Latest / Serious Trouble / Schrodinger’s Lawyer

Transcript

Schrodinger’s Lawyer · Serious Trouble

• 0:00
  [music]
• 0:08
  SPEAKER_00: Hi, it's Ken White.
• 0:10
  SPEAKER_00: And it's Josh Barrow.
• 0:11
  SPEAKER_00: And this is Serious Trouble.
• 0:12
  SPEAKER_00: Ken, I want to give you my condolences for having missed out in the competition for
• 0:16
  SPEAKER_00: the new White House press secretary job.
• 0:18
  SPEAKER_00: I really thought you had this one.
• 0:20
  SPEAKER_01: Well, I thought so, too,
• 0:21
  SPEAKER_01: seeing as how I'm an attorney and a lawyer Although I have never practiced law
• 0:28
  SPEAKER_01: in China.
• 0:29
  SPEAKER_00: Right.
• 0:30
  SPEAKER_00: So Katie Zachariah,
• 0:31
  SPEAKER_00: who at least as we're taping this on October 16th at 105 p.m.
• 0:35
  SPEAKER_00: Eastern,
• 0:36
  SPEAKER_00: is still the White House press secretary,
• 0:39
  SPEAKER_00: did not do a very impressive job at the podium or afterward on Hannity.
• 0:44
  SPEAKER_00: Probably the roughest interview I've seen a Republican have on Fox News.
• 0:48
  SPEAKER_00: Even Sean Hannity has no patience for this woman and her incompetence.
• 0:52
  SPEAKER_00: But so President Trump bypassed Susie Wiles and everybody else and decided
• 0:56
  SPEAKER_00: that he needed to hire this woman as his new White House press secretary.
• 0:59
  SPEAKER_00: And among the controversies with her is that she keeps describing herself as
• 1:02
  SPEAKER_00: a lawyer, even though she never passed the bar.
• 1:05
  SPEAKER_00: And so I don't like...
• 1:07
  SPEAKER_00: Are you not a lawyer if you've gone to law school?
• 1:10
  SPEAKER_00: I mean, if you have an MD, you're a doctor, even if you've never treated a patient in your life.
• 1:16
  SPEAKER_00: Are you a lawyer if you graduated from Pepperdine?
• 1:19
  SPEAKER_01: So lots of people argue over this all the time and also whether there's a difference
• 1:23
  SPEAKER_01: between lawyer and attorney.
• 1:26
  SPEAKER_01: People who don't pay attention to any of this are lawyers.
• 1:31
  SPEAKER_01: But people who like to argue about things on the Internet tend to argue about this a lot.
• 1:35
  SPEAKER_01: I mean, colloquially, are you a lawyer?
• 1:38
  SPEAKER_01: I don't know and I don't care.
• 1:39
  SPEAKER_01: I think it's like a question that's inherently ridiculous.
• 1:43
  SPEAKER_01: I do know that you are not supposed to,
• 1:46
  SPEAKER_01: by law in almost every jurisdiction,
• 1:48
  SPEAKER_01: hold yourself out as someone practicing law if you are not,
• 1:53
  SPEAKER_01: in fact,
• 1:54
  SPEAKER_01: a licensed attorney,
• 1:55
  SPEAKER_01: meaning someone who has passed the bar and is licensed to practice
• 1:58
  SPEAKER_01: in some jurisdiction.
• 2:00
  SPEAKER_01: So in many places,
• 2:02
  SPEAKER_01: like California,
• 2:03
  SPEAKER_01: California,
• 2:04
  SPEAKER_01: It's against the law to hold yourself out as someone who practices law
• 2:08
  SPEAKER_01: or is entitled to do so if you are not.
• 2:13
  SPEAKER_00: So what does hold yourself out mean?
• 2:14
  SPEAKER_00: Because the way I always understood this was that if you're not licensed,
• 2:18
  SPEAKER_00: that it is illegal to practice law.
• 2:20
  SPEAKER_01: Right.
• 2:20
  SPEAKER_00: And that it is illegal to solicit business for the practice of law.
• 2:24
  SPEAKER_00: But if you go on television and have them put lawyer in your chyron, is that...
• 2:30
  SPEAKER_00: Are you holding yourself out as an attorney in the manner in which that's meant in the law?
• 2:34
  SPEAKER_00: Because that seems like a weird thing to criminalize.
• 2:37
  SPEAKER_00: People say a lot of shit.
• 2:38
  SPEAKER_01: It is.
• 2:39
  SPEAKER_01: So I think there are two ways to answer it.
• 2:42
  SPEAKER_01: One is, practically speaking,
• 2:44
  SPEAKER_01: unless you are holding yourself out as a lawyer to get clients or get money
• 2:50
  SPEAKER_01: or otherwise get people to treat you as a lawyer in any financial or
• 2:58
  SPEAKER_01: Or legal proceeding way, probably nothing's going to happen if you do.
• 3:04
  SPEAKER_01: In terms of the constitutional angle,
• 3:06
  SPEAKER_01: I suspect that state bars and states can absolutely prosecute you for taking
• 3:11
  SPEAKER_01: on clients or accepting money or having a legal business if you're not a lawyer.
• 3:19
  SPEAKER_01: You know,
• 3:20
  SPEAKER_01: stolen valor,
• 3:21
  SPEAKER_01: except it's not valor because it's lawyers saying that you're a lawyer,
• 3:25
  SPEAKER_01: then probably that's protected First Amendment speech.
• 3:29
  SPEAKER_01: And I'm making an analogy here to Alvarez,
• 3:31
  SPEAKER_01: you know,
• 3:31
  SPEAKER_01: the Supreme Court case where they said that
• 3:33
  SPEAKER_01: the Stolen Valor Act was unconstitutional
• 3:36
  SPEAKER_01: because not all false speech is outside First Amendment protection.
• 3:41
  SPEAKER_01: And so if you're just a guy saying that,
• 3:44
  SPEAKER_01: you know,
• 3:45
  SPEAKER_01: If you were a Green Beret or something,
• 3:50
  SPEAKER_01: then unless you're doing it to get money or something like that,
• 3:53
  SPEAKER_01: then that's probably protected, although loathsome.
• 3:56
  SPEAKER_01: So I suspect it's probably the same for lawyers.
• 3:58
  SPEAKER_01: If you just go on Fox News and it says lawyer under you, probably that's protected puffery.
• 4:06
  SPEAKER_01: If you say I'm a lawyer and I'm accepting clients or if you take anyone's money,
• 4:12
  SPEAKER_01: Or if you try to practice law, that's fraud and that you can be prosecuted for.
• 4:17
  SPEAKER_00: What about apparently it said on her LinkedIn that she was the general counsel
• 4:20
  SPEAKER_00: of some nonprofit organization?
• 4:22
  SPEAKER_00: Now, it seems likely that that wasn't true because there were no records
• 4:26
  SPEAKER_00: of them having paid her for anything.
• 4:29
  SPEAKER_00: But so is it is it illegal to claim that you're working as a lawyer if you are not,
• 4:33
  SPEAKER_00: in fact, working as a lawyer?
• 4:35
  SPEAKER_01: Yes, it's illegal to hold yourself out as authorized to practice law.
• 4:41
  SPEAKER_01: Practically speaking,
• 4:42
  SPEAKER_01: no one's going to devote resources to prosecuting you for that if you're just
• 4:47
  SPEAKER_01: a vapid idiot who's on Fox.
• 4:51
  SPEAKER_01: But— If you're trying to monetize that in any way or use it in a fraud scheme
• 4:57
  SPEAKER_01: or anything like that, then we're probably talking about something.
• 5:00
  SPEAKER_00: Well, but the funny thing is like in a way she is trying to monetize it, right?
• 5:04
  SPEAKER_00: Like it's the,
• 5:04
  SPEAKER_00: you know,
• 5:05
  SPEAKER_00: it's like George Santos saying that he produced Spider-Man Turn Off the Dark,
• 5:09
  SPEAKER_00: like telling lies
• 5:11
  SPEAKER_00: that she thinks make her sound impressive could help her make money
• 5:15
  SPEAKER_00: in some non-legal field.
• 5:17
  SPEAKER_00: But that seems like that seems like a pretty attenuated connection to regulation of
• 5:21
  SPEAKER_00: the practice of law itself.
• 5:23
  SPEAKER_01: Right.
• 5:23
  SPEAKER_01: That's more like the resume police than it is like that is regulating the practice of law.
• 5:29
  SPEAKER_01: Again,
• 5:31
  SPEAKER_01: I think you would be very hard pressed to get any prosecutor to take on a case
• 5:35
  SPEAKER_01: where I got a job at the White House by saying I'm a lawyer because,
• 5:43
  SPEAKER_01: you know,
• 5:43
  SPEAKER_01: probably they're going to not care and also Worried that that's too close
• 5:48
  SPEAKER_01: to protected speech or the type of lie that we don't get to police.
• 5:54
  SPEAKER_00: I think we should note the reason that we're devoting time to talking about is this illegal.
• 5:57
  SPEAKER_00: Someone actually filed a complaint against her with the California Bar over this.
• 6:01
  SPEAKER_01: Yeah.
• 6:01
  SPEAKER_01: And let me just say, leave this California State Bar alone.
• 6:05
  SPEAKER_01: OK, stop – The California State Bar is not your Dutch uncle.
• 6:10
  SPEAKER_01: It is it is not your deus ex machina.
• 6:12
  SPEAKER_01: It is not going to save us from fascism.
• 6:14
  SPEAKER_01: They couldn't even save us from Tom Girardi.
• 6:17
  SPEAKER_01: And he was criming in their face for like two generations.
• 6:20
  SPEAKER_01: Is Pepperdine a good law school?
• 6:22
  SPEAKER_01: Yeah, it's a perfectly good law school.
• 6:24
  SPEAKER_01: It's, you know, conservative.
• 6:25
  SPEAKER_00: She says one of the deans there told her it was OK to call herself a lawyer,
• 6:28
  SPEAKER_00: even though she failed the bar.
• 6:30
  SPEAKER_00: But she wouldn't specify which dean.
• 6:31
  SPEAKER_01: You know, I have told Pepperdine jokes just like everyone tells jokes about other law schools.
• 6:36
  SPEAKER_01: But I do not believe that to be true about the dean at Pepperdine that he said that.
• 6:41
  SPEAKER_01: And that's not a coherent thing that a lawyer would say.
• 6:46
  SPEAKER_01: So, yeah, I mean, she said a lot of things.
• 6:49
  SPEAKER_01: She said that she, you know, was a corporate lawyer doing corporate law in China.
• 6:55
  SPEAKER_01: But it turns out she failed the bar.
• 6:57
  SPEAKER_01: She hasn't been admitted to the bar anyplace.
• 7:00
  SPEAKER_01: And she's never actually practiced as a lawyer.
• 7:03
  SPEAKER_01: Not that I think after seeing her run a press conference,
• 7:07
  SPEAKER_01: anyone's actually raring for her to show up in court.
• 7:09
  SPEAKER_01: So...
• 7:11
  SPEAKER_00: My favorite piece of string on this that I think we're probably going to have cause
• 7:14
  SPEAKER_00: to come back to within the next few weeks is the reason she was
• 7:16
  SPEAKER_00: in China is her husband was in the investment business in China.
• 7:20
  SPEAKER_00: And he has a website with his own resume about his own set of impressive facts about him.
• 7:25
  SPEAKER_00: And one is that while he was in China,
• 7:28
  SPEAKER_00: he established businesses in a number of countries, including North Korea.
• 7:33
  SPEAKER_01: Right.
• 7:35
  SPEAKER_00: Which I didn't know you
• 7:36
  SPEAKER_01: were allowed to do that.
• 7:38
  SPEAKER_01: I don't know you can do that.
• 7:40
  SPEAKER_01: I'm not sure, again,
• 7:41
  SPEAKER_01: that I completely accept that as being what we would call a provably true or false
• 7:47
  SPEAKER_01: as opposed to puffery and right.
• 7:51
  SPEAKER_00: Yeah.
• 7:52
  SPEAKER_00: I mean, it is like produced Spider-Man Turn Off the Dark.
• 7:55
  SPEAKER_00: People will brag about literally anything.
• 7:57
  SPEAKER_01: Yeah, exactly.
• 7:58
  SPEAKER_01: Yeah.
• 7:58
  SPEAKER_00: Let's talk about Ilhan Omar.
• 8:00
  SPEAKER_00: There was a search of her home in Washington, DC.
• 8:03
  SPEAKER_00: News reports say that it is linked to a criminal investigation related to immigration.
• 8:09
  SPEAKER_00: The rumor that Republicans have most often kicked around about her is
• 8:13
  SPEAKER_00: that they have claimed that one of her marriages was to her brother for
• 8:17
  SPEAKER_00: a sham purpose to get him access to the United States.
• 8:20
  SPEAKER_00: But interestingly,
• 8:21
  SPEAKER_00: the news reporting about this does not suggest that that's what they are looking
• 8:25
  SPEAKER_00: into.
• 8:25
  SPEAKER_00: And given the Trump administration,
• 8:27
  SPEAKER_00: I would have to assume that's because they've decided that's not true or
• 8:31
  SPEAKER_00: that they have no way to show that that's true or whatever,
• 8:33
  SPEAKER_00: because they come up with this like.
• 8:35
  SPEAKER_00: So this is something that would have happened decades ago.
• 9:05
  SPEAKER_00: So this again has been described as a criminal investigation,
• 9:08
  SPEAKER_00: but it seems like their objective is to denaturalize her,
• 9:12
  SPEAKER_00: which can be done through a civil or a criminal path.
• 9:16
  SPEAKER_00: What are they actually likely to try to do here?
• 9:18
  SPEAKER_00: Do you have a sense?
• 9:19
  SPEAKER_01: Well, so there is criminal denaturalization,
• 9:23
  SPEAKER_01: which is criminal charges of fraud in connection with a naturalization process
• 9:28
  SPEAKER_01: that yields Both a sentence and denaturalization,
• 9:32
  SPEAKER_01: but that has a 10-year statute of limitations, which is long since blown.
• 9:38
  SPEAKER_01: A civil proceeding for denaturalization has no statute of limitations.
• 9:42
  SPEAKER_01: It could be that they are misusing the criminal process in order
• 9:47
  SPEAKER_01: to gather information they hope to use in civil denaturalization.
• 9:53
  SPEAKER_01: It could be that Their thinking is not as sophisticated as this.
• 9:57
  SPEAKER_01: They're just looking for anything they can use in any way they want.
• 10:00
  SPEAKER_01: It could be they're simply punishing her with the process,
• 10:05
  SPEAKER_01: pleasing Trump by going after her and throwing red meat to the base,
• 10:09
  SPEAKER_01: all of which is hooted and howled when he's talked about how she's awful
• 10:13
  SPEAKER_01: and should be sent back to Somalia.
• 10:16
  SPEAKER_01: So I don't think we should be too quick to assume that there's anything legitimate
• 10:22
  SPEAKER_01: in terms of a theory there.
• 10:23
  SPEAKER_00: I assume that to the extent there's a criminal process here,
• 10:27
  SPEAKER_00: she will bring motions related to selective and vindictive prosecution?
• 10:33
  SPEAKER_01: Absolutely.
• 10:33
  SPEAKER_01: And she's going to have lots of ammunition because she's got Trump saying all sorts
• 10:38
  SPEAKER_01: of stuff about her.
• 10:39
  SPEAKER_01: She's got the wife of Trump's chief advisor saying,
• 10:47
  SPEAKER_01: I'm tweeting gleefully about it when her house gets searched.
• 10:51
  SPEAKER_01: She's got all sorts of indicia of hostility towards her based on her politics,
• 10:56
  SPEAKER_01: her race, her national origin and so forth.
• 10:59
  SPEAKER_01: So I think it would be a great motion.
• 11:02
  SPEAKER_01: So but, you know, there has to be a proceeding first.
• 11:06
  SPEAKER_00: Would she have similar recourse in a civil proceeding?
• 11:09
  SPEAKER_01: Not clear that she would, although there's no reason to.
• 11:13
  SPEAKER_01: She shouldn't constitutionally I think if she can show that
• 11:16
  SPEAKER_01: the proceeding is being brought for impermissible reasons.
• 11:20
  SPEAKER_01: But it's in theory a high burden for the government to show the level
• 11:25
  SPEAKER_01: of proof necessary to denaturalize you.
• 11:28
  SPEAKER_01: It's not proof beyond a reasonable doubt whether they're ever going to go that far
• 11:32
  SPEAKER_01: or whether this is just sort of – Right.
• 11:35
  SPEAKER_01: I mean, one thing that's been interesting to me about that,
• 11:37
  SPEAKER_01: the high bar that you mentioned there, is that
• 11:52
  SPEAKER_00: The administration has liked to talk about this denaturalization stuff and
• 11:55
  SPEAKER_00: that they're going to do a big push on it and
• 11:57
  SPEAKER_00: that barely any denaturalization cases get brought most of the time.
• 12:00
  SPEAKER_00: They're going to bring a lot more.
• 12:02
  SPEAKER_00: And The Wall Street Journal and reporting about this says
• 12:04
  SPEAKER_00: that they have brought approximately 200 denaturalizations.
• 12:07
  SPEAKER_00: I assume because these cases are difficult and resource intensive.
• 12:32
  SPEAKER_01: Absolutely.
• 12:32
  SPEAKER_01: And it's difficult to investigate.
• 12:35
  SPEAKER_01: It's hard to find them.
• 12:37
  SPEAKER_01: The burden of proof is high and so forth.
• 12:40
  SPEAKER_01: But yeah,
• 12:40
  SPEAKER_01: there's got to be tons and tons and tons of fraud out there just statistically
• 12:46
  SPEAKER_01: in those cases.
• 12:46
  SPEAKER_01: And, you know,
• 12:48
  SPEAKER_01: they prosecute fraud in other forms of immigration and fraud – Asylum applications,
• 12:55
  SPEAKER_01: fraud, and visa applications all the time.
• 12:56
  SPEAKER_01: So you know there is fraud out there.
• 12:59
  SPEAKER_01: They're just not really devoting the resources.
• 13:01
  SPEAKER_01: And I don't think they have.
• 13:02
  SPEAKER_01: Again, we keep saying that this administration,
• 13:04
  SPEAKER_01: there's so many things it could do effectively if it really wanted to devote
• 13:07
  SPEAKER_01: the time and attention
• 13:09
  SPEAKER_01: in a grown-up sort of way to doing it.
• 13:11
  SPEAKER_01: But that's not very glamorous or fun.
• 13:14
  SPEAKER_01: So the news organizations have filed this motion to unseal.
• 13:18
  SPEAKER_01: And so the government has to show a compelling reason So we would get that.
• 13:23
  SPEAKER_01: And there's some reporting now from CNN and others that the...
• 13:53
  SPEAKER_01: The magistrate judge kind of got into it with the prosecutors and put limits on it
• 13:58
  SPEAKER_01: and cut it down and things like that.
• 13:59
  SPEAKER_01: So some of those redactions and changes would be visible.
• 14:03
  SPEAKER_01: And we might see kind of what limitations were put on it.
• 14:06
  SPEAKER_01: So that will be interesting if that comes out.
• 14:08
  SPEAKER_01: I doubt they'll unseal the full declaration that explains all the evidence.
• 14:14
  SPEAKER_01: But it would not be surprising if we wind up seeing the warrant.
• 14:19
  SPEAKER_00: In the event that, like,
• 14:20
  SPEAKER_00: the accusations here are totally bogus,
• 14:23
  SPEAKER_00: Would Omar have any sort of civil rights claim available against the government
• 14:27
  SPEAKER_00: for being put through this investigation?
• 14:29
  SPEAKER_01: Possibly.
• 14:30
  SPEAKER_01: So we've talked before about how the ability to sue the government for violation
• 14:39
  SPEAKER_01: of your constitutional rights is very limited and how it started out.
• 14:45
  SPEAKER_01: More expansive under the so-called Bivens case and the Supreme Court has steadily cut it back.
• 14:51
  SPEAKER_01: So one of the remaining areas is a wrongful search warrant or a wrongful search.
• 14:57
  SPEAKER_01: So it's possible that you could sue some particular government actors for causing
• 15:03
  SPEAKER_01: a wrongful search of her home as a constitutional matter.
• 15:07
  SPEAKER_01: But unfortunately,
• 15:09
  SPEAKER_01: the ability to sue Federal people for violation
• 15:13
  SPEAKER_01: of your rights remains quite limited.
• 15:16
  SPEAKER_00: Speaking of violations of constitutional rights from the federal government,
• 15:22
  SPEAKER_00: there's the ongoing litigation over the efforts to ban CNN and Politico and MSNOW
• 15:27
  SPEAKER_00: from the White House and from certain other functions.
• 15:30
  SPEAKER_00: The CNN has typically been one of the five participants in
• 15:34
  SPEAKER_00: the television press pool,
• 15:37
  SPEAKER_00: which allows there to be consistent television coverage of the president
• 15:40
  SPEAKER_00: without having both the expense and logistical difficulty
• 15:43
  SPEAKER_00: of sending five different cameras everywhere that he goes.
• 15:47
  SPEAKER_00: When CNN got kicked out of that,
• 15:48
  SPEAKER_00: the other four networks in solidarity with CNN refused
• 15:53
  SPEAKER_00: to do their press pool duties.
• 15:55
  SPEAKER_00: And when we talked about this, I was like, is there an antitrust action that could No.
• 16:00
  SPEAKER_00: So, you know,
• 16:01
  SPEAKER_00: the leaks suggest that the White House had its fingers in getting the Department
• 16:03
  SPEAKER_00: of Justice to do an antitrust investigation.
• 16:05
  SPEAKER_00: And further leaks suggest that
• 16:29
  SPEAKER_01: That wiser heads in antitrust at the Department of Justice were very reluctant.
• 16:35
  SPEAKER_01: Now,
• 16:35
  SPEAKER_01: antitrust at the Department of Justice is widely considered among antitrust to be
• 16:42
  SPEAKER_01: the most elite section of the Department of
• 16:44
  SPEAKER_00: Justice and
• 16:47
  SPEAKER_01: does tend
• 16:47
  SPEAKER_01: to have extremely good lawyers who are conservative in a not political but sort
• 16:52
  SPEAKER_01: of like use of power type of way.
• 16:55
  SPEAKER_01: And so it's not at all surprising they would be Very reluctant to get involved
• 17:01
  SPEAKER_01: in something that seems so overtly political.
• 17:04
  SPEAKER_01: Almost unanimously,
• 17:06
  SPEAKER_01: the commentators who know these areas seem to agree that it seems like
• 17:10
  SPEAKER_01: a very weak case.
• 17:13
  SPEAKER_01: And because generally boycotts for political, social,
• 17:18
  SPEAKER_01: et cetera purposes are protected,
• 17:21
  SPEAKER_01: the only boycotts that can be antitrust violations are ones that are
• 17:25
  SPEAKER_01: for primarily commercial purposes.
• 17:28
  SPEAKER_01: So you would have to show
• 17:49
  SPEAKER_00: The funny thing for me thinking about this is it seems to me like neither
• 17:52
  SPEAKER_00: of those describe the likely core motivation of the networks.
• 17:58
  SPEAKER_00: They're not doing this primarily to make money, although there is a financial impact.
• 18:02
  SPEAKER_00: When you kick CNN out of the TV pool,
• 18:04
  SPEAKER_00: that does increase the cost for the other pool members who have to do
• 18:07
  SPEAKER_00: the pool duty more often.
• 18:08
  SPEAKER_00: So it does actually matter in some way for their bottom line.
• 18:11
  SPEAKER_00: Now, I'm sure that that is not a core motivation about why they're upset about
• 18:15
  SPEAKER_00: the pool thing, but it does have some commercial impact.
• 18:19
  SPEAKER_00: The reason they're doing this is that they want to be able to defend
• 18:25
  SPEAKER_00: the existing terms on which the press coverage is conducted.
• 18:29
  SPEAKER_00: They want to be able to do their work in a particular way.
• 18:36
  SPEAKER_00: It seems to me like it's not so much about making a statement to the White House as
• 18:39
  SPEAKER_00: about trying to achieve an outcome from the White House.
• 18:41
  SPEAKER_01: Right.
• 18:42
  SPEAKER_01: Well, I guess the action is how you characterize the outcome they're looking for.
• 18:46
  SPEAKER_01: And they would characterize it as not not putting up with the White House dictating
• 18:52
  SPEAKER_01: who gets to participate based on politics.
• 18:55
  SPEAKER_01: But OK, so that's the outcome.
• 19:01
  SPEAKER_01: And, you know,
• 19:02
  SPEAKER_01: the way I guess the Trump administration would put it is they're trying to control
• 19:06
  SPEAKER_01: the process.
• 19:07
  SPEAKER_01: And since the process is for their Yes.
• 19:09
  SPEAKER_01: Yes.
• 19:31
  SPEAKER_00: Meanwhile,
• 19:31
  SPEAKER_00: Judge Ana Reyes has that golf course case,
• 19:35
  SPEAKER_00: the one East Potomac Park,
• 19:39
  SPEAKER_00: one of these things in the vicinity of the White House that
• 19:41
  SPEAKER_00: the president is doing his landscaping bit.
• 19:43
  SPEAKER_00: He wants to build a championship-style golf course there.
• 19:45
  SPEAKER_00: There's been litigation over it,
• 19:47
  SPEAKER_00: and some people had sought an injunction,
• 19:50
  SPEAKER_00: and the government had assured Ana Reyes they would tell her before they went ahead
• 19:54
  SPEAKER_00: and did certain non-routine work.
• 19:56
  SPEAKER_00: Right.
• 19:56
  SPEAKER_00: So, but next time, it sounds like-
• 20:27
  SPEAKER_01: Well, they did technically tell her.
• 20:30
  SPEAKER_01: But what they did is after having promised to tell them
• 20:34
  SPEAKER_01: before they did anything big, like late on Friday, they filed something.
• 20:38
  SPEAKER_01: By the way,
• 20:39
  SPEAKER_01: we're going to chop down all the fucking trees in Washington, D.C.
• 20:43
  SPEAKER_01: And that weekend they cut down 400 plus trees
• 20:45
  SPEAKER_01: and they only stopped cutting them down because the weather got bad.
• 20:48
  SPEAKER_01: You know, they were going after like 700.
• 20:51
  SPEAKER_01: And so she's very mad.
• 20:52
  SPEAKER_01: She yanks them in.
• 20:54
  SPEAKER_01: And she has previously said sort of cutesy things like,
• 20:56
  SPEAKER_01: I'm not in the Lorax,
• 20:57
  SPEAKER_01: I don't speak for the trees,
• 20:59
  SPEAKER_01: or, you know, I'm not on Parks and Recreation, I don't want to manage the parks.
• 21:03
  SPEAKER_01: She's very mad because she feels correctly that the plaintiff told her,
• 21:08
  SPEAKER_01: Judge, you've got to issue an injunction because they're going to do stuff.
• 21:10
  SPEAKER_01: And she says, no, no, they'll listen to me, they won't do that.
• 21:13
  SPEAKER_01: And then they did it.
• 21:14
  SPEAKER_01: And they made her kind of look like a dupe, frankly.
• 21:18
  SPEAKER_01: And so she's obviously very mad at that.
• 21:20
  SPEAKER_01: And she said to them, you've completely destroyed...
• 21:23
  SPEAKER_01: All of your credibility,
• 21:24
  SPEAKER_01: which as any lawyer,
• 21:26
  SPEAKER_01: government or not, you don't want to hear a federal judge say that to you.
• 21:29
  SPEAKER_01: So I think now she's probably going to frame some sort of orders here
• 21:33
  SPEAKER_01: because they've demonstrated.
• 21:34
  SPEAKER_01: They came up with this excuse that this wasn't actually part of the project,
• 21:38
  SPEAKER_01: that the subject
• 21:39
  SPEAKER_01: of this case were actually – Implementing this 2019 maintenance plan
• 21:46
  SPEAKER_01: that we just suddenly decided we had to do this weekend all at once.
• 21:51
  SPEAKER_01: And again,
• 21:51
  SPEAKER_01: that's the Trump administration shooting itself in the foot
• 21:54
  SPEAKER_01: by making facially stupid arguments, which it does a lot.
• 21:57
  SPEAKER_01: So all they have is a furious federal judge on this case now who's going
• 22:01
  SPEAKER_01: to start issuing orders and cut them a lot less slack.
• 22:05
  SPEAKER_01: It's, you know,
• 22:06
  SPEAKER_01: digging up the corpse of the presumption of regularity
• 22:09
  SPEAKER_01: and shooting it several times just for the hell of it.
• 22:11
  SPEAKER_01: Yeah.
• 22:13
  SPEAKER_01: We have some updates in the Cornell 7 case
• 22:15
  SPEAKER_00: where Attorney General Letitia James
• 22:18
  SPEAKER_00: of New York has been appointed by the governor as special prosecutor.
• 22:21
  SPEAKER_00: Now a couple of the, well,
• 22:23
  SPEAKER_00: prospective defendants,
• 22:26
  SPEAKER_00: people who are being investigated in this case,
• 22:28
  SPEAKER_00: have filed petitions seeking to remove Letitia James as special prosecutor.
• 22:33
  SPEAKER_00: So I guess,
• 22:33
  SPEAKER_00: first of all,
• 22:34
  SPEAKER_00: how do you even get into court if you haven't been charged with anything yet?
• 22:36
  SPEAKER_01: Well, you file a petition with the court seeking to limit government action.
• 22:43
  SPEAKER_01: And so the idea would be you have standing because you are one of the people
• 22:49
  SPEAKER_01: who is going to be investigated based on publicly known information.
• 22:54
  SPEAKER_01: And what they're saying is that, you know, she she's been appointed as the prosecutor.
• 22:58
  SPEAKER_01: But before that, She made comments saying that what happened to Jane Doe is horrific.
• 23:04
  SPEAKER_01: We support her and all sexual abuse victims and we'll be looking into it.
• 23:09
  SPEAKER_01: And what they say is that that presumes that she was victimized as opposed to
• 23:15
  SPEAKER_01: a consensual participant.
• 23:18
  SPEAKER_01: And it presumes that crimes were committed and
• 23:20
  SPEAKER_01: that therefore there are clients are criminals and that you can't have
• 23:25
  SPEAKER_01: a prosecutor doing that.
• 23:26
  SPEAKER_01: Now, from what I understand,
• 23:28
  SPEAKER_01: as you know,
• 23:28
  SPEAKER_01: I'm not a New York lawyer,
• 23:29
  SPEAKER_01: but from my review and what people are saying,
• 23:32
  SPEAKER_01: there are limits to what a New York prosecutor can say.
• 23:36
  SPEAKER_01: And if you've got an actual bias that's a result
• 23:40
  SPEAKER_01: of like having previously represented one of the defendants in private practice,
• 23:44
  SPEAKER_01: like that's a case that happened.
• 23:47
  SPEAKER_01: Or if your comments are extreme enough that they cause there to be grave doubt about
• 23:54
  SPEAKER_01: the fairness of the proceedings, it's possible you would get removed.
• 23:59
  SPEAKER_01: But I'm skeptical and a lot of the commentators are skeptical that that's going
• 24:02
  SPEAKER_01: to apply to fairly standard prosecutor rhetoric.
• 24:06
  SPEAKER_01: I mean, prosecutors always say,
• 24:09
  SPEAKER_01: you know, this is a horrific crime and we're going to, you know, look into it.
• 24:13
  SPEAKER_01: And they generally get away with that even if
• 24:15
  SPEAKER_01: that What she said specifically is what this young woman has been forced
• 24:18
  SPEAKER_01: to endure is horrific and unacceptable.
• 24:20
  SPEAKER_01: I'm holding her in my heart and my prayers to her and to all survivors.
• 24:25
  SPEAKER_01: You're not alone.
• 24:26
  SPEAKER_01: We stand with you.
• 24:40
  SPEAKER_01: Right.
• 24:40
  SPEAKER_01: And so arguably that accepts her version of events and rejects the defense
• 24:45
  SPEAKER_01: that what happened was consensual.
• 24:47
  SPEAKER_01: So that's the argument of the potential defendants.
• 24:52
  SPEAKER_01: But the New York experts I've read and the samples I've seen
• 25:00
  SPEAKER_01: of past cases make me skeptical that it's going to be enough because,
• 25:04
  SPEAKER_01: I mean, that's the way prosecutors talk all the time.
• 25:08
  SPEAKER_01: So, you know, it probably doesn't rise to the extreme level necessary to disqualify her.
• 25:14
  SPEAKER_00: Meanwhile, there's some gag order fighting in this case?
• 25:17
  SPEAKER_01: Oh, yeah.
• 25:18
  SPEAKER_01: So remember,
• 25:18
  SPEAKER_01: there's also the civil case and the filing of which kicked off the storm
• 25:24
  SPEAKER_01: over this case.
• 25:25
  SPEAKER_01: So Jane Doe sued the Cornell 7 and Cornell and a bunch of others.
• 25:30
  SPEAKER_01: And so some of the defense attorneys have filed motions for gag orders
• 25:34
  SPEAKER_01: on Jane Doe's Lawyer saying that he's poisoning the jury pool and accusing him
• 25:41
  SPEAKER_01: of leaking the confidential Title IX Cornell investigation files that he got access
• 25:48
  SPEAKER_01: to.
• 25:49
  SPEAKER_01: And that lawyer turned around and said,
• 25:51
  SPEAKER_01: actually, no, you,
• 25:52
  SPEAKER_01: you are the one,
• 25:54
  SPEAKER_01: the lawyers for these students,
• 25:55
  SPEAKER_01: the ones who are leaking the confidential Title IX files,
• 25:58
  SPEAKER_01: and you're just trying to stop
• 26:03
  SPEAKER_01: Do these
• 26:06
  SPEAKER_00: people have a duty of confidentiality with regard to those files?
• 26:09
  SPEAKER_00: I know Cornell has to keep them confidentiality.
• 26:11
  SPEAKER_01: Cornell has to keep them confidential.
• 26:13
  SPEAKER_01: No, I don't believe that they do have any such duty of confidentiality.
• 26:18
  SPEAKER_01: I don't think any such duty would be constitutional
• 26:21
  SPEAKER_01: unless they got them – Could they be
• 26:23
  SPEAKER_00: under a protective order or something?
• 26:24
  SPEAKER_01: Yeah, I mean if they got them pursuant to a protective order in some proceeding,
• 26:27
  SPEAKER_01: that would be a different matter.
• 26:29
  SPEAKER_01: But I don't think that they did.
• 26:32
  SPEAKER_01: So that's why leaking is probably the wrong term for them to be using,
• 26:36
  SPEAKER_01: an argumentative term to be using.
• 26:38
  SPEAKER_00: One of the – One of the defendants of the Cornell 7 case was the plaintiff in a case
• 26:43
  SPEAKER_00: against Cornell where he sued saying that his own rights have been violated.
• 26:46
  SPEAKER_00: And there's an extensive discussion in that case of the case files from Cornell.
• 26:52
  SPEAKER_00: So I guess that's a proceeding where they could have been obtained.
• 26:54
  SPEAKER_01: They could have been.
• 26:55
  SPEAKER_01: And it's possible that if they were produced in discovery there,
• 26:58
  SPEAKER_01: that was governed by a protective order.
• 27:02
  SPEAKER_01: By being the subject of Title IX proceedings,
• 27:05
  SPEAKER_01: probably that's not going to be protected from disclosure.
• 27:08
  SPEAKER_01: Anyway,
• 27:09
  SPEAKER_01: the bottom line is it's a very ugly fight in what's already an extremely ugly case
• 27:15
  SPEAKER_01: that we've been talking about.
• 27:16
  SPEAKER_00: Another bit of New York civil litigation that we haven't talked about in a little
• 27:20
  SPEAKER_00: while,
• 27:20
  SPEAKER_00: Chirayurana,
• 27:21
  SPEAKER_00: who had those, I was going to say cinematic, but it would be the worst movie ever.
• 27:25
  SPEAKER_01: He had these outlandish claims that he had been sexually
• 27:31
  SPEAKER_00: That's it for this week's free episode of Serious Trouble.
• 27:52
  SPEAKER_00: It seems that Mr.
• 27:54
  SPEAKER_00: Rana is a very difficult client,
• 27:57
  SPEAKER_00: and maybe she never really did tell him that his Asian fishwife had probably had
• 28:03
  SPEAKER_00: a set of cannons like that.
• 28:05
  SPEAKER_00: Anyway, so there's that case.
• 28:07
  SPEAKER_00: There is a team.
• 28:07
  SPEAKER_00: In fact, he was arrested for riding an e-bike.
• 28:09
  SPEAKER_00: He said,
• 28:22
  SPEAKER_00: We also, this week, have an update in the Shrek penis case.
• 28:24
  SPEAKER_00: There was conviction.
• 28:51
  SPEAKER_00: Kimberly Guilfoyle is out as ambassador to Greece,
• 28:55
  SPEAKER_00: and the man that she allegedly texted saying she desperately needed $100,000
• 29:00
  SPEAKER_00: to pay off her Amex bill, he's suing her for defamation, or at least we think he is.
• 29:06
  SPEAKER_00: The thing that he says is a complaint is not a complaint,
• 29:08
  SPEAKER_00: although it does include a 12-page resume for him.
• 29:10
  SPEAKER_00: And then finally, BBC, Donald Trump, is supposed to be deposed in his case, suing the BBC.
• 29:17
  SPEAKER_00: He says he's too busy.
• 29:19
  SPEAKER_00: He's the president,
• 29:20
  SPEAKER_00: but since he's the plaintiff,
• 29:21
  SPEAKER_00: it's not clear how much patience the court's going to have for that.
• 29:23
  SPEAKER_00: Anyway, you want to hear all of that, go to serioustrouble.show, become a paying subscriber.
• 29:27
  SPEAKER_00: We'd love to have you.
• 29:28
  SPEAKER_00: Thanks.
• 29:30
  [music]