Transcript

Take Two · Serious Trouble

0:00
SPEAKER_01: Hey everybody, it's Josh Barrow back with another episode of Serious Trouble.
0:03
SPEAKER_01: On this week's episode,
0:04
SPEAKER_01: we have new action in Jack Smith's two federal criminal cases against Donald Trump.
0:09
SPEAKER_01: A superseding indictment trying to clean up some of the mess the Supreme Court
0:12
SPEAKER_01: created for him in the core January 6th case,
0:15
SPEAKER_01: which obviously has quite a bit to do with what Donald Trump did as president,
0:19
SPEAKER_01: trying to thread a needle there and still be able to prosecute over that.
0:22
SPEAKER_01: Also trying to resurrect the documents case before Judge Eileen Cannon.
0:26
SPEAKER_01: Those we discuss in the episode for all listeners this week.
0:30
SPEAKER_01: And then if you want to hear our full episode this week,
0:32
SPEAKER_01: though,
0:32
SPEAKER_01: you should become a paying subscriber because then you'll get our conversation
0:36
SPEAKER_01: about Tom Girardi,
0:38
SPEAKER_01: the peripheral character from The Real Housewives of Beverly Hills,
0:41
SPEAKER_01: now convicted of stealing millions of dollars from his clients as a tort lawyer,
0:46
SPEAKER_01: somewhat smarter version of Michael Avenatti,
0:48
SPEAKER_01: as Ken puts it in the episode.
0:51
SPEAKER_01: We also talk about the ketamine queen of North Hollywood,
0:53
SPEAKER_01: who has an attorney making arguments on her behalf now.
0:56
SPEAKER_01: And we have a little update, a correction on something we discussed with Disney last week.
1:00
SPEAKER_01: It was not O'Melveny and Myers that created a big PR mess for Disney with their arguments.
1:05
SPEAKER_01: It was actually White & Case, a different mega firm.
1:07
SPEAKER_01: We apologize to O'Melveny and Myers.
1:10
SPEAKER_01: And we talk a little bit more about the merits of that argument about arbitration.
1:14
SPEAKER_01: And finally, we talk about the apex witness doctrine.
1:17
SPEAKER_01: when you are allowed to depose the CEO of a company that you're suing in a civil case.
1:22
SPEAKER_01: Live Nation,
1:23
SPEAKER_01: which put on the Astroworld concert that led to the disaster with 10 deaths back in
1:28
SPEAKER_01: Houston in 2021,
1:29
SPEAKER_01: their CEO would like not to be deposed in a case over injuries at that concert.
1:34
SPEAKER_01: The unfortunate situation for him is that he actually seems to have had quite a bit
1:38
SPEAKER_01: of involvement directly in some of the planning for that concert that might make
1:42
SPEAKER_01: him a relevant witness in the way that the CEO of Walmart wouldn't be if he slipped
1:45
SPEAKER_01: and fell in a Walmart store.
1:47
SPEAKER_01: Anyway, to hear all of that, go to SeriousTrouble.show for $6 a month or $60 a year.
1:51
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1:56
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1:59
SPEAKER_01: So again, if you want to hear all that, go to SeriousTrouble.show and upgrade.
2:02
SPEAKER_01: Thank you.
2:14
SPEAKER_01: Hi, it's Ken White.
2:15
SPEAKER_01: And it's Josh Barrow.
2:16
SPEAKER_01: And this is Serious Trouble.
2:18
SPEAKER_01: I want to start this weekend with a superseding indictment in one of Jack Smith's
2:22
SPEAKER_01: cases against Donald Trump,
2:24
SPEAKER_01: the case in the District of Columbia before Judge Tanya Chutkan.
2:28
SPEAKER_01: So normally when we talk about a superseding indictment,
2:31
SPEAKER_01: prosecutors are going in there adding more stuff.
2:33
SPEAKER_01: Right.
2:34
SPEAKER_01: You know, adding charges, adding, you know, adding color to the story of why you are being indicted.
2:40
SPEAKER_01: This is a little unusual in that it's a superseding indictment.
2:42
SPEAKER_01: And what it does is it removes things that were in the previous indictment.
2:46
SPEAKER_00: What removes and adds.
2:47
SPEAKER_00: So remember,
2:48
SPEAKER_00: this is the the core January 6 indictment against Donald Trump,
2:54
SPEAKER_00: saying that he conspired with other people to defraud the government and,
2:58
SPEAKER_00: you
2:59
SPEAKER_00: obstruct justice and that type of thing.
3:01
SPEAKER_00: It relates to his scheme with false electors and so forth back on January 6th of 21.
3:08
SPEAKER_00: And it's been thrown into chaos and uncertainty after the Supreme Court's decision
3:15
SPEAKER_00: about presidential immunity.
3:16
SPEAKER_00: And we talked about that a couple months ago.
3:18
SPEAKER_00: Remember that basically
3:20
SPEAKER_00: creates these rather vague categories,
3:22
SPEAKER_00: one of which is absolutely immune,
3:25
SPEAKER_00: one of which is probably immune,
3:27
SPEAKER_00: and then isn't immune.
3:29
SPEAKER_00: And so Judge Chutkan in this case has scheduled hearings to basically see how the
3:36
SPEAKER_00: parties think that the Supreme Court's ruling applies to the indictment.
3:40
SPEAKER_00: And rather than wait for those hearings or that process,
3:43
SPEAKER_00: what Jack Smith did is he went and he got a superseding indictment that took a
3:48
SPEAKER_00: bunch of stuff out of the indictment,
3:50
SPEAKER_00: put some clarifications in,
3:53
SPEAKER_00: and crucially,
3:55
SPEAKER_00: got the superseding indictment from a new and different grand jury.
3:59
SPEAKER_01: And so the idea is that that new grand jury is not tainted by having seen evidence
4:03
SPEAKER_01: that would not be allowed in the new trial or conceivably would not be allowed?
4:08
SPEAKER_00: Right.
4:08
SPEAKER_00: Because it's not clear what the Supreme Court will say about whether or not the
4:13
SPEAKER_00: presidential immunity rule means not only that you can't admit this stuff into
4:17
SPEAKER_00: evidence at trial,
4:18
SPEAKER_00: but that if the grand jury has seen it,
4:20
SPEAKER_00: that that taints the indictment somehow.
4:23
SPEAKER_00: So Jack Smith fairly aggressively cut off that argument by to
4:28
SPEAKER_00: going to a brand new grand jury,
4:30
SPEAKER_00: hasn't heard anything,
4:32
SPEAKER_00: and submitting just the type of evidence that he wanted under sort of his theory of
4:39
SPEAKER_00: what the Supreme Court decision allows.
4:41
SPEAKER_01: And so some of the stuff that got taken out here,
4:43
SPEAKER_01: for example,
4:44
SPEAKER_01: I guess the most notable part is all the stuff where Jeffrey Clark,
4:47
SPEAKER_01: who was a
4:48
SPEAKER_01: Department of Justice official overseeing environmental matters,
4:51
SPEAKER_01: who was the acting head of the civil division of the Department of Justice at the
4:55
SPEAKER_01: tail end of the Trump administration.
4:57
SPEAKER_01: When he came up with this cockamamie theory of how Trump could have the election
5:01
SPEAKER_01: stolen for him or the theory that it wasn't a theft because,
5:04
SPEAKER_01: in fact,
5:04
SPEAKER_01: there were all of these powers where,
5:06
SPEAKER_01: you know,
5:06
SPEAKER_01: if only Mike Pence has the courage,
5:08
SPEAKER_01: blah,
5:08
SPEAKER_01: blah,
5:08
SPEAKER_01: blah.
5:09
SPEAKER_01: Some of the charges originally brought against Donald Trump had to do with that.
5:12
SPEAKER_01: And I guess the idea here is that that stuff is really,
5:15
SPEAKER_01: you know,
5:15
SPEAKER_01: core exercise of presidential authority,
5:18
SPEAKER_01: you know,
5:19
SPEAKER_01: instructing the or considering what to instruct the Department of Justice to do is clearly,
5:24
SPEAKER_01: you know,
5:25
SPEAKER_01: that's that's part of the presidential power and therefore that the Supreme Court
5:28
SPEAKER_01: would not look kindly on him being indicted for that.
5:30
SPEAKER_00: That's right.
5:31
SPEAKER_00: So part of the theory was that Trump,
5:34
SPEAKER_00: through people like Jeffrey Clark,
5:37
SPEAKER_00: was trying to get the Department of Justice to launch a knowingly bogus fraud investigation,
5:43
SPEAKER_00: chasing fraud that he knew didn't exist as a method of obstructing the
5:48
SPEAKER_00: certification of the election.
5:52
SPEAKER_00: And what the upshot of the Supreme Court opinion is, is that
5:57
SPEAKER_00: Threatening a fire people at Department of Justice and directing Department of
6:00
SPEAKER_00: Justice about what types of things they investigate are core presidential functions
6:05
SPEAKER_00: such that they're going to be absolutely immune.
6:08
SPEAKER_00: So that part of the indictment disappears.
6:11
SPEAKER_00: It doesn't change what's charged.
6:14
SPEAKER_00: It just removes one of the theories of conspiracy to defraud.
6:20
SPEAKER_01: But the sort of the core of the indictment, as you note, is left here.
6:24
SPEAKER_01: There's a lot of Trump's activity that prosecutors intend to assert is was
6:28
SPEAKER_01: obviously not an aspect of his core functions in office.
6:33
SPEAKER_01: And, you know, we've talked some about the concurrence that Justice Barrett wrote concurring in part to.
6:39
SPEAKER_01: in the presidential immunity decision.
6:40
SPEAKER_01: She clearly had some reservations about how sweeping the decision was.
6:44
SPEAKER_01: But one of the things she says is,
6:45
SPEAKER_01: you know,
6:45
SPEAKER_01: well,
6:46
SPEAKER_01: it's obviously the case that calling up the secretary of state of Georgia and
6:50
SPEAKER_01: telling him to add,
6:51
SPEAKER_01: you know,
6:51
SPEAKER_01: find another 11,000 votes,
6:52
SPEAKER_01: that that is not an official function of the presidency.
6:56
SPEAKER_01: And so I guess Jack Smith is heading toward testing that he's taking some of these
7:00
SPEAKER_01: activities and basically saying,
7:01
SPEAKER_01: well,
7:01
SPEAKER_01: I'm sure these are not functions of the office.
7:06
SPEAKER_01: And then ultimately,
7:07
SPEAKER_01: you know,
7:07
SPEAKER_01: there will be hearings before Judge Chuck Cannon that will presumably make its way
7:11
SPEAKER_01: back up to the Supreme Court,
7:12
SPEAKER_01: which will assuming that this prosecution proceeds,
7:15
SPEAKER_01: we'll have to clarify exactly what it meant in that immunity ruling.
7:19
SPEAKER_00: That's right.
7:19
SPEAKER_00: It is still fairly aggressive by Jack Smith.
7:22
SPEAKER_00: So he took out the stuff about instructing the DOJ.
7:26
SPEAKER_00: He took out stuff that had to do with White House staff,
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SPEAKER_00: members of the administration informing Trump about things because of the concern
7:36
SPEAKER_00: that discussing those discussions goes to a core presidential function of being informed.
7:41
SPEAKER_00: advised by staff.
7:42
SPEAKER_00: So you see that all the stuff about his White House staff telling him, no, dude, you lost.
7:47
SPEAKER_00: There's no fraud.
7:48
SPEAKER_00: It leaves.
7:49
SPEAKER_00: But the stuff about campaign people or other private people telling him that stays in.
7:54
SPEAKER_00: And that's the way he's trying to thread that needle.
7:56
SPEAKER_00: But some of the big stuff like, yes, the call.
8:01
SPEAKER_00: to Georgia, the speech on January 6th, his tweets, all that type of thing.
8:07
SPEAKER_00: Those are kept in.
8:08
SPEAKER_00: So he is, Jack Smith isn't basically, you know, caving to Trump's arguments.
8:14
SPEAKER_00: He has cut out the stuff that I think is the most plausibly and clearly a core
8:19
SPEAKER_00: presidential function and remains fairly aggressive on the other stuff.
8:25
SPEAKER_01: And then he's also kept in stuff about pressuring Mike Pence not to certify the election results.
8:28
SPEAKER_01: Is that is the idea there that Mike Pence is part of the legislative branch when
8:32
SPEAKER_01: he's presiding over the Senate and that therefore whatever conduct the president
8:38
SPEAKER_01: engages in there is not executive branch conduct?
8:41
SPEAKER_00: Yes.
8:41
SPEAKER_00: And he adds some language to emphasize that,
8:44
SPEAKER_00: to say that basically when Pence is there presiding over the certification,
8:49
SPEAKER_00: Trump has no legitimate role in that process.
8:53
SPEAKER_00: So the add some language to make allegations that that's outside of the scope of
8:57
SPEAKER_00: Trump's legitimate duties.
9:00
SPEAKER_00: Now, it's not clear to me that any of this is going to work.
9:03
SPEAKER_00: Because,
9:04
SPEAKER_00: you know,
9:04
SPEAKER_00: the Supreme Court left it quite vague as to exactly how you make these
9:09
SPEAKER_00: determinations of how far the immunity reaches.
9:13
SPEAKER_00: They left in some weasel language that basically allowed them to say,
9:16
SPEAKER_00: well,
9:17
SPEAKER_00: some tweets,
9:17
SPEAKER_00: for instance,
9:18
SPEAKER_00: could be.
9:19
SPEAKER_00: official acts.
9:20
SPEAKER_00: And,
9:20
SPEAKER_00: oh,
9:21
SPEAKER_00: well,
9:21
SPEAKER_00: you know,
9:21
SPEAKER_00: it's typical for the president to use the vice president to pursue an agenda and
9:27
SPEAKER_00: that type of thing.
9:28
SPEAKER_00: So I think what this is meant to do is really reduce it down to the issues that
9:33
SPEAKER_00: really see how far the Supreme Court is willing to push this presidential immunity.
9:38
SPEAKER_00: And,
9:38
SPEAKER_00: you know,
9:39
SPEAKER_00: I think that,
9:40
SPEAKER_00: frankly,
9:40
SPEAKER_00: you've got at least five,
9:41
SPEAKER_00: four willing to push it to immunize a lot of this conduct that Jack Smith is
9:47
SPEAKER_00: keeping in here.
9:49
SPEAKER_01: And what's sort of the timing, you know, if if Trump loses this election and this prosecution proceeds?
9:55
SPEAKER_01: I mean,
9:55
SPEAKER_01: I think,
9:56
SPEAKER_01: you know,
9:56
SPEAKER_01: one of the hopes of some of the justices on the Supreme Court had been basically
9:59
SPEAKER_01: that this issue would never bounce back to them.
10:01
SPEAKER_01: Right.
10:01
SPEAKER_01: We went 200 plus years in the history of this country without the court having to consider this issue.
10:06
SPEAKER_01: If this prosecution never got back to them,
10:09
SPEAKER_01: it could be,
10:09
SPEAKER_01: you know,
10:10
SPEAKER_01: we could all be dead by the time they might have to consider this issue again.
10:13
SPEAKER_01: But assuming that Harris wins the election and this prosecution proceeds,
10:17
SPEAKER_01: is this likely to be back before the court within the next couple of years?
10:21
SPEAKER_01: How long is it going to take to get back up to them?
10:23
SPEAKER_00: So I think that Judge Shutkin will probably rule on stuff this year.
10:28
SPEAKER_00: i think that the determination will be that this can be appealed immediately
10:34
SPEAKER_00: because it's about immunity and the analogy would be it's a it's a right not to be
10:39
SPEAKER_00: tried at all as opposed to a defense at trial but i don't think you get a new
10:44
SPEAKER_00: supreme court decision after a dc circuit decision i think you're talking about you
10:49
SPEAKER_00: know least year and a half uh maybe more two two and a half years
10:54
SPEAKER_01: OK.
10:55
SPEAKER_01: And then meanwhile, Jack Smith has appealed Judge Cannon's ruling.
10:59
SPEAKER_01: Remember,
10:59
SPEAKER_01: Judge Cannon down in Florida threw out the documents case against Donald Trump,
11:04
SPEAKER_01: saying that there's no legal authority to appoint a special counsel to prosecute
11:08
SPEAKER_01: that case.
11:10
SPEAKER_01: And that is while it was not in direct contravention of controlling precedent over her,
11:14
SPEAKER_01: it is it is a very different direction than many other courts have gone when
11:18
SPEAKER_01: considering similar cases.
11:20
SPEAKER_01: And so what's how exactly has he chosen to press that that matter as it goes up to
11:27
SPEAKER_01: the 11th Circuit in terms of,
11:29
SPEAKER_01: you know,
11:30
SPEAKER_01: he's obviously saying she's wrong,
11:31
SPEAKER_01: but exactly how wrong is he saying she is?
11:34
SPEAKER_00: He's saying she's very wrong.
11:35
SPEAKER_00: And I think this is an example of how lawyers can be absolutely brutal without
11:43
SPEAKER_00: saying a single rude or inappropriate or disrespectful word.
11:49
SPEAKER_00: The brief is completely brutal.
11:51
SPEAKER_00: It sets out the past law and contrasts what she does in a way that really strongly
11:56
SPEAKER_00: conveys that her take is just completely nuts and completely divorced from all the precedent.
12:03
SPEAKER_00: And that her attempts to explain away past precedent are just completely unconvincing.
12:10
SPEAKER_00: So it very starkly contrasts between her theory and her words versus what all the other courts say.
12:17
SPEAKER_00: have said.
12:18
SPEAKER_00: And amusingly,
12:20
SPEAKER_00: at one point,
12:20
SPEAKER_00: it throws in a Justice Kavanaugh quote on the subject just to show basically the
12:26
SPEAKER_00: implication is,
12:27
SPEAKER_00: you know,
12:28
SPEAKER_00: your theory is so crazy that even Justice Kavanaugh disagrees with you is kind of
12:32
SPEAKER_00: the subtext.
12:33
SPEAKER_00: So it's a very strong brief.
12:35
SPEAKER_00: It is without jumping up and down or yelling or being unprofessional.
12:41
SPEAKER_00: Trumpets as loudly as possible that her decision is completely ridiculous.
12:45
SPEAKER_00: The one thing it doesn't do,
12:46
SPEAKER_00: interestingly,
12:47
SPEAKER_00: is it does not ask the 11th Circuit to remove her from the case.
12:52
SPEAKER_00: And you remember we've talked about that a number of times,
12:55
SPEAKER_00: whether or not she's just so,
12:57
SPEAKER_00: you know,
12:57
SPEAKER_00: outside the bounds of normal,
12:59
SPEAKER_00: whether or not this time they could get the 11th Circuit to kick her off the case.
13:04
SPEAKER_00: Jack Smith has not asked for it expressly.
13:07
SPEAKER_00: I suspect that that is a strategic decision, thinking that
13:12
SPEAKER_00: the 11th Circuit is more likely to do it of its own accord if they're wanting to do it.
13:17
SPEAKER_00: So in other words,
13:18
SPEAKER_00: if they're going to do it,
13:19
SPEAKER_00: they're probably going to do it sui sponte,
13:21
SPEAKER_00: on their own,
13:23
SPEAKER_00: whether or not you ask for it.
13:25
SPEAKER_00: If they're not going to, then asking for it doesn't make a difference.
13:27
SPEAKER_00: So strategically, it's almost better to just let them do it.
13:32
SPEAKER_00: And I do think that the way this brief presents how crazy what she did is,
13:37
SPEAKER_00: When you add that to how crazy she was in the civil case before where she halted
13:42
SPEAKER_00: the investigation,
13:43
SPEAKER_00: I think this is a shot at the 11th Circuit taking her out.
13:46
SPEAKER_01: That's different than your view last time we talked about this.
13:49
SPEAKER_01: You thought it was unlikely that the 11th Circuit would be interested in removing
13:52
SPEAKER_01: her because of the lack of a directly controlling precedent here that while her
13:56
SPEAKER_01: decision was like a very wrong decision,
13:58
SPEAKER_01: it wasn't so outside the bounds of how a district judge is supposed to behave?
14:02
SPEAKER_01: Yeah.
14:03
SPEAKER_00: I still think it's probably less than 50%,
14:06
SPEAKER_00: but I find it more plausible than I did before I read Jack Smith's brief.
14:11
SPEAKER_00: It does a very good job of laying out how out there her decision is and does so in very convincing terms.
14:19
SPEAKER_00: So, yeah, I would put it more like a 25% that they'll do it of their own accord.
14:26
SPEAKER_00: OK,
14:27
SPEAKER_01: Arizona,
14:28
SPEAKER_01: Arizona is one of several states where there's a state level prosecution of efforts
14:32
SPEAKER_01: to overturn the 2020 election results.
14:36
SPEAKER_01: As with several of those prosecutions,
14:37
SPEAKER_01: this has to do with putting forward a fake elector slate,
14:40
SPEAKER_01: people falsely representing themselves as being Arizona's duly elected electors to
14:44
SPEAKER_01: the Electoral College.
14:46
SPEAKER_01: But there's a different angle here in Arizona because Arizona has a kind of unusual
14:50
SPEAKER_01: anti-slap law where you have the fake electors saying that the prosecution is an
14:55
SPEAKER_01: effort to suppress their constitutional right to express views on a matter of
15:00
SPEAKER_01: public importance,
15:01
SPEAKER_01: the 2020 election.
15:03
SPEAKER_01: And I guess normally anti-SLAPP laws are about civil proceedings,
15:06
SPEAKER_01: but Arizona has this odd statute actually creating a right when you are the
15:12
SPEAKER_01: defendant in a criminal trial to assert some sort of anti-SLAPP claim over your
15:16
SPEAKER_01: criminal charges.
15:17
SPEAKER_01: Yeah.
15:18
SPEAKER_00: Yes.
15:18
SPEAKER_00: And that's a relatively recent amendment to the Arizona anti-slap law.
15:24
SPEAKER_00: So this is one of the fake electors prosecutions where these people are being
15:28
SPEAKER_00: prosecuted for putting their names on these fake slates and presenting themselves
15:32
SPEAKER_00: as the real electors when they were not.
15:35
SPEAKER_00: And it relies on a fraud theory that they were trying to defraud the government government.
15:40
SPEAKER_00: by representing themselves as legitimate electors.
15:43
SPEAKER_00: Their argument is that they were petitioning the government and engaging in First
15:49
SPEAKER_00: Amendment speech,
15:49
SPEAKER_00: and what they were saying was basically an unpopular or controversial political position.
15:55
SPEAKER_00: not fraud.
15:56
SPEAKER_00: And they've also attacked the indictment and the prosecution,
16:01
SPEAKER_00: Siri,
16:01
SPEAKER_00: because like most of these indictments,
16:04
SPEAKER_00: it lists a bunch of overt acts that they did for the conspiracy,
16:08
SPEAKER_00: and most of them taken in isolation are not illegal.
16:11
SPEAKER_00: When you put them all together as part of a deliberate scheme to defraud people, they're illegal.
16:16
SPEAKER_00: So they're saying that this violates their First Amendment rights.
16:19
SPEAKER_00: And there are a couple of really weird things about their ability to file an anti-SLAPP.
16:25
SPEAKER_00: First of all,
16:25
SPEAKER_00: like you said,
16:26
SPEAKER_00: almost everywhere else,
16:27
SPEAKER_00: you can only file an anti-slap motion to attack a civil case against you,
16:32
SPEAKER_00: like a defamation claim.
16:34
SPEAKER_00: But more than that, Arizona's anti-slap statute is just really weird.
16:42
SPEAKER_00: I'm not aware of another one in the country that is structured this way,
16:46
SPEAKER_00: rather than what most anti-slap statutes do,
16:49
SPEAKER_00: which is to say,
16:50
SPEAKER_00: okay,
16:51
SPEAKER_00: if this is aimed at some kind of speech...
16:53
SPEAKER_00: then plaintiff,
16:54
SPEAKER_00: you're going to have to come forward with admissible evidence that shows that you
16:58
SPEAKER_00: could possibly prevail if I accept that evidence,
17:00
SPEAKER_00: right?
17:01
SPEAKER_00: So it's basically testing,
17:03
SPEAKER_00: are you trying to sue someone for something that's absolutely privileged that where
17:08
SPEAKER_00: no set of facts will allow you to win or do you have evidence?
17:13
SPEAKER_00: Here, there's a subjective inquiry where
17:16
SPEAKER_00: where the person following the motion has to show that the action was substantially
17:21
SPEAKER_00: motivated by a desire to deter,
17:24
SPEAKER_00: retaliate against,
17:25
SPEAKER_00: to prevent the lawful exercise of a constitutional right.
17:29
SPEAKER_00: So it's an inquiry into the plaintiffs or the government's intent
17:33
SPEAKER_00: bringing the case.
17:34
SPEAKER_00: And then you can shift back to the plaintiff or the government and they can say
17:41
SPEAKER_00: that the legal action is justified by established law and they're not acting to
17:47
SPEAKER_00: punish or deter protected speech.
17:50
SPEAKER_00: So it's really unclear to me how that sort of subjective impact
17:55
SPEAKER_00: inquiry work.
17:56
SPEAKER_00: Under this,
17:57
SPEAKER_00: you could come up with a theory where if you're just mad at somebody's speech,
18:03
SPEAKER_00: this anti-SLAPP motion would win even if they have a good case.
18:07
SPEAKER_00: And conversely,
18:08
SPEAKER_00: even if they have a terrible case and they can't possibly prevail,
18:13
SPEAKER_00: if you can't show that they're motivated by trying to quash speech,
18:17
SPEAKER_00: then you can't prevail on the anti-SLAPP.
18:19
SPEAKER_00: So it's a really weird approach.
18:20
SPEAKER_00: And I think there's a good reason the other
18:22
SPEAKER_00: States have not taken it that way.
18:24
SPEAKER_01: How is the analysis here any different from a normal the analysis of a normal
18:28
SPEAKER_01: vindictive prosecution claim?
18:30
SPEAKER_01: I mean,
18:30
SPEAKER_01: can't you generally like if you're if you are being prosecuted because of your
18:35
SPEAKER_01: exercise of a First Amendment,
18:37
SPEAKER_01: you know,
18:37
SPEAKER_01: of your First Amendment rights,
18:38
SPEAKER_01: don't you already have a constitutional right to pursue a claim for vindictive prosecution,
18:43
SPEAKER_01: even if you did the thing that you're being prosecuted for?
18:45
SPEAKER_00: You do,
18:46
SPEAKER_00: but it's under a different standard,
18:48
SPEAKER_00: the vindictive prosecution standard,
18:49
SPEAKER_00: which is generally much harder because you have to show that similarly situated
18:55
SPEAKER_00: people are not being prosecuted.
18:59
SPEAKER_01: So in the Arizona statute,
19:01
SPEAKER_01: it says here that the state has the obligation to establish that it has a
19:05
SPEAKER_01: consistent practice of prosecution.
19:07
SPEAKER_01: pursuing similar legal actions against similarly situated persons.
19:10
SPEAKER_01: So is it just that the burden of proof is on the other side?
19:13
SPEAKER_01: The state has to show that its practice is consistent rather than the defendant
19:17
SPEAKER_01: having to show that the practice is inconsistent?
19:19
SPEAKER_00: That's it, right.
19:20
SPEAKER_00: But it imports constitutional vindictive prosecution analysis into an anti-SLAPP analysis.
19:27
SPEAKER_00: And the thing is that anti-SLAPP normally is just about objectively, can the plaintiff prevail?
19:35
SPEAKER_00: Can they show evidence that is sufficient to meet the First Amendment test that applies here?
19:40
SPEAKER_00: So can they,
19:41
SPEAKER_00: for instance,
19:42
SPEAKER_00: show evidence that the statement was actually defamatory and that they can prove
19:46
SPEAKER_00: actual malice or something like that?
19:48
SPEAKER_00: This completely changes the analysis away from whether or not there's a good case
19:54
SPEAKER_00: to what the intent is behind everybody doing it.
19:58
SPEAKER_00: And that makes it a very different anti-slap statute.
20:01
SPEAKER_01: Well,
20:01
SPEAKER_01: so,
20:01
SPEAKER_01: I mean,
20:02
SPEAKER_01: is it just that the problem here is that this shouldn't be called an anti-SLAPP
20:05
SPEAKER_01: statute at all,
20:06
SPEAKER_01: that this is,
20:06
SPEAKER_01: in fact,
20:07
SPEAKER_01: a statute that sort of boosts the effectiveness of a vindictive prosecution claim
20:13
SPEAKER_01: or that makes it easier to assert one?
20:15
SPEAKER_00: It could be.
20:16
SPEAKER_00: It's not clear to me what the legislature's intent was.
20:19
SPEAKER_00: It's not clear whether they wanted to do an anti-SLAPP but just thought differently about how to do it.
20:26
SPEAKER_00: Because this statute,
20:27
SPEAKER_00: as I read it,
20:28
SPEAKER_00: is not terribly effective in the meat and potatoes type anti-slap cases.
20:34
SPEAKER_00: Like,
20:34
SPEAKER_00: you know,
20:34
SPEAKER_00: when someone sues you for defamation because you offered an opinion or something
20:40
SPEAKER_00: like that.
20:41
SPEAKER_00: It's not as clear.
20:42
SPEAKER_00: It's useful in those situations.
20:45
SPEAKER_00: And yet it requires you to get into this whole subjective analysis of why someone's
20:50
SPEAKER_00: bringing the case,
20:52
SPEAKER_00: which is very touchy feely and relies on a whole different type of evidence.
20:56
SPEAKER_00: It goes to their hostility or anger or that type of thing,
21:00
SPEAKER_00: which is not usually the basis for the inquiry.
21:02
SPEAKER_00: Well,
21:02
SPEAKER_01: but it seems to me that there's a subjective component to this,
21:05
SPEAKER_01: but there's also an objective component has to be motivated by a desire to deter
21:10
SPEAKER_01: the exercise of a constitutional right.
21:12
SPEAKER_01: So,
21:12
SPEAKER_01: you know,
21:12
SPEAKER_01: figuring out the desire of the state official,
21:15
SPEAKER_01: you're looking sort of into a state of mind thing.
21:18
SPEAKER_01: But then there's also this question of what's an exercise of a constitutional right.
21:21
SPEAKER_01: And so I assume what the state will say here is.
21:24
SPEAKER_01: is that the submission of fraudulent elector petitions is not First Amendment protected activity.
21:29
SPEAKER_01: It's not the expression of an opinion.
21:31
SPEAKER_01: It is not petition of the government for redress of grievances.
21:35
SPEAKER_01: It's just fraud, that the statements are false and they're not constitutionally protected.
21:40
SPEAKER_01: And so shouldn't the government be able to win on that?
21:43
SPEAKER_01: Basically saying that,
21:43
SPEAKER_01: you know,
21:44
SPEAKER_01: whatever,
21:44
SPEAKER_01: you know,
21:45
SPEAKER_01: setting aside,
21:45
SPEAKER_01: you know,
21:45
SPEAKER_01: why we wanted to prosecute this activity,
21:48
SPEAKER_01: this activity is not an exercise of constitutional right.
21:51
SPEAKER_01: And therefore, the claim fails.
21:53
SPEAKER_00: But how do you show I mean,
21:55
SPEAKER_00: how do you establish one way or the other that the officials weren't mad because
22:00
SPEAKER_00: this was being done on behalf of Trump?
22:03
SPEAKER_00: But what is this?
22:04
SPEAKER_00: This being the fake elector slate.
22:07
SPEAKER_01: But I'm saying that it's if a person who files a motion pursuant to subsection A of
22:12
SPEAKER_01: this section has the burden of establishing prima facie proof that the legal action
22:16
SPEAKER_01: was substantially motivated by a desire to deter,
22:19
SPEAKER_01: retaliate against,
22:20
SPEAKER_01: to prevent the lawful exercise of a constitutional right.
22:23
SPEAKER_01: And so,
22:24
SPEAKER_01: you know,
22:24
SPEAKER_01: even if they were trying to prevent,
22:26
SPEAKER_01: you know,
22:26
SPEAKER_01: the submission of elector slates like this.
22:29
SPEAKER_01: If that's not the exercise of constitutional right,
22:31
SPEAKER_01: it doesn't matter whether they were motivated by a desire to deter that.
22:35
SPEAKER_00: See, that's not how I read it.
22:36
SPEAKER_00: I read it is that if you can establish or if the judge believes that the
22:43
SPEAKER_00: prosecution is really motivated by hostility to this particular political group and
22:48
SPEAKER_00: not really motivated because of the fraud element,
22:52
SPEAKER_00: the judge can find that it's a slap.
22:54
SPEAKER_01: But it doesn't say hostility to the group.
22:56
SPEAKER_01: It refers to the desire to deter,
22:58
SPEAKER_01: prevent or retaliate against the moving party's exercise of constitutional rights.
23:03
SPEAKER_01: Right.
23:03
SPEAKER_00: But there are components of the scheme that are constitutionally protected.
23:09
SPEAKER_00: So they're free to gather.
23:10
SPEAKER_00: They're free to petition the government.
23:12
SPEAKER_00: They're free to advocate that the regular slate of electors is somehow invalid
23:18
SPEAKER_00: because of some sort of mysterious reason.
23:20
SPEAKER_00: imaginary voter fraud and that they should be separate.
23:23
SPEAKER_00: What they're not entitled to do is make false statements that they are actually
23:30
SPEAKER_00: literally the legitimate elector slate.
23:34
SPEAKER_00: So this seems to me to require an inquiry into really,
23:40
SPEAKER_00: ultimately,
23:41
SPEAKER_00: is the government really doing it because it's concerned about fraud?
23:44
SPEAKER_00: So as in the cases you see where,
23:48
SPEAKER_00: you know,
23:48
SPEAKER_00: states like Texas suddenly start making a big show of investigating and pursuing
23:55
SPEAKER_00: voter fraud,
23:56
SPEAKER_00: but actually seeming to harass people who are attempting to get out the vote for Democrats.
24:03
SPEAKER_00: You can get here a situation where
24:06
SPEAKER_00: It's not clear what component they're going after, really.
24:09
SPEAKER_00: You know, it's inviting a inquiry into the sincerity of the government's motivations.
24:16
SPEAKER_01: Okay.
24:18
SPEAKER_01: Let's talk about Tom Girardi.
24:20
SPEAKER_01: This is a case that we've mentioned in passing a few times.
24:22
SPEAKER_01: We've talked about it in the context of actions by the California State Bar as they
24:27
SPEAKER_01: have acted against John Eastman and others that,
24:30
SPEAKER_01: you know,
24:31
SPEAKER_01: something that's underlying this is the bar is very embarrassed.
24:37
SPEAKER_01: That's the end of this week's free episode of Serious Trouble.
24:39
SPEAKER_01: If you want to hear about Live Nation Astroworld and when you get to depose the CEO
24:45
SPEAKER_01: of a company,
24:45
SPEAKER_01: if you want to hear more about Disney's travails in its own litigation,
24:49
SPEAKER_01: if you want to hear about the Tom Girardi case and how it came to be that he was
24:54
SPEAKER_01: convicted of stealing millions of dollars from his clients and the misadventures
24:58
SPEAKER_01: when he got on the stand in his own defense in his case.
25:01
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25:05
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