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Later, Tater · Serious Trouble

• 0:00
  [music]
• 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, Andrew and Tristan Tate were down in Miami,
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  SPEAKER_00: of course, heading to a bare-knuckle boxing match, at which point they were around.
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  SPEAKER_00: There are more charges against them in the United Kingdom
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  SPEAKER_00: and they're now being held pending extradition to the UK,
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  SPEAKER_00: which is quite a turn of fortune for the Tate brothers
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  SPEAKER_00: who were most recently photographed with Congressman Wesley.
• 0:38
  SPEAKER_00: Right, or as Andrew calls it, vacation photos.
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  SPEAKER_01: But yeah, I mean,
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  SPEAKER_01: very recently,
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  SPEAKER_01: basically the United States government had cooperated in getting them out of Romania
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  SPEAKER_01: and to the United States while they were facing charges there.
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  SPEAKER_01: And this is something of a reversal of fortune.
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  SPEAKER_01: So it might make sense a little bit to kind of review how like extradition
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  SPEAKER_01: and extradition arrests work.
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  SPEAKER_01: So extradition is a creature of treaties between countries.
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  SPEAKER_01: So we, of course, have an extradition treaty with the United Kingdom.
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  SPEAKER_01: And requests from either side are governed by that.
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  SPEAKER_01: It's both diplomatic and legal.
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  SPEAKER_01: So the way it works is that the legal authority in
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  SPEAKER_01: the other country asks their equivalent of the State Department
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  SPEAKER_01: to ask our State Department to ask our courts to extradite the person,
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  SPEAKER_01: to hook them up and send them back.
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  SPEAKER_01: And so the interesting thing about this politically,
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  SPEAKER_01: given the administration's prior kind of welcoming of the Tate's,
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  SPEAKER_01: Is that this required the United States government and fairly high up in
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  SPEAKER_01: the government to cooperate with the process and give the green light to asking
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  SPEAKER_01: a court to issue arrest warrants here.
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  SPEAKER_01: Because it had to go from the diplomatic authorities of the UK to
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  SPEAKER_01: the State Department,
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  SPEAKER_01: to the Office of International Affairs,
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  SPEAKER_01: the Department of Justice,
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  SPEAKER_01: then to the local U.S.
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  SPEAKER_01: Attorney's Office to draft up all the extradition papers for the U.S. courts.
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  SPEAKER_01: And then generally what happens is they ask for a provisional arrest,
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  SPEAKER_01: meaning the entire extradition package hasn't arrived yet,
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  SPEAKER_01: but it's kind of like the difference between a complaint and an indictment.
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  SPEAKER_01: The initial charges are there.
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  SPEAKER_01: And then they hook them up and start the process.
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  SPEAKER_01: And eventually the full papers,
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  SPEAKER_01: which are literally covered in red ribbons and wax seals and bullshit like that.
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  SPEAKER_00: Wait, really?
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  SPEAKER_00: Yeah.
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  SPEAKER_00: It's real old style stuff.
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  SPEAKER_01: You wind up with these.
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  SPEAKER_01: This very much 18th century looking package of documents with ribbons and seals
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  SPEAKER_01: and things like that.
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  SPEAKER_01: And so the judge issued the warrant showing the judge thought that
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  SPEAKER_01: the United Kingdom Showed probable cause in evidence and,
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  SPEAKER_01: you know, it would have been declarations and affidavits and things like that.
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  SPEAKER_01: And so they get picked up.
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  SPEAKER_01: And kind of a bad thing for the Tates and for many people in their position is
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  SPEAKER_01: that it's much easier to convince judges to detain without bail someone based on
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  SPEAKER_01: an extradition request that is – Based on federal charges here.
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  SPEAKER_01: So many times people who would otherwise get bail for some sort
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  SPEAKER_01: of white collar offense being charged in
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  SPEAKER_01: the United States wind up detained pre-extradition because of this kind
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  SPEAKER_01: of diplomatic policy that we don't want to embarrass the United States
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  SPEAKER_01: by them fleeing,
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  SPEAKER_01: which they will absolutely do if you let them out on bail when they're about
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  SPEAKER_01: to be extradited someplace unpleasant.
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  SPEAKER_01: So the bottom line is there will be this process.
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  SPEAKER_01: The court has to confirm a few things.
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  SPEAKER_01: It has to confirm that what they're charged with is a crime in both countries.
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  SPEAKER_01: It has to confirm that there's a showing of due process,
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  SPEAKER_01: that the correct diplomatic formal requests have been made.
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  SPEAKER_01: And if it works out,
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  SPEAKER_01: then they order them sent back to the U.K.,
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  SPEAKER_00: So I think a lot of people have been sort of expecting that there might be
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  SPEAKER_00: a political intervention by people in the Trump administration on behalf of
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  SPEAKER_00: the Tate brothers.
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  SPEAKER_00: But I guess your implication there is if that was going to happen,
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  SPEAKER_00: it would have already happened and they wouldn't have gotten arrested.
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  SPEAKER_01: Well, that would be my implication in a normal administration
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  SPEAKER_01: because it would be extremely stupid and blundering to cooperate
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  SPEAKER_01: until it becomes public that they're being extradited and then change their minds
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  SPEAKER_01: and block it.
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  SPEAKER_01: But I guess given this administration's record,
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  SPEAKER_01: once it actually comes to Trump's attention or someone else high up,
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  SPEAKER_01: that they could change their mind.
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  SPEAKER_01: And then Marco Rubio,
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  SPEAKER_01: Secretary of State,
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  SPEAKER_01: could obstruct and say,
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  SPEAKER_01: we think this is some sort of woke nonsense or whatever and refuse to cooperate with
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  SPEAKER_01: the extradition.
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  SPEAKER_00: Yeah.
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  SPEAKER_00: So bad news for the Tate brothers there.
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  SPEAKER_00: Better news for a different criminal defendant charged with a different heinous crime.
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  SPEAKER_00: David Hearn,
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  SPEAKER_00: Who is alleged
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  SPEAKER_00: to have intentionally destroyed President Trump's reflecting pool outside
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  SPEAKER_00: the Lincoln Memorial by callously ripping up its liner.
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  SPEAKER_00: Yes.
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  SPEAKER_00: He has a technicality that he's going to go free on.
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  SPEAKER_01: Yeah.
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  SPEAKER_01: The technicality being that, you know, the government can't destroy the evidence against you.
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  SPEAKER_01: So David Hearn and a former Olympian and apparently Washington's worst pool boy.
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  SPEAKER_01: Has filed a motion to dismiss the indictment against him.
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  SPEAKER_01: And remember,
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  SPEAKER_01: this was based on DC local charges,
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  SPEAKER_01: as opposed to the United States Code,
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  SPEAKER_01: that were for, you know, maliciously destroying property.
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  SPEAKER_01: And what he said is this,
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  SPEAKER_01: that his lawyers shrewdly,
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  SPEAKER_01: as soon as the case was filed, said,
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  SPEAKER_01: we need you to preserve at least the portions of this liner that you claim
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  SPEAKER_01: that he ripped apart with his bare hands, like some sort of aquatic hulk.
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  SPEAKER_01: And the administration, of course, didn't do that.
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  SPEAKER_01: They put up fences,
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  SPEAKER_01: they ripped out the liner,
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  SPEAKER_01: and they left the pool to Drive for the Trump administration basically to drive
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  SPEAKER_01: through several times.
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  SPEAKER_01: So Hearn has filed a motion to dismiss based on that.
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  SPEAKER_01: And there is this due process idea that the government can't Now,
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  SPEAKER_01: as is often the case with criminal justice in America—
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  SPEAKER_01: It's an uphill battle for defendants even when the government does stuff like destroy evidence.
• 6:59
  SPEAKER_01: But A, this is an unusually egregious case where really the evidence
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  SPEAKER_01: of what happened – there's no video.
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  SPEAKER_01: It doesn't seem that there are eyewitnesses to the particular tearing they claimed happened.
• 7:13
  SPEAKER_01: So it's really important to have that liner to see what it shows happen to it.
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  SPEAKER_01: The other thing is I think when we talked about what would happen
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  SPEAKER_01: with these charges, Josh,
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  SPEAKER_01: I speculated that maybe the judge would look for some hook to use to dismiss it.
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  SPEAKER_01: So I think likely this is a very,
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  SPEAKER_01: very smart hook that the defense lawyers are providing to the judge as,
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  SPEAKER_01: you know, we all know this is an embarrassment.
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  SPEAKER_01: Here's a nice clean way for you to get rid of it that's based on government incompetence.
• 7:46
  SPEAKER_01: Everyone goes home happy except for, you know, Jeanine Pirro, but whatever.
• 7:53
  SPEAKER_00: There's an interesting U.S. attorney firing case.
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  SPEAKER_00: It's yet another one of these circumstances where
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  SPEAKER_00: the Trump administration has not gotten someone Senate confirmed into the U.S.
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  SPEAKER_00: Attorney's Office in the Western District of Washington,
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  SPEAKER_00: which is the Seattle U.S. Attorney's Office.
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  SPEAKER_00: The judges of that court used their legal power to appoint this man Roger Rogoff
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  SPEAKER_00: into that job, but he was not acceptable to main justice.
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  SPEAKER_00: And so the president fired him within hours of being appointed to that position.
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  SPEAKER_00: And in a few cases,
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  SPEAKER_00: we've had situations where someone else purports to be the interim U.S.
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  SPEAKER_00: attorney and you have defendants who say this person is not validly in the job
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  SPEAKER_00: and therefore I'm entitled to certain relief.
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  SPEAKER_00: What's happening here is a little bit different.
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  SPEAKER_00: Actually, Roger Rogoff is suing, saying it was illegal to fire me.
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  SPEAKER_00: I am the interim U.S. attorney and I need to be restored into that job.
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  SPEAKER_00: And so is that going to work?
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  SPEAKER_01: It might, but I don't think it's a good long-term solution for him.
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  SPEAKER_01: So this is a place – remember we have this statute that governs appointment of U.S.
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  SPEAKER_01: attorneys and it's primarily given to the president to nominate someone in
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  SPEAKER_01: the Senate to confirm them.
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  SPEAKER_01: But then there are options.
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  SPEAKER_01: If the president hasn't,
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  SPEAKER_01: then the Department of Justice can appoint someone for a period of time.
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  SPEAKER_01: 120 days.
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  SPEAKER_01: Right.
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  SPEAKER_01: And if the time lapses, then the federal judges of the district can appoint somebody.
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  SPEAKER_01: And you may recall that some of the ways that the Department of Justice and
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  SPEAKER_01: the Trump administration have tried to get around this is to say,
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  SPEAKER_01: well, we can just keep reappointing the person to that position.
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  SPEAKER_01: Or we can use these other options like name someone as a first assistant and
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  SPEAKER_01: then elevate them from there or things like that.
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  SPEAKER_01: Those have been largely rejected by the courts.
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  SPEAKER_01: What happened here is the time passed,
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  SPEAKER_01: the district judges appointed this guy,
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  SPEAKER_01: Roger Rogoff, and The problem is he wasn't like on Trump's list of people he likes.
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  SPEAKER_01: And sometimes the judges in the administration have been able to agree on somebody
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  SPEAKER_01: to sort of negotiate these crises.
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  SPEAKER_01: But not here.
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  SPEAKER_01: Roger Rogoff has very traditional qualifications,
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  SPEAKER_01: like being a former prosecutor and a state judge, as opposed to sort of like Trump.
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  SPEAKER_01: So Trump immediately fired him, like within minutes by email.
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  SPEAKER_01: So he's suing, and it's pretty clear that the judges can
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  SPEAKER_01: So it's pretty clear that Trump can't stop the judges from doing that because
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  SPEAKER_01: the time has passed.
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  SPEAKER_01: This is what the statute says.
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  SPEAKER_01: The harder question is, well, wait, but that doesn't mean can Trump ever fire him?
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  SPEAKER_01: And that kind of creates a dilemma because people appointed by
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  SPEAKER_01: the executive are divided into principal and inferior officers.
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  SPEAKER_01: So principal and Officers are higher level Senate confirmed people.
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  SPEAKER_01: And it's very clear for the Constitution, the president can fire them.
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  SPEAKER_01: But there's this class of inferior officers that the Constitution allows the Senate
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  SPEAKER_01: to regulate the way that the person is appointed.
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  SPEAKER_01: And that's what the U.S. attorneys have traditionally been seen as.
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  SPEAKER_01: And that's why there's a statute governing how they're appointed.
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  SPEAKER_01: So the question becomes, it's clear, I think, for the law that the judges can appoint him.
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  SPEAKER_01: Does that mean the president can't immediately fire him?
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  SPEAKER_01: It would seem to thwart the whole purpose of the appointment statute if
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  SPEAKER_01: the president can just keep firing whoever the judges appoint a minute
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  SPEAKER_01: after they're appointed.
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  SPEAKER_01: On the other hand,
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  SPEAKER_01: if you kind of take the position the president can't do that, then who can fire him?
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  SPEAKER_01: Does that insulate this U.S.
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  SPEAKER_01: attorney from being fired by the president,
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  SPEAKER_01: you know, or by the attorney general or through normal channels?
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  SPEAKER_01: That doesn't seem to make sense either.
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  SPEAKER_01: And I think it's because really that the Congress,
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  SPEAKER_01: in creating this appointment statute,
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  SPEAKER_01: really did not anticipate a system like this where there's this fight between
• 12:00
  SPEAKER_01: the judges doing the appointment and the administration.
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  SPEAKER_00: The way I had understood this to work based on what's happened in
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  SPEAKER_00: the other districts is, I mean, the other option is that the office can be vacant.
• 12:12
  SPEAKER_00: Yes.
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  SPEAKER_00: And then there are certain people who are legally allowed to serve as an acting U.S.
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  SPEAKER_00: attorney as opposed to an interim U.S. attorney.
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  SPEAKER_00: And that list of people,
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  SPEAKER_00: it's limited basically either to certain Senate confirmed people or certain people
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  SPEAKER_00: who have held positions in staff positions in the department.
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  SPEAKER_00: And that if there's an impasse and the judges appoint someone and then
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  SPEAKER_00: the president fires him,
• 12:37
  SPEAKER_00: that there's still a way to run the office and that that's what you do.
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  SPEAKER_00: Someone would be the acting U.S. attorney.
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  SPEAKER_00: And I – we've had this series of other cases that show like
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  SPEAKER_00: the president can't go around that process by picking someone
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  SPEAKER_00: who would be ineligible to be acting US attorney and making them interim for beyond
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  SPEAKER_00: the 120 days.
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  SPEAKER_00: But we haven't seen – this specific issue has not come up in any
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  SPEAKER_00: of those other cases,
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  SPEAKER_00: right, about whether the person who was appointed is entitled to stay in the rule.
• 13:04
  SPEAKER_01: And I think one of the reasons for that is other U.S. attorneys haven't sued like that.
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  SPEAKER_01: And I think the reason is it's really impossible to function as the U.S.
• 13:12
  SPEAKER_01: attorney when the attorney general,
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  SPEAKER_01: the Department of Justice, and the president don't want you there.
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  SPEAKER_01: So it requires an extraordinary amount of coordination between the U.S.
• 13:24
  SPEAKER_01: attorney and the Department of Justice if it is a hostile relationship
• 13:29
  SPEAKER_01: with Things can go very badly for the office.
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  SPEAKER_01: It can be very difficult to do the job.
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  SPEAKER_01: So I think most people wouldn't want to be a U.S.
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  SPEAKER_01: attorney who is there only because a court ordered them to be there.
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  SPEAKER_01: It would not be a comfortable position to be in.
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  SPEAKER_01: It would not be one where the office would function well.
• 13:47
  SPEAKER_01: I mean, you might do it to make like a constitutional point or a moral point,
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  SPEAKER_01: but it's no way to live.
• 13:53
  SPEAKER_01: It's no way to have a job.
• 13:56
  SPEAKER_01: It would be pretty miserable.
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  SPEAKER_01: So I don't know what the court is going to do this.
• 14:01
  SPEAKER_01: I think – I'm pretty confident the court is going to agree that
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  SPEAKER_01: the judges can absolutely appoint somebody and the president can't stop them
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  SPEAKER_01: from appointing.
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  SPEAKER_01: I don't know how the court is going to resolve this question of whether
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  SPEAKER_01: the president can just fire the person then even though that in effect thwarts
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  SPEAKER_01: the intent of the statute to let the judges put someone in place.
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  SPEAKER_00: And so what – Suppose a court ruled that the that he is insulated from firing
• 14:28
  SPEAKER_00: and he can stay in the office.
• 14:30
  SPEAKER_00: He still can't take actions in court that are unauthorized by the attorney general.
• 14:34
  SPEAKER_00: Right.
• 14:34
  SPEAKER_00: Like, can he go and file cases that main justice doesn't want filed?
• 14:40
  SPEAKER_01: No.
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  SPEAKER_01: And that's the dilemma.
• 14:41
  SPEAKER_01: Right.
• 14:41
  SPEAKER_01: Because then I think you start getting into, OK, can he still be fired for cause?
• 14:48
  SPEAKER_01: And who determines the cause and what level of review is there for a cause?
• 14:51
  SPEAKER_01: So you get into the same sort of stuff you had like in the Fed case with Lisa Cook.
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  SPEAKER_01: If the president can't just fire him a minute after his appointment for no reason
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  SPEAKER_01: at all, can the president come up with some bullshit reason?
• 15:03
  SPEAKER_01: Like I thought the press conference you gave about this arrest,
• 15:08
  SPEAKER_01: this new federal prosecution was terrible and betrayed the values of the department
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  SPEAKER_01: and blah, blah, blah.
• 15:12
  SPEAKER_01: Can the president do that?
• 15:14
  SPEAKER_01: And I don't think that's the sort of analysis the court wants to be doing.
• 15:17
  SPEAKER_01: And so the U.S. attorney statute doesn't limit the president firing the way other statutes do.
• 15:29
  SPEAKER_01: So, yeah,
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  SPEAKER_01: I kind of think that ultimately even a court that clearly thinks
• 15:34
  SPEAKER_01: that this is bullshit,
• 15:35
  SPEAKER_01: that the president is just – Basically wanting to evade the statute,
• 15:41
  SPEAKER_01: defy the statute.
• 15:42
  SPEAKER_01: I don't think a court is going to want to get into that type of shoving match,
• 15:48
  SPEAKER_01: trying to keep someone in the seat when really there's no good way to assess when
• 15:53
  SPEAKER_01: or how the person can be fired.
• 15:55
  SPEAKER_00: And so the likely disposition of this then would be if Rogoff loses,
• 15:59
  SPEAKER_00: that still doesn't mean the administration can put whoever they want in this seat.
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  SPEAKER_00: They're still bound by the 120-day rule, and I guess we end up with an acting U.S. attorney.
• 16:07
  SPEAKER_01: Yes, unless they try to put somebody in and then defendants,
• 16:11
  SPEAKER_01: as they have in other districts,
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  SPEAKER_01: successfully file suit saying that, you know, they have to be disqualified.
• 16:17
  SPEAKER_01: Right.
• 16:18
  SPEAKER_00: Some interesting...
• 16:28
  That's it for this week's free episode of Serious Trouble.
• 16:30
  SPEAKER_00: We have some interesting defamation cases for paying subscribers this week.
• 16:34
  SPEAKER_00: We talk about a lawsuit that James Dolan,
• 16:37
  SPEAKER_00: the famously congenial owner of the New York Knicks,
• 16:40
  SPEAKER_00: has filed against Wired Magazine.
• 16:42
  SPEAKER_00: And Donald Trump,
• 16:47
  SPEAKER_00: We also look at other Trump flailing,
• 16:49
  SPEAKER_00: some really kind of pathetic efforts to avoid,
• 16:53
  SPEAKER_00: actually not even avoid paying Eugene Carroll.
• 16:54
  SPEAKER_00: She already has the money that's been dispersed from the court.
• 16:57
  SPEAKER_00: They went to the appeals court and said, make her send the money back.
• 17:01
  SPEAKER_00: We talk about a court we'd never heard of before,
• 17:03
  SPEAKER_00: the Alien Terrorist Removal Court,
• 17:05
  SPEAKER_00: created 30 years ago but not used until just a few days ago by
• 17:09
  SPEAKER_00: the Trump administration.
• 17:10
  SPEAKER_00: We look at a case where Department
• 17:12
  SPEAKER_00: of Agriculture employees say they are being unconstitutionalized.
• 17:14
  SPEAKER_00: We would love to have you.
• 17:16
  SPEAKER_00: Thanks.