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Superseding Indictment · Serious Trouble

0:00
SPEAKER_00: Hey, this is Josh Barrow back with another episode of Serious Trouble.
0:03
SPEAKER_00: For free subscribers this week,
0:04
SPEAKER_00: we have a conversation about Ryan Routh,
0:07
SPEAKER_00: the would-be assassin who laid in wait at one of Donald Trump's golf courses in Florida.
0:12
SPEAKER_00: He's been indicted again.
0:13
SPEAKER_00: This time the feds have brought
0:15
SPEAKER_00: More serious charges, charges of trying to assassinate a major presidential candidate.
0:20
SPEAKER_00: We also talked about Caroline Ellison getting just two years in prison.
0:23
SPEAKER_00: It's a far cry from the 25 years that Sam Bankman Freed got.
0:28
SPEAKER_00: She was cooperative,
0:29
SPEAKER_00: but that's still very light compared to the guidelines and what you might otherwise
0:33
SPEAKER_00: expect a defendant to get in a case like this.
0:35
SPEAKER_00: Ken and I talk about why that might have happened.
0:38
SPEAKER_00: That's all for everybody.
0:40
SPEAKER_00: Paid subscribers also get a discussion of issues before Donald Trump.
0:44
SPEAKER_00: First,
0:45
SPEAKER_00: in that case in Washington,
0:46
SPEAKER_00: D.C.,
0:47
SPEAKER_00: before Judge Tanya Chukkin,
0:48
SPEAKER_00: there will be a long government brief,
0:52
SPEAKER_00: up to 180 pages,
0:53
SPEAKER_00: laying out evidence that they believe they can still bring against Trump in spite
0:57
SPEAKER_00: of the Supreme Court decision on presidential immunity.
1:01
SPEAKER_00: That means there will be an airing of that information ahead of the presidential election.
1:04
SPEAKER_00: And Ken and I also talk about an effort by a private group to get prosecutors in
1:09
SPEAKER_00: Ohio to bring criminal charges against Donald Trump and J.D.
1:13
SPEAKER_00: Vance related to comments they've made about Haitians in Springfield, Ohio.
1:17
SPEAKER_00: They are not in the realm yet where Trump and Vance have made statements that would
1:22
SPEAKER_00: be plausibly criminal.
1:23
SPEAKER_00: But Ken and I talk about how different the circumstances would have to be for that
1:28
SPEAKER_00: to become something that a prosecutor might actually take a look at.
1:32
SPEAKER_00: Plus,
1:33
SPEAKER_00: we talk about Matt Gaetz,
1:35
SPEAKER_00: who is back in the news over,
1:36
SPEAKER_00: you know,
1:37
SPEAKER_00: drugs and teenagers in a way that had to do with a friend of his doing some
1:41
SPEAKER_00: litigation strategy stuff that blew up in their face.
1:44
SPEAKER_00: And Brett Favre sued Shannon
1:47
SPEAKER_00: Sharpe for statements that Sharpe made about Favre's involvement in a political
1:51
SPEAKER_00: scandal in the state of Mississippi.
1:53
SPEAKER_00: So if you want to hear about those matters to do with Ohio and Trump and the
1:58
SPEAKER_00: January 6th case against him and to do with Matt Gaetz and Brett Favre,
2:01
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2:33
SPEAKER_00: Hi, it's Ken White.
2:35
SPEAKER_00: And it's Josh Barrow.
2:36
SPEAKER_00: And this is Serious Trouble.
2:38
SPEAKER_00: Ken, Ryan Routh has been indicted again by the feds.
2:42
SPEAKER_00: That's the guy who was trying to kill Donald Trump near one of his golf courses in Florida.
2:47
SPEAKER_00: And actually, we need to start by noting that we made a mistake last week.
2:50
SPEAKER_00: We said that there's no federal statute that makes it a crime to kill or try to
2:55
SPEAKER_00: kill a presidential candidate.
2:57
SPEAKER_00: Apparently, that's not true.
2:58
SPEAKER_00: There is one.
2:59
SPEAKER_00: And you have like a group chat with ex-AUSAs who led you astray on this issue?
3:03
SPEAKER_01: Well, I mean, I am independently responsible for my own mistakes.
3:07
SPEAKER_01: But yes, this is something that was a surprise to a number of people.
3:11
SPEAKER_01: There are statutes about killing the president or attempting to kill the president.
3:15
SPEAKER_01: And this provision about making it a federal crime to attempt to assassinate a
3:20
SPEAKER_01: major candidate for president as defined by
3:23
SPEAKER_01: by someone within Homeland Security,
3:25
SPEAKER_01: is buried in the middle of a statute about trying to kill people in Congress or the
3:29
SPEAKER_01: Supreme Court.
3:30
SPEAKER_01: So that's how I managed to miss it.
3:32
SPEAKER_01: It's a 1986 amendment to that law.
3:36
SPEAKER_01: And so some ex-AUSAs and I are flogging ourselves for having missed that.
3:43
SPEAKER_01: But yes, so they originally, remember, they only filed a complaint against Routh.
3:47
SPEAKER_01: which is what you do when you're being reactive to something like this and doing it quickly.
3:52
SPEAKER_01: Back then,
3:52
SPEAKER_01: they charged him with felon in possession of a firearm and possession of a gun with
3:57
SPEAKER_01: an obliterated serial number.
3:59
SPEAKER_01: They have now charged him in the indictment with 18 U.S.C.
4:04
SPEAKER_01: 351 attempt to assassinate a major candidate for president,
4:07
SPEAKER_01: the crime of using a gun in a crime of violence,
4:11
SPEAKER_01: that being that attempt to assassinate,
4:13
SPEAKER_01: that's 924C,
4:15
SPEAKER_01: and that,
4:15
SPEAKER_01: by the way,
4:16
SPEAKER_01: tacks on a five-year mandatory minimum sentence on top of whatever he gets for the attempt,
4:21
SPEAKER_01: assaulting a Secret Service agent,
4:24
SPEAKER_01: and then the felon in possession and serial number charges.
4:27
SPEAKER_00: There's been some criticism from Republicans of federal prosecutors here.
4:31
SPEAKER_00: Now, I think some of it is sort of just generic, like the FBI is out to get Donald Trump.
4:35
SPEAKER_00: How could they possibly be trusted to prosecute this case?
4:38
SPEAKER_00: I think some people were also under the same misunderstanding that we were.
4:42
SPEAKER_00: about whether the federal government could even try attempted murder here.
4:45
SPEAKER_00: So I think there was some thought among people that Florida actually had access to
4:49
SPEAKER_00: the more serious charge than the federal government did.
4:52
SPEAKER_00: But also,
4:52
SPEAKER_00: I think there was some misunderstanding,
4:54
SPEAKER_00: maybe intentional misunderstanding of when the government comes out quickly.
4:58
SPEAKER_00: With a complaint like the one that they filed against Routh for being a felon in
5:03
SPEAKER_00: possession and for having a gun with an obliterated serial number,
5:06
SPEAKER_00: just because the first charges come out,
5:08
SPEAKER_00: that doesn't mean they're going to be the most serious charges.
5:10
SPEAKER_00: They do that because they're the simplest ones.
5:11
SPEAKER_00: They can get the charges out quickly,
5:13
SPEAKER_00: get him in custody,
5:14
SPEAKER_00: and then they can come back later with the more serious,
5:18
SPEAKER_00: more complicated charges that are actually the substance of what they intend to try
5:22
SPEAKER_00: him for.
5:23
SPEAKER_01: That's exactly right.
5:24
SPEAKER_01: It happens all the time.
5:25
SPEAKER_01: To do a criminal complaint in federal court,
5:28
SPEAKER_01: you just have an agent bring an affidavit to a magistrate judge that shows probable
5:33
SPEAKER_01: cause for the particular crime.
5:35
SPEAKER_01: And it's very common to start off the process with something pretty easy and
5:39
SPEAKER_01: straightforward and then throw everything in front of the grand jury and get more
5:43
SPEAKER_01: extensive charges.
5:44
SPEAKER_01: Here, the difference is some of the evidence that came out
5:49
SPEAKER_01: after his initial arrest.
5:50
SPEAKER_01: We talked about,
5:51
SPEAKER_01: you know,
5:51
SPEAKER_01: how do you prove that someone who's clearly mentally ill was intending to
5:56
SPEAKER_01: assassinate Trump?
5:57
SPEAKER_01: Well, you prove it when he leaves a note saying, this was an assassination attempt on Donald Trump.
6:04
SPEAKER_01: I tried my best to give it all my gumption.
6:06
SPEAKER_01: I could muster, it's up to you to finish the job.
6:07
SPEAKER_01: I'll offer $150,000 to whomever can complete the job.
6:12
SPEAKER_01: So this goes on to our list,
6:14
SPEAKER_01: Josh,
6:15
SPEAKER_01: of writings and utterances not to leave,
6:18
SPEAKER_01: along with not tweeting your criminal intent or not writing a book about it.
6:23
SPEAKER_01: Also,
6:24
SPEAKER_01: no notes to neighbors or associates saying that you're going to assassinate the
6:30
SPEAKER_01: candidate for president.
6:31
SPEAKER_00: Yeah.
6:31
SPEAKER_00: Ryan Roth has better handwriting than I would have expected for someone with his
6:35
SPEAKER_00: mental state,
6:35
SPEAKER_00: by the way.
6:36
SPEAKER_00: It was interesting seeing the note in that regard.
6:39
SPEAKER_00: There's another fact that might change the
6:58
SPEAKER_00: And you have many judges,
6:59
SPEAKER_00: but those judges may be geographically assigned so that if a certain case is
7:03
SPEAKER_00: brought in a certain place,
7:04
SPEAKER_00: it's relatively likely to end up in front of one of those judges.
7:07
SPEAKER_00: And if you bring a case in Palm Beach County,
7:09
SPEAKER_00: which is where this attempted assassination occurred,
7:12
SPEAKER_00: you have a decent shot that you will randomly be assigned to end up in front of
7:15
SPEAKER_00: Judge Eileen Cannon.
7:16
SPEAKER_00: And sure enough, Judge Eileen Cannon will preside over this case.
7:20
SPEAKER_00: Yeah.
7:20
SPEAKER_01: And I could just see Ralph's deputy federal public defender just thinking, oh, man, this sucks.
7:28
SPEAKER_01: Now they have to decide basically whether they want to make an argument that Cannon
7:32
SPEAKER_01: is somehow biased towards Trump and therefore against their client.
7:35
SPEAKER_01: I don't think that argument would go anywhere.
7:38
SPEAKER_00: Yeah, we actually we had a listener question asking exactly that.
7:40
SPEAKER_00: Russell wrote into us and said,
7:42
SPEAKER_00: it seems likely the defense would at least consider seeking a different judge.
7:45
SPEAKER_00: Could they cite the government's own appeal of her decision in the classified documents case?
7:49
SPEAKER_00: I would think that either the relevant motion or the citation would put the
7:53
SPEAKER_00: prosecution in an odd position because I mean,
7:55
SPEAKER_00: so I guess there's two things here.
7:56
SPEAKER_00: One is the idea that Cannon is biased,
8:00
SPEAKER_00: but then there's also this idea that the federal government is now ending up
8:04
SPEAKER_00: presumably on opposite sides of the question of whether Eileen Cannon
8:07
SPEAKER_00: should end up presiding over a case.
8:09
SPEAKER_00: They do not like her on the documents case,
8:11
SPEAKER_00: but they might consider her to be a favorable judge for them since it's the same,
8:15
SPEAKER_00: you know,
8:15
SPEAKER_00: it's the same Department of Justice prosecuting this case as it is prosecuting the
8:19
SPEAKER_00: case against Trump.
8:20
SPEAKER_01: Well, sure.
8:21
SPEAKER_01: And it is not new or unusual for criminal defendants in cases about threatening
8:26
SPEAKER_01: or trying to kill the president,
8:28
SPEAKER_01: to make arguments like,
8:29
SPEAKER_01: well,
8:29
SPEAKER_01: this particular president appointed this judge,
8:31
SPEAKER_01: so they can't be fair.
8:33
SPEAKER_01: Those arguments are roundly rejected.
8:35
SPEAKER_01: I think it would probably be rejected here,
8:37
SPEAKER_01: saying that even if,
8:38
SPEAKER_01: you know,
8:39
SPEAKER_01: in a case against Trump,
8:41
SPEAKER_01: the government's arguing that there's a bias towards Trump,
8:43
SPEAKER_01: that doesn't
8:44
SPEAKER_01: That doesn't translate to bias against Ralph.
8:47
SPEAKER_01: Remember that the concept of judicial bias as applied in these disqualification
8:54
SPEAKER_01: arguments is really artificial and it's kind of a doctrine not really based on what
8:59
SPEAKER_01: you and I might think is reasonable,
9:01
SPEAKER_01: but based on,
9:01
SPEAKER_01: you know,
9:02
SPEAKER_01: what octogenarian judges think is reasonable based on their own culture.
9:06
SPEAKER_01: So it's kind of artificial.
9:07
SPEAKER_01: I'm pretty confident they would not see this as something that required recusal
9:13
SPEAKER_01: just because the government thinks elsewhere that Judge Cannon is biased towards Trump,
9:17
SPEAKER_01: which I think she is.
9:19
SPEAKER_01: Also,
9:19
SPEAKER_01: I mean,
9:20
SPEAKER_01: in general,
9:21
SPEAKER_01: juries too,
9:22
SPEAKER_01: even if you worry that you wouldn't want to put Trump as a defendant in front of a
9:26
SPEAKER_01: Palm Beach jury,
9:28
SPEAKER_01: because you think that might be biased against them.
9:31
SPEAKER_01: Generally, juries are unsympathetic to attempted assassins and it doesn't matter where they are.
9:36
SPEAKER_01: So I don't see that as a big issue.
9:38
SPEAKER_00: Yeah.
9:39
SPEAKER_00: I mean,
9:39
SPEAKER_00: as I think about it,
9:40
SPEAKER_00: like,
9:40
SPEAKER_00: is there any particular reason to think that Judge Cannon would mishandle this case?
9:44
SPEAKER_00: I mean,
9:44
SPEAKER_00: you know,
9:45
SPEAKER_00: clearly she has a bias toward Donald Trump,
9:47
SPEAKER_00: but I assume,
9:47
SPEAKER_00: you know,
9:48
SPEAKER_00: any judge you put the case before will have an unfavorable view of the idea of
9:51
SPEAKER_00: trying to assassinate Donald Trump,
9:53
SPEAKER_00: obviously.
9:53
SPEAKER_00: Right.
9:54
SPEAKER_00: Um, and I mean, I also, I assume this is not going to end up going to trial very likely.
9:59
SPEAKER_00: I mean, you know, this, we talked about, you know, our, is it going to be hard to prove intent?
10:04
SPEAKER_00: Um,
10:04
SPEAKER_00: on last week's show,
10:05
SPEAKER_00: we got put in our lap something that makes it look like it will actually be quite
10:08
SPEAKER_00: easy to prove intent in this case.
10:10
SPEAKER_00: It seems fairly straightforward in a way that the documents case obviously is not.
10:15
SPEAKER_01: It is,
10:15
SPEAKER_01: and I think likely if it goes to trial,
10:17
SPEAKER_01: it would be on an insanity defense,
10:20
SPEAKER_01: which is very difficult to do in part because of a successful insanity defense for
10:28
SPEAKER_01: John Hinckley's attempted assassination of President Reagan.
10:31
SPEAKER_01: When he got a—
10:35
SPEAKER_01: not guilty by reason of insanity verdict,
10:37
SPEAKER_01: that created a huge outrage that narrowed in many jurisdictions,
10:40
SPEAKER_01: including the feds,
10:42
SPEAKER_01: the definition.
10:43
SPEAKER_01: So it's important to note this is an attempt, and attempt requires two things.
10:47
SPEAKER_01: It requires intent to do the thing,
10:49
SPEAKER_01: in other words,
10:50
SPEAKER_01: to assassinate Trump,
10:52
SPEAKER_01: and it requires a substantial step.
10:55
SPEAKER_01: So a defense lawyer might argue that he's too crazy to form the specific intent to assassinate Trump.
11:01
SPEAKER_01: I think that's a very hard argument when that's exactly what he said
11:04
SPEAKER_01: In a note,
11:06
SPEAKER_01: it's not someone who truly seems to have no grasp of reality like you might think
11:12
SPEAKER_01: some people do.
11:14
SPEAKER_01: It also seems like he's probably going to – they're probably going to be able to
11:17
SPEAKER_01: prove a substantial step.
11:18
SPEAKER_01: So with attempt again, it has to be more than mere preparation.
11:24
SPEAKER_01: whatever that means.
11:25
SPEAKER_01: It has to be more than just minor steps.
11:29
SPEAKER_01: It has to be substantial.
11:30
SPEAKER_01: But the case law makes it pretty clear that things like buying a weapon,
11:35
SPEAKER_01: attending meetings with people who are going to join you in the attempt to do
11:39
SPEAKER_01: whatever it is,
11:39
SPEAKER_01: having the necessary tools,
11:41
SPEAKER_01: going to the place,
11:42
SPEAKER_01: all those can be a substantial step.
11:45
SPEAKER_01: And here,
11:45
SPEAKER_01: where he wrote out a note saying he was going to do it,
11:48
SPEAKER_01: had the gun,
11:49
SPEAKER_01: traveled to the site,
11:51
SPEAKER_01: and was— Laid in wait for 12 hours.
11:54
SPEAKER_01: Exactly.
11:55
SPEAKER_01: That's, I think, unquestionably a substantial step.
11:58
SPEAKER_01: So, yeah, I suspect it may be a guilty plea.
12:02
SPEAKER_00: Speaking of guilty pleas,
12:03
SPEAKER_00: Caroline Ellison,
12:03
SPEAKER_00: who pleaded guilty in the FTX case and has cooperated with prosecutors pursuing her ex-boyfriend,
12:10
SPEAKER_00: ex-boss,
12:11
SPEAKER_00: Sam Bankman Freed,
12:12
SPEAKER_00: has been sentenced.
12:14
SPEAKER_00: Judge Lewis Kaplan sentenced her to just two years in prison.
12:18
SPEAKER_00: People may have forgotten the specifics of the FTX situation.
12:21
SPEAKER_00: Obviously,
12:22
SPEAKER_00: Sam Bankman Freed was the ringleader there,
12:24
SPEAKER_00: but Caroline Ellison was the CEO of Alameda Research,
12:27
SPEAKER_00: the
12:28
SPEAKER_00: entity under FTX that did all the risky betting and lost the billions of dollars and,
12:32
SPEAKER_00: you know,
12:33
SPEAKER_00: did quite a bit of the losing of the client money herself and was obviously aware
12:36
SPEAKER_00: that they were misusing client funds here.
12:40
SPEAKER_00: Two years seems like quite a light sentence for her.
12:42
SPEAKER_01: It's a very light sentence.
12:44
SPEAKER_01: Some reports indicate that
12:46
SPEAKER_01: The guideline range for her, the recommended sentence under the United States guidelines is life.
12:52
SPEAKER_00: It's 110 years I saw published somewhere.
12:54
SPEAKER_01: Well, that's a statutory maximum.
12:56
SPEAKER_01: There was no risk she was going to get that.
12:58
SPEAKER_01: But because the sentencing guidelines are so heavily driven by amount of money at issue,
13:04
SPEAKER_01: amount of loss,
13:05
SPEAKER_01: then her guideline sentence was just draconian.
13:08
SPEAKER_01: It was, you know, the recommended was life.
13:11
SPEAKER_01: And in the federal system, life is life.
13:13
SPEAKER_01: It's not, you know, there's no parole sentence.
13:16
SPEAKER_01: But Judge Kaplan, as you said, gave her two years.
13:19
SPEAKER_01: The government did not recommend a specific sentence but waxed rhapsodic over how
13:25
SPEAKER_01: great her cooperation was,
13:27
SPEAKER_01: how essential she was to convict Sam Bankman Freed and how much she helped.
13:34
SPEAKER_01: how much she seems to have turned her life around.
13:36
SPEAKER_01: You know, she's doing all this charitable stuff and so forth.
13:38
SPEAKER_01: And Judge Kaplan went on and on about how it was the most extensive and essential
13:44
SPEAKER_01: cooperation he's ever seen,
13:46
SPEAKER_01: which honestly I doubt how she'd earn this.
13:51
SPEAKER_01: You know,
13:51
SPEAKER_01: this is going to sound unsympathetic and crass and skeptical,
13:56
SPEAKER_01: but I think a large part of what's happening here,
13:58
SPEAKER_01: she's getting the rare benefit of sexism in the legal system.
14:03
SPEAKER_01: Oh, interesting.
14:04
SPEAKER_01: The players see a young woman.
14:07
SPEAKER_01: They see her in part as a romantic victim of Sam Bankman Freed, someone who was manipulated.
14:13
SPEAKER_01: They look at her sympathetically.
14:15
SPEAKER_01: And,
14:15
SPEAKER_01: you know,
14:16
SPEAKER_01: if I've got a client facing a terrible sentence and I'm trying to get the judge to
14:20
SPEAKER_01: go much lower,
14:21
SPEAKER_01: I'd much rather have the client be a young woman than –
14:24
SPEAKER_01: middle-aged man or something.
14:26
SPEAKER_01: The other factor is,
14:26
SPEAKER_01: remember that Judge Kaplan went substantially below guidelines,
14:31
SPEAKER_01: again,
14:31
SPEAKER_01: for Sam Bankman Freed.
14:32
SPEAKER_01: I mean, 25 years is a hell of a long time, but it's a lot less than, again, he could have gotten life.
14:38
SPEAKER_01: So I think he thought that
14:40
SPEAKER_01: a even greater magnitude departure was appropriate for Caroline Ellison.
14:45
SPEAKER_01: So the legal system is biased against women and young women frequently,
14:51
SPEAKER_01: and very occasionally those attitudes come to sort of spare
14:56
SPEAKER_01: a woman a longer sentence that she might otherwise get.
14:59
SPEAKER_00: Sam Bankman-Fried has also gotten back in the news this week because he's sort of
15:04
SPEAKER_00: roommates with Sean Combs.
15:06
SPEAKER_00: They're being held in the same dormitory-style unit at the MDC near the courthouses in New York City.
15:14
SPEAKER_00: And we talked some about how particularly terrible the MDC is.
15:20
SPEAKER_00: And the coverage around this has been interesting in that there's finally some good PR for the MDC.
15:26
SPEAKER_00: Sam Bankman Freed,
15:27
SPEAKER_00: who is currently appealing that 25-year sentence,
15:30
SPEAKER_00: has asked to continue to be held at the MDC while that appeal is pending.
15:34
SPEAKER_00: You might normally want to try to get out into a real prison that would be less horrible than the MDC.
15:39
SPEAKER_00: He seems content to stay there.
15:41
SPEAKER_00: And similarly, while Sean Combs' attorneys had initially asked for him to be held in
15:46
SPEAKER_00: Essex County.
15:46
SPEAKER_00: By the way, we're a little unclear.
15:48
SPEAKER_00: We said it was Essex County, New York.
15:50
SPEAKER_00: It's unclear from the coverage whether it was New York or New Jersey.
15:53
SPEAKER_00: New Jersey makes a little more sense.
15:54
SPEAKER_00: Anyway, they were trying to get him somewhere other than the MDC.
15:56
SPEAKER_00: They seem to have changed their tune on that.
15:59
SPEAKER_00: And they say, you know, we're fine with him staying at the MDC.
16:02
SPEAKER_00: Is it possible that either the MDC has gotten better since Jeffrey Epstein killed himself there?
16:07
SPEAKER_00: Or is it more that,
16:10
SPEAKER_00: you know,
16:10
SPEAKER_00: if you are a really famous defendant,
16:12
SPEAKER_00: maybe you get a better situation there than if you're some ordinary person?
16:16
SPEAKER_01: Okay, Josh, first of all, they are not roommates.
16:19
SPEAKER_01: They are not bunkmates.
16:20
SPEAKER_01: Stop pitching this.
16:21
SPEAKER_01: Netflix is not calling back.
16:24
SPEAKER_01: It's not going to happen.
16:25
SPEAKER_01: Yeah, it's an odd couple buddy comedy.
16:30
SPEAKER_01: They're at a unit at MDC that is separated from the general population.
16:37
SPEAKER_01: It's often used for cooperators,
16:39
SPEAKER_01: you know,
16:39
SPEAKER_01: snitches,
16:40
SPEAKER_01: the defense lawyer in me says,
16:43
SPEAKER_01: people with higher level of security,
16:45
SPEAKER_01: that type of thing.
16:47
SPEAKER_01: There is no slowdown in the reports of absolutely horrific things happening at MDC.
16:53
SPEAKER_01: I think that the vastly more likely explanation is that the people at MDC,
16:58
SPEAKER_01: while brutal and indifferent,
17:00
SPEAKER_01: are not dumb and see this as an opportunity to curry some good publicity and some
17:05
SPEAKER_01: favor with the court by treating a couple of people badly.
17:09
SPEAKER_01: with a baseline level of human decency such that they care whether or not they die.
17:14
SPEAKER_01: The bar is pretty low to be much better than normal at MDC.
17:18
SPEAKER_01: And I think they probably see this as,
17:19
SPEAKER_01: wow,
17:19
SPEAKER_01: you know,
17:19
SPEAKER_01: if we can keep these two guys relatively happy,
17:23
SPEAKER_01: it takes a lot of pressure off.
17:24
SPEAKER_01: But if we screw this up, then it's going to be a big thing.
17:26
SPEAKER_01: There's going to be tons of paperwork, you know, all that sort of attitude.
17:31
SPEAKER_01: Because they are getting a lot of pressure from a lot of the judges.
17:35
SPEAKER_01: And, you know, they'd like to dispel that.
17:37
SPEAKER_01: So, yes, the initial indication was that Sean Combs, they were going to try to get him moved.
17:43
SPEAKER_01: Some reports say to the New Jersey, Essex County, some suggested New York.
17:48
SPEAKER_01: Both of those facilities are county jails that have contracts with the U.S.
17:53
SPEAKER_01: Marshals to hold federal prisoners in the jail, which is very common with state facilities.
18:00
SPEAKER_01: And, you know, as a West Coast person, it's hard for me to understand that you can just, you know,
18:04
SPEAKER_01: Be very close to a different state and have two counties name the same thing
18:09
SPEAKER_01: relatively close to each other.
18:10
SPEAKER_00: We like to be confusing.
18:11
SPEAKER_01: But that's it.
18:12
SPEAKER_01: But yes,
18:13
SPEAKER_01: it seems as if Sean Combs is happier or his lawyers at least are happier with how
18:18
SPEAKER_01: he's being treated.
18:19
SPEAKER_01: He's being treated acceptably well.
18:22
SPEAKER_01: And the initial reports that he was on suicide watch have been retracted.
18:26
SPEAKER_01: Apparently that was not correct.
18:28
SPEAKER_01: And so now that it's clear he's going to be there for a while,
18:30
SPEAKER_01: because I think there's a very low chance that the Second Circuit is going to
18:35
SPEAKER_01: overturn the detention order,
18:37
SPEAKER_01: he's trying to make the best of it for the long haul,
18:40
SPEAKER_01: because this case is likely to be a long haul.
18:44
SPEAKER_00: Down in Washington,
18:44
SPEAKER_00: D.C.,
18:45
SPEAKER_00: Judge Tanya Chutkan is still trying to figure out what the Supreme Court decision
18:49
SPEAKER_00: on presidential immunity means for the January 6 related criminal case before her
18:54
SPEAKER_00: in which Donald Trump is the defendant.
18:57
SPEAKER_00: And there's this process where the government is making arguments about,
19:01
SPEAKER_00: you know,
19:01
SPEAKER_00: this evidence should be allowed in this case.
19:03
SPEAKER_00: These acts are not immune, etc., etc., etc.
19:06
SPEAKER_00: And Trump's attorneys have been trying to delay those analyses as much as possible,
19:10
SPEAKER_00: saying,
19:10
SPEAKER_00: you know,
19:10
SPEAKER_00: well,
19:10
SPEAKER_00: it's premature to consider these things.
19:12
SPEAKER_00: And the clear undercurrent is they would like filings with lots of detail and
19:16
SPEAKER_00: arguments about exactly what Donald Trump did to be delayed until after the
19:20
SPEAKER_00: presidential election.
19:22
SPEAKER_00: Judge Shutkin has issued an order that allows the government to make a detailed and
19:26
SPEAKER_00: long 180-page brief with some of those arguments that will be filed before the election.
19:32
SPEAKER_01: Yes.
19:32
SPEAKER_01: So normally –
19:35
SPEAKER_01: federal system,
19:37
SPEAKER_01: depending on the local rules,
19:38
SPEAKER_01: briefs have to be 20 or 25 pages,
19:41
SPEAKER_01: which can be difficult sometimes.
19:42
SPEAKER_01: It's rare to need 180 pages.
19:44
SPEAKER_01: But given the intensely complicated and detailed factual analysis that the Supreme
19:50
SPEAKER_01: Court's immunity decision calls for,
19:53
SPEAKER_01: I mean,
19:53
SPEAKER_01: they literally said you have to look at every communication,
19:56
SPEAKER_01: everything that you want to put into evidence and make this analysis.
20:00
SPEAKER_01: And that takes
20:01
SPEAKER_01: lot of room.
20:03
SPEAKER_01: Jack Smith asked for 180 pages.
20:05
SPEAKER_01: Judge Shutkin granted it and dismissed all of Trump's arguments.
20:09
SPEAKER_01: Like he said, Trump is trying to delay this.
20:11
SPEAKER_01: So this whole exposition of what he did doesn't happen immediately before the election.
20:18
SPEAKER_01: He's arguing that Jack Smith asking for 180 pages is in effect an improper, early
20:26
SPEAKER_01: special counsel report that should come out just before the election.
20:30
SPEAKER_01: He's saying that Judge Shutkin should delay everything until she adjudicates just the issue of whether
20:36
SPEAKER_01: The parts about trying to pressure Mike Pence are covered by immunity because if
20:40
SPEAKER_01: they are,
20:41
SPEAKER_01: that would theoretically throw the whole thing out because that was shown to the
20:44
SPEAKER_01: grand jury.
20:45
SPEAKER_01: He's arguing there are discovery disputes that should be adjudicated first and then
20:50
SPEAKER_01: it's wrong to have the special counsel take the first shot,
20:53
SPEAKER_01: that she should wait until he files a motion to dismiss sometime maybe November 8th,
21:00
SPEAKER_01: 9th,
21:00
SPEAKER_01: something like that.
21:01
SPEAKER_01: And she's not buying any of it.
21:03
SPEAKER_01: So she is still very much saying, I'm going to treat this like a criminal case.
21:08
SPEAKER_01: It has unusual legal issues, but fundamentally I should treat it like a criminal case, move it forward.
21:13
SPEAKER_01: promptly and not just sit on our thumbs here.
21:16
SPEAKER_01: So every indication is we'll get this gigantic special counsel brief,
21:21
SPEAKER_01: and I will get to read 180 pages of it,
21:23
SPEAKER_01: and we will get to talk about it.
21:26
SPEAKER_01: What the special counsel's theory is about why all these acts are outside the
21:31
SPEAKER_01: Supreme Court's rather vaguely drawn new principles of presidential immunity.
21:37
SPEAKER_00: And meanwhile,
21:38
SPEAKER_00: in Ohio,
21:39
SPEAKER_00: where there's been all this news coverage around Springfield,
21:41
SPEAKER_00: Ohio,
21:42
SPEAKER_00: which has a substantial population of Haitian immigrants and these made-up
21:45
SPEAKER_00: allegations of the Haitians eating cats and dogs,
21:48
SPEAKER_00: et cetera,
21:48
SPEAKER_00: that we saw in the presidential debate,
21:51
SPEAKER_00: which has caused a significant amount of turmoil.
21:52
SPEAKER_00: turmoil in Springfield,
21:53
SPEAKER_00: including that there have been a number of bomb threats that were quite disruptive
21:57
SPEAKER_00: to operations in the city.
21:59
SPEAKER_00: There is now something called a bench memorandum that a nonprofit organization has filed,
22:05
SPEAKER_00: arguing that criminal charges should be brought against Donald Trump and J.D.
22:09
SPEAKER_00: Vance for comments that they made because of various negative effects that were
22:14
SPEAKER_00: knock-ons or that they say were knock-ons from the public comments that they made.
22:18
SPEAKER_00: And so I guess my first question is, what is a bench memorandum?
22:21
SPEAKER_00: criminal charges have to be brought by the state.
22:23
SPEAKER_00: What is this process by which,
22:25
SPEAKER_00: you know,
22:25
SPEAKER_00: I mean,
22:25
SPEAKER_00: anyone can,
22:25
SPEAKER_00: you know,
22:26
SPEAKER_00: write a document that says,
22:27
SPEAKER_00: please criminally charge this person.
22:28
SPEAKER_00: Is there more to this than there's just,
22:31
SPEAKER_00: you know,
22:31
SPEAKER_00: it's as though someone sent a letter to the prosecutors?
22:34
SPEAKER_00: It is different.
22:35
SPEAKER_01: So some states have a process by which anyone can seek to initiate
22:45
SPEAKER_00: That's it for this week's free episode.
22:46
SPEAKER_00: If you want to hear our conversations about Donald Trump,
22:49
SPEAKER_00: about the case before Judge Tanya Chutkin,
22:51
SPEAKER_00: in which there will be some really substantive filings before the election with
22:54
SPEAKER_00: lots of arguments about exactly what Donald Trump did in the lead up to January 6th,
22:59
SPEAKER_00: that over the objections of his attorneys,
23:01
SPEAKER_00: that is going to happen very soon.
23:04
SPEAKER_00: We also talk about Ohio and these claims that Trump or Vance could face certain
23:08
SPEAKER_00: criminal liability over statements that they made about Haitians and these made-up
23:13
SPEAKER_00: allegations that they're eating pets.
23:15
SPEAKER_00: out in Ohio.
23:17
SPEAKER_00: And we talk about Brett Favre suing for defamation and losing.
23:20
SPEAKER_00: And we talk about Matt Gaetz and why you should not fuck around unless you want to
23:25
SPEAKER_00: find out in the filing of civil lawsuits.
23:28
SPEAKER_00: So again, if you want to hear all that, go to SeriousTrouble.show, become a paying subscriber.
23:32
SPEAKER_00: We would love to have you.
23:33
SPEAKER_00: Thanks for listening.