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Nathan Wade Speaks (Please Stop Speaking, Nathan Wade) · Serious Trouble

0:08
SPEAKER_00: Hi, it's Ken White.
0:10
SPEAKER_00: And it's Josh Barrow, and this is Serious Trouble.
0:13
SPEAKER_00: So, Ken, Steve Bannon really for real going to prison now, right?
0:17
SPEAKER_00: He is.
0:17
SPEAKER_01: He's down to his last two to three prison shirts, and there's nothing else left for him.
0:24
SPEAKER_01: The Court of Appeals has rejected his emergency motion to stay out.
0:29
SPEAKER_01: He's petitioned the Supreme Court, but that's very unlikely to go any place.
0:33
SPEAKER_01: So he is going to have to report, and not only that, not to a camp.
0:37
SPEAKER_00: Wait, so can you explain this?
0:39
SPEAKER_00: There's like the prison camps and then but he's going to some low security prison in Connecticut.
0:45
SPEAKER_00: What is a low security prison like?
0:47
SPEAKER_01: So there are different security levels for all sorts of prisons, state and federal.
0:51
SPEAKER_01: And with
0:53
SPEAKER_01: With federal,
0:53
SPEAKER_01: there's everything from like Supermax where they keep the very worst people to high
0:58
SPEAKER_01: security to medium security to low security all the way down to camps.
1:03
SPEAKER_01: A camp is what you want to be in because it's basically like a fenced off rather punitive summer camp.
1:13
SPEAKER_01: You wouldn't choose to be there, but if you have to be in prison, that's where you'd want to go.
1:17
SPEAKER_01: Bannon, for whatever reason, got sent one step up from that to a low security.
1:22
SPEAKER_01: Now,
1:22
SPEAKER_01: a low security prison is much,
1:25
SPEAKER_01: much nicer than a high security prison,
1:28
SPEAKER_01: but it is very noticeably a prison.
1:30
SPEAKER_01: You wouldn't mistake it for anything else.
1:32
SPEAKER_00: And then some people have also been talking about this possibility.
1:36
SPEAKER_00: He's going to be on trial in New York state also, and that's coming up in September.
1:39
SPEAKER_00: So will he still be in custody when he has to go on that trial in New York?
1:43
SPEAKER_01: Possibly.
1:43
SPEAKER_01: So his sentence is four months and sentences of less than a year work differently in the federal system.
1:51
SPEAKER_01: You don't get all the good time credit and you're not eligible for all the same
1:55
SPEAKER_01: credits to get out earlier if your sentence is less than a year.
1:59
SPEAKER_01: So he could conceivably be there when his trial is called in New York.
2:05
SPEAKER_01: And that's remember is the state trial version of the one that Trump pardoned him on the scheme.
2:10
SPEAKER_00: This was people.
2:11
SPEAKER_00: We build the wall.
2:13
SPEAKER_00: Right.
2:13
SPEAKER_00: The thing where they advertise they're going to take these donations and use it to
2:16
SPEAKER_00: build a private wall on the Mexican border.
2:18
SPEAKER_00: And then they took the money and used it for other stuff.
2:20
SPEAKER_01: Right, so this was a scam to get money from morons who were eager to build a wall.
2:27
SPEAKER_01: Trump pardoned him on the federal charges, but New York went after him on state charges.
2:33
SPEAKER_01: It was scheduled to go to trial this month.
2:35
SPEAKER_01: It got bumped to September.
2:37
SPEAKER_01: So it's theoretically possible that he would still be in custody when that trial starts,
2:42
SPEAKER_01: which would be bad for him because the place he'd most likely be held during trial
2:46
SPEAKER_01: is Rikers,
2:47
SPEAKER_01: which is not where you would choose to be held.
2:51
SPEAKER_01: However,
2:51
SPEAKER_01: my guess is that they'll bump the trial again until he's out of custody because
2:56
SPEAKER_01: it's a pain in the ass.
2:57
SPEAKER_01: Basically, the state has to writ the person out of federal custody into state custody.
3:02
SPEAKER_01: There's a ton of paperwork.
3:04
SPEAKER_01: It's all a big pain in the ass.
3:06
SPEAKER_01: So I suspect they'll just bump it until he's out of federal custody.
3:09
SPEAKER_00: and then also in the new york state courts uh where donald trump was convicted on
3:13
SPEAKER_00: 34 felony counts if people may have heard a little bit about that case there's a
3:17
SPEAKER_00: gag order that was put on donald trump that is still in force and so donald trump
3:21
SPEAKER_00: has made this motion saying this trial is over i should be released from the gag
3:25
SPEAKER_00: order we've gotten a response now from d.a alvin bragg who wants to keep much of
3:29
SPEAKER_00: the gag order in force not with regard to the witnesses anymore
3:33
SPEAKER_00: but on prosecutors and not Alvin Bragg himself.
3:36
SPEAKER_00: The gag order never applied to Alvin Bragg,
3:38
SPEAKER_00: but to people who work in the prosecutorial office,
3:40
SPEAKER_00: jurors,
3:41
SPEAKER_00: court staff.
3:42
SPEAKER_00: And the argument is basically all these death threats have come in,
3:45
SPEAKER_00: and that's a reason why the gag order is still needed.
3:48
SPEAKER_00: And I guess the first question I have is like,
3:51
SPEAKER_00: How long can they make that argument?
3:52
SPEAKER_00: Is it just until the appeals are final?
3:54
SPEAKER_00: I mean,
3:54
SPEAKER_00: you could argue that,
3:55
SPEAKER_00: you know,
3:55
SPEAKER_00: Donald Trump could pose a threat to these people by by attacking them indefinitely.
4:00
SPEAKER_00: But I assume you can't have a gag order on a defendant that goes on forever long
4:04
SPEAKER_00: after the proceedings are over.
4:05
SPEAKER_00: Right.
4:05
SPEAKER_01: No, that's true.
4:07
SPEAKER_01: So.
4:07
SPEAKER_01: Remember,
4:08
SPEAKER_01: the gag order components was no attacking witnesses for their expected testimony
4:13
SPEAKER_01: and no attacking court staff and the DA staff.
4:17
SPEAKER_01: And the jurors.
4:18
SPEAKER_01: And the jurors.
4:19
SPEAKER_01: And the premise of that was we're trying to keep a fair trial.
4:21
SPEAKER_01: We're trying to keep the system working.
4:23
SPEAKER_01: So after the trial, sort of the premise in terms of the witnesses drops away.
4:28
SPEAKER_01: They've already testified.
4:29
SPEAKER_01: Bragg's argument is that there's been this flood of threats
4:33
SPEAKER_01: coming in driven by Trump's inflammatory public statements about how,
4:37
SPEAKER_01: you know,
4:38
SPEAKER_01: the devil is trying to kill him and all this type of thing,
4:41
SPEAKER_01: and that Bragg is concerned for safety of the court staff,
4:46
SPEAKER_01: the DAs,
4:46
SPEAKER_01: and of the jurors.
4:48
SPEAKER_01: I think not unreasonably so.
4:50
SPEAKER_01: The question is whether or not the court's power reaches that far that long.
4:58
SPEAKER_01: So the First Amendment carve-out that's being counted upon is the court's ability
5:04
SPEAKER_01: to govern its own processes and protect the process of a trial.
5:10
SPEAKER_01: So once the trial is over,
5:13
SPEAKER_01: You start to ask, well, how much longer does that extend?
5:15
SPEAKER_01: Does it just extend to sentencing?
5:17
SPEAKER_01: Could it be permanent on the idea that you'll deter people in future trials?
5:22
SPEAKER_01: That doesn't seem to be right because it would be basically permanently gagging
5:26
SPEAKER_01: people who are accused of crimes.
5:28
SPEAKER_01: So I think that Bragg may have an argument for a limited in time, limited in scope argument.
5:36
SPEAKER_01: This going on until sentencing,
5:37
SPEAKER_01: perhaps,
5:38
SPEAKER_01: but I think he's going to have a real problem with First Amendment issues to the
5:41
SPEAKER_01: extent he wants to continue to gag Trump about talking about jurors or prosecutors.
5:48
SPEAKER_01: Remember that the basic idea in American law is that you don't have prior restraint, right?
5:53
SPEAKER_01: You don't forbid speech ahead of time by court order.
5:57
SPEAKER_01: What you do is you punish it if it's actionable after it's been spoken.
6:01
SPEAKER_01: So the concept that you would forbid someone from trash-talking jurors is kind of alien to that.
6:08
SPEAKER_01: The idea would be that if it crosses the line into incitement or threat, then you would punish it.
6:14
SPEAKER_01: So I think that's an uphill battle to keep much of the gag order in place any
6:19
SPEAKER_01: longer than perhaps the sentencing.
6:22
SPEAKER_00: And to be clear,
6:22
SPEAKER_00: the rationale for the gag order in the first place is not based on the idea that
6:26
SPEAKER_00: Trump's statements have been incitement or threat in the legal sense of those terms.
6:31
SPEAKER_00: They're not, you know, the statements he made were not themselves crimes.
6:35
SPEAKER_00: They were not... Remind me again the standard on what's a true threat.
6:39
SPEAKER_00: A true threat is...
6:41
SPEAKER_01: A statement that a reasonable person familiar with the context would understand is
6:46
SPEAKER_01: a genuine statement of intent to do harm and that the person uttering it either
6:51
SPEAKER_01: intended it that way or is reckless about whether it would be taken that way.
6:55
SPEAKER_00: And I think you would say that none of the things that Trump said that that caused
6:59
SPEAKER_00: the gag or none of none of them would have actually met that standard.
7:02
SPEAKER_00: Right.
7:02
SPEAKER_01: No,
7:02
SPEAKER_01: I think a lot of the things Trump is saying could meet the definition of,
7:07
SPEAKER_01: what do they call it,
7:08
SPEAKER_01: stochastic terrorism.
7:10
SPEAKER_00: Stochastic terrorism.
7:11
SPEAKER_01: Excuse me, stochastic terrorism.
7:13
SPEAKER_01: I'm terrible with made-up words.
7:16
SPEAKER_00: But...
7:17
SPEAKER_00: Stochastic is a real word.
7:19
SPEAKER_00: Stochastic terrorism is a made up concept.
7:21
SPEAKER_01: OK, well, stochastic terrorism is not a First Amendment exception.
7:25
SPEAKER_01: So I think a lot of the things Trump and his people are saying are stochastic
7:29
SPEAKER_01: terrorism in that it's plausible they'll lead to violence,
7:33
SPEAKER_01: but they don't.
7:34
SPEAKER_00: I guess we should define this.
7:35
SPEAKER_00: I hate this concept.
7:37
SPEAKER_00: Because terrorism is a crime.
7:38
SPEAKER_00: Yes.
7:39
SPEAKER_00: And this is a way that,
7:40
SPEAKER_00: you know,
7:40
SPEAKER_00: it's saying basically that if you say irresponsible things that might cause other
7:44
SPEAKER_00: people to behave irresponsibly,
7:45
SPEAKER_00: but that are not crimes and that are not true threats,
7:48
SPEAKER_00: that that itself is this version of terrorism.
7:51
SPEAKER_00: Stochastic means basically it's a process that has a random element.
7:56
SPEAKER_00: So,
7:56
SPEAKER_00: you know,
7:56
SPEAKER_00: like earthquakes occur stochastically because they you know,
8:01
SPEAKER_00: there are factors that make them more or less likely.
8:03
SPEAKER_00: But there is also an element of randomness in terms of when they when they occur.
8:06
SPEAKER_00: So that's that's where this term comes from.
8:08
SPEAKER_00: But I think it's one of these terms that tries to take a negative social phenomenon
8:12
SPEAKER_00: and put a frame on it that suggests that it is a criminal act when it's not.
8:16
SPEAKER_01: Sure.
8:17
SPEAKER_01: It's a label and it's kind of an argument that the First Amendment restricts speech
8:22
SPEAKER_01: not enough,
8:23
SPEAKER_01: that there should be broader exceptions for certain speech that plausibly,
8:27
SPEAKER_01: predictably leads lone wolves and freaks to use violence.
8:33
SPEAKER_01: But that's not the First Amendment test.
8:35
SPEAKER_01: So I guess the bottom line is,
8:37
SPEAKER_01: yes,
8:37
SPEAKER_01: I think Trump and his people are saying a lot of contemptible things that could
8:41
SPEAKER_01: predictably lead some freak to do something violent.
8:45
SPEAKER_01: But I
8:46
SPEAKER_01: I don't think that any of them meet so far the established First Amendment tests
8:51
SPEAKER_01: for true threats or incitement.
8:52
SPEAKER_00: Let's talk about a case that came out of the Supreme Court this week.
8:54
SPEAKER_00: We didn't get the presidential immunity case that we've been watching very closely
8:58
SPEAKER_00: for that's going to matter for the for the federal trial in Washington,
9:02
SPEAKER_00: D.C.,
9:03
SPEAKER_00: before Judge Tanya Chutkan.
9:04
SPEAKER_00: But we did get a case that's actually likely to be relevant for the prosecution,
9:08
SPEAKER_00: which Hunter Biden was just convicted.
9:09
SPEAKER_00: This is a case called U.S.
9:11
SPEAKER_00: versus Rahimi.
9:12
SPEAKER_00: It had to do with a law that prohibits people who have a restraining order for
9:16
SPEAKER_00: domestic violence against them from possessing guns.
9:18
SPEAKER_00: The court upheld this law on an eight to one decision.
9:23
SPEAKER_00: And this actually suggests that the law that Hunter Biden violated,
9:26
SPEAKER_00: which prohibits people with substance use problems from having guns.
9:30
SPEAKER_00: suggests that maybe that law is constitutional after all,
9:32
SPEAKER_00: even though the Fifth Circuit has said that it isn't.
9:34
SPEAKER_00: So first, can we talk about this Rahimi decision?
9:37
SPEAKER_00: Why eight justices on the court decided that it is constitutional to say you can't
9:42
SPEAKER_00: have a gun if there's a domestic violence restraining order against you?
9:45
SPEAKER_01: Sure.
9:45
SPEAKER_01: The context of this is a big and controversial Second Amendment decision written by
9:51
SPEAKER_01: Justice Thomas a few years ago called Bruin.
9:54
SPEAKER_01: And that's the one where he said basically limitations on the use of firearms that
10:00
SPEAKER_01: were not commonly accepted and understood at the time of the framing of the Second Amendment.
10:05
SPEAKER_01: are not permissible.
10:06
SPEAKER_01: So there can be exceptions to the Second Amendment,
10:09
SPEAKER_01: but it's only those that were generally understood to exist as good policy at the
10:13
SPEAKER_01: time of the Second Amendment.
10:15
SPEAKER_01: So since then,
10:17
SPEAKER_01: everyone has just been going hog wild with gun laws saying,
10:20
SPEAKER_01: oh,
10:20
SPEAKER_01: no,
10:21
SPEAKER_01: there wasn't any law against this.
10:22
SPEAKER_01: There was no law against machine guns at the time of the Second Amendment, whatever.
10:26
SPEAKER_01: And remember that that became an issue for the charges against Hunter Biden.
10:31
SPEAKER_01: because, you know, there wasn't a law against addicts having a musket in 1790s.
10:38
SPEAKER_01: So this Fifth Circuit has already struck down that law under which Hunter Biden was
10:43
SPEAKER_01: convicted on that theory.
10:46
SPEAKER_01: In Rahimi,
10:47
SPEAKER_01: as you said,
10:47
SPEAKER_01: the issue was a law saying that people currently under domestic violence
10:51
SPEAKER_01: restraining orders can't possess a gun.
10:54
SPEAKER_01: And this, in one of the more
10:58
SPEAKER_01: unconvincing displays that I've seen of retreat from a Supreme Court justice.
11:04
SPEAKER_01: Justice Roberts writes a section basically,
11:06
SPEAKER_01: oh,
11:06
SPEAKER_01: whoa,
11:07
SPEAKER_01: whoa,
11:07
SPEAKER_01: you guys totally misunderstood where we were going with that.
11:11
SPEAKER_01: You know, we're really sorry that the lower courts haven't gotten this right.
11:15
SPEAKER_01: But what we meant clearly was that it doesn't have to be an exact match to a founding era law.
11:22
SPEAKER_01: It has to protect a relevantly similar interest.
11:27
SPEAKER_01: So he says,
11:27
SPEAKER_01: here's all this history about how there were ways that dangerous people could be restricted,
11:32
SPEAKER_01: including restrictions on them having guns.
11:35
SPEAKER_01: And because of that,
11:35
SPEAKER_01: and that's relevantly similar to a modern law of restricting domestic violence,
11:42
SPEAKER_01: restraining orders,
11:43
SPEAKER_01: notwithstanding the entire concept of domestic violence or restraining orders would
11:47
SPEAKER_01: be completely alien to someone in 1790s.
11:51
SPEAKER_01: So therefore, it's OK.
11:53
SPEAKER_01: So it's basically a rebuke.
11:56
SPEAKER_01: to all the courts reading Bruin for what Bruin actually said.
12:02
SPEAKER_01: And it's,
12:02
SPEAKER_01: to me,
12:03
SPEAKER_01: a rather unconvincing attempt to kind of retcon this and say,
12:07
SPEAKER_01: well,
12:07
SPEAKER_01: we didn't actually go that far.
12:09
SPEAKER_01: You misunderstood us.
12:10
SPEAKER_01: When, in fact, that's completely what the Supreme Court said in Bruin.
12:14
SPEAKER_01: So now the standard will be for Hunter Biden's case.
12:18
SPEAKER_01: Is this law against addicts having a gun relevantly similar to some type of law
12:25
SPEAKER_01: that was accepted at the time of the framing of the Second Amendment?
12:28
SPEAKER_01: And there you get into,
12:29
SPEAKER_01: well,
12:30
SPEAKER_01: is it relevantly similar to laws against dangerous people having guns or
12:35
SPEAKER_01: restrictions on danger,
12:36
SPEAKER_01: blah,
12:36
SPEAKER_01: blah,
12:37
SPEAKER_01: blah?
12:38
SPEAKER_01: And it just sort of broadens the historical,
12:41
SPEAKER_01: frankly,
12:42
SPEAKER_01: nonsense from a discussion of what exact laws were in place to a discussion of how
12:47
SPEAKER_01: can you thematically understand laws that were in place in the 1790s?
12:52
SPEAKER_01: How can you describe them and their purpose and analogize them to the purpose of modern laws?
12:58
SPEAKER_01: So it's a retrenchment from Bruin.
13:01
SPEAKER_01: It suggests to me that there's –
13:06
SPEAKER_01: If this had gone the other way,
13:07
SPEAKER_01: if they had struck down the law restricting people with domestic violence
13:13
SPEAKER_01: restraining orders from having guns,
13:14
SPEAKER_01: I would say there was a very high chance that Hunter Biden's case would be
13:18
SPEAKER_01: overturned because they would find that law unpermissible.
13:22
SPEAKER_01: Now,
13:22
SPEAKER_01: based on this,
13:23
SPEAKER_01: I think there's a significant chance that they will uphold or courts will uphold
13:29
SPEAKER_01: Hunter Biden's conviction.
13:30
SPEAKER_00: And so,
13:30
SPEAKER_00: I mean,
13:31
SPEAKER_00: I realize it's like kind of annoying when people are BSing and like the decision
13:36
SPEAKER_00: here saying,
13:37
SPEAKER_00: well,
13:37
SPEAKER_00: you know,
13:37
SPEAKER_00: clearly what we meant in that case was blah,
13:40
SPEAKER_00: blah,
13:40
SPEAKER_00: blah.
13:41
SPEAKER_00: But I think it's worth noting this is this is a significant leftward shift in the
13:45
SPEAKER_00: Supreme Court's apparent jurisprudence of the Second Amendment.
13:48
SPEAKER_00: Right.
13:48
SPEAKER_00: People,
13:48
SPEAKER_00: you know,
13:49
SPEAKER_00: post Bruin,
13:50
SPEAKER_00: it appeared that the court was blowing up a wide variety of gun restrictions that
13:54
SPEAKER_00: they're now saying they weren't actually blowing up.
13:56
SPEAKER_01: Is it a leftward shift or is it just sort of they didn't think clearly the
14:01
SPEAKER_01: implications of the last decision and now they're fixing it?
14:04
SPEAKER_00: Well, OK.
14:04
SPEAKER_00: I mean, maybe always in their heads, they hadn't gone as far as they except Thomas, who dissented here.
14:10
SPEAKER_00: So presumably he meant exactly what he said in Bruin.
14:12
SPEAKER_00: But the maybe in the other justices heads, they knew that they weren't going to go here.
14:16
SPEAKER_00: But this is the this is the outward sign where it's you know,
14:19
SPEAKER_00: there's been this sort of there's been a lot of concern that all sorts of gun
14:22
SPEAKER_00: restrictions in blue states are going to be thrown out because of Bruin issues.
14:25
SPEAKER_00: And some of them will still be thrown out,
14:28
SPEAKER_00: presumably because they won't meet that standard of addressing a relevantly similar interest.
14:31
SPEAKER_00: But a lot more of them are likely to get up.
14:33
SPEAKER_00: We know are likely to get upheld now.
14:34
SPEAKER_01: But, you know, it's like when you say to your spouse, oh, I didn't mean that.
14:40
SPEAKER_01: That's not what I meant.
14:41
SPEAKER_01: Didn't you?
14:42
SPEAKER_01: Really?
14:42
SPEAKER_01: Didn't you?
14:43
SPEAKER_01: Or did you just now think better of it?
14:47
SPEAKER_01: So, yeah.
14:55
SPEAKER_00: Speaking of things that one might think better of, Nathan Wade has been on a little bit of a media tour.
15:02
SPEAKER_00: He went on CNN and was interviewed by Caitlin Collins,
15:06
SPEAKER_00: who asked him when he started sleeping with Fonny Willis.
15:10
SPEAKER_00: And he appeared to be about to answer the question.
15:12
SPEAKER_00: And then his,
15:12
SPEAKER_00: I don't know whether it was a lawyer or a PR person who's off camera,
15:16
SPEAKER_00: basically interrupts the interview and is like,
15:19
SPEAKER_00: hold on,
15:20
SPEAKER_00: don't answer that.
15:21
SPEAKER_00: And they go and they have a sidebar
15:23
SPEAKER_00: where he confers with his team,
15:26
SPEAKER_00: and then he comes back and basically says,
15:27
SPEAKER_00: this is a distraction from Donald Trump's crimes,
15:31
SPEAKER_00: which I guess was supposed to be his talking point all along.
15:33
SPEAKER_00: So he's going on TV when he doesn't really need to,
15:36
SPEAKER_00: and he's not even succeeding very well at keeping to his talking points.
15:40
SPEAKER_00: Then,
15:41
SPEAKER_00: even more alarmingly,
15:42
SPEAKER_00: he went on The Daily Show,
15:43
SPEAKER_00: where Marlon Wayans,
15:45
SPEAKER_00: in the guise of a Borat-type character,
15:49
SPEAKER_00: interviews him also about his relationship with Fannie Willis.
15:53
SPEAKER_00: Here's a clip.
16:14
SPEAKER_02: Right.
16:15
SPEAKER_02: She ain't here to you?
16:16
SPEAKER_02: No.
16:17
SPEAKER_02: I was a contract attorney.
16:19
SPEAKER_02: She was more analogous to a client to me.
16:21
SPEAKER_02: So you're saying she was a client?
16:22
SPEAKER_02: Yes.
16:23
SPEAKER_02: You served her well.
16:25
SPEAKER_02: I did.
16:25
SPEAKER_02: I did my job.
16:26
SPEAKER_02: Let's talk about some of the successes I did while I was on the job.
16:29
SPEAKER_02: I think we're talking about the successes.
16:31
SPEAKER_02: No, wait, wait.
16:34
SPEAKER_01: And oh, my God.
16:36
SPEAKER_00: Ken, is it ethical to have sex with your clients?
16:40
SPEAKER_01: No, Josh, Josh, I didn't sleep with my boss.
16:43
SPEAKER_01: I slept with my client.
16:44
SPEAKER_01: That is not a thing.
16:45
SPEAKER_01: That is not a defense.
16:49
SPEAKER_01: I'm stunned.
16:51
SPEAKER_01: The depths of abysmal judgment that Nathan Wade is capable of.
16:57
SPEAKER_01: We don't seem to be capable of plumbing.
16:58
SPEAKER_01: We don't seem to be able to find the bottom of this fucking trench of his bad
17:04
SPEAKER_01: judgment to,
17:06
SPEAKER_01: first of all,
17:07
SPEAKER_01: go on CNN to talk about this thing that's on appeal before the courts that could
17:12
SPEAKER_01: have criminal consequences,
17:14
SPEAKER_01: frankly.
17:15
SPEAKER_01: And to be poorly prepared so your staff has to rescue you when you know you're
17:19
SPEAKER_01: going to be asked about the exact bad facts that the people get to.
17:23
SPEAKER_01: But then to get interviewed by Marlon Wayans on The Daily Show.
17:28
SPEAKER_01: How do you do that?
17:29
SPEAKER_01: How do you make that decision?
17:31
SPEAKER_01: What kind of... I mean, the guy just has to have some sort of pathological need for publicity.
17:37
SPEAKER_01: But...
17:38
SPEAKER_01: He is making the argument that all the people who are critics of him and of Fannie
17:43
SPEAKER_01: Willis made,
17:44
SPEAKER_01: which is that he is extremely unsuited for a serious position of responsibility
17:50
SPEAKER_01: because he has appallingly bad judgment.
17:53
SPEAKER_01: So he goes on and CNN is bad enough, but then he goes on and does this discussion that is –
18:00
SPEAKER_01: And crass and extremely degrading to Fanny Willis, let's just say, and the sexuality of this discussion.
18:06
SPEAKER_01: And then he utters this line about, no, I wasn't sleeping with my boss.
18:10
SPEAKER_01: I was sleeping with my client, which is not something that you're allowed to do.
18:16
SPEAKER_01: How can you have this bad judgment?
18:19
SPEAKER_00: It's like my jaw dropped when I saw that part of the interview because I wasn't,
18:24
SPEAKER_00: you know,
18:24
SPEAKER_00: like if like going and being interviewed by Marlon Wayans,
18:27
SPEAKER_00: I would expect it to be an embarrassing and gross spectacle.
18:29
SPEAKER_00: But the fact that Marlon Wayans actually managed to get a bad fact out of him.
18:33
SPEAKER_00: Right.
18:33
SPEAKER_00: Right.
18:35
SPEAKER_00: Oh, my God.
18:36
SPEAKER_00: When you say Nathan Wade should be concerned about criminal consequences,
18:39
SPEAKER_00: what is that perjury or something else?
18:41
SPEAKER_01: Perjury is stuff related to conflict of interest.
18:46
SPEAKER_01: Any number of things,
18:48
SPEAKER_01: you know,
18:48
SPEAKER_01: particularly if you have a vengeful Trump administration deciding to use federal
18:54
SPEAKER_01: charges to go after all their enemies.
18:56
SPEAKER_01: If you've got a shift of appetites and ideas in Georgia, it is just an appallingly stupid thing to do.
19:05
SPEAKER_01: I he's he's either not getting decent advice or he is not listening to it.
19:09
SPEAKER_01: More likely.
19:10
SPEAKER_00: I don't know that you even need a shift in appetites and desires in Georgia.
19:13
SPEAKER_00: I mean,
19:13
SPEAKER_00: Georgia,
19:14
SPEAKER_00: you know,
19:14
SPEAKER_00: at the state level is run by Republicans who have been relatively independent of
19:18
SPEAKER_00: Donald Trump.
19:19
SPEAKER_00: And Governor Brian Kemp stood up to Trump on the election related issues and lived to serve another day.
19:25
SPEAKER_00: But that doesn't mean that those Republicans like Fannie Willis or think that she's
19:32
SPEAKER_00: doing a good job as DA or that a pass should be given for real misconduct that
19:37
SPEAKER_00: occurred in her office.
19:37
SPEAKER_01: No, I don't think it has to be that big of a shift.
19:39
SPEAKER_01: Basically,
19:41
SPEAKER_01: the Georgia state apparatus has not gone all out attacking her or trying to thwart
19:50
SPEAKER_01: her efforts as district attorney,
19:52
SPEAKER_01: but they certainly could.
19:54
SPEAKER_01: So I'm almost speechless over this.
19:57
SPEAKER_01: I don't understand how you can make this decision.
20:00
SPEAKER_01: This guy should not have been a special prosecutor on a fucking parking ticket.
20:08
SPEAKER_00: And then,
20:08
SPEAKER_00: of course,
20:08
SPEAKER_00: there's another prosecution by her office that we've been following that's a huge mess.
20:13
SPEAKER_00: That's this Young Thug trial.
20:15
SPEAKER_00: We talked last week about this going completely off the rails.
20:19
SPEAKER_00: Judge Ural Glanville,
20:21
SPEAKER_00: who's the chief judge of Fulton County,
20:23
SPEAKER_00: presiding over this case,
20:24
SPEAKER_00: had an ex-party meeting with a witness and with prosecutors,
20:29
SPEAKER_00: apparently trying to pressure the witness to testify when he was going squirrelly
20:32
SPEAKER_00: about testifying,
20:34
SPEAKER_00: didn't notify the defense about this meeting.
20:38
SPEAKER_00: outraged about this and was demanding a transcript of the meeting.
20:41
SPEAKER_00: And Judge Glanville's whole reaction was, well, who told you about that meeting?
20:44
SPEAKER_00: It was supposed to be secret.
20:45
SPEAKER_00: And he actually ordered Brian Steele,
20:47
SPEAKER_00: who is Young Thug's criminal defense attorney,
20:50
SPEAKER_00: into in contempt of court and said,
20:52
SPEAKER_00: I'm going to jail you for 10 weekends if you don't tell me who who told you about
20:56
SPEAKER_00: what happened in this ex-party meeting.
20:58
SPEAKER_00: And so a couple of developments have happened there.
21:01
SPEAKER_00: One is that Brian Steele sought a bond from the Georgia Supreme Court,
21:04
SPEAKER_00: allowing him to stay out of jail while they consider whether that penalty against
21:07
SPEAKER_00: him was valid or not.
21:09
SPEAKER_00: And so he got that bond.
21:11
SPEAKER_00: And so I guess,
21:11
SPEAKER_00: first of all,
21:12
SPEAKER_00: does that mean that he's likely to prevail on that and that an appeals court is
21:15
SPEAKER_00: likely to say,
21:16
SPEAKER_00: no,
21:16
SPEAKER_00: you can't send that guy to jail for contempt?
21:18
SPEAKER_01: It at least means it's very plausible.
21:20
SPEAKER_01: That's what they'll find because that type of bond generally involves some sort of
21:25
SPEAKER_01: evaluation of whether you might have a meritorious claim.
21:28
SPEAKER_01: And the issuance of the bond and the speed and the language all strongly suggest
21:32
SPEAKER_01: that they think Judge Glanville has gone off the deep end.
21:36
SPEAKER_00: And then they've also sought a mistrial.
21:38
SPEAKER_01: Right.
21:38
SPEAKER_01: They went back and they made a dual motion to recuse Judge Glanville under Georgia
21:45
SPEAKER_01: law and for a mistrial.
21:47
SPEAKER_01: That type of request,
21:48
SPEAKER_01: if it's a sufficiently plausible issue of possible bias,
21:52
SPEAKER_01: a request for a mistrial,
21:53
SPEAKER_01: it's supposed to go to another judge,
21:56
SPEAKER_01: a neutral judge,
21:57
SPEAKER_01: supposedly,
21:58
SPEAKER_01: to hear the motion.
21:59
SPEAKER_01: But Glanville just says there's no basis for this.
22:01
SPEAKER_01: There's no reason to think that I can't do this.
22:04
SPEAKER_01: I'm denying it.
22:05
SPEAKER_01: So now they're sending up a writ on that.
22:09
SPEAKER_01: A writ may be the wrong terminology in Georgia.
22:11
SPEAKER_01: Sorry.
22:11
SPEAKER_01: They're doing an emergency motion to the Georgia Supreme Court on that.
22:16
SPEAKER_01: The Georgia practitioners I've talked to and read seem pretty uniform that Judge
22:22
SPEAKER_01: Glanville is just completely off the rails here,
22:25
SPEAKER_01: that his approach to the entire jailing Brian Steele thing,
22:31
SPEAKER_01: that his approach to this ex parte communication
22:34
SPEAKER_01: And that now his approach to this motion for recusal is just kind of lawless,
22:39
SPEAKER_01: not within what he's supposed to do at all,
22:41
SPEAKER_01: and that there's a high chance that the Georgia Supreme Court is going to step in.
22:45
SPEAKER_01: Now, it's important to point something out here about what Brian Steele and Young Thug are asking for.
22:50
SPEAKER_01: They're asking for a mistrial.
22:51
SPEAKER_01: That doesn't mean that he walks free.
22:54
SPEAKER_01: That means they have to start the whole goddamn thing over again.
22:57
SPEAKER_01: And remember, it took a year in this case to pick a jury.
23:01
SPEAKER_01: And most of these people are in custody.
23:04
SPEAKER_01: So when you ask for a mistrial under the circumstances,
23:07
SPEAKER_01: you're basically saying,
23:07
SPEAKER_01: well,
23:07
SPEAKER_01: I guess I get to be in jail a few more years until I get a jury to make a decision
23:12
SPEAKER_01: on whether or not there's a case on me.
23:14
SPEAKER_01: So it's no small thing.
23:16
SPEAKER_01: But it would certainly be a huge blow to the prosecution if there was a mistrial
23:21
SPEAKER_01: and they had to start all over again with one presumes a different judge.
23:25
SPEAKER_00: Why would they want a mistrial in those circumstances?
23:28
SPEAKER_01: Well,
23:28
SPEAKER_01: so you got to balance on the one hand,
23:30
SPEAKER_01: I want the case to be over with,
23:32
SPEAKER_01: on the other hand,
23:33
SPEAKER_01: it's generally beneficial for the defense to be a chaos agent and a derailer of prosecutions.
23:40
SPEAKER_01: So things...
23:42
SPEAKER_01: often don't go as well the second time around.
23:44
SPEAKER_01: You've already heard what the witnesses say.
23:46
SPEAKER_00: Don't go as well for the prosecution, you mean?
23:48
SPEAKER_01: Correct.
23:49
SPEAKER_01: They don't go as well for the prosecution.
23:50
SPEAKER_01: You've often heard what all the witnesses say.
23:53
SPEAKER_01: You know what they're going to say.
23:54
SPEAKER_01: You know what the prosecution's themes and trial strategy are.
23:58
SPEAKER_01: And just as time goes on, things change.
24:01
SPEAKER_01: People leave the prosecutor's office.
24:04
SPEAKER_01: Witnesses disappear.
24:06
SPEAKER_01: People's memory fades, all that type of thing.
24:08
SPEAKER_01: So all those reasons that it might be beneficial to do a redo.
24:13
SPEAKER_01: And if you think the case has been going badly for you, you might want a retrial.
24:17
SPEAKER_01: So if your evaluation is that we're likely to get a conviction here,
24:22
SPEAKER_01: then you might say,
24:23
SPEAKER_01: well,
24:23
SPEAKER_01: the best thing to do is to sort of shake the etch-a-sketch and start over again.
24:30
SPEAKER_00: Finally, this week, I want to talk about Eileen Cannon.
24:32
SPEAKER_00: The New York Times has a story saying that two federal judges tried to convince
24:37
SPEAKER_00: Cannon not to take the Trump case when it was randomly assigned to her.
24:41
SPEAKER_00: She had previously had a separate case about this issue of should Donald Trump have
24:47
SPEAKER_00: to return these documents that were in the bathroom at his private club.
24:52
SPEAKER_00: And she issued some bizarre rulings in that case that were very favorable to him
24:55
SPEAKER_00: that got slapped down on appeal.
24:57
SPEAKER_00: And then she ends up again with this case,
25:00
SPEAKER_00: you know,
25:00
SPEAKER_00: that randomly,
25:01
SPEAKER_00: although I know because of the geographic way that that district is divided,
25:06
SPEAKER_00: it wasn't terribly unlikely.
25:07
SPEAKER_00: It was maybe like a one in four chance that she was going to get the case.
25:10
SPEAKER_00: And she did.
25:11
SPEAKER_00: So a couple of judges, including the chief judge in the Southern District of Florida, Cecilia Altanaga.
25:17
SPEAKER_00: went to her and basically said,
25:18
SPEAKER_00: you know,
25:18
SPEAKER_00: maybe it would be for the best if you declined this case and let someone more
25:22
SPEAKER_00: senior take it.
25:23
SPEAKER_00: And she obviously did not follow that advice.
25:25
SPEAKER_00: What do you make of that?
25:26
SPEAKER_01: You know,
25:27
SPEAKER_01: my take on this is different than the take that I think the New York Times intended
25:32
SPEAKER_01: in a way that a lot of people are spinning it.
25:34
SPEAKER_01: A lot of people are sort of taking it as further indication of how unsuited she is
25:40
SPEAKER_01: and how they believed in advance she would be breaking norms and doing things.
25:45
SPEAKER_01: I take it as it's very norm breaking for the judges to approach her and do this.
25:49
SPEAKER_01: I mean, cases are supposed to get parceled out randomly.
25:53
SPEAKER_01: And yes,
25:53
SPEAKER_01: to the extent you control where you bring the case,
25:56
SPEAKER_01: you can have a big influence on which judge gets it.
25:58
SPEAKER_01: But for judges to approach another judge and on a very high profile,
26:03
SPEAKER_01: important,
26:04
SPEAKER_01: politically charged case suggests that that judge not take the case.
26:08
SPEAKER_01: So it goes to someone else.
26:10
SPEAKER_01: is,
26:10
SPEAKER_01: I think,
26:11
SPEAKER_01: a fairly large violation of judicial norms and a sort of intrusion of political
26:18
SPEAKER_01: thinking in a way that kind of matches some of Trump's rhetoric about the system
26:23
SPEAKER_01: being stacked against him.
26:25
SPEAKER_01: I could certainly see how they thought that it's going to be a train wreck,
26:29
SPEAKER_01: not because she's going to be nice to Trump or not because we want Trump convicted,
26:33
SPEAKER_01: but she doesn't know what she's doing and it's going to be very high profile.
26:37
SPEAKER_01: that she doesn't know what she's doing so you could see it in that way if you're
26:40
SPEAKER_01: inclined towards charity as protecting the system and the dignity of the system but
26:45
SPEAKER_01: i i think they ought to have known that this came out it would very much look like
26:50
SPEAKER_01: a court system that is sort of invested on only the right judges hearing cases
26:55
SPEAKER_01: against trump and things going against trump so i think that was a serious error in
27:00
SPEAKER_01: judgment if the judges did that but so i mean
27:03
SPEAKER_00: What I'm wondering is why they would break that norm.
27:05
SPEAKER_00: I mean, Cecilia Altanaga is an appointee by George W. Bush.
27:09
SPEAKER_00: Her resume does not suggest to me that she would be partisan for Democrats.
27:17
SPEAKER_00: If she went and took this step,
27:18
SPEAKER_00: which I'm sure she knew was an unusual and unorthodox thing to do that might be criticized,
27:25
SPEAKER_00: I assume she did it for a reason.
27:27
SPEAKER_00: So doesn't that suggest to you that these judges knew something about
27:32
SPEAKER_00: about the way that Judge Cannon was likely to mishandle this case?
27:35
SPEAKER_01: Sure.
27:36
SPEAKER_01: They might have thought two things.
27:37
SPEAKER_01: They might have thought she was just not equipped by experience or maybe even by
27:41
SPEAKER_01: intellect to handle something of this complexity under extreme public scrutiny.
27:47
SPEAKER_01: And that
27:48
SPEAKER_01: She would screw it up.
27:49
SPEAKER_01: They also might have thought that she didn't have the sort of judicial discipline
27:55
SPEAKER_01: or attitude not to dramatically favor Trump on the case in norm breaking the ways
28:03
SPEAKER_01: the way she did in the civil proceedings beforehand,
28:07
SPEAKER_01: where she came up with that lunatic order restricting the government from looking
28:11
SPEAKER_01: at things they'd seized in the search.
28:13
SPEAKER_01: So,
28:14
SPEAKER_01: both of those things might have led these judges to think we want to protect sort
28:18
SPEAKER_01: of the credibility and reputation of the judiciary here and of the system by not
28:23
SPEAKER_01: letting this happen.
28:24
SPEAKER_01: But honestly, I mean, there are bad judges.
28:27
SPEAKER_01: There are biased judges.
28:30
SPEAKER_01: And there are judges who are going to make a case into a train wreck.
28:34
SPEAKER_01: And if one of them gets randomly assigned to something,
28:37
SPEAKER_01: then if you fix that,
28:40
SPEAKER_01: in some cases you're worried about,
28:42
SPEAKER_01: but not other cases,
28:43
SPEAKER_01: that's a problem.
28:44
SPEAKER_01: That's bias.
28:45
SPEAKER_01: And it's the appearance of bias.
28:47
SPEAKER_01: So would I be much happier if someone a little less biased and someone more experienced had this case?
28:54
SPEAKER_01: Oh, absolutely.
28:55
SPEAKER_01: But I think this is a terrible appearance.
28:57
SPEAKER_01: Yeah.
28:58
SPEAKER_00: Why don't we leave it there this week, Ken?
28:59
SPEAKER_00: Thank you for speaking with me as always.
29:00
SPEAKER_00: Thank you, Josh.
29:02
SPEAKER_00: Serious Trouble is created and produced by Very Serious Media.
29:04
SPEAKER_00: That's me and Sarah Faye.
29:05
SPEAKER_00: Jennifer Swadik mixed this episode.
29:07
SPEAKER_00: Our theme music is by Joshua Mosier.
29:09
SPEAKER_00: Thank you for listening.
29:09
SPEAKER_00: We'll be back with more soon.
29:11
SPEAKER_00: See you next time.