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Twelve Busybody Idiots · Serious Trouble

• 0:08
  SPEAKER_00: Hi, it's Ken White.
• 0:10
  SPEAKER_00: And it's Josh Barrow, and this is Serious Trouble.
• 0:13
  SPEAKER_00: Ken,
• 0:13
  SPEAKER_00: I believe this is the first time we're ever going to get to talk about the
• 0:15
  SPEAKER_00: California Coastal Commission on this show.
• 0:17
  SPEAKER_01: It's true.
• 0:18
  SPEAKER_01: I think it is.
• 0:19
  SPEAKER_01: I mean,
• 0:19
  SPEAKER_01: we've had cartilage and venue and all those other things I just love so much,
• 0:22
  SPEAKER_00: but I don't think we've done this one.
• 0:24
  SPEAKER_00: So, for those who don't live in California...
• 0:26
  SPEAKER_00: The California Coastal Commission is this body of 12 busybody idiots whose job is
• 0:32
  SPEAKER_00: to be part of the apparatus that makes it impossible to build any new housing in
• 0:35
  SPEAKER_00: the state of California.
• 0:36
  SPEAKER_00: If you want to do anything in the vicinity of the ocean,
• 0:40
  SPEAKER_00: these people often have review powers over what you're doing.
• 0:44
  SPEAKER_00: And they do some things that people like.
• 0:46
  SPEAKER_00: In particular,
• 0:47
  SPEAKER_00: they make sure that it's possible to access beaches in the state of California,
• 0:50
  SPEAKER_00: which are public.
• 0:50
  SPEAKER_00: And sometimes the land that you have to get across to get to the beach is not public.
• 0:53
  SPEAKER_00: So fine, whatever.
• 0:55
  SPEAKER_00: And some people like when they stop people from building housing, even though that's actually evil.
• 0:59
  SPEAKER_00: But the reason that we're talking about the Coastal Commission this week is that
• 1:03
  SPEAKER_00: they are in a dispute with Elon Musk.
• 1:06
  SPEAKER_00: Because one thing that happens near the coast in California is that rocket launches
• 1:10
  SPEAKER_00: happen on some military land.
• 1:14
  SPEAKER_00: And those rocket launches are sometimes done by private companies, including SpaceX.
• 1:18
  SPEAKER_00: And the Coastal Commission has basically said, hey, wait a minute.
• 1:21
  SPEAKER_00: The federal government is allowed to do certain things,
• 1:23
  SPEAKER_00: although,
• 1:24
  SPEAKER_00: you know,
• 1:24
  SPEAKER_00: in theory,
• 1:24
  SPEAKER_00: they're supposed to,
• 1:25
  SPEAKER_00: like,
• 1:25
  SPEAKER_00: listen very closely to what we have to say and take it under advisement.
• 1:28
  SPEAKER_00: But SpaceX is private, and we want to start regulating those rocket launches.
• 1:32
  SPEAKER_00: And this is leading to some litigation.
• 1:34
  SPEAKER_01: It is.
• 1:35
  SPEAKER_01: The California Coastal Commission is known for being somewhat autocratic.
• 1:40
  SPEAKER_01: You know,
• 1:40
  SPEAKER_01: people would say,
• 1:41
  SPEAKER_01: on the one hand,
• 1:41
  SPEAKER_01: they fight these super-rich property owners who try to block off beach access from
• 1:46
  SPEAKER_01: the public.
• 1:47
  SPEAKER_01: Other people would say,
• 1:48
  SPEAKER_01: yeah,
• 1:48
  SPEAKER_01: but they're super full of themselves and they're always trying to throw their
• 1:51
  SPEAKER_01: weight around and they like getting into fights with super rich people and celebrities.
• 1:56
  SPEAKER_01: In this case, the fight is with Elon Musk and SpaceX and to a lesser extent with the U.S.
• 2:01
  SPEAKER_01: government.
• 2:02
  SPEAKER_01: So at Vandenberg Air Force Base,
• 2:04
  SPEAKER_01: which to my deep irritation is now called Vandenberg Space Force Base,
• 2:10
  SPEAKER_01: they set off a lot of rockets.
• 2:12
  SPEAKER_01: And these days,
• 2:13
  SPEAKER_01: when the government is working with rocket launches,
• 2:16
  SPEAKER_01: a lot of them are by private contractors like SpaceX.
• 2:19
  SPEAKER_01: The government,
• 2:20
  SPEAKER_01: under a complex series of laws called the Coastal Zone Management Act,
• 2:25
  SPEAKER_01: is supposed to sort of consult and cooperate with states about how they use coastal zones.
• 2:32
  SPEAKER_01: They're supposed to do something called federal consistency,
• 2:35
  SPEAKER_01: which means they're supposed to kind of advise and consent with state authorities
• 2:39
  SPEAKER_01: about whether or not
• 2:40
  SPEAKER_01: what they're doing, you know, blowing shit up, strafing islands full of gulls, whatever.
• 2:47
  SPEAKER_01: is consistent with the state's environmental regulations.
• 2:51
  SPEAKER_01: Now,
• 2:51
  SPEAKER_01: buried behind all this is the fact that ultimately,
• 2:54
  SPEAKER_01: one way or the other,
• 2:55
  SPEAKER_01: they can ignore what the state wants.
• 2:57
  SPEAKER_01: They can override them.
• 2:58
  SPEAKER_01: The president can sign like a finding that it's necessary.
• 3:03
  SPEAKER_01: They can send the thing to mediation before some cabinet-level department head.
• 3:08
  SPEAKER_01: All these ways that they don't actually have to do what the state wants them to do.
• 3:12
  SPEAKER_01: But they often go through this charade of pretending to do what the state wants as
• 3:16
  SPEAKER_01: part of this sort of gesture towards appearing to be environmental.
• 3:20
  SPEAKER_01: In this case, Space Force filed an application to expand the number of SpaceX launches.
• 3:27
  SPEAKER_01: They were going to do 50 a year.
• 3:29
  SPEAKER_01: So this is fairly typical, and they've done it with a bunch of other contractors.
• 3:33
  SPEAKER_01: And the California Coastal Commission got all up in arms.
• 3:37
  SPEAKER_01: Part of it was possibly legitimate about things like the safety record,
• 3:43
  SPEAKER_01: whether or not SpaceX was following safety protocols,
• 3:47
  SPEAKER_01: even
• 3:48
  SPEAKER_01: SpaceX's employee safety practices, which I guess in a stretch could be related.
• 3:54
  SPEAKER_01: But the problem where the Coastal Commission gets into problems is that they
• 3:58
  SPEAKER_01: started to mouth off about what Elon Trump is like.
• 4:02
  SPEAKER_01: That's a pretty good Freudian slip there, Ken.
• 4:04
  SPEAKER_00: That is.
• 4:04
  SPEAKER_01: Pardon me, Donald Musk.
• 4:06
  SPEAKER_01: So a bunch of the commissioners started talking shit about Elon Musk.
• 4:11
  SPEAKER_01: I mean, accurately in talking about the way he's been acting, throwing his support behind Donald Trump.
• 4:17
  SPEAKER_01: you know, being generally kind of a wannabe fascist, all this stuff.
• 4:22
  SPEAKER_01: And they made it sound that the reason that they were denying SpaceX application to
• 4:29
  SPEAKER_01: increase the number of launches was in part because of this ideological
• 4:33
  SPEAKER_01: disagreement with Elon Musk.
• 4:35
  SPEAKER_01: And the context or the cultural context is that the commission is made up of people
• 4:41
  SPEAKER_01: appointed by the governor,
• 4:42
  SPEAKER_01: And they are often sort of D list celebrities who enjoy the spectacle of publicly
• 4:48
  SPEAKER_01: mixing it up with a list celebrities.
• 4:51
  SPEAKER_01: So,
• 4:51
  SPEAKER_01: you know,
• 4:52
  SPEAKER_01: they like dunking on,
• 4:53
  SPEAKER_01: uh,
• 4:53
  SPEAKER_01: you know,
• 4:54
  SPEAKER_01: Steven Spielberg or whoever's house is blocking the beach in Malibu.
• 4:57
  SPEAKER_01: So,
• 4:58
  SPEAKER_01: you know,
• 4:58
  SPEAKER_01: you've got someone who started on LA law in 1990s or the widow of a member of the
• 5:02
  SPEAKER_01: grateful dead or whatever,
• 5:04
  SPEAKER_01: who's going to throw their weight around and talk shit through this California
• 5:07
  SPEAKER_01: coastal commission.
• 5:09
  SPEAKER_01: And this time they encountered someone who's just like crazier and more aggressive than they are.
• 5:14
  SPEAKER_01: So SpaceX has sued because the California Coastal Commission said, no, we're not going to approve this.
• 5:20
  SPEAKER_01: So they've sued in federal court in Los Angeles saying basically that you're
• 5:23
  SPEAKER_01: violating the First Amendment by purporting to turn down this application based on
• 5:30
  SPEAKER_01: my protected speech.
• 5:32
  SPEAKER_01: And in some ways, he has a point.
• 5:34
  SPEAKER_01: And I hate saying that about Elon Musk, but I'll say it when it's true.
• 5:37
  SPEAKER_01: In some ways, he has a point.
• 5:38
  SPEAKER_01: The government is not supposed to deny licenses and permits and things like that
• 5:43
  SPEAKER_01: because it doesn't like the things you say.
• 5:45
  SPEAKER_01: And most of the time,
• 5:46
  SPEAKER_01: the government is not so self-indulgent or stupid to say it openly the way these
• 5:50
  SPEAKER_01: people have.
• 5:52
  SPEAKER_01: Now,
• 5:52
  SPEAKER_01: where Elon Musk's lawsuit may be weaker is whether or not he has standing,
• 5:57
  SPEAKER_01: because really it's the government applying for this on SpaceX's behalf.
• 6:02
  SPEAKER_01: There's questions about whether it's ripe or whether it's moot in the sense that
• 6:06
  SPEAKER_01: the government can just ignore this Coastal Commission finding and go for it anyway.
• 6:10
  SPEAKER_01: So are they entitled to declaratory relief when it doesn't really matter in the end?
• 6:15
  SPEAKER_01: So I think there are a number of kind of dull federal court type problems with the lawsuit.
• 6:21
  SPEAKER_01: But the First Amendment stuff is actually live and
• 6:24
  SPEAKER_01: It's a complete own goal by self-indulgent people on the commission.
• 6:28
  SPEAKER_00: Yes.
• 6:28
  SPEAKER_00: One thing that was interesting to me about this lawsuit and, you know, the commission had this meeting.
• 6:33
  SPEAKER_00: They issued this, you know, what is supposedly a determination and then Musk threatened to sue.
• 6:37
  SPEAKER_00: And I wondered if he was really going to sue because it's not clear that anything
• 6:41
  SPEAKER_00: has actually been done yet to him or SpaceX because they need their approval from
• 6:45
  SPEAKER_00: the federal government.
• 6:46
  SPEAKER_00: Right.
• 7:08
  SPEAKER_01: Well, that's exactly the question.
• 7:09
  SPEAKER_01: And that goes to,
• 7:10
  SPEAKER_01: you know,
• 7:11
  SPEAKER_01: the concepts of standing,
• 7:13
  SPEAKER_01: which includes whether a question is ripe or whether it's moot.
• 7:16
  SPEAKER_01: All these things that are designed as doctrine to prevent courts,
• 7:20
  SPEAKER_01: particularly federal courts,
• 7:22
  SPEAKER_01: from becoming these super legislatures that can pass on any issue just because you
• 7:27
  SPEAKER_01: want them to.
• 7:28
  SPEAKER_01: It requires that there be a real pending case or controversy.
• 7:32
  SPEAKER_01: And the question here is, since Space Force can ignore the California Coastal Commission, I mean,
• 7:38
  SPEAKER_01: You know,
• 7:38
  SPEAKER_01: Space Force can basically decide to use tactical nukes to get rid of the seals on
• 7:41
  SPEAKER_01: the beach if they feel like it,
• 7:43
  SPEAKER_01: and there's nothing California Coastal Commission can do about it.
• 7:46
  SPEAKER_01: So is there really a controversy when this is just bloviation by the California Coastal Commission?
• 7:52
  SPEAKER_01: On the other hand, it's also probably just bloviation by Elon Musk and SpaceX.
• 7:56
  SPEAKER_01: I mean,
• 7:56
  SPEAKER_01: it's a public relations and propaganda victory for them that these people on this
• 8:01
  SPEAKER_01: commission are doing something so obviously bogus.
• 8:04
  SPEAKER_01: It diminishes the credibility of the Coastal Commission.
• 8:07
  SPEAKER_01: And generally,
• 8:08
  SPEAKER_01: it shows the need for a stronger hand in the Coastal Commission's counsel's office
• 8:13
  SPEAKER_01: to get their people on their board in line and not sabotage their own efforts.
• 8:20
  SPEAKER_00: The other thing about this lawsuit is that one of the arguments is that it would
• 8:23
  SPEAKER_00: violate the First Amendment or that they have violated the First Amendment by
• 8:26
  SPEAKER_00: taking this action or issuing this declaration in part at least because of Elon
• 8:32
  SPEAKER_00: Musk's First Amendment protected speech activities.
• 8:35
  SPEAKER_00: But they also argue that the commission lacks legal authority to do this even if
• 8:38
  SPEAKER_00: their purpose was not unconstitutional.
• 8:41
  SPEAKER_00: That just,
• 8:41
  SPEAKER_00: you know,
• 8:41
  SPEAKER_00: under the Coastal Zone Management Act,
• 8:44
  SPEAKER_00: the Coastal Commission does not have the authority to regulate this,
• 8:47
  SPEAKER_00: including,
• 8:47
  SPEAKER_00: you know,
• 8:48
  SPEAKER_00: for one thing,
• 8:48
  SPEAKER_00: they argue that the launches are not actually happening in the coastal zone.
• 8:51
  SPEAKER_00: And so if a court was to consider this, would they even reach the First Amendment issue?
• 8:55
  SPEAKER_00: Or might they simply decide it on this,
• 8:57
  SPEAKER_00: you know,
• 8:58
  SPEAKER_00: sort of less sexy statutory stuff and say,
• 9:00
  SPEAKER_00: you know,
• 9:01
  SPEAKER_00: you don't have this legal authority?
• 9:02
  SPEAKER_00: Yeah.
• 9:03
  SPEAKER_01: I think it's the other way around because a federal court is – if it's conservative
• 9:09
  SPEAKER_01: in the traditional federal court way,
• 9:10
  SPEAKER_01: which is reluctant to exercise too much power,
• 9:13
  SPEAKER_01: then they're going to say rather than say a state doesn't have authority to do something,
• 9:18
  SPEAKER_01: we'd rather just say in this specific instance the state has violated –
• 9:22
  SPEAKER_01: specific rights.
• 9:23
  SPEAKER_01: But again,
• 9:23
  SPEAKER_01: they don't have to get to any of that if the court says,
• 9:26
  SPEAKER_01: you know,
• 9:26
  SPEAKER_01: let's actually see if this actually impedes or does anything.
• 9:30
  SPEAKER_01: Because if Space Force is just going to say,
• 9:32
  SPEAKER_01: go ahead and launch anyway,
• 9:33
  SPEAKER_01: Elon,
• 9:33
  SPEAKER_01: then it doesn't really matter.
• 9:35
  SPEAKER_01: And the courts are not supposed to issue sort of advisory rulings.
• 9:38
  SPEAKER_01: And that's what Trump... I got it stuck in my brain today.
• 9:43
  SPEAKER_01: That's what Elon Musk,
• 9:43
  SPEAKER_01: to some extent,
• 9:44
  SPEAKER_01: is doing today,
• 9:45
  SPEAKER_01: is asking for an advisory ruling that if they carried this through,
• 9:49
  SPEAKER_01: if...
• 9:50
  SPEAKER_01: the government decided to obey, then that would be a violation of First Amendment rights.
• 9:55
  SPEAKER_00: So what Elon Musk has to say about that is he says this court is empowered to
• 10:00
  SPEAKER_00: provide declaratory and injunctive relief pursuant to the Declaratory Judgment Act
• 10:05
  SPEAKER_00: and Federal Rules of Civil Procedure Sections 57 and 65.
• 10:09
  SPEAKER_00: It says the court has jurisdiction to order prospective relief in the form of a
• 10:14
  SPEAKER_00: declaratory judgment and an injunction against the defendants to end continuing
• 10:18
  SPEAKER_00: violations of federal law.
• 10:19
  SPEAKER_00: So is that, I mean, they've anticipated this argument about, you know, this isn't right.
• 10:22
  SPEAKER_00: And they say, no, we're entitled under this specific federal law to declaratory relief.
• 10:27
  SPEAKER_00: Are they right about that?
• 10:28
  SPEAKER_01: No, not to the extent there are standing problems that doesn't magically get them out of it.
• 10:34
  SPEAKER_01: Litigants seek declaratory relief all the time.
• 10:36
  SPEAKER_01: That's just something,
• 10:38
  SPEAKER_01: a law that says that when there is a genuine case and controversy between people,
• 10:43
  SPEAKER_01: then the court can
• 10:46
  SPEAKER_01: work towards resolving that dispute by declaring their respective rights.
• 10:50
  SPEAKER_01: So if we have a genuine dispute about a contract or something like that that's
• 10:54
  SPEAKER_01: currently ripe and active,
• 10:57
  SPEAKER_01: then the court can do that.
• 10:58
  SPEAKER_01: What the court can't do is issue hypothetical future,
• 11:01
  SPEAKER_01: well,
• 11:02
  SPEAKER_01: maybe if this happens,
• 11:03
  SPEAKER_01: that happens type of stuff because that is outside the court's jurisdiction and
• 11:08
  SPEAKER_01: it's outside sort of the narrow and limited power of federal courts.
• 11:13
  SPEAKER_00: So let's suppose that the Space Force,
• 11:15
  SPEAKER_00: for whatever reason,
• 11:16
  SPEAKER_00: decided to actually take the Coastal Commission seriously here and declined to
• 11:20
  SPEAKER_00: increase the number of SpaceX launches on the grounds of the Coastal Commission's objection.
• 11:24
  SPEAKER_00: By the way, I don't think that's likely to happen.
• 11:25
  SPEAKER_00: Obviously, Elon Musk is a political hot button for Democrats.
• 11:30
  SPEAKER_00: But my sense is that the Space Force and space-related agencies have a very strong
• 11:35
  SPEAKER_00: working relationship with SpaceX and want to do these increased launches.
• 11:38
  SPEAKER_00: So I don't think the federal government is likely to go along with the Coastal Commission.
• 11:41
  SPEAKER_00: But in the event that it did,
• 11:43
  SPEAKER_00: Wouldn't Elon Musk have to sue the federal government or would he sue both?
• 11:48
  SPEAKER_00: Because it seems to me that if something ultimately is done to him that violates
• 11:51
  SPEAKER_00: his rights or violates SpaceX's rights,
• 11:54
  SPEAKER_00: it will technically be the federal government doing it,
• 11:55
  SPEAKER_00: right?
• 11:56
  SPEAKER_01: Well, that's complicated because the federal government is just deciding to abide by –
• 12:02
  SPEAKER_01: a state determination, which it is encouraged but not required to do.
• 12:07
  SPEAKER_01: The federal government is not passing judgment on Elon Musk's speech.
• 12:11
  SPEAKER_01: So I think it would still be the California Coastal Commission because it's the one
• 12:15
  SPEAKER_01: declining to issue this permission.
• 12:18
  SPEAKER_01: But yeah,
• 12:19
  SPEAKER_01: it's weird just because the whole statutory structure here where we're going to,
• 12:24
  SPEAKER_01: you know,
• 12:24
  SPEAKER_01: advise and consent and consult with the states,
• 12:27
  SPEAKER_01: but we're going to do what we want ultimately makes it a weird relationship.
• 12:32
  SPEAKER_00: Well, so we'll watch this.
• 12:33
  SPEAKER_00: But I think as you know,
• 12:35
  SPEAKER_00: as Ken described,
• 12:35
  SPEAKER_00: I think it's likely that this litigation will end up being dismissed,
• 12:39
  SPEAKER_00: presumably because Musk doesn't actually need relief at this point.
• 12:42
  SPEAKER_01: Yeah.
• 12:43
  SPEAKER_01: Or Space Force will say we're going to do it anyway and he'll dismiss or whatever it is.
• 12:49
  SPEAKER_01: But I think he's going to try to milk it for every bit of propaganda value that it has.
• 12:53
  SPEAKER_01: And to be fair, this is a stupid behavior by the Coastal Commission.
• 13:04
  SPEAKER_00: Let's talk about the case before Judge Tanya Chetkin in Washington,
• 13:07
  SPEAKER_00: D.C.,
• 13:08
  SPEAKER_00: the January 6th related case against Donald Trump.
• 13:11
  SPEAKER_00: There's an obstruction charge, obstructing an official proceeding.
• 13:15
  SPEAKER_00: Listeners will remember there was a Supreme Court decision about this relating to
• 13:17
  SPEAKER_00: one of the January 6th rioters.
• 13:18
  SPEAKER_00: Many of them were charged with obstructing an official proceeding.
• 13:22
  SPEAKER_00: And the government had taken this very expansive view of what it was to obstruct an official proceeding.
• 13:26
  SPEAKER_00: This is something that comes out of the Sarbanes-Oxley Act that has to do with securities regulation.
• 13:32
  SPEAKER_00: And I don't think
• 13:33
  SPEAKER_00: The drafters of that law had really envisioned that they were talking about
• 13:36
  SPEAKER_00: something like a riot on the Capitol building,
• 13:38
  SPEAKER_00: and the Supreme Court did in fact significantly narrow the way that that law could
• 13:42
  SPEAKER_00: be used.
• 13:43
  SPEAKER_00: But the narrowing,
• 13:44
  SPEAKER_00: which has to do with the interference with the availability or integrity of
• 13:48
  SPEAKER_00: documentary evidence –
• 13:49
  SPEAKER_00: There was an aspect of that that was very important in the events on and leading up
• 13:54
  SPEAKER_00: to January 6th,
• 13:54
  SPEAKER_00: which had to do with the elector certifications.
• 13:57
  SPEAKER_00: That,
• 13:57
  SPEAKER_00: you know,
• 13:58
  SPEAKER_00: one of the objectives of the rioters was to ensure that the valid elector slates
• 14:03
  SPEAKER_00: would not be counted and that they,
• 14:04
  SPEAKER_00: you know,
• 14:05
  SPEAKER_00: ideally that Congress would instead count these alternate fake elector slates.
• 14:09
  SPEAKER_00: So there were documents at issue here.
• 14:10
  SPEAKER_00: And so I guess now that they're arguing about whether Donald Trump's own actions
• 14:14
  SPEAKER_00: leading up to January 6th,
• 14:16
  SPEAKER_00: whether those meet the new narrower definition of what it is to obstruct an
• 14:19
  SPEAKER_00: official proceeding.
• 14:20
  SPEAKER_01: Right.
• 14:21
  SPEAKER_01: Trump filed a fairly Trumpy motion to dismiss,
• 14:24
  SPEAKER_01: just sort of trumpeting that,
• 14:25
  SPEAKER_01: you know,
• 14:26
  SPEAKER_01: Fisher versus the United States,
• 14:28
  SPEAKER_01: Supreme Court says that this is an obstruction of justice.
• 14:31
  SPEAKER_01: You got to dismiss the whole thing, judge, all the obstruction stuff.
• 14:34
  SPEAKER_01: Sorry, is it an obstruction of justice or this is obstructing an official proceeding?
• 14:37
  SPEAKER_01: Well, it's within an obstruction of justice statute, but the particular subsection is about proceedings.
• 14:41
  SPEAKER_01: So the particular subsection is 1512C2, and it says that
• 14:47
  SPEAKER_01: whoever corruptly otherwise obstructs,
• 14:49
  SPEAKER_01: influence,
• 14:50
  SPEAKER_01: or impedes any official proceeding or attempts to do so.
• 14:53
  SPEAKER_01: So the Justice Department had been using that sort of as a catch-all,
• 14:56
  SPEAKER_01: any type of obstructing a proceeding that doesn't fall into one of the other categories.
• 15:00
  SPEAKER_01: And the Supreme Court said, no, actually, this was passed as part of a law about documents in particular.
• 15:06
  SPEAKER_01: It's a subset of that law.
• 15:08
  SPEAKER_01: Clearly, it only refers, means to refer to documents.
• 15:11
  SPEAKER_01: So it only applies when you corruptly interfere with the availability or the
• 15:15
  SPEAKER_01: integrity of documents in a proceeding.
• 15:18
  SPEAKER_01: And Trump says, there, see, I'm off the hook.
• 15:20
  SPEAKER_01: And what the special counsel has just said in this brief that he filed is,
• 15:24
  SPEAKER_01: well,
• 15:24
  SPEAKER_01: no,
• 15:24
  SPEAKER_01: because the entire point of the indictment is Trump tried to present these
• 15:29
  SPEAKER_01: fraudulent certifications to the Senate.
• 15:32
  SPEAKER_01: He made up these bogus slates of electors.
• 15:36
  SPEAKER_01: He conspired with locals to do that.
• 15:38
  SPEAKER_01: He had them sent to the Senate,
• 15:40
  SPEAKER_01: and what he was trying to do was defraud the Senate and obstruct this proceeding by
• 15:46
  SPEAKER_01: submitting bogus documents that interfere with the integrity of evidence in the proceeding.
• 15:52
  SPEAKER_01: That part, I think, is pretty strong and works.
• 15:55
  SPEAKER_01: Whether the Supreme Court would cut it back even more is another question,
• 15:58
  SPEAKER_01: but I think that's very plausible.
• 16:00
  SPEAKER_01: I think they go a little further and they get a little too cute,
• 16:03
  SPEAKER_01: is that Trump is also saying,
• 16:05
  SPEAKER_01: well,
• 16:05
  SPEAKER_01: you should throw out everything having to do with January 6th,
• 16:08
  SPEAKER_01: you know,
• 16:08
  SPEAKER_01: with the speech and the assault on Congress and the crowds and all this type of thing.
• 16:13
  SPEAKER_01: And what Jack Smith says as well,
• 16:15
  SPEAKER_01: but you see what he did was he invited all these people and then he whipped them up
• 16:19
  SPEAKER_01: and he sent them over to Congress in order to try to pressure and force Congress to
• 16:25
  SPEAKER_01: consider his bogus fraudulent certifications.
• 16:30
  SPEAKER_01: I find that a bit of a stretch as a way to try to bring that theory under the ambit
• 16:36
  SPEAKER_01: of this Supreme Court ruling.
• 16:38
  SPEAKER_01: But, I mean, it's colorable.
• 16:40
  SPEAKER_01: It's plausible.
• 16:41
  SPEAKER_01: So they are definitely trying to hang on to every theory they can for going forward with this.
• 16:48
  SPEAKER_00: What would happen if Judge Chuckin ruled in the way that I think you're sort of
• 16:51
  SPEAKER_00: suggesting would be correct for her to rule,
• 16:53
  SPEAKER_00: which is to let the charge stand but to exclude some of this specific calendar date,
• 16:59
  SPEAKER_00: January 6th stuff to do with the riot itself?
• 17:02
  SPEAKER_00: How would that affect the case?
• 17:03
  SPEAKER_00: What would it look like if you tossed part of that evidence?
• 17:07
  SPEAKER_01: Well, it depends.
• 17:07
  SPEAKER_01: It wouldn't require her to toss evidence.
• 17:09
  SPEAKER_01: The question is whether she'd have to do an instruction basically narrowing what
• 17:15
  SPEAKER_01: obstruction of a proceeding is and making it clear that the January 6th stuff
• 17:20
  SPEAKER_01: doesn't fall into that box.
• 17:22
  SPEAKER_01: That doesn't automatically require the exclusion of all that evidence.
• 17:25
  SPEAKER_01: It might come in under other theories in the case.
• 17:28
  SPEAKER_01: But it could sort of narrow the theory on which the government could argue that
• 17:33
  SPEAKER_01: obstruction of a proceeding happened.
• 17:35
  SPEAKER_00: OK.
• 17:36
  SPEAKER_00: And then also there's a ruling from Judge Chutkan on some discovery requests from Donald Trump.
• 17:42
  SPEAKER_00: I guess he basically wants to litigate the question of,
• 17:46
  SPEAKER_00: you know,
• 17:46
  SPEAKER_00: was the 2020 election stolen or at least was it plausible to think that the
• 17:50
  SPEAKER_00: election had been stolen,
• 17:52
  SPEAKER_00: which presumably goes to his intent.
• 17:53
  SPEAKER_00: Right.
• 17:54
  SPEAKER_00: Was it corrupt for him to try to influence the way the counts were done?
• 17:58
  SPEAKER_00: That depends in significant part on his state of mind and his understanding of what
• 18:01
  SPEAKER_00: had happened in the in the election.
• 18:03
  SPEAKER_00: And they want a whole bunch of government documents,
• 18:06
  SPEAKER_00: assessments from the intelligence community that go to the integrity of the 2020
• 18:10
  SPEAKER_00: election in part in order so that they'll have the ability to make that argument.
• 18:14
  SPEAKER_01: Exactly.
• 18:15
  SPEAKER_01: So he's basically looking for very deep discovery from –
• 18:21
  SPEAKER_01: every part of the federal government,
• 18:22
  SPEAKER_01: not just the United States Department of Justice,
• 18:24
  SPEAKER_01: not just the investigating agencies,
• 18:26
  SPEAKER_01: but like the CIA and the Department of Defense and all this.
• 18:29
  SPEAKER_01: And he wants things like the classified version of the,
• 18:34
  SPEAKER_01: you know,
• 18:34
  SPEAKER_01: the intelligence community report on the 2020 election and the 2016 election.
• 18:39
  SPEAKER_01: And he wants all the drafts of the Department of Justice and
• 18:43
  SPEAKER_01: investigation of the 2020 election because he's looking for anything.
• 18:47
  SPEAKER_01: He's looking for any reports or any notices of anything that could support his idea
• 18:53
  SPEAKER_01: that he had a valid reason to think the election was stolen and there was fraud.
• 18:57
  SPEAKER_01: So that's what he's trying to do.
• 18:59
  SPEAKER_01: And the judge takes it very seriously.
• 19:01
  SPEAKER_01: I mean, she spends 50 pages on this, which is not normal for a federal criminal discovery dispute.
• 19:07
  SPEAKER_01: And she talks about all the theories under which he's entitled to discovery.
• 19:11
  SPEAKER_01: And those include like,
• 19:13
  SPEAKER_01: Brady, which is a Supreme Court case saying you're entitled to exculpatory evidence.
• 19:18
  SPEAKER_01: Giglio,
• 19:19
  SPEAKER_01: which says you're entitled to evidence that undermines the credibility of the
• 19:22
  SPEAKER_01: government's witnesses.
• 19:24
  SPEAKER_01: The Jenks Act,
• 19:25
  SPEAKER_01: which is a statute that allows you access to certain written statements by people
• 19:30
  SPEAKER_01: who are going to be witnesses.
• 19:31
  SPEAKER_01: All these things.
• 19:32
  SPEAKER_01: She goes through it all.
• 19:33
  SPEAKER_01: She rejects most of it.
• 19:35
  SPEAKER_01: on the grounds that he hasn't made any showing of how it's material to him,
• 19:39
  SPEAKER_01: how it's relevant to his defense,
• 19:41
  SPEAKER_01: and also because the government isn't obligated to do this deep search in
• 19:47
  SPEAKER_01: departments other than the one doing the prosecution.
• 19:50
  SPEAKER_01: So the CIA isn't necessarily obligated to do its own search.
• 19:55
  SPEAKER_01: But she does basically allow a few areas of inquiry, and those include...
• 20:02
  SPEAKER_01: That stuff that the director of national intelligence reviewed before talking to Trump,
• 20:09
  SPEAKER_01: records about security measures that were conveyed to Trump,
• 20:13
  SPEAKER_01: and evidence,
• 20:16
  SPEAKER_01: amusingly,
• 20:16
  SPEAKER_01: evidence relating to unauthorized retention of classified documents by Mike Pence,
• 20:23
  SPEAKER_01: which I think is a way to attack Mike Pence if Mike Pence testifies.
• 20:27
  SPEAKER_01: You can't trust someone who kept classified documents.
• 20:32
  SPEAKER_01: Right.
• 20:32
  SPEAKER_01: So she does a very thorough workperson-like job going through all these arguments,
• 20:38
  SPEAKER_01: takes them seriously,
• 20:40
  SPEAKER_01: but ultimately dramatically cuts them back.
• 20:43
  SPEAKER_00: And then finally,
• 20:44
  SPEAKER_00: in check-in news,
• 20:45
  SPEAKER_00: there's a request to her from Donald Trump's attorneys to further extend a stay of
• 20:51
  SPEAKER_00: an order that she already issued.
• 20:53
  SPEAKER_00: She basically – and we talked last week.
• 20:54
  SPEAKER_00: And by the way, we made a mistake.
• 20:55
  SPEAKER_00: That Excel brief that we talked about was 165 pages, not 185.
• 21:00
  SPEAKER_00: So it was still very long, not quite as long.
• 21:03
  SPEAKER_00: It was under a limit of 180 pages.
• 21:05
  SPEAKER_00: But so in addition to that brief,
• 21:07
  SPEAKER_00: there's an appendix with a whole bunch of supporting materials that has not been
• 21:10
  SPEAKER_00: released yet.
• 21:12
  SPEAKER_00: And Judge Shetkin has ordered it to be released,
• 21:13
  SPEAKER_00: but she gave Trump's attorneys some time to continue to litigate trying to prevent
• 21:17
  SPEAKER_00: its release.
• 21:18
  SPEAKER_00: And so now they want her to further stay the release so that their own appendix –
• 21:24
  SPEAKER_00: to their own response filing to the government can be released at the same time.
• 21:27
  SPEAKER_00: They have this whole thing about how that's fair so that,
• 21:30
  SPEAKER_00: you know,
• 21:30
  SPEAKER_00: to the extent this might be prejudicial to a jury,
• 21:32
  SPEAKER_00: at least they're getting the prosecution and the defense materials at the same time.
• 21:36
  SPEAKER_00: And so, you know, just a reasonable amount of time to extend that so that can happen.
• 21:39
  SPEAKER_00: They say instead of releasing this in late October, why not release it sometime mid-late November?
• 21:45
  SPEAKER_01: Right.
• 21:45
  SPEAKER_01: And even though they make a sort of gesture towards it being preventing prejudicing
• 21:50
  SPEAKER_01: potential jurors,
• 21:51
  SPEAKER_01: it's really clearly about politics.
• 21:54
  SPEAKER_01: So they lean into talking about how the Harris campaign has put out a lot of
• 22:01
  SPEAKER_01: advertisements talking about the stuff in Jack Smith's brief,
• 22:05
  SPEAKER_01: talking about the wrongdoing Trump is accused of.
• 22:08
  SPEAKER_01: And they say this isn't fair.
• 22:09
  SPEAKER_01: This is being used in the election.
• 22:12
  SPEAKER_01: And so really to make it fair,
• 22:14
  SPEAKER_01: Instead of giving the special counsel and therefore Harris this free shot with all
• 22:19
  SPEAKER_01: this incriminating stuff just before the election,
• 22:22
  SPEAKER_01: you should put us on even grounds or both our appendices are released at the same time.
• 22:27
  SPEAKER_01: Now,
• 22:28
  SPEAKER_01: Judge Shutkin,
• 22:29
  SPEAKER_01: as you remember,
• 22:30
  SPEAKER_01: has been extremely reluctant to change anything she does based on any political theory.
• 22:36
  SPEAKER_01: She's not going to treat this case differently because there's an election,
• 22:38
  SPEAKER_01: because someone's a candidate,
• 22:39
  SPEAKER_01: that type of thing.
• 22:41
  SPEAKER_01: You know, this is a smaller ask by Trump.
• 22:44
  SPEAKER_01: It's not completely unreasonable,
• 22:46
  SPEAKER_01: but I still think she's likely to deny it just because she's very much taking this approach.
• 22:50
  SPEAKER_01: I have my blinders on with respect to the election.
• 22:53
  SPEAKER_01: I don't care.
• 22:53
  SPEAKER_01: I don't think the jury prejudice argument is strong at all.
• 22:58
  SPEAKER_01: I don't think many prospective jurors are going to be looking at appendices and
• 23:02
  SPEAKER_01: and get prejudice because they see them a month before they see the responding appendices.
• 23:06
  SPEAKER_00: Yeah, that was a funny thing in the brief.
• 23:08
  SPEAKER_00: It's like, well, potential jurors who read this appendix may never read the subsequent appendix.
• 23:13
  SPEAKER_00: What juror is reading?
• 23:14
  SPEAKER_00: Do they have podcasts about the case?
• 23:16
  SPEAKER_00: I don't know why they would be reading the appendix.
• 23:18
  SPEAKER_01: I'm going to be reading it, but I'm never going to get picked for a jury.
• 23:21
  SPEAKER_01: And also, there's not going to be a jury for years.
• 23:24
  SPEAKER_01: If there ever is one, if we still have courts.
• 23:27
  SPEAKER_01: So, yeah.
• 23:29
  SPEAKER_01: So, I mean, he's doing his best.
• 23:31
  SPEAKER_01: It's clear that the stuff coming out really bothers him.
• 23:36
  SPEAKER_01: And that they're doing everything they can to try to limit what's coming out.
• 23:40
  SPEAKER_00: Speaking of material that nobody wanted to see,
• 23:43
  SPEAKER_00: Mark Robinson,
• 23:45
  SPEAKER_00: the Republican nominee for governor of North Carolina,
• 23:47
  SPEAKER_00: currently the lieutenant governor of North Carolina.
• 23:49
  SPEAKER_00: It's been quite a while since we've had to do one of these disclaimers.
• 23:52
  SPEAKER_00: I should note,
• 23:52
  SPEAKER_00: by the way,
• 23:52
  SPEAKER_00: that my husband,
• 23:53
  SPEAKER_00: who's a political operative,
• 23:54
  SPEAKER_00: Josh Stein,
• 23:54
  SPEAKER_00: the Democratic nominee,
• 23:56
  SPEAKER_00: happens to be one of his clients.
• 23:57
  SPEAKER_00: But so in any case,
• 23:58
  SPEAKER_00: this had been a very competitive election up until this CNN report a few weeks ago
• 24:04
  SPEAKER_00: about Mark Robinson's colorful Internet presence.
• 24:07
  SPEAKER_00: You know,
• 24:07
  SPEAKER_00: before he was lieutenant governor,
• 24:09
  SPEAKER_00: he was someone who posted a lot on social media websites and his Facebook posting
• 24:14
  SPEAKER_00: was well known.
• 24:15
  SPEAKER_00: But CNN figured out by a combination of repeatedly used usernames and email
• 24:21
  SPEAKER_00: addresses associated with this username,
• 24:23
  SPEAKER_00: mini soldier,
• 24:24
  SPEAKER_00: across a wide variety of platforms and biographical information that this mini
• 24:29
  SPEAKER_00: soldier poster shared over the years on a forum called Nude Africa.
• 24:34
  SPEAKER_00: which was a message board forum for discussing porn principally,
• 24:38
  SPEAKER_00: although he also found time to talk about politics and about his hobbies of
• 24:43
  SPEAKER_00: building model helicopters and various other things.
• 24:47
  SPEAKER_00: So there's this long CNN report on various things that Mark Robinson posted,
• 24:52
  SPEAKER_00: including describing himself as a black Nazi.
• 24:55
  SPEAKER_00: And then also some things that were too gross for CNN to report.
• 24:58
  SPEAKER_00: I would discourage Googling exactly what sex-related content Robinson had posted.
• 25:03
  SPEAKER_00: But so in any case, Robinson's story ever since the CNN report came out is basically this is fake news.
• 25:10
  SPEAKER_00: I'm not many soldier.
• 25:11
  SPEAKER_00: I didn't write these posts.
• 25:12
  SPEAKER_00: And furthermore, I'm going to sue CNN for having reported falsely that I'm behind all of these posts.
• 25:19
  SPEAKER_00: And for a few weeks, that lawsuit didn't come.
• 25:21
  SPEAKER_00: And so we didn't we try not to cover lawsuit threats on this show.
• 25:24
  SPEAKER_00: We figure, you know, once you file your lawsuit, then we can talk about it.
• 25:26
  SPEAKER_00: So anyway, he has now sued CNN and he says CNN defamed him with this report that he says was false.
• 25:34
  SPEAKER_00: The interesting thing here legally is Robinson's a public figure.
• 25:38
  SPEAKER_00: So presumably you'd have to show not just that the CNN report was false,
• 25:41
  SPEAKER_00: which seems like a tall order unto itself because it seems to have been true.
• 25:46
  SPEAKER_00: But he would have to show that CNN knew it was false or that they acted with
• 25:49
  SPEAKER_00: reckless disregard for the truth when they published it.
• 25:53
  SPEAKER_00: And that seems like that would be very difficult for Mark Robinson.
• 25:56
  SPEAKER_01: It would be very difficult because,
• 25:58
  SPEAKER_01: remember,
• 25:58
  SPEAKER_01: reckless disregard for the truth just doesn't mean very,
• 26:02
  SPEAKER_01: very sloppy.
• 26:03
  SPEAKER_01: It means that you had to deliberately look aside from evidence that it was not true and
• 26:11
  SPEAKER_01: Um, like someone telling you, no, you have that wrong.
• 26:14
  SPEAKER_01: You have to ignore that and look aside.
• 26:16
  SPEAKER_01: And,
• 26:16
  SPEAKER_01: you know,
• 26:17
  SPEAKER_01: even his own argument in the complaint,
• 26:20
  SPEAKER_01: his own description of why CNN should have known,
• 26:23
  SPEAKER_01: I think undermines his own argument because his,
• 26:25
  SPEAKER_01: his arguments are so like CNN had every reason to doubt the veracity of the data on
• 26:30
  SPEAKER_01: which it relied.
• 26:32
  SPEAKER_01: It knew that supposed archives from a suspicious website like Nude Africa were unreliable.
• 26:39
  SPEAKER_01: It knew that,
• 26:39
  SPEAKER_01: you know,
• 26:40
  SPEAKER_01: that Mark Robinson's personal data had been compromised at some point and could
• 26:43
  SPEAKER_01: have been used and knew that he had been targeted by someone else.
• 26:48
  SPEAKER_01: And all this is not recklessness.
• 26:50
  SPEAKER_01: All this is, you know, negligence at most.
• 26:53
  SPEAKER_01: It's just disagreeing with CNN's very detailed analysis of why they think this was Mark Robinson.
• 26:59
  SPEAKER_01: This is almost a confession of
• 27:01
  SPEAKER_01: On the face of the complaint that they can't plead recklessness, I think it's very vulnerable to attack.
• 27:07
  SPEAKER_01: But that's not even the worst part of this complaint, which is kind of a travesty.
• 27:12
  SPEAKER_01: And many people have been dunking hilariously on it.
• 27:16
  SPEAKER_01: because Mark Robinson,
• 27:18
  SPEAKER_01: or Black Nazi,
• 27:19
  SPEAKER_01: and I was surprised to find that Black Nazi was not a 1970s-era Marvel character,
• 27:24
  SPEAKER_01: but actually something this guy called himself on.
• 27:29
  SPEAKER_00: Well, there was a Black Hitler SNL character.
• 27:32
  SPEAKER_01: I think there was, yes.
• 27:35
  SPEAKER_01: Life imitates art.
• 27:36
  SPEAKER_01: Right, so he makes this complaint about really two people.
• 27:41
  SPEAKER_01: One is CNN, and the other is a guy
• 27:43
  SPEAKER_01: who used to run the porn store, a guy named Lewis Love Money.
• 27:51
  SPEAKER_01: of the Wake County Love Monies, I believe.
• 27:54
  SPEAKER_01: And so apparently the story is, as Robinson tells it, he worked at the Papa John's.
• 28:01
  SPEAKER_01: Louis Love Money worked next door in the porn store.
• 28:04
  SPEAKER_01: And occasionally they would hang out and he would give Mr. Love Money free pizza.
• 28:09
  SPEAKER_01: And sometimes they'd hang out in the porn store,
• 28:12
  SPEAKER_01: but not because of porn,
• 28:14
  SPEAKER_01: Josh,
• 28:14
  SPEAKER_01: because of brotherhood,
• 28:15
  SPEAKER_01: of companionship.
• 28:18
  SPEAKER_01: Anyway,
• 28:19
  SPEAKER_01: recently Mr.
• 28:19
  SPEAKER_01: Love Money put out a video on YouTube about Mark Robinson and had someone,
• 28:26
  SPEAKER_01: you know,
• 28:26
  SPEAKER_01: wearing a Mark Robinson mask,
• 28:28
  SPEAKER_01: spending a lot of time in a porn store.
• 28:30
  SPEAKER_00: We should note it's a music video that he put out on YouTube.
• 28:34
  SPEAKER_00: He made these accusations against Mark Robinson about going to the porn store.
• 28:37
  SPEAKER_00: He made the accusations in song.
• 28:39
  SPEAKER_01: Right.
• 28:40
  SPEAKER_01: Anyway, so the lawsuit is against
• 28:43
  SPEAKER_01: Mr. Love Money, and by the way, CNN.
• 28:45
  SPEAKER_01: So it's kind of like he's vindicating this grudge against this guy who's popped up
• 28:50
  SPEAKER_01: out of his past to argue that he used to hang out in a porn store all the time at
• 28:56
  SPEAKER_01: the same time going after CNN.
• 28:58
  SPEAKER_01: And it's kind of comical in his sort of like explanations for why he was actually
• 29:03
  SPEAKER_01: hanging out in a porn store.
• 29:05
  SPEAKER_01: To me, kind of undermine the vibe of the whole complaint.
• 29:09
  SPEAKER_01: It's like, you know, no, no, no.
• 29:10
  SPEAKER_01: I'm not a guy.
• 29:11
  SPEAKER_01: I'm not some sort of ridiculous porn addict.
• 29:14
  SPEAKER_01: I was only hanging out in the porn store because it's next to the pizza place.
• 29:18
  SPEAKER_01: So anyway, it's not one of the more compelling defamation claims I've ever seen.
• 29:25
  SPEAKER_00: And so,
• 29:25
  SPEAKER_00: I mean,
• 29:26
  SPEAKER_00: one of the things we often talk about with these defamation suits that are brought
• 29:30
  SPEAKER_00: in significant part for messaging and,
• 29:31
  SPEAKER_00: you know,
• 29:31
  SPEAKER_00: Robinson,
• 29:32
  SPEAKER_00: you know,
• 29:32
  SPEAKER_00: as he seeks to salvage his gubernatorial campaign,
• 29:35
  SPEAKER_00: he has to send this message like,
• 29:37
  SPEAKER_00: I'm not many soldier.
• 29:38
  SPEAKER_00: These stories are fake.
• 29:39
  SPEAKER_00: One way to get that PR message out is to sue.
• 29:42
  SPEAKER_00: One thing we often talk about is that,
• 29:43
  SPEAKER_00: you know,
• 29:44
  SPEAKER_00: even a lawsuit that is ultimately going to fail still imposes a lot of legal
• 29:48
  SPEAKER_00: expense on the other side and is sort of punishment.
• 29:51
  SPEAKER_00: And that's especially true when it takes quite a while to dispose of the lawsuit.
• 29:55
  SPEAKER_00: And so if they had to litigate this question of is Mark Robinson mini soldier, it's a factual question.
• 30:01
  SPEAKER_00: And,
• 30:01
  SPEAKER_00: you know,
• 30:01
  SPEAKER_00: I think CNN has a,
• 30:02
  SPEAKER_00: you know,
• 30:02
  SPEAKER_00: a strong case on the factual question,
• 30:04
  SPEAKER_00: but it would,
• 30:05
  SPEAKER_00: you know,
• 30:05
  SPEAKER_00: that's something that would a court would have to decide over a lot of time and expense.
• 30:09
  SPEAKER_00: But am I right to assume that this is something that could go on a motion to
• 30:13
  SPEAKER_00: dismiss just because they haven't argued actual malice,
• 30:16
  SPEAKER_00: even if all of Mark Robinson's claims in the complaint were true,
• 30:19
  SPEAKER_00: that he still doesn't have a defamation claim,
• 30:21
  SPEAKER_00: at least as regards to CNN?
• 30:23
  SPEAKER_01: Yeah, I think CNN has a strong argument to get out on a motion to dismiss.
• 30:29
  SPEAKER_01: I'm not really familiar with.
• 30:31
  SPEAKER_01: Wake County or what the courts there are likely to be like.
• 30:34
  SPEAKER_01: But I think this is a very credible dismissal based on the face of the complaint
• 30:38
  SPEAKER_01: that they the things they allege on their face can't be recklessness,
• 30:42
  SPEAKER_01: which is required for a public figure.
• 30:44
  SPEAKER_01: It probably leaves Mr. Lewis Love Money and his, you know.
• 30:50
  SPEAKER_01: scores of dollars in YouTube revenue, but I don't think it leaves in CNN as the deep pocket.
• 30:57
  SPEAKER_01: Notably, North Carolina does not have an anti-SLAPP statute.
• 31:03
  SPEAKER_01: So you cannot in North Carolina recover your fees if you win a defamation claim,
• 31:10
  SPEAKER_01: unless I believe the plaintiff was an escaped slave.
• 31:15
  SPEAKER_00: OK.
• 31:18
  SPEAKER_00: Anyway, moving on.
• 31:20
  SPEAKER_00: Rudy Giuliani,
• 31:21
  SPEAKER_00: who filed bankruptcy and got kicked out of bankruptcy court for being a really
• 31:26
  SPEAKER_00: uncooperative debtor,
• 31:29
  SPEAKER_00: not,
• 31:29
  SPEAKER_00: you know,
• 31:29
  SPEAKER_00: not participating in the process in the way that he was supposed to.
• 31:32
  SPEAKER_00: has this judgment against him awarded to Ruby Freeman and Shea Moss,
• 31:38
  SPEAKER_00: those two election workers in Georgia about whom Giuliani spun this conspiracy
• 31:43
  SPEAKER_00: theory claiming that they had acted to steal the 2020 election from Donald Trump.
• 31:47
  SPEAKER_00: They received this very large judgment against Rudy Giuliani,
• 31:50
  SPEAKER_00: $148 million even after it was reduced a little bit.
• 31:54
  SPEAKER_00: that they are now seeking to collect because Giuliani is not in bankruptcy.
• 31:58
  SPEAKER_00: They can go and try to seize and liquidate his assets.
• 32:01
  SPEAKER_00: And so now they're in a dispute in court about what they can do with specific
• 32:06
  SPEAKER_00: assets in the Rudy Giuliani investment portfolio.
• 32:10
  SPEAKER_00: And Giuliani has made a whole bunch of arguments about different things about why
• 32:12
  SPEAKER_00: this shouldn't be liquidated and that shouldn't be liquidated,
• 32:16
  SPEAKER_00: including – he apparently owns a Mercedes from the 1980s and he says this is a
• 32:20
  SPEAKER_00: collectible antique.
• 32:21
  SPEAKER_00: Lauren Bacall used to own it.
• 32:23
  SPEAKER_00: And therefore, the court should force them to hold on to it until all of his appeals are done.
• 32:27
  SPEAKER_00: Because if,
• 32:28
  SPEAKER_00: you know,
• 32:28
  SPEAKER_00: if he ultimately won on appeal,
• 32:30
  SPEAKER_00: you know,
• 32:31
  SPEAKER_00: you can give money back,
• 32:31
  SPEAKER_00: but you can't give this irreplaceable Lauren Bacall Mercedes back.
• 32:36
  SPEAKER_00: And so he has a number of these arguments basically about,
• 32:39
  SPEAKER_00: you know,
• 32:39
  SPEAKER_00: why he should be able to frustrate the collection efforts in X and Y and Z direction.
• 32:45
  SPEAKER_01: Yeah, he's got that.
• 32:47
  SPEAKER_01: You know,
• 32:47
  SPEAKER_01: he's saying that some watches he got from foreign leaders after 9-11 have
• 32:53
  SPEAKER_01: historical and public interest and therefore shouldn't be liquidated.
• 32:57
  SPEAKER_01: He's saying Andrew Giuliani, his son, is coming in and saying, well, actually, those
• 33:03
  SPEAKER_01: World Series rings my dad gifted to me,
• 33:07
  SPEAKER_01: and they're mine and they're not his,
• 33:09
  SPEAKER_01: and so they shouldn't be liquidated.
• 33:11
  SPEAKER_01: I don't know.
• 33:11
  SPEAKER_01: I find that plausible that Rudy at some point during trying to get Andrew to stop
• 33:15
  SPEAKER_01: interfering with a press conference handed him some rings to play with or something,
• 33:18
  SPEAKER_01: and now they're his.
• 33:21
  SPEAKER_01: And then, you know, there's the...
• 33:24
  SPEAKER_01: dispute over his condo in Florida.
• 33:26
  SPEAKER_01: So one of the things that goes on in these situations,
• 33:29
  SPEAKER_01: Josh,
• 33:29
  SPEAKER_01: is that usually people have a homestead right,
• 33:34
  SPEAKER_01: and that means that there is some amount of value in your residence that's gonna be
• 33:40
  SPEAKER_01: protected from bankruptcy or from collections efforts.
• 33:45
  SPEAKER_01: And the question is,
• 33:46
  SPEAKER_01: you know,
• 33:46
  SPEAKER_01: where you live,
• 33:47
  SPEAKER_01: what is your homestead,
• 33:48
  SPEAKER_01: and how much value,
• 33:50
  SPEAKER_01: how much equity is protected.
• 33:52
  SPEAKER_01: Florida is well known for having a very aggressive protection for homestead and for
• 33:57
  SPEAKER_01: other assets,
• 33:58
  SPEAKER_01: which is why O.J.
• 33:59
  SPEAKER_01: Simpson went there after he lost the civil case many years ago.
• 34:06
  SPEAKER_01: So Rudy is now kind of suggesting that his Florida condo is his homestead so that
• 34:11
  SPEAKER_01: he can keep that and it can't be liquidated.
• 34:13
  SPEAKER_01: He is trying to sell his New York condo.
• 34:17
  SPEAKER_01: apartment.
• 34:18
  SPEAKER_01: But they are going hard.
• 34:20
  SPEAKER_01: I think my personal favorite is the part where Rudy Giuliani,
• 34:24
  SPEAKER_01: you might remember,
• 34:25
  SPEAKER_01: made a $2 million claim against Trump saying he was owed that in attorney fees.
• 34:30
  SPEAKER_01: Well, he did a lot of very important legal work.
• 34:31
  SPEAKER_01: He definitely did.
• 34:32
  SPEAKER_00: Some of it at Four Seasons Total Landscape.
• 34:34
  SPEAKER_01: Absolutely.
• 34:35
  SPEAKER_01: And many of it under difficult conditions.
• 34:38
  SPEAKER_01: And
• 34:40
  SPEAKER_01: But he has this claim.
• 34:41
  SPEAKER_01: And so they say that's an asset.
• 34:43
  SPEAKER_01: They want to take over the claim and go after Trump for that two million dollars.
• 34:47
  SPEAKER_01: And Giuliani is saying, no, no, no, no.
• 34:48
  SPEAKER_01: That would be embarrassing to the,
• 34:50
  SPEAKER_01: you know,
• 34:51
  SPEAKER_01: the presidential candidate,
• 34:52
  SPEAKER_01: which is not really a thing or a reason not to do it.
• 34:55
  SPEAKER_00: But why should this court care at all about that for, you know, where Trump is not even a party?
• 35:00
  SPEAKER_00: Yeah, it totally shouldn't.
• 35:02
  SPEAKER_01: But I mean.
• 35:03
  SPEAKER_01: realistically, it's functionally impossible to collect that unless Giuliani is cooperating.
• 35:09
  SPEAKER_01: That's the thing about that type of claim.
• 35:11
  SPEAKER_01: It depends entirely on his own testimony and cooperation to collect on the claim.
• 35:16
  SPEAKER_01: So you're not really going to win it unless he is actively helping you.
• 35:20
  SPEAKER_01: But it's still pretty funny that they're trying to do it.
• 35:22
  SPEAKER_01: They are
• 35:23
  SPEAKER_01: putting a ton of pressure on him and he is really down to it.
• 35:27
  SPEAKER_00: They're also arguing about, you know, as you note, it's advantageous to be a Florida resident.
• 35:32
  SPEAKER_00: And they're sort of arguing that they know where he's been a bunch of times and he
• 35:35
  SPEAKER_00: doesn't appear to actually live in Florida.
• 35:37
  SPEAKER_00: I'm not going to quiz you on Florida homestead law,
• 35:39
  SPEAKER_00: but Giuliani is hardly the only New Yorker who has a place in Florida and does not
• 35:43
  SPEAKER_00: wish to go to Florida during the summer.
• 35:45
  SPEAKER_00: But so I don't know,
• 35:46
  SPEAKER_00: they at least think they have a live dispute about whether he's really eligible for
• 35:49
  SPEAKER_00: that homestead exemption.
• 35:50
  SPEAKER_01: Yeah.
• 35:50
  SPEAKER_01: I mean,
• 35:50
  SPEAKER_01: my understanding is only that Florida law is very favorable to the person trying to
• 35:55
  SPEAKER_01: preserve the assets in Florida.
• 35:58
  SPEAKER_01: So that's probably strategically why they're doing that rather than New York.
• 36:03
  SPEAKER_01: Right.
• 36:04
  SPEAKER_01: Let's talk about Fonny Willis's office.
• 36:06
  SPEAKER_01: The YSL case continues to produce comedy.
• 36:10
  SPEAKER_00: And the latest episode of this,
• 36:12
  SPEAKER_00: you have the new judge,
• 36:13
  SPEAKER_00: Paige Reese Whitaker,
• 36:15
  SPEAKER_00: who replaced Ural Glanville,
• 36:17
  SPEAKER_00: who was removed from the case.
• 36:18
  SPEAKER_00: And you have the new judge,
• 36:19
  SPEAKER_00: Paige Reese Whitaker,
• 36:21
  SPEAKER_00: who replaced Ural Glanville,
• 36:22
  SPEAKER_00: who was removed from the case.
• 36:25
  SPEAKER_00: And she has been trying to get this case back on track,
• 36:28
  SPEAKER_00: but there's all sorts of trouble in one direction or another.
• 36:31
  SPEAKER_00: And most recently,
• 36:32
  SPEAKER_00: I guess some random person in Germany sent an email to Adrian Love,
• 36:38
  SPEAKER_00: who is the line prosecutor who's leading this case under Fannie Willis.
• 36:44
  SPEAKER_00: Basically saying, you suck, you're bad at this, and you should lose.
• 36:49
  SPEAKER_00: And copied a whole bunch of other people in the prosecutorial office and also
• 36:53
  SPEAKER_00: copied Judge Whitaker on this email.
• 36:56
  SPEAKER_00: And so, of course, Fannie Willis feels compelled to respond to this random person in Germany.
• 37:03
  SPEAKER_00: saying,
• 37:04
  SPEAKER_00: not only does Adrian Love not suck,
• 37:06
  SPEAKER_00: but she's one of the best attorneys ever,
• 37:08
  SPEAKER_00: and she's so great,
• 37:09
  SPEAKER_00: and blah,
• 37:09
  SPEAKER_00: blah,
• 37:10
  SPEAKER_00: blah,
• 37:10
  SPEAKER_00: blah,
• 37:10
  SPEAKER_00: blah,
• 37:11
  SPEAKER_00: and hits reply all in a total boomer move.
• 37:15
  SPEAKER_00: And that means that the email goes to all these other people in the prosecutor's office,
• 37:19
  SPEAKER_00: and it goes to Judge Whitaker,
• 37:20
  SPEAKER_00: but it does not go to the defense attorneys.
• 37:23
  SPEAKER_00: And so,
• 37:24
  SPEAKER_00: Ken,
• 37:25
  SPEAKER_00: my understanding is that's ex-party,
• 37:27
  SPEAKER_00: and you're not allowed to have communications like that,
• 37:29
  SPEAKER_00: even if they're really stupid,
• 37:30
  SPEAKER_00: right?
• 37:31
  SPEAKER_01: Right.
• 37:31
  SPEAKER_01: So the parties are not supposed to have secret communications with the judge that
• 37:37
  SPEAKER_01: the other side doesn't know about.
• 37:38
  SPEAKER_01: And remember,
• 37:39
  SPEAKER_01: this has already been a big thing in the case because the prior judge and the
• 37:44
  SPEAKER_01: prosecutors got together in an ex parte meeting to to put the twist on a witness
• 37:51
  SPEAKER_01: who wasn't cooperating and saying things they wanted him to say.
• 37:54
  SPEAKER_01: So this is already a controversy here.
• 37:57
  SPEAKER_01: Fannie Willis is very defensively
• 38:00
  SPEAKER_01: responding, you know, she's feeding a troll.
• 38:02
  SPEAKER_01: She's responding to some rando in Germany.
• 38:04
  SPEAKER_01: She's talking about how, in fact, my friend talked to an Uber driver who said that we're awesome.
• 38:10
  SPEAKER_01: And I'm not kidding.
• 38:12
  SPEAKER_01: I am so not kidding.
• 38:13
  SPEAKER_01: It is talking about what a Uber driver in Memphis said about how good the
• 38:17
  SPEAKER_01: prosecution was and they should have Rico there.
• 38:20
  SPEAKER_01: And she sent it to everyone, including the judge.
• 38:22
  SPEAKER_01: And the judge is,
• 38:24
  SPEAKER_01: to the judge's credit,
• 38:25
  SPEAKER_01: professional and,
• 38:26
  SPEAKER_01: you know,
• 38:27
  SPEAKER_01: a little irritated,
• 38:27
  SPEAKER_01: a little,
• 38:28
  SPEAKER_01: what is this bullshit now?
• 38:29
  SPEAKER_01: What fresh hell is this?
• 38:31
  SPEAKER_01: Let's not be sending these things.
• 38:33
  SPEAKER_01: So the judge reveals it to defense as she should.
• 38:36
  SPEAKER_01: The defense does everything they can to make it a huge outrage.
• 38:40
  SPEAKER_01: It's pretty minor, but it's just Bush League stuff.
• 38:43
  SPEAKER_01: It's petty.
• 38:44
  SPEAKER_01: It's embarrassing.
• 38:46
  SPEAKER_01: It's unprofessional.
• 38:47
  SPEAKER_01: It's just
• 38:48
  SPEAKER_01: kind of more of the same from this office.
• 38:50
  SPEAKER_01: You know,
• 38:50
  SPEAKER_01: we talked last week about that petulant motion they filed saying,
• 38:53
  SPEAKER_01: you know,
• 38:54
  SPEAKER_01: well,
• 38:54
  SPEAKER_01: we move for the judge to consider all relevant evidence,
• 38:57
  SPEAKER_01: whatever the defense says.
• 38:59
  SPEAKER_01: It is not grown-up law.
• 39:02
  SPEAKER_00: Funny, Willis, I mean, I guess she was just trying to be a good boss, right?
• 39:04
  SPEAKER_00: She's sticking up for her employee who's being attacked.
• 39:07
  SPEAKER_00: She says,
• 39:07
  SPEAKER_00: folks who have never tried cases will always have nasty things to say,
• 39:10
  SPEAKER_00: but while they criticize from the sidelines...
• 39:13
  SPEAKER_00: I guess the sidelines being, you know, like Dortmund or whatever.
• 39:16
  SPEAKER_00: They fear the arena.
• 39:17
  SPEAKER_00: She really showed that emailer.
• 39:20
  SPEAKER_01: Yeah.
• 39:20
  SPEAKER_01: I mean,
• 39:20
  SPEAKER_01: and also if you're talking about,
• 39:22
  SPEAKER_01: you know,
• 39:23
  SPEAKER_01: not listening to people on the sidelines,
• 39:25
  SPEAKER_01: I think you should have a couple of paragraphs.
• 39:28
  SPEAKER_01: Between that and the part where you quote an Uber driver from Memphis,
• 39:32
  SPEAKER_01: because otherwise it's sort of thematically inconsistent.
• 39:35
  SPEAKER_00: And then also House Republicans have had a field day with Fannie Willis's office because,
• 39:40
  SPEAKER_00: of course,
• 39:41
  SPEAKER_00: the implosion of the Trump-related prosecution over the fact that she picked a
• 39:45
  SPEAKER_00: special counsel who she had a sexual relationship with.
• 39:49
  SPEAKER_00: And that's,
• 39:49
  SPEAKER_00: you know,
• 39:50
  SPEAKER_00: stuck for years in appeals in Georgia about whether she and her office should have
• 39:55
  SPEAKER_00: been disqualified from the case instead of Nathan Wade himself simply being removed
• 39:58
  SPEAKER_00: from the case.
• 39:59
  SPEAKER_00: So they've pulled Nathan Wade before Congress to testify about this.
• 40:04
  SPEAKER_00: And there's been some correspondence.
• 40:05
  SPEAKER_00: Jim Jordan's very angry.
• 40:07
  SPEAKER_00: The Republican chairman of the House Judiciary Committee.
• 40:09
  SPEAKER_00: And so I guess now Fannie Willis,
• 40:12
  SPEAKER_00: she has a lawyer,
• 40:13
  SPEAKER_00: Roy Barnes,
• 40:14
  SPEAKER_00: who used to be the Democratic governor of Georgia.
• 40:17
  SPEAKER_00: And he basically sent Jim Jordan a letter saying,
• 40:20
  SPEAKER_00: you seem to have an anger management problem,
• 40:22
  SPEAKER_00: and maybe you should calm down a little bit before we talk.
• 40:25
  SPEAKER_01: Yeah,
• 40:25
  SPEAKER_01: you know,
• 40:26
  SPEAKER_01: there's this decorum where even though the congressional activities are obviously
• 40:31
  SPEAKER_01: purely political bullshit that are entitled to no respect,
• 40:34
  SPEAKER_01: you're supposed to pretend they're entitled to respect in your correspondence.
• 40:38
  SPEAKER_01: And
• 40:39
  SPEAKER_01: Former Governor Roy Barnes is having none of that bullshit.
• 40:43
  SPEAKER_01: So he writes back to Jim Jordan,
• 40:45
  SPEAKER_01: who he is upset about all this,
• 40:47
  SPEAKER_01: so upset he almost put on his jacket once.
• 40:50
  SPEAKER_01: He is just destroying him in this letter.
• 40:54
  SPEAKER_01: He's saying, you know, you've got an anger management problem.
• 40:57
  SPEAKER_01: He's saying that you're talking so much about how people have to respond to subpoenas,
• 41:02
  SPEAKER_01: but you didn't respond to the January 6th committee subpoena.
• 41:05
  SPEAKER_01: Isn't that hypocritical?
• 41:06
  SPEAKER_01: And he quotes, you know,
• 41:08
  SPEAKER_01: Matthew 7.3, why do you see the speck that's in your brother's eye, not the log that's in your own eye?
• 41:13
  SPEAKER_01: And he says he'll talk to him after he deals with his anger management problem.
• 41:18
  SPEAKER_01: And by the way,
• 41:19
  SPEAKER_01: I know you're very busy with this,
• 41:20
  SPEAKER_01: but,
• 41:20
  SPEAKER_01: you know,
• 41:20
  SPEAKER_01: kids are getting killed with machine guns.
• 41:22
  SPEAKER_01: So he's basically jumping up and down on Jim Jordan, which is entirely justified.
• 41:27
  SPEAKER_01: And he's having fun with it.
• 41:29
  SPEAKER_00: But so, I mean, you know, he's he's an attorney.
• 41:30
  SPEAKER_00: He's Fannie Willis's attorney.
• 41:32
  SPEAKER_00: But I mean,
• 41:32
  SPEAKER_00: this letter is basically a PR document,
• 41:34
  SPEAKER_00: which I guess sort of makes sense because the proceedings are PR events themselves
• 41:37
  SPEAKER_00: before Congress.
• 41:38
  SPEAKER_00: Right.
• 41:39
  SPEAKER_00: It's an argument about why the proceedings are stupid rather than really being a legal argument.
• 41:42
  SPEAKER_01: Right.
• 41:42
  SPEAKER_01: It's refusing to abide by the pretense that it's a serious committee hearing done
• 41:47
  SPEAKER_01: in good faith over a legitimate topic.
• 41:50
  SPEAKER_01: It's basically calling it out openly as sheer bullshit.
• 41:54
  SPEAKER_00: Well, I think we can leave it there for this week.
• 41:56
  SPEAKER_00: Always some good entertainment coming out of Atlanta for this show.
• 41:59
  SPEAKER_00: Ken White, thank you for speaking with me as always.
• 42:01
  SPEAKER_00: Josh Barrow, thank you.
• 42:04
  SPEAKER_00: Serious Trouble is created and produced by Very Serious Media.
• 42:06
  SPEAKER_00: That's me and Sarah Faye.
• 42:07
  SPEAKER_00: Jennifer Swadik mixed this episode.
• 42:08
  SPEAKER_00: Our theme music is by Joshua Mosier.
• 42:10
  SPEAKER_00: Thanks for listening, and we'll be back with more soon.
• 42:12
  SPEAKER_00: See you next time.