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Reversible Error · Serious Trouble

• 0:00
  SPEAKER_00: Hi, this is Josh Barrow back with another episode of Serious Trouble.
• 0:03
  SPEAKER_00: For free subscribers this week, we have updates on two really interesting defamation cases.
• 0:07
  SPEAKER_00: One is the Francesca Gino case, you might remember.
• 0:10
  SPEAKER_00: This is the case brought by a Harvard Business School professor placed on
• 0:13
  SPEAKER_00: administrative leave and accused of publishing papers that had fraudulent data in them.
• 0:18
  SPEAKER_00: We also talk about Sarah Palin, whose case against the New York Times has been reinstated
• 0:24
  SPEAKER_00: She still faces a lot of challenges there, but she will get a new trial.
• 0:27
  SPEAKER_00: That's for free subscribers.
• 0:29
  SPEAKER_00: For paying subscribers,
• 0:30
  SPEAKER_00: we also look at different decisions made by Judge Tanya Chutkan and Juan Merchan
• 0:34
  SPEAKER_00: about how their scheduling decisions should be impacted by the fact that there is
• 0:38
  SPEAKER_00: this presidential election in which the defendant before them is a leading candidate.
• 0:42
  SPEAKER_00: We talk about Hunter Biden, who tried to do an Alford plea in his tax evasion case.
• 0:47
  SPEAKER_00: That was a no go before a judge in Los Angeles, and he ended up pleading guilty with no plea deal.
• 0:53
  SPEAKER_00: Ken and I talk about what circumstances in which you might actually do that as a defendant.
• 0:56
  SPEAKER_00: And we have some follow ups on that Foreign Agents Registration Act case,
• 0:59
  SPEAKER_00: including the question of whether it's OK to take money from a Russian if you think
• 1:03
  SPEAKER_00: he's Belgian.
• 1:04
  SPEAKER_00: Belgium, after all, still a foreign country.
• 1:07
  SPEAKER_00: and about how far it can be constitutional in the first place,
• 1:09
  SPEAKER_00: since it sort of looks like a speech restriction.
• 1:11
  SPEAKER_00: And finally,
• 1:12
  SPEAKER_00: we take a little bit of a look at Eric Adams,
• 1:13
  SPEAKER_00: who seems to be in quite serious trouble,
• 1:16
  SPEAKER_00: and what you should do if you're someone around him who might also be in serious trouble.
• 1:19
  SPEAKER_00: So that's for paying subscribers.
• 1:21
  SPEAKER_00: It's a really good show.
• 1:22
  SPEAKER_00: I really encourage you, go to serioustrouble.show, become a paying subscriber.
• 1:26
  SPEAKER_00: You can hear that full episode, and you get every full episode, approximately 50 episodes a year.
• 1:30
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• 1:32
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• 1:33
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• 1:34
  SPEAKER_00: So if you want to hear that, go to serioustrouble.show.
• 1:46
  SPEAKER_00: hi it's ken white and it's josh barrow and this is serious trouble ken we have
• 1:51
  SPEAKER_00: updates on a couple of especially interesting defamation cases this week uh so i'm
• 1:56
  SPEAKER_00: i'm excited for that for one i imagine you might be as well
• 2:00
  SPEAKER_00: Yes.
• 2:00
  SPEAKER_00: Well, I know that one of these is one of your favorite cases.
• 2:03
  SPEAKER_00: It is one of my favorite cases and it just got disposed of in a way that I think is
• 2:07
  SPEAKER_00: very fair and appropriate.
• 2:08
  SPEAKER_00: So I was pleased to see that.
• 2:09
  SPEAKER_00: This is the Francesca Gino case from Harvard that we discussed some months ago.
• 2:14
  SPEAKER_00: Francesca Gino was – I mean I suppose still is a professor at Harvard Business School.
• 2:19
  SPEAKER_00: She's on administrative leave.
• 2:22
  SPEAKER_00: because Harvard determined that there was data fraud in a number of her papers.
• 2:28
  SPEAKER_00: Most amusingly, a paper about dishonesty.
• 2:31
  SPEAKER_00: There were two different sections of this paper where different research data was
• 2:36
  SPEAKER_00: shown to have fraudulent entries in it that caused them to produce an interesting
• 2:41
  SPEAKER_00: result they otherwise would not have had.
• 2:43
  SPEAKER_00: One of those was Francesca Gino's.
• 2:45
  SPEAKER_00: And Josh,
• 2:45
  SPEAKER_01: these are these social psychology type,
• 2:49
  SPEAKER_01: one weird trick type of things for which you do not have a overwhelming amount of
• 2:54
  SPEAKER_01: respect or sympathy.
• 2:55
  SPEAKER_00: No.
• 2:56
  SPEAKER_00: Well,
• 2:56
  SPEAKER_00: I mean,
• 2:57
  SPEAKER_00: one of these papers was about how if you had people making insurance claims and if
• 3:01
  SPEAKER_00: you made them sign an attestation that they were making a truthful claim at the
• 3:05
  SPEAKER_00: bottom of the page rather than at the top of the page,
• 3:07
  SPEAKER_00: that they were more likely to lie.
• 3:09
  SPEAKER_00: This information was actually used by real life insurance companies trying to produce better results.
• 3:14
  SPEAKER_00: And you also had other researchers going off and saying, oh, here's an interesting finding.
• 3:17
  SPEAKER_00: Let me see if I can build on that.
• 3:19
  SPEAKER_00: And they spin their wheels because the first finding was fake.
• 3:21
  SPEAKER_00: It's been a huge problem in the field.
• 3:23
  SPEAKER_00: And I was a psychology major almost 20 years ago.
• 3:26
  SPEAKER_00: I learned a lot of this stuff in my coursework, which turned out to be fake stuff that I was learning.
• 3:31
  SPEAKER_00: So I didn't really care for that.
• 3:32
  SPEAKER_00: But so anyway,
• 3:33
  SPEAKER_00: Francesca Gino,
• 3:34
  SPEAKER_00: there were these allegations first put together by these three professors who run a
• 3:39
  SPEAKER_00: blog called Data Collada.
• 3:41
  SPEAKER_00: that looks for research fraud.
• 3:43
  SPEAKER_00: They found this information.
• 3:44
  SPEAKER_00: They shared it with Harvard, which did its own investigation.
• 3:47
  SPEAKER_00: And then pretty close to simultaneously,
• 3:49
  SPEAKER_00: Harvard announces that they are putting Gino on administrative leave,
• 3:52
  SPEAKER_00: having substantiated these allegations.
• 3:55
  SPEAKER_00: And the Data Colada guys publish a series of blog posts laying out why they believe
• 3:59
  SPEAKER_00: there is data fraud in several Francesca Gino papers.
• 4:02
  SPEAKER_00: And so Francesca Gino sued.
• 4:04
  SPEAKER_00: She sued Harvard.
• 4:05
  SPEAKER_00: She sued certain staff at Harvard and she sued these three professors at other institutions.
• 4:10
  SPEAKER_00: She had a number of claims against Harvard and then she had defamation claims
• 4:13
  SPEAKER_00: against both Harvard and these professors.
• 4:15
  SPEAKER_00: And those claims, the defamation claims have now all been dismissed.
• 4:19
  SPEAKER_00: There will be some breach of contract questions about whether Harvard considered
• 4:24
  SPEAKER_00: her alleged misconduct in the way that they promised to when they gave her the professorship.
• 4:27
  SPEAKER_00: But as to the defamation,
• 4:30
  SPEAKER_00: you have a federal judge who has determined that these statements were not defamatory.
• 4:34
  SPEAKER_00: And I was interested particularly in the reasoning about why.
• 4:37
  SPEAKER_00: And basically what the judge says in this decision is that the findings about data fraud,
• 4:42
  SPEAKER_00: that these are opinions based on disclosed facts,
• 4:45
  SPEAKER_00: that you have the data,
• 4:47
  SPEAKER_00: you have observations about what's in the data,
• 4:50
  SPEAKER_00: and then both the professors and Harvard look at this information and say,
• 4:53
  SPEAKER_00: based on this,
• 4:54
  SPEAKER_00: we believe the data in here is fraudulent.
• 4:56
  SPEAKER_00: And the judge says that even a factual allegation like this paper had fraud in it,
• 5:02
  SPEAKER_00: that can be an opinion if you're saying,
• 5:04
  SPEAKER_00: I believe that this has fraud because of X,
• 5:07
  SPEAKER_00: Y,
• 5:07
  SPEAKER_00: and Z.
• 5:08
  SPEAKER_00: Right.
• 5:08
  SPEAKER_01: And that's the classic distinction between a statement of fact and a statement of
• 5:13
  SPEAKER_01: opinion based on disclosed facts.
• 5:24
  SPEAKER_01: And they say,
• 5:24
  SPEAKER_01: we've evaluated these facts,
• 5:26
  SPEAKER_01: and this is our interpretation,
• 5:27
  SPEAKER_01: but it's not the only possible interpretation.
• 5:30
  SPEAKER_01: And the judge says that's protected by the First Amendment to do that.
• 5:33
  SPEAKER_01: She didn't establish that there were false underlying facts that they relied on or
• 5:39
  SPEAKER_01: presented as true predicates to their analysis.
• 5:43
  SPEAKER_01: Instead,
• 5:43
  SPEAKER_01: they just said,
• 5:44
  SPEAKER_01: you know,
• 5:45
  SPEAKER_01: this is what we learned,
• 5:46
  SPEAKER_01: and this is our analysis of what we learned here.
• 5:48
  SPEAKER_01: And the judge said, I think, correctly, well, that's protected by the First Amendment.
• 5:51
  SPEAKER_01: That can't be defamation because it's an opinion, an evaluation of data.
• 5:57
  SPEAKER_00: There's a decision that the judge cites in laying out this reasoning.
• 6:03
  SPEAKER_00: And that decision has this line that says,
• 6:05
  SPEAKER_00: "...even a provably false statement is not actionable if it is plain that the
• 6:08
  SPEAKER_00: speaker is expressing a subjective view,
• 6:10
  SPEAKER_00: an interpretation,
• 6:11
  SPEAKER_00: a theory,
• 6:12
  SPEAKER_00: a conjecture,
• 6:12
  SPEAKER_00: or surmise,
• 6:13
  SPEAKER_00: rather than claiming to be in possession of objectively verifiable facts."
• 6:17
  SPEAKER_00: I just feel like that's sort of a surprising thing,
• 6:20
  SPEAKER_00: I think,
• 6:21
  SPEAKER_00: for a lot of people when you talk – because you can make very serious allegations
• 6:24
  SPEAKER_00: against people.
• 6:25
  SPEAKER_00: And if you say, well, I think that your father killed JFK, for example, or that sort of thing.
• 6:32
  SPEAKER_00: That if you say, but based on X, Y, and Z, I believe that you did this outrageous thing.
• 6:38
  SPEAKER_00: I guess your father did JFK isn't a good example because Rafael Cruz is dead and can't be defamed.
• 6:43
  SPEAKER_00: But you can make the most, you know, wild allegations.
• 6:46
  SPEAKER_00: And so long as you're making them, you know, couch based on, you know, here's this information.
• 6:50
  SPEAKER_00: And based on that, I believe this this terrible thing that that cannot be defamatory.
• 6:54
  SPEAKER_01: Right.
• 6:55
  SPEAKER_01: That does surprise people,
• 6:56
  SPEAKER_01: but it's kind of a theme running through a lot of American law that however crazy
• 7:01
  SPEAKER_01: it is,
• 7:02
  SPEAKER_01: if you lay out the facts,
• 7:04
  SPEAKER_01: then that's not defamatory.
• 7:06
  SPEAKER_01: And that protects a broad discussion and debate without fear of defamation claims
• 7:12
  SPEAKER_01: because if you had to worry that every time you –
• 7:16
  SPEAKER_01: spun a theory that you could be challenged not whether you were lying about something,
• 7:22
  SPEAKER_01: but whether or not your logic was good or bad or whether or not your reasoning was
• 7:25
  SPEAKER_01: good or bad.
• 7:26
  SPEAKER_01: That would dramatically chill discussions of public issues.
• 7:30
  SPEAKER_01: So you're allowed to come up with purely crazy theories as long as you don't lie
• 7:35
  SPEAKER_01: about the predicate facts or suggest that you have secret evidence that you're not disclosing.
• 7:41
  SPEAKER_01: So if you want to say that members of the government have been replaced by lizard
• 7:48
  SPEAKER_01: people doubles or whatever these crazy theories are and you lay out the reasons – I
• 7:54
  SPEAKER_01: saw him eating a kale salad.
• 7:59
  SPEAKER_01: He's very in favor of climate change, whatever, even if they're crazy.
• 8:04
  SPEAKER_01: As long as you're not lying, but your logic is crazy, that's not defamation.
• 8:10
  SPEAKER_01: It's a little like actually the rule for tax evasion.
• 8:14
  SPEAKER_01: This is kind of a strange connection to make,
• 8:17
  SPEAKER_01: but tax evasion,
• 8:18
  SPEAKER_01: if you have a sincere but completely incorrect belief –
• 8:25
  SPEAKER_01: about why you don't have to pay taxes.
• 8:27
  SPEAKER_01: And that's not felony tax evasion.
• 8:30
  SPEAKER_01: And that's, you know, that's how a lot of the more weird tax protesters wind up getting off.
• 8:37
  SPEAKER_00: I would note, I mean, you can still be subject to civil penalties, right?
• 8:40
  SPEAKER_00: So we're not encouraging people to go out there and, you know, come up with wild theories.
• 8:44
  SPEAKER_01: No, but it's an approach to intent and knowledge.
• 8:48
  SPEAKER_01: And the idea is we don't want people to lie,
• 8:51
  SPEAKER_01: but we want them to be free to have crazy ideas and crazy theories.
• 8:57
  SPEAKER_00: And that's important as a practical matter in this specific area where the fight
• 9:00
  SPEAKER_00: back that's happened with regard to this research dishonesty in the social sciences
• 9:04
  SPEAKER_00: has to do with a lot of stuff like the data colada professors,
• 9:07
  SPEAKER_00: where you have other academics who dig into the data and
• 9:11
  SPEAKER_00: who lay out,
• 9:11
  SPEAKER_00: you know,
• 9:11
  SPEAKER_00: I see this in the data and this is why,
• 9:14
  SPEAKER_00: you know,
• 9:14
  SPEAKER_00: why I think the data behind this paper is fake.
• 9:18
  SPEAKER_00: And that's been important for academic inquiry in the field.
• 9:21
  SPEAKER_00: And so to say not just that they won this specific case,
• 9:24
  SPEAKER_00: but to lay out that,
• 9:26
  SPEAKER_00: you know,
• 9:26
  SPEAKER_00: so long as you're disclosing all the underlying facts and laying out that it is a
• 9:30
  SPEAKER_00: conclusion based on those facts,
• 9:32
  SPEAKER_00: an analysis,
• 9:33
  SPEAKER_00: not necessarily the only analysis that is possible,
• 9:36
  SPEAKER_00: that seems to be a fairly clean way to protect yourself in the event that you get
• 9:39
  SPEAKER_00: sued for defamation,
• 9:41
  SPEAKER_00: because these individual professors are not deep pockets in the way that the
• 9:44
  SPEAKER_00: universities are.
• 9:45
  SPEAKER_01: Right.
• 9:45
  SPEAKER_01: And it's hard to see how without a rule like this,
• 9:48
  SPEAKER_01: when you would be even able to start to discuss this type of issue,
• 9:52
  SPEAKER_01: how you could investigate or criticize suspected research fraud or even research mistakes,
• 9:59
  SPEAKER_01: right?
• 10:01
  SPEAKER_01: There was a defamation case out here from a professor who sued people for saying
• 10:07
  SPEAKER_01: that he drew the wrong conclusions in his papers about climate change.
• 10:11
  SPEAKER_01: And without a rule like this, it allows a really robust amount of debate about how to interpret data.
• 10:20
  SPEAKER_01: You really can't discuss these things at all in a litigious age.
• 10:23
  SPEAKER_00: There was another interesting aspect of this lawsuit where one of the things that
• 10:26
  SPEAKER_00: Francesca Gina sued Harvard about was for announcing that she had been placed on
• 10:30
  SPEAKER_00: administrative leave.
• 10:32
  SPEAKER_00: And,
• 10:33
  SPEAKER_00: you know,
• 10:33
  SPEAKER_00: they put in capital letters next to her name on her Harvard Business School web page,
• 10:37
  SPEAKER_00: administrative leave.
• 10:38
  SPEAKER_00: And she said, you know, they don't normally do this when they put people on administrative leave.
• 10:42
  SPEAKER_00: And it causes people to draw all these negative inferences about me.
• 10:45
  SPEAKER_00: And what the court says is, you know, well, she was placed on administrative leave.
• 10:48
  SPEAKER_00: That's true.
• 10:50
  SPEAKER_00: What I was interested in is that they then get into an actual malice analysis.
• 10:54
  SPEAKER_00: And,
• 10:54
  SPEAKER_00: you know,
• 10:54
  SPEAKER_00: Francesca Gino herself in her own complaint builds up,
• 10:57
  SPEAKER_00: you know,
• 10:58
  SPEAKER_00: I'm,
• 10:58
  SPEAKER_00: you know,
• 10:58
  SPEAKER_00: a world-renowned XYZ researcher.
• 11:00
  SPEAKER_00: And so the court says, OK, well, there you are.
• 11:02
  SPEAKER_00: You're a public figure.
• 11:03
  SPEAKER_00: You yourself are talking about how world-renowned you are.
• 11:06
  SPEAKER_00: And there's something where a true statement could be actionable, right?
• 11:11
  SPEAKER_00: But there would have to be actual malice for it to be actionable.
• 11:15
  SPEAKER_00: I'm confused about how a true statement could be defamatory in any context.
• 11:20
  SPEAKER_01: So it's true.
• 11:21
  SPEAKER_01: It's more theoretical than actual.
• 11:24
  SPEAKER_01: But if you fabricated a case and based on that suspended somebody –
• 11:31
  SPEAKER_01: and then announced they were suspended.
• 11:33
  SPEAKER_01: There's this theory that the announcement of suspension,
• 11:36
  SPEAKER_01: because even if it's literally true,
• 11:38
  SPEAKER_01: it's based on malicious fraud,
• 11:42
  SPEAKER_01: could be defamatory.
• 11:44
  SPEAKER_01: However, what the court says is that doesn't apply to a public figure because the
• 11:48
  SPEAKER_01: our need to be able to talk about what's going on with public figures is so
• 11:53
  SPEAKER_01: extensive that,
• 11:55
  SPEAKER_01: you know,
• 11:55
  SPEAKER_01: you need to be able to talk about them.
• 11:57
  SPEAKER_01: And because,
• 11:57
  SPEAKER_01: you know,
• 11:58
  SPEAKER_01: otherwise,
• 11:58
  SPEAKER_01: Gino could say,
• 11:59
  SPEAKER_01: basically,
• 12:00
  SPEAKER_01: you know,
• 12:00
  SPEAKER_01: I released a statement,
• 12:02
  SPEAKER_01: and after I released my statement,
• 12:03
  SPEAKER_01: if the New York Times still insists on publishing that I've been suspended,
• 12:08
  SPEAKER_01: then that's defamation,
• 12:09
  SPEAKER_01: and that's unworkable.
• 12:14
  SPEAKER_00: Speaking of the New York Times,
• 12:15
  SPEAKER_00: the other defamation case on which we have an update this week is the one where
• 12:19
  SPEAKER_00: Sarah Palin sued the New York Times.
• 12:21
  SPEAKER_00: People may remember this sort of odd outcome before Judge Jed Rakoff, a district judge in New York.
• 12:28
  SPEAKER_00: Sarah Palin had sued for defamation.
• 12:30
  SPEAKER_00: The New York Times had run this editorial suggesting that a mailer that one of
• 12:34
  SPEAKER_00: Palin's political organizations put out that had various targets on a map
• 12:40
  SPEAKER_00: That that had somehow led Jared Lee Loeffner to shoot then Congresswoman Gabby Giffords.
• 12:46
  SPEAKER_00: There's no through line between those things.
• 12:48
  SPEAKER_00: There's no real reason to believe that Loeffner had been influenced by that and
• 12:52
  SPEAKER_00: it's sort of been a debunked thing.
• 12:54
  SPEAKER_00: And they put this in an editorial that they then later took out and Palin sued them for defamation.
• 13:00
  SPEAKER_00: There was a trial,
• 13:01
  SPEAKER_00: and while the jury was deliberating on the defamation question,
• 13:04
  SPEAKER_00: Judge Rakoff put out a ruling that said,
• 13:06
  SPEAKER_00: actually,
• 13:07
  SPEAKER_00: I rule in favor of the New York Times under Rule 50.
• 13:12
  SPEAKER_00: And therefore, no matter what the jury says, Palin loses this case.
• 13:17
  SPEAKER_00: And this got push alerted,
• 13:18
  SPEAKER_00: and jurors saw on their phone on push alerts that the very case that they were
• 13:23
  SPEAKER_00: deliberating about had,
• 13:24
  SPEAKER_00: in fact,
• 13:24
  SPEAKER_00: already been decided.
• 13:26
  SPEAKER_00: And so Palin appealed and a panel of the Second Circuit agreed with her and said
• 13:30
  SPEAKER_00: that Judge Rakoff made a number of mistakes,
• 13:33
  SPEAKER_00: including granting that motion,
• 13:35
  SPEAKER_00: certain analysis he did in the process of granting that motion,
• 13:37
  SPEAKER_00: certain evidence that he didn't allow in at the trial,
• 13:41
  SPEAKER_00: and making that ruling at the time that the jury was deliberating in a way that
• 13:44
  SPEAKER_00: could have influenced the jury.
• 13:46
  SPEAKER_00: So now Sarah Palin gets another trial against the New York Times here.
• 13:50
  SPEAKER_01: She does.
• 13:51
  SPEAKER_01: This is a case where Judge Rakoff,
• 13:54
  SPEAKER_01: who's incredibly experienced and very smart,
• 13:58
  SPEAKER_01: he had previously dismissed it.
• 13:59
  SPEAKER_01: It had gone up to the circuit, been reversed and given her a chance for a trial.
• 14:03
  SPEAKER_01: And he clearly did not like this case.
• 14:07
  SPEAKER_01: And the circuit just found he made a series of errors about it.
• 14:12
  SPEAKER_01: The issue was whether or not the editors and others who were responsible for these
• 14:17
  SPEAKER_01: editorials making this false suggestion that Jared Lee Loeffner was influenced by
• 14:24
  SPEAKER_01: this political mailing,
• 14:26
  SPEAKER_01: whether they'd acted with actual malice,
• 14:28
  SPEAKER_01: whether they knew at the time the editorial was published that it was untrue.
• 14:34
  SPEAKER_01: And despite that being the issue and it being relevant,
• 14:37
  SPEAKER_01: well,
• 14:38
  SPEAKER_01: did these people see other stories saying that it was not true before they pushed print?
• 14:43
  SPEAKER_01: He kept out a bunch of collateral stuff like that,
• 14:46
  SPEAKER_01: like that the editor was a writer at The Atlantic,
• 14:50
  SPEAKER_01: and The Atlantic had published a bunch of stories about how this wasn't true,
• 14:54
  SPEAKER_01: about how the –
• 14:55
  SPEAKER_01: Editor had – was related to a political opponent who was targeted in the mailer, things like that.
• 15:03
  SPEAKER_01: And then the much bigger mistake was granting the Rule 50.
• 15:08
  SPEAKER_01: A Rule 50 is a directed verdict.
• 15:10
  SPEAKER_01: It's basically –
• 15:12
  SPEAKER_01: saying,
• 15:13
  SPEAKER_01: I,
• 15:13
  SPEAKER_01: the judge,
• 15:13
  SPEAKER_01: find that no jury could possibly lawfully find in favor of this party because even
• 15:20
  SPEAKER_01: if you take all the evidence in the light most favorable to the other side,
• 15:24
  SPEAKER_01: it's still not enough.
• 15:26
  SPEAKER_01: The problem with that is that Judge Rakoff's analysis didn't seem to do it right.
• 15:31
  SPEAKER_01: It seemed to
• 15:32
  SPEAKER_01: draw conclusions about credibility and the believability of evidence and how to weigh evidence.
• 15:38
  SPEAKER_01: And that's not what you're supposed to do in that circumstance.
• 15:40
  SPEAKER_01: You're not supposed to weigh everything.
• 15:42
  SPEAKER_01: You're supposed to say... That's for the jury is the idea?
• 15:45
  SPEAKER_01: That's for the jury.
• 15:46
  SPEAKER_01: The idea is unless...
• 15:48
  SPEAKER_01: You take all the evidence and you look at it in the light most favorable as
• 15:52
  SPEAKER_01: possible to the non-moving party and you believe everything they want you to believe.
• 15:56
  SPEAKER_01: If it's still not enough, then you can do a directed verdict.
• 15:59
  SPEAKER_01: But you can't do it if you're weighing evidence and making credibility
• 16:04
  SPEAKER_01: determinations that the jury is supposed to make.
• 16:07
  SPEAKER_01: And you particularly shouldn't do that so that it gets to the jury and then they
• 16:11
  SPEAKER_01: decide a verdict because that's obviously –
• 16:15
  SPEAKER_01: going to influence them a lot if they get these push notifications saying the judge
• 16:19
  SPEAKER_01: has officially decided this is all bullshit.
• 16:22
  SPEAKER_01: So it's a little embarrassing for Judge Rakoff, but I mean, it's a complicated case.
• 16:27
  SPEAKER_01: Judges make mistakes.
• 16:28
  SPEAKER_01: So it comes back and Sarah Palin gets a trial on this.
• 16:32
  SPEAKER_01: This one didn't reflect particularly well on the Times.
• 16:35
  SPEAKER_01: It was a sloppy error because it was well-known and widely discussed that Jared Lee Loeffler
• 16:42
  SPEAKER_01: did not act because of a political mailer.
• 16:44
  SPEAKER_01: He acted because he thought he could smell grammar, basically.
• 16:47
  SPEAKER_01: And he was completely deranged.
• 16:51
  SPEAKER_01: And so embarrassing for them.
• 16:53
  SPEAKER_01: It's going to be another embarrassing exposition.
• 16:56
  SPEAKER_01: I don't think that Palin has a good argument that she was actually perceptually harmed.
• 17:03
  SPEAKER_01: I think it's mostly a sort of a performative political case.
• 17:05
  SPEAKER_01: Let's stick it to The New York Times.
• 17:08
  SPEAKER_01: But it goes back to trial.
• 17:10
  SPEAKER_00: But so when you say that you don't think she has a good case,
• 17:13
  SPEAKER_00: that she was actually perceptibly harmed,
• 17:15
  SPEAKER_00: do you think a likely outcome then in a new trial is that you have a jury and they
• 17:19
  SPEAKER_00: find that the statements were defamatory,
• 17:21
  SPEAKER_00: but then they find that the damages are trivial?
• 17:24
  SPEAKER_01: That's one possibility, just nominal damages, trivial damages.
• 17:28
  SPEAKER_01: Another is that they...
• 17:30
  SPEAKER_01: still find that they don't believe that the people who pushed print on this acted
• 17:36
  SPEAKER_01: with actual malice,
• 17:38
  SPEAKER_01: that they deliberately lied or deliberately looked aside.
• 17:42
  SPEAKER_01: I think it's entirely possible they'll just find they were very sloppy and didn't
• 17:46
  SPEAKER_01: particularly care about accuracy as long as they were talking about someone like
• 17:49
  SPEAKER_01: Sarah Palin.
• 17:51
  SPEAKER_00: The Atlantic publishes a lot, a lot of articles.
• 17:55
  SPEAKER_00: And the idea that because someone worked at the Atlantic,
• 17:57
  SPEAKER_00: they must know everything that's been published in the Atlantic or that was
• 18:00
  SPEAKER_00: published in the Atlantic while they were there,
• 18:01
  SPEAKER_00: that doesn't strike me as a very sensible proposition.
• 18:04
  SPEAKER_00: Is the issue that that's a question for the jury to weigh?
• 18:07
  SPEAKER_00: Exactly.
• 18:08
  SPEAKER_00: Whether she should have been expected to know whatever was published in the Atlantic?
• 18:12
  SPEAKER_01: Well, and we're not talking about knowing the Atlantic's backlog on every issue ever written about.
• 18:18
  SPEAKER_01: We're talking about stuff on the same issue about the same high-profile person and
• 18:25
  SPEAKER_01: the same high-profile event within the last year.
• 18:28
  SPEAKER_01: So a jury could reasonably infer probably this person saw those stories.
• 18:34
  SPEAKER_01: I'm sorry, within the last year?
• 18:36
  SPEAKER_01: Within the last year, as of the time the editorial was published, I believe.
• 18:41
  SPEAKER_01: At least within the last couple of years.
• 18:44
  SPEAKER_01: God, was this that long ago?
• 18:45
  SPEAKER_01: Wasn't that shooting in 2011?
• 18:47
  SPEAKER_01: It was,
• 18:48
  SPEAKER_01: but there were follow-up stories and all over the place mentioning this as...
• 18:53
  SPEAKER_01: I mean,
• 18:54
  SPEAKER_01: ironically,
• 18:54
  SPEAKER_01: there was coverage...
• 18:56
  SPEAKER_01: mentioning this type of thing as an example of bad reporting and political stories getting out of hand.
• 19:01
  SPEAKER_01: So bad job by the Times on this.
• 19:04
  SPEAKER_01: And it's embarrassing when the person carrying the banner for truth and accuracy
• 19:12
  SPEAKER_01: and being fair is Ross Douthat.
• 19:14
  SPEAKER_01: But yeah, he was the one saying, oh, this is complete bullshit.
• 19:17
  SPEAKER_00: I think Ross is a very good columnist.
• 19:18
  SPEAKER_00: But in any case, you say this is a complicated case and judges make mistakes.
• 19:23
  SPEAKER_00: Judge Rakoff has been on the bench since 1996, and he's a very prominent district judge.
• 19:29
  SPEAKER_00: He's considered one of the better feeder judges.
• 19:32
  SPEAKER_00: People who clerk for him at the district level are relatively likely to go on and
• 19:36
  SPEAKER_00: clerk at the Supreme Court.
• 19:38
  SPEAKER_00: He's supposed to be a real expert.
• 19:41
  SPEAKER_00: And it seems to I know you say like judges make mistakes.
• 19:43
  SPEAKER_00: It seems to me like that some of these issues here like that,
• 19:45
  SPEAKER_00: you know,
• 19:46
  SPEAKER_00: the jury needs to weigh these these questions of credibility or don't announce the
• 19:51
  SPEAKER_00: directed verdict in the middle of the of the jury deliberations.
• 19:56
  SPEAKER_00: Those seem like, you know, fairly basic mistakes that an experienced judge ought not to make.
• 20:01
  SPEAKER_00: Yeah.
• 20:02
  SPEAKER_01: Well, judges actually make mistakes all the time.
• 20:05
  SPEAKER_01: And part of it is because some of these are judgment calls where the answer isn't perfectly clear.
• 20:12
  SPEAKER_01: And some of them are because the judge is trying to run a trial,
• 20:17
  SPEAKER_01: which is a very complicated beast,
• 20:19
  SPEAKER_01: and trying to get it over and having to really fight against the lawyers,
• 20:23
  SPEAKER_01: constantly trying to prolong it and complicate it and that type of thing.
• 20:26
  SPEAKER_01: So you can have very smart judges, very experienced judges make mistakes.
• 20:31
  SPEAKER_01: It happens all the time.
• 20:33
  SPEAKER_01: You know,
• 20:33
  SPEAKER_01: I think that the announcing the Rule 50 decision in a way that was likely to get to
• 20:38
  SPEAKER_01: the jury was a fairly major blunder.
• 20:41
  SPEAKER_01: But I have no idea why he wouldn't hold that.
• 20:46
  SPEAKER_01: But,
• 20:46
  SPEAKER_01: you know,
• 20:46
  SPEAKER_01: again,
• 20:48
  SPEAKER_01: that's what happens if you're making important decisions all day in complicated
• 20:52
  SPEAKER_01: matters and you're going to get some of them wrong.
• 20:56
  SPEAKER_00: I want to talk about a couple of cases in which two judges presented with a similar question,
• 21:00
  SPEAKER_00: although not an identical question,
• 21:02
  SPEAKER_00: came to different conclusions about it.
• 21:04
  SPEAKER_00: And this has to do with Judge Tanya Chutkan and Judge Juan Merchan,
• 21:08
  SPEAKER_00: who preside over two of the Trump criminal cases,
• 21:10
  SPEAKER_00: the federal January 6th related case in Washington.
• 21:14
  SPEAKER_00: and the falsification of business records case in New York, respectively.
• 21:18
  SPEAKER_00: They both had questions before them about how to do scheduling in light of the fact
• 21:22
  SPEAKER_00: that the defendant is a leading presidential candidate in an election that is
• 21:26
  SPEAKER_00: coming up in just a couple of months.
• 21:28
  SPEAKER_00: And Judge Shetkin has been very clear all along that she's ignoring the fact that there is an election.
• 21:34
  SPEAKER_00: She said in this scheduling hearing that we discussed last week that the matter of
• 21:39
  SPEAKER_00: a presidential election is not before her.
• 21:40
  SPEAKER_00: What she has is a four-count indictment.
• 21:43
  SPEAKER_00: And over the objections of Trump's attorneys,
• 21:45
  SPEAKER_00: she scheduled the briefing on these questions of what evidence can be allowed in in
• 21:49
  SPEAKER_00: light of the Supreme Court decision on presidential immunity.
• 21:52
  SPEAKER_00: That process is going to be ongoing with filings happening going up toward the election.
• 21:57
  SPEAKER_00: In New York,
• 21:58
  SPEAKER_00: Trump is due to be sentenced,
• 22:00
  SPEAKER_00: and his attorneys asked for that to be delayed until after the election.
• 22:02
  SPEAKER_00: And there, Judge Mershon said, yes, he's going to wait until after the election in order to do that.
• 22:09
  SPEAKER_00: And so,
• 22:10
  SPEAKER_00: you know,
• 22:10
  SPEAKER_00: the question of,
• 22:11
  SPEAKER_00: you know,
• 22:12
  SPEAKER_00: does this,
• 22:12
  SPEAKER_00: you know,
• 22:12
  SPEAKER_00: very unusual political circumstance,
• 22:14
  SPEAKER_00: does it call for,
• 22:15
  SPEAKER_00: you know,
• 22:15
  SPEAKER_00: doing something different than you otherwise might do?
• 22:18
  SPEAKER_00: You have Judge Chuck and who's been very clear about no, no, no.
• 22:21
  SPEAKER_00: And you have Judge Mershon actually saying, well, in this instance, yes.
• 22:24
  SPEAKER_00: What do you make of that?
• 22:26
  SPEAKER_01: Well, they're different philosophies and you can attribute it to a couple of different things.
• 22:31
  SPEAKER_01: One interpretation is Judge Mershon.
• 22:36
  SPEAKER_00: That's it for this week's free episode of Serious Trouble.
• 22:38
  SPEAKER_00: If you want to hear about judges Tanya Chutkin and Juan Merchan and their decisions
• 22:42
  SPEAKER_00: about scheduling and how they should schedule around the fact that their defendant
• 22:45
  SPEAKER_00: is someone who might be president in a few months,
• 22:47
  SPEAKER_00: if you want to hear about the Foreign Agents Registration Act,
• 22:51
  SPEAKER_00: an update on that case with the right-wing influencers who were paid indirectly by Russians,
• 22:55
  SPEAKER_00: didn't know that they were being paid by Russians,
• 22:58
  SPEAKER_00: some interesting listener questions about,
• 22:59
  SPEAKER_00: you know,
• 23:00
  SPEAKER_00: well,
• 23:00
  SPEAKER_00: If they thought the guy paying them was Belgian, isn't that still a FARA violation?
• 23:04
  SPEAKER_00: There's a bunch of other reasons why it would be really hard to try Tim Pool under FARA.
• 23:08
  SPEAKER_00: It's even hard to try smart people for FARA violations.
• 23:11
  SPEAKER_00: We also discuss whether the Foreign Agents Registration Act is unconstitutional.
• 23:15
  SPEAKER_00: We talk about whether Tim Pool should talk to the FBI.
• 23:17
  SPEAKER_00: We talk about what's going on with Eric Adams and his administration and what kind
• 23:21
  SPEAKER_00: of serious trouble all those folks might be in.
• 23:23
  SPEAKER_00: So again, if you want to hear all that.
• 23:25
  SPEAKER_00: I strongly encourage you.
• 23:26
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• 23:28
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• 23:31
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• 23:36
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• 23:40
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• 23:41
  SPEAKER_00: Thanks.