknames for him include the Sag Harbor Nazi and Little Red-Headed Dipshit.
30:36
SPEAKER_00: Now, again, part of this is entitlement about what I talked about before.
30:39
SPEAKER_00: Drunk driving is endemic in the Hamptons,
30:40
SPEAKER_00: so some people might even feel a little bit entitled about the idea that traffic
30:45
SPEAKER_00: law should not be enforced against them.
30:48
SPEAKER_00: But it's been interesting to see the way that some of the people in this little
30:53
SPEAKER_00: wealthy town seem to feel about the policing there.
30:56
SPEAKER_01: Yeah,
30:56
SPEAKER_01: the outrage at this young,
30:58
SPEAKER_01: you know,
30:59
SPEAKER_01: they emphasize redheaded Reid,
31:01
SPEAKER_01: I guess,
31:02
SPEAKER_01: Irish kid is,
31:03
SPEAKER_01: you know,
31:03
SPEAKER_01: actually enforcing the law against them.
31:06
SPEAKER_01: It's very amusing,
31:07
SPEAKER_01: a very charming foible,
31:10
SPEAKER_01: sort of like,
31:10
SPEAKER_01: you know,
31:10
SPEAKER_01: launching the story with a rant about the Hamptons.
31:13
SPEAKER_00: Yeah.
31:13
SPEAKER_00: I mean, it's funny.
31:14
SPEAKER_00: I've gotten text messages from a number of my friends about this story.
31:18
SPEAKER_00: Because, I mean, they might call him Little Redhead Dipshit, but he's not little.
31:21
SPEAKER_00: He's 6'3".
31:22
SPEAKER_00: And he's also, I would note, very attractive.
31:24
SPEAKER_00: He was playing college lacrosse like a couple of years ago.
31:27
SPEAKER_00: So if he gets run out of Sag Harbor,
31:29
SPEAKER_00: I think maybe he should look into a job with the Suffolk County PD Marine Bureau.
31:32
SPEAKER_00: I think he'd be very well received in the Fire Island Pines.
31:34
SPEAKER_00: And of course, there's no roads there, so no DUIs to give.
31:37
SPEAKER_00: But he could probably write open container tickets.
31:41
SPEAKER_00: I think we can leave it there for this week.
31:42
SPEAKER_00: Ken, thank you for speaking with me as always.
31:44
SPEAKER_00: Thank you, Josh.
31:45
SPEAKER_00: Serious Trouble is created and produced by Very Serious Media.
31:48
SPEAKER_00: That's me and Sarah Faye.
31:49
SPEAKER_00: Jennifer Swadik mixed this episode.
31:51
SPEAKER_00: Our theme music is by Joshua Mosier.
31:52
SPEAKER_00: Thanks for listening, and we'll be back with more soon.
31:55
SPEAKER_00: See you next time.