Transcript

Hacks · Serious Trouble

0:08
SPEAKER_01: Hi, it's Ken White.
0:10
SPEAKER_01: And it's Josh Barrow, and this is Serious Trouble.
0:13
SPEAKER_01: Ken,
0:13
SPEAKER_01: I actually want to start this week with Elon Musk,
0:16
SPEAKER_01: who has produced a couple of new legal controversies for us to talk about.
0:20
SPEAKER_01: I want to talk first about an antitrust suit that he has brought.
0:24
SPEAKER_01: suing a federation of advertisers that withheld advertising from Twitter.
0:29
SPEAKER_01: There's a group called the World Federation of Advertisers.
0:33
SPEAKER_01: It has constituent companies, including CVS, Unilever, Mars, the candy concern.
0:39
SPEAKER_01: Basically,
0:40
SPEAKER_01: you know,
0:40
SPEAKER_01: they got together and they said some things about their concerns about the way that
0:44
SPEAKER_01: Twitter was being operated under Elon Musk and many of the companies in the
0:47
SPEAKER_01: Federation withheld their advertising.
0:50
SPEAKER_01: And Elon Musk basically says this is an antitrust violation that you have unlawful
0:54
SPEAKER_01: collusion among these companies.
0:56
SPEAKER_01: that is harmful to his business at Twitter or at X, as it is called now.
1:01
SPEAKER_01: And so he filed suit against them.
1:02
SPEAKER_01: And as we'll talk about in a moment,
1:04
SPEAKER_01: he filed suit in a very specific place in Texas,
1:06
SPEAKER_01: trying to get a very specific judge.
1:08
SPEAKER_01: But I want to first talk about the antitrust claim itself.
1:12
SPEAKER_01: We normally don't think about antitrust as a key matter in these speech-related
1:17
SPEAKER_01: elements of litigation that we talk about.
1:19
SPEAKER_01: But the idea that companies can't get together and agree on the way that they're
1:23
SPEAKER_01: going to deal with some other company in the marketplace does sound like the sort
1:28
SPEAKER_01: of thing that might sometimes be an antitrust claim.
1:30
SPEAKER_01: So does Musk have a point here that it's unlawful for other companies to get together,
1:36
SPEAKER_01: band together and make shared demands of Twitter that if they don't meet,
1:39
SPEAKER_01: they withhold their business?
1:40
SPEAKER_01: Yeah.
1:41
SPEAKER_02: So the answer,
1:42
SPEAKER_02: Josh,
1:42
SPEAKER_02: is that he's referencing a doctrine that could be relevant in some circumstances,
1:48
SPEAKER_02: but not here.
1:49
SPEAKER_02: The widespread consensus of people who know antitrust law seems to be that it's nonsense,
1:55
SPEAKER_02: that it's frivolous on its face.
1:57
SPEAKER_02: First of all, Twitter is not competing with
2:01
SPEAKER_02: with Mars and Unilever and CVS.
2:05
SPEAKER_02: Okay, and so the antitrust laws are designed to protect competition.
2:09
SPEAKER_02: And one of the prerequisites to saying that a group boycott is an antitrust
2:13
SPEAKER_02: violation is that it's directed at a competitor trying to prevent a competitor from competing.
2:19
SPEAKER_02: That's just not the circumstances here.
2:22
SPEAKER_02: This is Musk complaining basically about customers
2:26
SPEAKER_02: that customers have gotten together and decided not to use him because they don't
2:30
SPEAKER_02: want their advertising running next to Nazi stuff.
2:34
SPEAKER_02: Second of all,
2:34
SPEAKER_02: although a group boycott by a group of competitors can potentially be antitrust
2:41
SPEAKER_02: when it's directed at suppressing a competitor,
2:44
SPEAKER_02: One of the key exceptions is it has to be when they do that for commercial purposes.
2:49
SPEAKER_02: When they do it for political or social purposes, then it does not qualify as an antitrust violation.
2:57
SPEAKER_02: And here, the people are saying basically we don't want our ads to run next to Nazi stuff.
3:02
SPEAKER_02: So the consensus among everyone who understands antitrust is that it's really a
3:08
SPEAKER_02: reach and it's just more performative litigation.
3:12
SPEAKER_02: And one tell on that is that,
3:14
SPEAKER_02: you know,
3:15
SPEAKER_02: for serious stuff or what counts for serious stuff in Elon Musk's world,
3:20
SPEAKER_02: he tends to use Quinn Emanuel,
3:22
SPEAKER_02: you know,
3:22
SPEAKER_02: a mega firm company.
3:24
SPEAKER_02: full up of annoying ex-AUSAs, very powerful, very aggressive.
3:29
SPEAKER_02: This one he farmed out to one of the firms he uses when he's doing crazy stuff.
3:33
SPEAKER_02: So that's a tell.
3:35
SPEAKER_01: And I mean,
3:35
SPEAKER_01: you know,
3:36
SPEAKER_01: a lot of the litigation that we've covered with Elon Musk,
3:38
SPEAKER_01: I mean,
3:38
SPEAKER_01: some of it has been serious in the sense of,
3:40
SPEAKER_01: you know,
3:40
SPEAKER_01: he's even won some of it.
3:41
SPEAKER_01: I mean,
3:42
SPEAKER_01: and the stuff about his compensation package in Delaware,
3:45
SPEAKER_01: for example,
3:46
SPEAKER_01: that was,
3:46
SPEAKER_01: you know,
3:46
SPEAKER_01: a very live controversy where it was not,
3:49
SPEAKER_01: neither side was making a frivolous argument.
3:51
SPEAKER_01: Right.
3:52
SPEAKER_01: even though there was a clear controversy over,
3:53
SPEAKER_01: you know,
3:54
SPEAKER_01: exactly what sort of,
3:55
SPEAKER_01: you know,
3:56
SPEAKER_01: compensation terms and approvals of compensation are allowed under Delaware law.
4:00
SPEAKER_01: So, I mean, so you do see some of those lawsuits where he gets real lawyers and does a real thing.
4:05
SPEAKER_01: This you're saying basically appears to be for a public relations purpose.
4:09
SPEAKER_02: Yeah, or just using his money to suppress people he's mad at.
4:14
SPEAKER_02: I mean, this is the guy who famously said, fuck you to advertisers, literally at a speech.
4:21
SPEAKER_02: And now he's mad that they don't want to advertise with them.
4:25
SPEAKER_02: Sometimes things both sound ridiculous and are ridiculous.
4:29
SPEAKER_02: The problem is the way litigation works in America is even if it is ridiculous, it's ruinously expensive.
4:36
SPEAKER_02: So the Global Alliance for Responsible Media,
4:39
SPEAKER_02: which is the nonprofit entity that was coordinating these sort of best practices
4:46
SPEAKER_02: for social media about how to place advertisements and not placing them next to
4:51
SPEAKER_02: Nazi stuff,
4:52
SPEAKER_02: has shut down.
4:54
SPEAKER_02: You know, as a nonprofit of limited means, it just can't afford to litigate a mega case like this.
5:00
SPEAKER_02: And there's no point in continuing it as an entity.
5:04
SPEAKER_02: So to that extent, Elon Musk has already won and, you know, he's already gloated.
5:08
SPEAKER_02: The usual suspects who support him are already talking about how Congress should go
5:14
SPEAKER_02: after more entities who do this.
5:17
SPEAKER_02: And they're portraying it as a victory for the First Amendment, which is, of course, exactly opposite.
5:22
SPEAKER_02: because this is a situation where companies are exercising First Amendment rights
5:27
SPEAKER_02: to choose where to advertise.
5:30
SPEAKER_01: I wonder about the extent to which,
5:32
SPEAKER_01: I mean,
5:32
SPEAKER_01: this nonprofit that is sort of a sub-entity of this World Federation of Advertisers,
5:38
SPEAKER_01: I mean,
5:38
SPEAKER_01: one interpretation of that is that Musk has exhausted their financial resources.
5:42
SPEAKER_01: Another interpretation of that is that,
5:43
SPEAKER_01: you know,
5:44
SPEAKER_01: this is sort of a special purpose entity created by these very well-financially
5:48
SPEAKER_01: resourced corporations like Unilever,
5:50
SPEAKER_01: right?
5:51
SPEAKER_01: And why pour money into defending a nonprofit when you can just close it?
5:55
SPEAKER_01: If Unilever has future needs to coordinate around advertising,
5:58
SPEAKER_01: they can do it under the auspices of another entity.
6:00
SPEAKER_01: So I wouldn't jump to the conclusion here that Elon Musk has made it too
6:04
SPEAKER_01: financially painful for companies to either boycott his company or to coordinate
6:10
SPEAKER_01: around boycotting his company.
6:11
SPEAKER_01: He's just affected the entity here.
6:14
SPEAKER_01: So I'm not disputing your claim that litigation can be punitive or ruinously expensive,
6:20
SPEAKER_01: but certainly he hasn't ruined Unilever.
6:22
SPEAKER_01: And I don't think that he has foreclosed the opportunity to do similar advertiser
6:26
SPEAKER_01: boycotts against him in the future.
6:28
SPEAKER_01: I mean, of course, there's all these companies that still have not returned to X to advertise.
6:32
SPEAKER_02: No,
6:32
SPEAKER_02: but I mean he's shown that he can go after a nonprofit or an entity of modest means
6:38
SPEAKER_02: that's used as a vehicle to do these types of expression and freedom of association.
6:44
SPEAKER_02: And you're right.
6:45
SPEAKER_02: This has really resulted in more people leaving Twitter, of course, because –
6:50
SPEAKER_02: Companies are kind of outraged that someone tells them,
6:54
SPEAKER_02: screw you,
6:55
SPEAKER_02: I want you to advertise with me,
6:56
SPEAKER_02: and I'll attack you and sue you if I don't.
6:59
SPEAKER_02: That's pretty outrageous to people, and it's a form of sort of political gesturing.
7:06
SPEAKER_01: In the spirit,
7:06
SPEAKER_01: by the way,
7:07
SPEAKER_01: of being fully accurate and avoiding potential defamation lawsuits from Elon Musk,
7:10
SPEAKER_01: I think we should note he didn't say fuck you to advertisers.
7:12
SPEAKER_01: He said, go fuck yourself.
7:13
SPEAKER_02: That's true.
7:14
SPEAKER_02: Yeah.
7:15
SPEAKER_02: It's not the passive voice, which is good rhetoric, I guess.
7:20
SPEAKER_01: And so Elon Musk had filed this lawsuit before Judge Reed O'Connor, who's in sort of North Texas.
7:26
SPEAKER_01: And there's the Northern District of Texas in the federal courts where you can file.
7:29
SPEAKER_01: And there's many judges there.
7:30
SPEAKER_01: That includes Dallas and Fort Worth.
7:32
SPEAKER_01: But it's one of the districts where if you file in a specific place in a specific county,
7:37
SPEAKER_01: then you get a judge who is locally located there,
7:39
SPEAKER_01: which I guess is convenient if you want to,
7:41
SPEAKER_01: you know,
7:41
SPEAKER_01: if you want to litigate in Wichita Falls and all the parties are in Wichita Falls,
7:45
SPEAKER_01: they don't have to drive to Dallas for court.
7:48
SPEAKER_01: The problem is that this allows for judge shopping,
7:50
SPEAKER_01: that if you file in Wichita Falls,
7:51
SPEAKER_01: you're going to get Judge Reed O'Connor because it's such a small place.
7:55
SPEAKER_01: And so Elon Musk has previously sued Media Matters for America there.
7:58
SPEAKER_01: He tried that again here, but it doesn't seem to have worked.
8:01
SPEAKER_01: Judge Reed O'Connor has recused himself from this case.
8:04
SPEAKER_01: And I guess that might be because he owns stock in Unilever.
8:07
SPEAKER_01: So, you know, people are worried about him being biased in favor of Elon Musk.
8:10
SPEAKER_01: But this is actually a potential conflict of interest in favor of one of the defendants.
8:14
SPEAKER_02: Right, because Musk is suing Unilever.
8:16
SPEAKER_02: The judge owns Unilever stock.
8:18
SPEAKER_02: There's been talk that he also owns Tesla stock,
8:20
SPEAKER_02: which could cause some issues when Elon Musk is involved,
8:23
SPEAKER_02: even though Tesla itself is not a party.
8:26
SPEAKER_01: Right.
8:26
SPEAKER_01: There's been controversy about that, right?
8:28
SPEAKER_01: There has been.
8:28
SPEAKER_01: Because the idea is Tesla is not a party to this suit.
8:31
SPEAKER_01: And so it's an ambiguous question whether that's a conflict of interest.
8:34
SPEAKER_01: But Unilever definitely is a party to the suit.
8:36
SPEAKER_02: So just to clarify something,
8:38
SPEAKER_02: you know,
8:38
SPEAKER_02: the federal courts are divided into districts,
8:41
SPEAKER_02: which are generally gigantic.
8:43
SPEAKER_02: So California has four districts.
8:45
SPEAKER_02: Texas has four districts.
8:47
SPEAKER_02: And within each district, sometimes there is a division.
8:51
SPEAKER_02: So like here in Los Angeles,
8:54
SPEAKER_02: you've got the division that's for Orange County and the division that's for the
8:58
SPEAKER_02: Inland Empire here.
8:59
SPEAKER_02: And in some cases,
9:00
SPEAKER_02: you can file at a particular division and that can be a way to get a particular
9:05
SPEAKER_02: pool of judges or even only one judge.
9:08
SPEAKER_02: So that's the way in which you can go judge shopping like this.
9:12
SPEAKER_02: And actually,
9:12
SPEAKER_02: Texas is extremely notorious for this in the federal courts,
9:18
SPEAKER_02: particularly not just now in very politically charged cases over things like
9:23
SPEAKER_02: abortion and abortion.
9:25
SPEAKER_02: The Biden administration's attempts to waive school loans,
9:29
SPEAKER_02: but also especially in terms of patent trolls,
9:33
SPEAKER_02: you know,
9:34
SPEAKER_02: people who basically buy up patent rights just for the purpose of making bogus
9:38
SPEAKER_02: claims on those patents and extorting money out of people.
9:41
SPEAKER_02: Texas is notorious in some divisions for being a haven for that type of bad faith
9:47
SPEAKER_02: litigation and for putting up with it.
9:50
SPEAKER_01: There's another matter involving Elon Musk, which involves him and Donald Trump.
9:54
SPEAKER_01: Donald Trump appeared for an interview on the Twitter platform.
9:58
SPEAKER_01: There were,
9:58
SPEAKER_01: of course,
9:59
SPEAKER_01: technical difficulties,
10:00
SPEAKER_01: as happens when Elon Musk tries to do these big interviews.
10:03
SPEAKER_01: It happened with the launch of the Ron DeSantis presidential campaign,
10:07
SPEAKER_01: which makes it a little bit amazing to me that Donald Trump even agreed to go into
10:11
SPEAKER_01: the
10:11
SPEAKER_01: platform that was so disastrous for Ron DeSantis' launch.
10:15
SPEAKER_01: But so he went on for this interview with Elon Musk, which did not break a lot of news.
10:18
SPEAKER_01: Turns out interviewing is actually a skill.
10:21
SPEAKER_01: And Elon Musk is not a professional interviewer, did not seem to do a very good job of it.
10:25
SPEAKER_01: But there was one bit of news in that Donald Trump praised Elon Musk for what he
10:30
SPEAKER_01: perceives to be Elon Musk's treatment of workers who would like to unionize,
10:33
SPEAKER_01: basically saying,
10:34
SPEAKER_01: you know,
10:34
SPEAKER_01: people threaten to unionize and you fire them and that's great.
10:37
SPEAKER_01: We actually have some sound of this.
10:39
SPEAKER_03: Well, you, you're the greatest cutter.
10:40
SPEAKER_03: I mean, I look at what you do.
10:42
SPEAKER_03: You walk in and you just say, you want to quit?
10:44
SPEAKER_00: They go on strike.
10:46
SPEAKER_03: I won't mention the name of the company, but they go on strike and you say, that's okay.
10:49
SPEAKER_03: You're all gone.
10:51
SPEAKER_03: You're all gone.
10:51
SPEAKER_03: So every one of you is gone and you are the greatest.
10:54
SPEAKER_03: You would be very good.
10:55
SPEAKER_03: Oh, you would love it.
10:56
SPEAKER_03: But, you know, if you look at our.
10:58
SPEAKER_03: I'd be happy.
10:59
SPEAKER_03: Congratulations.
11:00
SPEAKER_01: And so after that commentary,
11:02
SPEAKER_01: the United Auto Workers Union has filed a complaint with the National Labor
11:07
SPEAKER_01: Relations Board against both Elon Musk and Donald Trump,
11:10
SPEAKER_01: saying that they are illegally threatening to retaliate against union workers or
11:15
SPEAKER_01: against workers for attempting to unionize.
11:17
SPEAKER_01: And that's, you know, a violation of federal labor law.
11:20
SPEAKER_01: and that there should be penalties for them under the National Labor Relations Act because of that.
11:25
SPEAKER_01: And I guess my question about this is,
11:26
SPEAKER_01: you know,
11:27
SPEAKER_01: this seems obviously like political commentary or business commentary.
11:32
SPEAKER_01: Doesn't Donald Trump have a First Amendment right to tell Elon Musk that,
11:35
SPEAKER_01: you know,
11:36
SPEAKER_01: he thinks it's great that Elon Musk would fire people for unionizing?
11:39
SPEAKER_01: Yes.
11:39
SPEAKER_01: Just because something is illegal,
11:41
SPEAKER_01: generally,
11:41
SPEAKER_01: you're still allowed to say that it's good that people would do the illegal things.
11:45
SPEAKER_02: Yes, he does.
11:47
SPEAKER_02: The National Labor Relations Act,
11:49
SPEAKER_02: which,
11:50
SPEAKER_02: despite the best efforts of Trump and various other people,
11:53
SPEAKER_02: still exists.
11:54
SPEAKER_02: says that you can't retaliate against or punish workers for engaging in union
12:00
SPEAKER_02: activity and you can't threaten or use violence against them to prevent it uh and
12:05
SPEAKER_02: that sort of thing so you can't threaten your workers and say if you try to
12:10
SPEAKER_02: unionize i'll fire you all or something like that that would be a threat in
12:15
SPEAKER_02: violation of the national labor relations act section 8a specifically but
12:21
SPEAKER_02: The Supreme Court and other courts have said that in evaluating whether or not
12:26
SPEAKER_02: you've threatened to retaliate against someone in violation of the act,
12:29
SPEAKER_02: you have to protect the First Amendment by using what is in effect a true threats analysis.
12:35
SPEAKER_02: So remember that generally threats are only outside the First Amendment if a
12:40
SPEAKER_02: reasonable listener knowing the context would interpret it as a genuine statement
12:44
SPEAKER_02: of intent to do harm.
12:46
SPEAKER_02: And you on some level intended that or were reckless about it.
12:50
SPEAKER_02: So what the courts have said here is that jokes that a reasonable person wouldn't
12:55
SPEAKER_02: take as a threat are not violations of the act.
12:59
SPEAKER_02: That political rhetoric is not a violation unless someone knowing all the
13:03
SPEAKER_02: circumstances would consider it to be a threat.
13:06
SPEAKER_02: So this is, I think –
13:08
SPEAKER_02: quite far from being an actionable threat.
13:12
SPEAKER_02: And the best example I have to show why that's the case is the site,
13:17
SPEAKER_02: The Federalist,
13:19
SPEAKER_02: and its proprietor,
13:20
SPEAKER_02: Ben Dominich.
13:22
SPEAKER_02: Ben Dominich,
13:23
SPEAKER_02: possibly best known for being married to Meghan McCain,
13:28
SPEAKER_02: and which may be a Twilight Zone punishment on both of them.
13:31
SPEAKER_02: Ben had a joke on Twitter where he said something in effect while talking about
13:36
SPEAKER_02: unions that if,
13:38
SPEAKER_02: you know,
13:38
SPEAKER_02: my writers at the Federalist ever unionize,
13:41
SPEAKER_02: I'm going to send them to the salt mines.
13:43
SPEAKER_02: Clearly a joke.
13:44
SPEAKER_02: And but someone filed an NLRB complaint, someone not.
13:49
SPEAKER_02: at the Federalist, but outside.
13:51
SPEAKER_02: An administrative law judge bought it.
13:53
SPEAKER_02: And the Third Circuit said, no, no, come on, guys, no.
13:57
SPEAKER_02: Because this is clearly a joke.
13:58
SPEAKER_02: It's on Twitter where you expect jokes.
14:01
SPEAKER_02: It's not actually directed at anyone.
14:03
SPEAKER_02: It's not in the context of an actual labor dispute.
14:06
SPEAKER_02: Any reasonable person,
14:08
SPEAKER_02: particularly seeing that,
14:09
SPEAKER_02: you know,
14:09
SPEAKER_02: Ben is a elbow thrower and the Federalist is very opinionated,
14:14
SPEAKER_02: would understand it that way.
14:16
SPEAKER_02: And the First Amendment requires that we interpret the National Labor Relations Act
14:20
SPEAKER_02: normally only to apply to true threats.
14:22
SPEAKER_02: So here you've got an overtly political dialogue with a candidate for president who
14:29
SPEAKER_02: is known to be bombastic,
14:32
SPEAKER_02: speaking with a – I don't know what you'd call Musk – who is known to be bombastic.
14:38
SPEAKER_02: shit talking about things and uh it doesn't even name the company trump's just
14:43
SPEAKER_02: saying what i admire you is my perception is that you'd fire strikers musk doesn't
14:48
SPEAKER_02: turn that into your right and in fact i'm specifically going to fire everyone at
14:52
SPEAKER_02: tesla if they go on strike so protected by the first amendment a long long way away
14:57
SPEAKER_02: from a labor violation and this is this is a stunt so this is uh
15:03
SPEAKER_02: You know,
15:04
SPEAKER_02: the United Auto Workers and specifically Sean Fain of the UAW filing these two
15:11
SPEAKER_02: things against Trump.
15:12
SPEAKER_02: I don't even know what the theory would be on Trump because he's not the target of the alleged threat.
15:18
SPEAKER_02: He's not targeting his own workers.
15:19
SPEAKER_02: Well, I guess Trump has his own employees, right?
15:21
SPEAKER_02: Yeah, but it's really just a stunt and an attention getter.
15:26
SPEAKER_01: So I actually understand it less as regards Elon Musk because Elon Musk didn't say any of this.
15:32
SPEAKER_01: I mean, it's Trump saying, I want you on my commission to cut government spending.
15:35
SPEAKER_01: And then Trump has this discursive thing about,
15:37
SPEAKER_01: you know,
15:38
SPEAKER_01: you're so great at cutting spending by,
15:39
SPEAKER_01: for example,
15:40
SPEAKER_01: firing your workers if they ever,
15:42
SPEAKER_01: you know,
15:43
SPEAKER_01: suggest that they're going to unionize.
15:45
SPEAKER_01: And then he and then Trump pivots to talk about Argentina.
15:47
SPEAKER_01: And Elon Musk says,
15:48
SPEAKER_01: well,
15:48
SPEAKER_01: I'd be happy to help out,
15:49
SPEAKER_01: which is a reference again to the request to Elon Musk,
15:52
SPEAKER_01: which is to sit on some cost cutting commission.
15:54
SPEAKER_01: So Elon Musk didn't say anything at all about his workers.
15:58
SPEAKER_01: He was just there on the line with Donald Trump when Donald Trump said that.
16:01
SPEAKER_02: Yeah,
16:02
SPEAKER_02: but I think the UAW's argument,
16:04
SPEAKER_02: which is bad and wrong,
16:05
SPEAKER_02: would be that Musk platformed him for this discussion,
16:10
SPEAKER_02: received these comments about Musk and then did not rebut them,
16:13
SPEAKER_02: but let them stand tacitly.
16:16
SPEAKER_02: Yeah, it's a terrible argument as to both of them.
16:19
SPEAKER_02: But here's the thing.
16:19
SPEAKER_02: And also, I just want to point out, you can't complain too much about this Elon Musk Trump argument.
16:27
SPEAKER_02: Because, I mean, it's exactly what it said on the label, right?
16:31
SPEAKER_02: If you're going to tune in for a dialogue between Elon Musk and Donald Trump on X,
16:36
SPEAKER_02: you're going to expect that the tech is going to shit the bed.
16:39
SPEAKER_02: You're going to expect a lot of crazy things like,
16:41
SPEAKER_02: you know,
16:42
SPEAKER_02: Elon Musk saying we're too afraid of nuclear power and whatnot.
16:46
SPEAKER_02: Of nuclear weapons.
16:47
SPEAKER_02: You see,
16:48
SPEAKER_02: I thought he said it was nuclear power,
16:50
SPEAKER_02: and it was Musk who pivoted then to nuclear weapons,
16:53
SPEAKER_02: saying that Hiroshima and Nagasaki are actually swell now,
16:56
SPEAKER_02: so why are we so afraid of nukes?
16:58
SPEAKER_02: Anyway, crazy shit like that.
17:00
SPEAKER_02: You get what you expected.
17:01
SPEAKER_02: I mean, how often do we get that in a consumerist society, Josh?
17:04
SPEAKER_02: Exactly what was promised to us.
17:08
SPEAKER_01: Meanwhile, Donald Trump has his own lawsuit threat that he's issued.
17:13
SPEAKER_01: He's going to sue the FBI and the Department of Justice over the raid on Mar-a-Lago.
17:17
SPEAKER_01: And he has various theories about why the Mar-a-Lago raid was abusive.
17:21
SPEAKER_01: And we can go through, you know, the why that's not true.
17:25
SPEAKER_01: the sort of claim that would ordinarily prevail,
17:27
SPEAKER_01: both because the government had various good reasons that it did the search of
17:32
SPEAKER_01: Mar-a-Lago and also because you have almost no recourse when the government comes
17:37
SPEAKER_01: and has a warrant and roots through your files,
17:39
SPEAKER_01: even in circumstances where maybe you should have recourse.
17:42
SPEAKER_01: But I think the thing people are most interested in about here is that,
17:45
SPEAKER_01: you know,
17:45
SPEAKER_01: this is Donald Trump threatening to sue the U.S.
17:47
SPEAKER_01: government, which he might be running a few months from now.
17:50
SPEAKER_01: And so people are wondering,
17:51
SPEAKER_01: you know,
17:51
SPEAKER_01: even if this claim is baseless,
17:54
SPEAKER_01: can he just award himself a settlement if he is president next year?
17:59
SPEAKER_02: Yeah, Josh, I can't express how much I hate that that is a plausible question.
18:03
SPEAKER_02: It's like a law school exam question by a professor who you think would really benefit from some therapy.
18:10
SPEAKER_02: But it's actually live and plausible in our society.
18:13
SPEAKER_02: So what Trump did here was file an administrative claim under the Federal Tort
18:17
SPEAKER_02: Claims Act and most state laws that are equivalent.
18:21
SPEAKER_02: Before you can sue the government,
18:23
SPEAKER_02: you have to file an administrative claim that lays out what your claims are.
18:27
SPEAKER_02: And if the government doesn't act on it, then you can sue.
18:30
SPEAKER_02: So Trump, within the two-year statute of limitations, files this administrative claim.
18:34
SPEAKER_02: And he's saying that he was the victim of malicious prosecution,
18:39
SPEAKER_02: abuse of process,
18:40
SPEAKER_02: and intrusion into privacy.
18:43
SPEAKER_02: Now, pretty much everyone thinks this is crazy.
18:46
SPEAKER_02: So first of all,
18:49
SPEAKER_02: The Federal Tort Claims Act,
18:50
SPEAKER_02: as I read it,
18:52
SPEAKER_02: specifically excludes malicious prosecution and abusive processes as things that
18:56
SPEAKER_02: you can sue for.
18:58
SPEAKER_02: Maybe someone can explain that to me.
19:00
SPEAKER_02: I could have it wrong.
19:02
SPEAKER_02: It also excludes discretionary functions like running an investigation.
19:07
SPEAKER_02: And Trump has a whole song and dance about how this wasn't discretionary, but it's very unpersuasive.
19:12
SPEAKER_02: So
19:13
SPEAKER_02: This really seems to be to be putting down a pin to preserve the right to sue and
19:17
SPEAKER_02: maybe preparing for a big performative lawsuit.
19:19
SPEAKER_02: But Trump,
19:20
SPEAKER_02: who is the guy who says that law enforcement should be immune from suit,
19:24
SPEAKER_02: it has a huge uphill battle because of how immune law enforcement is to suit,
19:29
SPEAKER_02: how hard it is to sue the federal government and how increasingly fewer avenues
19:33
SPEAKER_02: there are if you think your rights have been violated by the government to sue them
19:36
SPEAKER_02: over it.
19:37
SPEAKER_02: So it's more than a little crazy.
19:40
SPEAKER_02: But if he took office,
19:41
SPEAKER_02: the question is,
19:42
SPEAKER_02: could Donald Trump,
19:43
SPEAKER_02: as head of the executive branch,
19:47
SPEAKER_02: direct the Justice Department to settle with himself for $100 million,
19:51
SPEAKER_02: which is the amount he asks here?
19:53
SPEAKER_02: And I don't know what the barrier to that is.
19:55
SPEAKER_02: I think there are institutional barriers to Justice Department lawyers refusing to do it.
20:00
SPEAKER_02: But, you know, Trump said the whole 2025 plan is to kick out all those people and put in Trump loyalists.
20:08
SPEAKER_02: And I think that six people in the United States Supreme Court judging from their
20:12
SPEAKER_02: recent immunity decision would say,
20:14
SPEAKER_02: yeah,
20:14
SPEAKER_02: you can do that.
20:16
SPEAKER_01: What does the immunity decision have to do with this?
20:18
SPEAKER_01: Because the immunity decision has to do with whether an official act like that,
20:22
SPEAKER_01: and presumably would be an official act to pay a settlement or to instruct the
20:26
SPEAKER_01: Justice Department to pay a settlement.
20:28
SPEAKER_01: The immunity decision governs whether that could be a crime and whether you could prosecute Trump for it.
20:33
SPEAKER_01: But just because you couldn't prosecute him for it doesn't mean that he can cause it to happen.
20:38
SPEAKER_01: It doesn't mean that it would cause the payment to be made.
20:40
SPEAKER_01: It doesn't mean you couldn't claw the payment back if the payment had been determined to be illegal.
20:44
SPEAKER_01: Doesn't it only govern any potential criminal avenues about it?
20:48
SPEAKER_02: On its face, it only governs criminal avenues.
20:50
SPEAKER_02: But more broadly,
20:51
SPEAKER_02: it represents sort of the pinnacle of this imperial presidency thinking that has
20:56
SPEAKER_02: been the goal
20:57
SPEAKER_02: of a particular subset of the legal system for a while.
21:00
SPEAKER_02: So it represents the sort of extreme power of the executive, which is very translatable into other areas.
21:10
SPEAKER_02: So there's nothing on the books that would necessarily prevent Trump
21:15
SPEAKER_02: from doing it.
21:16
SPEAKER_02: It would be a conflict of interest for normal people under normal circumstances.
21:20
SPEAKER_02: But those conflict of interest laws and circumstances generally don't apply to the president,
21:26
SPEAKER_02: which is why,
21:27
SPEAKER_02: despite Trump keeping his fingers in all these businesses,
21:30
SPEAKER_02: no one was able to thwart him on that.
21:33
SPEAKER_02: And why, for instance, the emoluments clause, you might remember from some of our shows,
21:38
SPEAKER_02: years ago was found to be ineffective and not enforceable to stop him.
21:43
SPEAKER_02: So what I'm talking about is not that this can't result in him being charged with a crime,
21:48
SPEAKER_02: although the immunity decision certainly says that.
21:51
SPEAKER_02: It reflects a sensibility about the power of the executive and the inability of
21:56
SPEAKER_02: other branches to stop him that I think would ultimately result in the court saying,
21:59
SPEAKER_02: yeah,
22:00
SPEAKER_02: you can do it.
22:01
SPEAKER_01: The executive can only spend money that's been appropriated by Congress.
22:05
SPEAKER_01: And so I assume that there's some line item in the Department of Justice budget
22:09
SPEAKER_01: that is used for the payment of settlements.
22:12
SPEAKER_01: The Justice Department doesn't go back to Congress to individually approve each settlement,
22:16
SPEAKER_01: but I assume there's some description in the law about what this fund is for.
22:21
SPEAKER_01: Correct.
22:21
SPEAKER_01: And I don't know what sort of restrictions that could impose.
22:24
SPEAKER_02: Well, generally, it would print, for instance, a assistant U.S.
22:29
SPEAKER_02: attorney in charge of a civil case from having the government settle with himself
22:34
SPEAKER_02: or with her husband or whatever.
22:37
SPEAKER_02: But again, those rules have have.
22:40
SPEAKER_02: increasingly, but not applied to the high executive.
22:43
SPEAKER_02: And yeah,
22:44
SPEAKER_02: it's not a case where Congress has to vote on every single settlement that the
22:48
SPEAKER_02: Justice Department makes.
22:49
SPEAKER_02: Now,
22:50
SPEAKER_02: Congress could have an investigation of it,
22:51
SPEAKER_02: but it would be probably futile if you were looking now at how the Supreme Court is
22:56
SPEAKER_02: treating the power of Congress to do anything when it doesn't like what the
23:00
SPEAKER_02: executive's doing.
23:07
SPEAKER_01: In other news about efforts to push back on criminal prosecutions of Donald Trump,
23:12
SPEAKER_01: there was this lawsuit that the attorney general of Missouri brought against the
23:16
SPEAKER_01: state of New York.
23:18
SPEAKER_01: And what they said was that when New York,
23:20
SPEAKER_01: when the Manhattan DA brought a New York prosecution against Donald Trump over the
23:26
SPEAKER_01: hush payments to Stormy Daniels,
23:28
SPEAKER_01: And when there was a gag order in that case that restricted the way Donald Trump
23:31
SPEAKER_01: could talk about certain things related to the case,
23:33
SPEAKER_01: that that was an imposition on the rights of Missouri voters,
23:37
SPEAKER_01: that Donald Trump is a candidate for president,
23:38
SPEAKER_01: that Missouri voters have a right to receive information about candidates for president.
23:43
SPEAKER_01: And that gag order created a restriction on that.
23:46
SPEAKER_01: And this seemed like a hell of a reach in terms of a theory of how you can get in
23:52
SPEAKER_01: court to litigate some controversy that doesn't seem to have very much to do with you,
23:55
SPEAKER_01: Missouri voters.
23:56
SPEAKER_01: But one interesting thing about choosing to file this way is that the Supreme Court
23:59
SPEAKER_01: has original jurisdiction over lawsuits between states.
24:03
SPEAKER_01: And so when Missouri sues New York, that goes directly to the Supreme Court.
24:06
SPEAKER_01: It doesn't have to move up through the trial courts.
24:08
SPEAKER_01: And so this was a way, you know, in theory to get quickly before the Supreme Court.
24:11
SPEAKER_01: But Supreme Court didn't go for it.
24:13
SPEAKER_01: They decided that they choose not to hear this case,
24:16
SPEAKER_01: even though they're the court that is the only court that can hear controversies
24:19
SPEAKER_01: between states.
24:20
SPEAKER_01: Right.
24:21
SPEAKER_01: They have original and exclusive jurisdiction.
24:24
SPEAKER_02: meaning that they are the place where the case starts and they are the only place that the case can go.
24:29
SPEAKER_02: Uh,
24:30
SPEAKER_02: so there was a time when the Supreme court had exclusive jurisdiction over a bunch
24:34
SPEAKER_02: of things and was required to take them all,
24:37
SPEAKER_02: but that became a burden on the Supreme court.
24:39
SPEAKER_02: And so, uh, Congress tweaked it a bit.
24:42
SPEAKER_02: So no longer, they don't longer have to take cases for which they are the exclusive court.
24:46
SPEAKER_02: And here they didn't.
24:48
SPEAKER_02: Um, the court, uh,
24:50
SPEAKER_02: rejected it, which is not a finding on the merits, just that we're not going to hear it.
24:55
SPEAKER_02: As you would expect,
24:56
SPEAKER_02: Justices Alito and Thomas would have taken the case,
25:00
SPEAKER_02: although they would not have granted a preliminary injunction or any of the other
25:03
SPEAKER_02: relief was being asked.
25:05
SPEAKER_02: And I think this was largely a stunt,
25:08
SPEAKER_02: although less clearly a stunt in the modern era with Alito and Thomas and the sort
25:13
SPEAKER_02: of justices who voted on the immunity decision.
25:16
SPEAKER_02: So I don't think it was ever very plausible that it would go anywhere,
25:20
SPEAKER_02: but it was more plausible than it used to be.
25:23
SPEAKER_02: What New York said is, look, this is crazy.
25:26
SPEAKER_02: You're saying that somehow Missouri has Missouri citizens have a First Amendment
25:31
SPEAKER_02: right for Trump to be allowed to threaten jurors and prosecutors.
25:35
SPEAKER_02: That doesn't make sense.
25:36
SPEAKER_02: Also,
25:37
SPEAKER_02: it's the you know,
25:38
SPEAKER_02: it's a district attorney of one county that is bringing the suit and asking for the
25:42
SPEAKER_02: gag order.
25:43
SPEAKER_02: That's not the state of New York.
25:45
SPEAKER_02: A variety of other perfectly good arguments.
25:47
SPEAKER_02: So that's why it got rejected.
25:49
SPEAKER_02: But this is,
25:50
SPEAKER_02: as we said,
25:50
SPEAKER_02: when when they filed this,
25:51
SPEAKER_02: Josh,
25:52
SPEAKER_02: this is part of a series of sort of performative,
25:56
SPEAKER_02: crowd pleasing media getting things by Republican state attorneys general doing
26:03
SPEAKER_02: crazy stuff like this to show how they're sticking it to the woke people.
26:08
SPEAKER_01: How does the Supreme Court think about whether to take these lawsuits between states?
26:11
SPEAKER_01: Because I assume,
26:12
SPEAKER_01: I mean,
26:12
SPEAKER_01: you know,
26:13
SPEAKER_01: most lawsuits,
26:14
SPEAKER_01: if you try to get it before the Supreme Court,
26:15
SPEAKER_01: Supreme Court says,
26:16
SPEAKER_01: no,
26:16
SPEAKER_01: they're very busy.
26:18
SPEAKER_01: Most suits don't produce a new and interesting question for them to consider.
26:21
SPEAKER_01: There's no reason to go all the way to the top.
26:23
SPEAKER_01: But I assume since they have exclusive jurisdiction,
26:26
SPEAKER_01: they must be significantly more deferential to states,
26:29
SPEAKER_01: you know,
26:30
SPEAKER_01: when they want to be in court.
26:31
SPEAKER_01: And when, you know, if you file in a trial court,
26:34
SPEAKER_01: Doesn't the trial court generally have to explain to you why they're dismissing
26:38
SPEAKER_01: your suit or why you can't be in the court?
26:40
SPEAKER_01: Whereas here, it seems like the Supreme Court, when they say no, they just say no.
26:45
SPEAKER_01: And if it wasn't for Alito and Thomas saying that they would have done something different,
26:50
SPEAKER_01: there would have been no statement at all here from the Supreme Court about why
26:53
SPEAKER_01: they're not hearing it,
26:53
SPEAKER_01: right?
26:54
SPEAKER_01: Yeah.
26:54
SPEAKER_01: That's true,
26:54
SPEAKER_02: but that's the case for the vast majority of cases that people try to bring to the
26:59
SPEAKER_02: Supreme Court.
26:59
SPEAKER_02: So usually you get a simple denial of cert,
27:04
SPEAKER_02: a one-line thing saying the petition for us to hear this is denied.
27:09
SPEAKER_02: Occasionally you'll get dissent from that,
27:11
SPEAKER_02: some justice explaining why they think it's important and the lower court got it wrong.
27:15
SPEAKER_02: Occasionally there have been
27:17
SPEAKER_02: dissents from denials of cases like this between states but it is one of the more
27:23
SPEAKER_02: opaque areas in terms of what the court's thinking is but i think they just think
27:27
SPEAKER_02: in part they have to conserve their resources and you know we've got to take a
27:33
SPEAKER_02: certain amount of cases every year where two states are squabbling over an island
27:37
SPEAKER_02: in the river in between them
27:39
SPEAKER_02: Or, you know, a water course or a waterway or whatever these things wind up being.
27:44
SPEAKER_02: And they don't explain themselves, but they usually don't explain themselves, Josh.
27:47
SPEAKER_02: So it's not really an outlier.
27:50
SPEAKER_01: And then there's also been this hack against the Trump campaign.
27:54
SPEAKER_01: someone,
27:55
SPEAKER_01: and there's some reporting suggesting that it might be an Iranian actor,
27:58
SPEAKER_01: got access to emails or internal documents of the Trump campaign,
28:03
SPEAKER_01: perhaps by spear phishing Roger Stone,
28:05
SPEAKER_01: which makes perfect sense to me,
28:07
SPEAKER_01: by the way,
28:07
SPEAKER_01: that if you're looking for the weak information security point in the Trump operation,
28:12
SPEAKER_01: that it might well be Roger Stone.
28:14
SPEAKER_02: Yeah, you know, people describe it as using a mix of hacking and using social engineering on Roger Stone.
28:21
SPEAKER_02: My feeling is
28:23
SPEAKER_02: Saying that you're using social engineering on Roger Stone is a little sessive.
28:27
SPEAKER_02: I think you're barely using arithmetic.
28:29
SPEAKER_02: He does not seem terribly difficult to trick.
28:32
SPEAKER_01: And so this is something that's come up a number of times.
28:35
SPEAKER_01: It's illegal to hack the Trump campaign.
28:37
SPEAKER_01: It's illegal to hack even into Roger Stone's email.
28:39
SPEAKER_01: But if someone hands you a pile of Roger Stone's emails or documents or campaign
28:44
SPEAKER_01: documents that you did not solicit,
28:46
SPEAKER_01: you didn't say,
28:46
SPEAKER_01: gee,
28:47
SPEAKER_01: it would be wonderful if you would go out there and hack the Trump campaign.
28:50
SPEAKER_01: They just come to you and hand you hand this to you.
28:52
SPEAKER_01: You have every legal right to tell people what's in the documents.
28:55
SPEAKER_01: And so they've provided these documents to a number of news organizations,
28:58
SPEAKER_01: which so far have not reported in detail on the contents of the documents.
29:02
SPEAKER_01: We know that there's an opposition research dossier or a self-opposition research dossier on J.D.
29:07
SPEAKER_01: Vance, publicly available material that they gathered about what we might learn about J.D.
29:13
SPEAKER_01: Vance if he were to be selected as a running mate.
29:15
SPEAKER_01: It's apparently an early draft of this from the winter.
29:18
SPEAKER_01: But so we know in broad terms what at least some of the contents are, but we haven't seen them.
29:23
SPEAKER_01: We haven't seen a lot of detail from them.
29:25
SPEAKER_01: But it's not because it would be illegal to publish any of these things.
29:28
SPEAKER_01: Right.
29:28
SPEAKER_02: So this is all the way back to the Pentagon Papers case,
29:31
SPEAKER_02: the concept that as long as the media outlet did not solicit the wrongful act or
29:38
SPEAKER_02: guide it or give the person recommendations on how to do it,
29:42
SPEAKER_02: then
29:42
SPEAKER_02: they have a protected right to publish the stuff that's handed to them,
29:46
SPEAKER_02: even if it was wrongfully obtained.
29:49
SPEAKER_02: And so here, uh, yeah, they get the stuff.
29:51
SPEAKER_02: They,
29:51
SPEAKER_02: um,
29:52
SPEAKER_02: uh,
29:52
SPEAKER_02: they get a 27 page oppo research memo on JD Vance,
29:57
SPEAKER_02: which,
29:57
SPEAKER_02: which contrary to false reports does not double as an Ikea catalog.
30:02
SPEAKER_02: Uh, and they, uh, got a bunch of other things.
30:05
SPEAKER_02: And so far the media is, um, not publishing any of it.
30:09
SPEAKER_02: And some of them are saying things like this is,
30:11
SPEAKER_02: not really a matter of public interest.
30:13
SPEAKER_02: And I have to tell you,
30:14
SPEAKER_02: this is one of my kind of consistent quarrels with the media and the common
30:19
SPEAKER_02: thoughts about this in the media is I think that sort of the way they make those
30:22
SPEAKER_02: decisions is bullshit.
30:24
SPEAKER_02: Someone has been saying,
30:25
SPEAKER_02: like the New York Times I think was the one that said that we consider the motives
30:28
SPEAKER_02: of someone giving us
30:30
SPEAKER_02: this sort of information.
30:32
SPEAKER_02: And I usually think, well, no, you don't.
30:34
SPEAKER_02: I mean,
30:35
SPEAKER_02: law enforcement leaks stuff to the detriment of criminal defendants and suspects
30:40
SPEAKER_02: all the time to the media and the media runs with it.
30:41
SPEAKER_02: You know, you can ask Richard Jewell or Wen Ho Lee.
30:44
SPEAKER_02: So for the media to kind of get up on a high horse and say,
30:48
SPEAKER_02: oh,
30:48
SPEAKER_02: we don't publish this sort of thing here,
30:50
SPEAKER_02: I think is a bit of nonsense.
30:51
SPEAKER_02: I'm not sure they really have a principled set of rules about when to do it or when not to.
30:58
SPEAKER_01: Well, I mean, I think there's a number of factors that get weighed.
31:02
SPEAKER_01: And one factor that we can't really observe here because we don't know what's in
31:06
SPEAKER_01: the documents is how newsworthy the contents of the documents are.
31:09
SPEAKER_01: The obvious comparison has been to the WikiLeaks in the 2016 campaign and the leak
31:14
SPEAKER_01: of all the internal emails from the DNC,
31:16
SPEAKER_01: including,
31:16
SPEAKER_01: by the way,
31:16
SPEAKER_01: a great number of my husband's emails.
31:19
SPEAKER_01: So I had a strong personal stake there.
31:21
SPEAKER_01: in what happened in 2016.
31:22
SPEAKER_01: But an important difference about what happened then is WikiLeaks took all of that
31:26
SPEAKER_01: material and published it directly on the internet.
31:29
SPEAKER_01: So it wasn't a matter of a news organization having material that it could decide
31:33
SPEAKER_01: whether to make public or not.
31:33
SPEAKER_01: The material was already public.
31:35
SPEAKER_01: And that's obviously one factor that they consider and,
31:38
SPEAKER_01: you know,
31:38
SPEAKER_01: whether,
31:39
SPEAKER_01: you know,
31:39
SPEAKER_01: whether to report on it.
31:40
SPEAKER_01: It's going to be out there anyway, whether they report on it or not.
31:44
SPEAKER_01: And,
31:44
SPEAKER_01: you know,
31:44
SPEAKER_01: if it's interesting,
31:45
SPEAKER_01: someone else will write about it,
31:46
SPEAKER_01: even if it otherwise is sort of a needle in a haystack situation with a big stack
31:50
SPEAKER_01: of emails.
31:51
SPEAKER_01: And so here, you know, we can't see what's in these documents.
31:55
SPEAKER_01: A dossier on J.D.
31:56
SPEAKER_01: Vance based on,
31:57
SPEAKER_01: you know,
31:57
SPEAKER_01: publicly available information,
31:59
SPEAKER_01: you know,
32:00
SPEAKER_01: by definition,
32:00
SPEAKER_01: what's in there is already out there.
32:03
SPEAKER_01: And it may not be that interesting is part of the thing.
32:05
SPEAKER_01: I mean,
32:05
SPEAKER_01: maybe,
32:06
SPEAKER_01: you know,
32:06
SPEAKER_01: by looking at what's in this document,
32:08
SPEAKER_01: we learn something interesting about how the Trump campaign's VP vetting process works.
32:12
SPEAKER_01: But also maybe we don't learn something interesting about that.
32:14
SPEAKER_01: So I think,
32:14
SPEAKER_01: you know,
32:14
SPEAKER_01: one possible reason that news outlets haven't run with this is that there may not
32:19
SPEAKER_01: be that much material there.
32:20
SPEAKER_01: Right.
32:20
SPEAKER_01: And the other thing is,
32:21
SPEAKER_01: you know,
32:22
SPEAKER_01: if the leaker here really wants this information out there,
32:25
SPEAKER_01: they can and maybe they will do what WikiLeaks did and just put it out there on the
32:29
SPEAKER_01: internet for all of us to evaluate.
32:30
SPEAKER_01: But so far,
32:31
SPEAKER_01: they've taken this approach of sending it to media outlets,
32:34
SPEAKER_01: which,
32:34
SPEAKER_01: you know,
32:34
SPEAKER_01: seem to have decided so far that whatever it is,
32:36
SPEAKER_01: is not so juicy that they need to run with it.
32:39
SPEAKER_01: Yeah, but compared to what?
32:40
SPEAKER_02: So, I mean, I've been watching all the same horse race stuff that you have about this campaign.
32:45
SPEAKER_02: And, you know, the...
32:47
SPEAKER_02: the flood of stories of,
32:49
SPEAKER_02: you know,
32:50
SPEAKER_02: did this person say that this person thought that Joe Biden is too old?
32:54
SPEAKER_02: And,
32:54
SPEAKER_02: you know,
32:55
SPEAKER_02: the process stories about Kamala Harris and the stuff about how Trump picked a VP candidate.
33:02
SPEAKER_02: And I find it a little difficult to believe that given some of the other stuff
33:07
SPEAKER_02: they've published in support of the horse race narrative,
33:09
SPEAKER_02: they couldn't find anything
33:11
SPEAKER_02: in a campaign's key oppo research memo about a candidate when the unpopularity of
33:19
SPEAKER_02: that candidate and the alleged bad judgment picking him is a big story that they've
33:25
SPEAKER_02: been reporting on a lot.
33:26
SPEAKER_02: So I'm not completely buying that.
33:28
SPEAKER_01: Yeah, I mean, I don't know.
33:29
SPEAKER_01: I suspect that we will see this document sooner or later.
33:32
SPEAKER_01: Iran or whoever didn't go to the trouble of hacking this to have it not out there.
33:37
SPEAKER_01: And that if they continue to not get media outlets to bite on it,
33:39
SPEAKER_01: my guess is that we will just see a dump of it.
33:41
SPEAKER_01: But that's a question for future weeks.
33:44
SPEAKER_01: Speaking of your IKEA catalog reference there,
33:47
SPEAKER_01: which is a reference to this sort of shitposting meme,
33:51
SPEAKER_01: this claim that J.D.
33:52
SPEAKER_01: Vance fucked a couch,
33:53
SPEAKER_01: which started with someone made a joke about this on Twitter claiming that this was
33:58
SPEAKER_01: on some pages in Hillbilly Elegy.
34:05
SPEAKER_01: And then people keep saying this,
34:07
SPEAKER_01: including,
34:07
SPEAKER_01: to my surprise,
34:09
SPEAKER_01: Democratic elected officials themselves keep making reference to this,
34:12
SPEAKER_01: which is,
34:13
SPEAKER_01: you know,
34:13
SPEAKER_01: I think a little bit juvenile.
34:16
SPEAKER_01: And, you know, I would hope it would be, you know, beneath our politics.
34:18
SPEAKER_01: I also think,
34:19
SPEAKER_01: by the way,
34:19
SPEAKER_01: I don't I think a lot of Democrats have convinced themselves that this is somehow
34:23
SPEAKER_01: politically useful.
34:24
SPEAKER_01: And this is the reason that J.D.
34:25
SPEAKER_01: Vance is.
34:27
SPEAKER_01: been a problem for the Trump ticket rather than,
34:29
SPEAKER_01: you know,
34:29
SPEAKER_01: substantive things that he has said about abortion and other policy areas that are unpopular.
34:33
SPEAKER_01: But anyway, you have people saying J.D.
34:36
SPEAKER_01: Vance fucked a couch and it's a joke, but, you know, maybe not everyone understands that it's a joke.
34:42
SPEAKER_01: Maybe some people really think he did say in Hillbilly Elegy that he fucked a couch.
34:46
SPEAKER_01: And so some people are wondering, could it be defamatory to be saying that J.D.
34:49
SPEAKER_01: Vance fucked a couch?
34:51
SPEAKER_01: Almost certainly not.
34:53
SPEAKER_02: So
34:54
SPEAKER_02: When you're deciding whether or not something meant as satire or ridicule is defamatory,
35:01
SPEAKER_02: you ask,
35:02
SPEAKER_02: would a reasonable person familiar with the speaker,
35:05
SPEAKER_02: familiar with the subject,
35:07
SPEAKER_02: familiar with the context,
35:08
SPEAKER_02: take this seriously?
35:10
SPEAKER_02: Here you've got Twitter,
35:11
SPEAKER_02: which is universally understood to be not a very reliable place for information
35:15
SPEAKER_02: where people shitpost.
35:18
SPEAKER_02: You've got someone citing a particular page so that you can look it up if you have
35:22
SPEAKER_02: any doubts or take it seriously,
35:23
SPEAKER_02: and it's not there.
35:24
SPEAKER_02: You've got kind of an outrageous, deliberately over-the-top comment about J.D.
35:30
SPEAKER_02: Vance.
35:31
SPEAKER_02: And the vast majority of people, not all of them, immediately take it.
35:36
SPEAKER_02: uh as a joke all those factors show that it's not going to be taken as a provably
35:41
SPEAKER_02: false statement of fact and it's going to be satire and the nature of satire is
35:46
SPEAKER_02: that some people uh fall for it in fact i don't remember who it was but someone
35:51
SPEAKER_02: described satire as a joke between the speaker and the listener at the expense of
35:56
SPEAKER_02: the idiot who takes it seriously
35:59
SPEAKER_02: And that's the whole point of satire.
36:02
SPEAKER_02: I mean, people were taken in by Jonathan Swift and eating babies and stuff.
36:06
SPEAKER_02: A few people.
36:07
SPEAKER_02: That's part of the joke.
36:08
SPEAKER_02: I think the the pungency of the joke here is not just about J.D.
36:13
SPEAKER_02: Vance seeing very creepy and therefore it's funny to say he does stuff like this.
36:17
SPEAKER_02: But it's also a joke on a meta level about how much we've normalized the Trump and
36:23
SPEAKER_02: the Trump campaign of trash talking and shit talking people and just making stuff up.
36:28
SPEAKER_02: to the point where we don't even notice it anymore.
36:30
SPEAKER_02: So when we say something like this,
36:32
SPEAKER_02: and this is a very Trumpian type of joke about someone,
36:35
SPEAKER_02: crass and juvenile and completely made up,
36:38
SPEAKER_02: all of a sudden the other side's wigging out over it.
36:41
SPEAKER_02: I think it's a joke about that to some extent.
36:44
SPEAKER_02: But no, it is not defamatory, although I really, as they say, I wish a bitch would try.
36:49
SPEAKER_02: I would thoroughly enjoy J.D.
36:52
SPEAKER_02: Vance suing for defamation over this.
36:55
SPEAKER_02: And
36:56
SPEAKER_02: Some of the resulting memes and spinoff jokes are amusing.
37:02
SPEAKER_02: But I think it's best consumed as sort of a flex that,
37:05
SPEAKER_02: you know what,
37:06
SPEAKER_02: we're not going to consistently take the high road when the other side consistently
37:11
SPEAKER_02: takes the low road anymore.
37:12
SPEAKER_02: We can throw elbows, too.
37:15
SPEAKER_01: Meanwhile,
37:16
SPEAKER_01: you've had Donald Trump out there saying that he was nearly in a helicopter
37:21
SPEAKER_01: accident with former San Francisco Mayor Willie Brown sometime in the past.
37:26
SPEAKER_01: Willie Brown long ago dated Kamala Harris.
37:29
SPEAKER_01: This has been a weird fixation of Republican attacks against her.
37:35
SPEAKER_01: I guess the idea being that, you know, she slept her way to the top or something.
37:39
SPEAKER_01: I think, you know,
37:39
SPEAKER_01: Most voters have no idea who Willie Brown is,
37:42
SPEAKER_01: which is one reason that I think that is one of the least effective attacks on
37:45
SPEAKER_01: Kamala Harris.
37:46
SPEAKER_01: And in fact, they've had research.
37:48
SPEAKER_01: They've actually sent their pollsters out to pull this and find that it is an
37:51
SPEAKER_01: ineffective attack as you have some of the Republican pollsters trying to convince
37:55
SPEAKER_01: their commentators to please stop using this line,
37:57
SPEAKER_01: which does not work.
37:59
SPEAKER_01: But so Donald Trump, of course, cannot resist that.
38:03
SPEAKER_01: And so he said that he was on a helicopter with Willie Brown and they almost went down on the helicopter.
38:07
SPEAKER_01: And by the way, Willie Brown told him some very nasty things about Kamala Harris at this time.
38:14
SPEAKER_01: And so Willie Brown says, I've never been on a helicopter with Donald Trump.
38:18
SPEAKER_01: And some reporters eventually get to the bottom of this and figure out that,
38:21
SPEAKER_01: in fact,
38:22
SPEAKER_01: Donald Trump was on a helicopter with
38:24
SPEAKER_01: around 1990 with Nate Holden,
38:27
SPEAKER_01: who was a member of the Los Angeles City Council and who was black,
38:31
SPEAKER_01: who is black.
38:32
SPEAKER_01: He's very old now and still living.
38:34
SPEAKER_01: And he's very tall.
38:35
SPEAKER_01: Willie Brown is kind of short.
38:38
SPEAKER_01: So they don't really they aren't really similar other than being black and being
38:41
SPEAKER_01: elected officials from from California.
38:44
SPEAKER_01: And by the way,
38:44
SPEAKER_01: also,
38:44
SPEAKER_01: it seems this incident was in 1990,
38:46
SPEAKER_01: which is before Kamala Harris and Willie Brown even dated.
38:50
SPEAKER_01: And so it's,
38:51
SPEAKER_01: you know,
38:51
SPEAKER_01: not appropriate timing for Donald Trump to have learned anything about that relationship.
38:56
SPEAKER_01: But so anyway,
38:57
SPEAKER_01: Donald Trump has threatened to sue The New York Times for defamation for claiming
39:01
SPEAKER_01: that he was not in a helicopter crash or almost in a helicopter crash with Willie Brown,
39:05
SPEAKER_01: even though he still insists that this did in fact happen.
39:09
SPEAKER_01: And so that,
39:09
SPEAKER_01: you know,
39:09
SPEAKER_01: I can think of several reasons why this will not be a successful defamation suit,
39:14
SPEAKER_01: including that,
39:14
SPEAKER_01: you know,
39:15
SPEAKER_01: he wasn't almost in a helicopter crash with Willie Brown,
39:17
SPEAKER_01: clearly.
39:18
SPEAKER_01: But this is another defamation litigation threat that we've gotten.
39:22
SPEAKER_02: So to be fair to Trump in the Trump campaign, I think they've dropped the topic and stopped threatening.
39:27
SPEAKER_02: once Nate Holden surfaced.
39:28
SPEAKER_02: So once Nate Holden gave an interview where he says, no, that was me, dude.
39:32
SPEAKER_02: I was in the helicopter.
39:33
SPEAKER_02: We had a hard landing in New Jersey.
39:35
SPEAKER_02: And there's corroborating information in the sense that Trump was trying to work
39:40
SPEAKER_02: with Nate Holden on development in Los Angeles at the time.
39:44
SPEAKER_02: Actually, as I recall, thinking of tearing down the Ambassador Hotel or something like that, where RFK-
39:51
SPEAKER_02: Senior was assassinated and turning it into some sort of development.
39:54
SPEAKER_02: But this is more amusing to Californians because – or at least of my generation
39:59
SPEAKER_02: because Willie Brown and Nate Holden are both kind of big political figures and
40:05
SPEAKER_02: kind of – they're the closest political figures we have to like New Jersey guys in California,
40:10
SPEAKER_02: OK?
40:10
SPEAKER_02: Yeah.
40:11
SPEAKER_02: larger than life,
40:13
SPEAKER_02: happy warriors,
40:14
SPEAKER_02: elbow throwing,
40:15
SPEAKER_02: have fun in their job,
40:17
SPEAKER_02: very powerful,
40:18
SPEAKER_02: get the sense you don't want to look too closely at how they get things done,
40:22
SPEAKER_02: all that type of thing.
40:23
SPEAKER_02: It's the closest we get to having New Jersey and New York politicians.
40:27
SPEAKER_02: And confusing the two of them is kind of hilarious and very Trumpian.
40:31
SPEAKER_02: And yeah, so obviously truth is an absolute defense to defamation.
40:36
SPEAKER_02: It's inconceivable, I think, that Trump could possibly prevail on any sort of defamation claim.
40:41
SPEAKER_02: when Willie Brown himself is denying that it happened.
40:45
SPEAKER_02: So he would have to show that the New York Times knew that Willie Brown was lying about it not happening.
40:51
SPEAKER_02: Now that Nate Holden has come out,
40:52
SPEAKER_02: he'd have to say the New York Times knew that Nate Holden was lying too,
40:57
SPEAKER_02: even though Trump's produced no corroborating evidence.
40:59
SPEAKER_02: So I think this is just more a story about sort of Trump's intemperance and
41:05
SPEAKER_02: whininess right now when people are...
41:09
SPEAKER_02: disagreeing with him.
41:10
SPEAKER_02: His ability to roll with it seems to be diminished recently,
41:15
SPEAKER_02: and he seems to be lashing out more when disagreed with.
41:18
SPEAKER_01: I want to close out this week with an update on the Young Thug trial.
41:21
SPEAKER_01: This,
41:21
SPEAKER_01: of course,
41:22
SPEAKER_01: is the other garbage fire of a Georgia RICO prosecution currently happening in
41:26
SPEAKER_01: Fulton County,
41:27
SPEAKER_01: aside from the Trump one that is on pause probably for a couple of years while they
41:32
SPEAKER_01: figure out the impact of Fannie Willis's relationship with Nathan Wade on that case.
41:36
SPEAKER_01: The Young Thug trial,
41:38
SPEAKER_01: it's a RICO case that is actually about organized crime and this allegation that
41:43
SPEAKER_01: Young Thug had a street gang that committed various crimes,
41:46
SPEAKER_01: including a murder.
41:48
SPEAKER_01: And there have been all of these disputes among the defense attorneys and Uriel Glanville,
41:53
SPEAKER_01: who had been the presiding judge in this case,
41:56
SPEAKER_01: about an ex-party meeting that he had putting pressure on this witness,
41:59
SPEAKER_01: Kenneth Copeland,
42:00
SPEAKER_01: to testify in the case.
42:02
SPEAKER_01: And so Uriel Glanville ultimately was recused from the case because he got too
42:07
SPEAKER_01: heatedly involved in defense of himself and his conduct in overseeing the case.
42:12
SPEAKER_01: And so he was removed by some other judges.
42:15
SPEAKER_01: I think you've suggested that maybe this was their polite way of,
42:19
SPEAKER_01: you know,
42:19
SPEAKER_01: that really the problem was his misconduct itself and the ex-party meeting and saying,
42:23
SPEAKER_01: well,
42:23
SPEAKER_01: you know,
42:23
SPEAKER_01: set that aside.
42:25
SPEAKER_01: The way you discussed the ex-party meeting was a problem and we had to remove you.
42:28
SPEAKER_01: So anyway, they removed him.
42:29
SPEAKER_01: And last we talked about this,
42:30
SPEAKER_01: I think we thought that the case was quite likely to go to mistrial,
42:33
SPEAKER_01: that basically you remove the judge partway through the case.
42:36
SPEAKER_01: It's very challenging to proceed toward a verdict.
42:39
SPEAKER_01: But now there's a new judge on the case, and they're actually trying to continue trying the case.
42:44
SPEAKER_01: She's presiding.
42:46
SPEAKER_01: She told the jury,
42:47
SPEAKER_01: please disregard the things that Judge Glanville said and disregard some portion of
42:51
SPEAKER_01: the testimony that you heard from Kenneth Copeland.
42:53
SPEAKER_01: And now I'm in charge and we're going to continue.
42:55
SPEAKER_01: So, I mean, first of all, is that a thing that you can do?
42:57
SPEAKER_02: Oh, God bless them.
43:00
SPEAKER_02: They're doing their best, Josh.
43:01
SPEAKER_02: But this is like...
43:03
SPEAKER_02: This is like watching a marathoner who collapses and is bleeding out the ears about
43:08
SPEAKER_02: two miles from the end of the race,
43:10
SPEAKER_02: and they get themselves back up and stagger on towards the finish line.
43:16
SPEAKER_02: But yeah, so this judge comes in.
43:17
SPEAKER_02: I want you to forget, ladies and gentlemen of the jury, everything that Kenneth Copeland previously said.
43:22
SPEAKER_02: He's going to testify again.
43:24
SPEAKER_02: Kenneth Copeland hits the stand and say,
43:26
SPEAKER_02: yeah,
43:27
SPEAKER_02: I was lying to you all before the government came and they threatened me.
43:30
SPEAKER_02: I didn't know anything,
43:31
SPEAKER_02: but they kept threatening me and yelling at me and coercing me and telling me I had
43:35
SPEAKER_02: to say these things.
43:36
SPEAKER_02: They threatened my family, all this sort of stuff.
43:38
SPEAKER_02: And then so then I'm sorry.
43:43
SPEAKER_02: He says that he's not going to go on unless his attorney is there.
43:47
SPEAKER_02: For the rest of the questioning that day, this was on Tuesday.
43:51
SPEAKER_02: And the problem is that morning,
43:53
SPEAKER_02: the Georgia Supreme Court suspended his attorney for completely unrelated matters.
43:59
SPEAKER_02: So they had to call it off the afternoon.
44:02
SPEAKER_02: It's not clear now.
44:04
SPEAKER_02: how, if he's going to get a new attorney, what's going to happen with his testimony.
44:08
SPEAKER_02: It's just a parade of horribles.
44:10
SPEAKER_02: I mean, sooner or later, Josh, you just got to accept that God does not want this case to go forward.
44:17
SPEAKER_02: But it's Fulton County.
44:18
SPEAKER_02: Is a witness entitled to have their attorney there?
44:20
SPEAKER_02: Well,
44:21
SPEAKER_02: a witness is entitled to,
44:23
SPEAKER_02: yes,
44:23
SPEAKER_02: consult with their attorney and maybe take the fifth to certain questions if
44:28
SPEAKER_02: they're not within the scope of the immunity they've been given or something where
44:32
SPEAKER_02: they've waived.
44:33
SPEAKER_02: So, yeah, it would be a problem.
44:35
SPEAKER_02: And if you force the person to answer questions without speaking to their attorney
44:40
SPEAKER_02: and over objections,
44:41
SPEAKER_02: then that could create huge barriers to ever going after that witness for anything.
44:46
SPEAKER_02: So it's just such a mess.
44:49
SPEAKER_02: And this is 100% on the Fulton County District Attorney's Office for turning this
44:55
SPEAKER_02: into such a complete shit show by making it more complicated than it needs to be,
44:59
SPEAKER_02: wanting to use RICO,
45:03
SPEAKER_02: doing the very typical law enforcement thing,
45:05
SPEAKER_02: which is bullying and coercing one sleazebag to testify against a different sleazebag.
45:11
SPEAKER_02: All the common stuff is just blowing up in their face.
45:13
SPEAKER_02: It's glorious.
45:14
SPEAKER_01: So, I mean, famously, this case, it took almost a year to complete jury selection.
45:19
SPEAKER_01: And then the trial has been ongoing for months.
45:21
SPEAKER_01: And I had forgotten how long this pause had been because you had this new judge
45:25
SPEAKER_01: comes in and she's saying to the jurors,
45:28
SPEAKER_01: you know,
45:28
SPEAKER_01: I know you've had a pause in the prior day that they'd been there hearing testimony
45:31
SPEAKER_01: was two months ago.
45:32
SPEAKER_01: Right.
45:33
SPEAKER_01: So they paused for like two months and now they have to pick it up.
45:35
SPEAKER_01: And not only they have to forget part of the testimony,
45:37
SPEAKER_01: they have to remember this testimony that they heard months ago.
45:40
SPEAKER_01: And I mean, at some point, I mean, how long can you compel a juror to stick around?
45:46
SPEAKER_01: I mean, it's obviously this is burdensome on lots of parties to the case.
45:49
SPEAKER_01: You have people who are sitting in jail, you know, as they you know, as this trial is ongoing.
45:54
SPEAKER_01: But at some point, isn't a trial just too long?
45:57
SPEAKER_01: People have lives they have to live.
45:59
SPEAKER_01: They have other things they have to go do.
46:01
SPEAKER_01: Absolutely.
46:02
SPEAKER_02: But for long cases, you tend to select out jurors who, I mean, are able to do that.
46:08
SPEAKER_02: And if you're able to do that, you probably don't have a lot of things going on.
46:11
SPEAKER_02: And so...
46:12
SPEAKER_02: You know,
46:12
SPEAKER_02: that selects people who are in jobs that allow indefinite jury leave,
46:16
SPEAKER_02: which is,
46:17
SPEAKER_02: you know,
46:17
SPEAKER_02: a very small and particular subset.
46:19
SPEAKER_02: It selects retired people and so on and so forth.
46:23
SPEAKER_02: Yeah,
46:23
SPEAKER_02: but it's ludicrous to believe that a jury can remember all this stuff and absorb it,
46:29
SPEAKER_02: that a jury can go on a break for two months and come back and pick up.
46:32
SPEAKER_02: This is one of the times when those legal fictions are just overwhelmingly, obviously, dumb.
46:38
SPEAKER_02: So,
46:39
SPEAKER_02: you know,
46:39
SPEAKER_02: telling them,
46:40
SPEAKER_02: oh,
46:40
SPEAKER_02: just forget what he said before,
46:42
SPEAKER_02: but remember everything else that happened that stopped two months ago is like saying,
46:45
SPEAKER_02: you know,
46:46
SPEAKER_02: boys and girls clap so that Tinkerbell will stay alive.
46:49
SPEAKER_02: It's just not a real thing.
46:51
SPEAKER_01: Ken, thank you for joining me this week.
46:53
SPEAKER_01: Thank you, Josh.
46:55
SPEAKER_01: Serious Trouble is created and produced by Very Serious Media.
46:57
SPEAKER_01: That's me and Sarah Faye.
46:58
SPEAKER_01: Jennifer Swadek mixed this episode.
47:00
SPEAKER_01: Our theme music is by Joshua Mosier.
47:02
SPEAKER_01: Thanks for listening, and we'll be back with more soon.
47:04
SPEAKER_01: See you next time.