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Stretching the Limits of the Courts · Serious Trouble

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[music]
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SPEAKER_01: Hi, it's Ken White.
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SPEAKER_01: And it's Josh Barrow, and this is Serious Trouble.
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SPEAKER_01: So Ken, why don't we start with Donald Trump's lawsuit against the IRS,
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SPEAKER_01: which of course was settled.
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SPEAKER_01: They sat across the table from each other and decided
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SPEAKER_01: that there should be this anti-weaponization fund and
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SPEAKER_01: that Trump should never be audited again.
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SPEAKER_01: And a very arm's length thing there with lawyers who used to represent Trump
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SPEAKER_01: in his personal capacity and now are acting as attorney general
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SPEAKER_01: and associate attorney general and such.
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SPEAKER_01: Judge Kathleen Williams,
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SPEAKER_01: whose court this lawsuit was in before it was settled,
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SPEAKER_01: was very unamused by all of this.
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SPEAKER_01: And as we've looked at this, one of the key questions is like, can she do anything about it?
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SPEAKER_01: And the thinking had sort of been – or our thinking had been sort of no.
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SPEAKER_01: And then these 35 retired judges came along and filed this amicus brief and said,
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SPEAKER_01: hey – Can you look at some of this and like some of the court's authorities here
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SPEAKER_01: to do something about this?
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SPEAKER_01: And she's issued a very angry order in which she does take some actions.
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SPEAKER_01: And we'll look today at the extent to which those actions actually limit
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SPEAKER_01: the president's scope to engage in self-dealing here to the extent that he wants
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SPEAKER_01: to rely on that promise not to audit him or try to resurrect something
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SPEAKER_01: that looks like the Anti-Weaponization Fund.
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SPEAKER_01: What has Judge Williams done here?
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SPEAKER_00: So this is a really interesting one.
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SPEAKER_00: And Josh,
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SPEAKER_00: you might recall at the beginning of this
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SPEAKER_00: when these 35 retired judges filed their motion asking to intervene,
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SPEAKER_00: I thought it was very improbable that any judge would let them do so
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SPEAKER_00: because it was such an unusual request and really requiring the judge to go out on
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SPEAKER_00: a limb.
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SPEAKER_00: But it seems as if as the Trump administration's actions have gotten more unusual
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SPEAKER_00: and extreme,
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SPEAKER_00: Then at least some federal judges have been willing to match that energy
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SPEAKER_00: by going out on that limb and really looking for the utmost limits of their power
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SPEAKER_00: to do something about it.
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SPEAKER_00: So here,
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SPEAKER_00: this is Judge Williams' ruling on the ultimate substance of
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SPEAKER_00: the 35 retired federal judges' requests,
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SPEAKER_00: that she investigate and do something about their accusation,
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SPEAKER_00: which was the entire case was a sham from the start,
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SPEAKER_00: that Trump was on both sides of it.
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SPEAKER_00: That there was no real adversity, that it was not really Trump versus IRS.
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SPEAKER_00: It was Trump telling the IRS what to do and that she should issue sanctions
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SPEAKER_00: or do something to unwind it.
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SPEAKER_00: And she does.
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SPEAKER_00: She writes a pretty lengthy order, very detailed.
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SPEAKER_00: And the basic proposition she has is that even when a party dismisses voluntarily
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SPEAKER_00: a case before a federal judge,
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SPEAKER_00: that judge retains the Collateral jurisdiction to look after a few things.
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SPEAKER_00: And one of them is potential sanctions against the people involved if there was misconduct.
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SPEAKER_00: So she finds there was misconduct.
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SPEAKER_00: She says basically,
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SPEAKER_00: you know,
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SPEAKER_00: federal jurisdiction depends on there being a real case in controversy,
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SPEAKER_00: two sides fighting over something for real.
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SPEAKER_00: And she reviews cases that talk about how it's not a real case in controversy,
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SPEAKER_00: for instance,
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SPEAKER_00: like there are cases saying if If one company owns another and they do a lawsuit
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SPEAKER_00: against each other,
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SPEAKER_00: that's not a real So you
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SPEAKER_00: don't want to basically use the courts as an instrument
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SPEAKER_00: to pull shenanigans by faking that you have two separate parties
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SPEAKER_00: that are actually adverse.
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SPEAKER_00: And she goes through all the evidence that there was no adversity here.
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SPEAKER_00: First, there's the law that Trump, as president, is ultimately in charge of the IRS.
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SPEAKER_00: Next,
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SPEAKER_00: there's Trump's own executive orders showing that he has exercised an unusual level
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SPEAKER_00: of control over the exact actions of DOJ and IRS,
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SPEAKER_00: including an executive order explicitly saying that he has the sole right
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SPEAKER_00: to determine their litigation stance in cases.
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SPEAKER_00: And then all his public comments,
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SPEAKER_00: which of course are very stupid and things like,
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SPEAKER_00: you know,
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SPEAKER_00: quote, I have absolute right to do what I want to do with the Justice Department.
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SPEAKER_00: So based on that, she finds that the whole thing was a sham.
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SPEAKER_00: There was never any adversity between the parties.
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SPEAKER_00: It was purely Trump using his control of the IRS
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SPEAKER_00: to get these very unusual settlement terms,
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SPEAKER_00: including this bizarre slush fund and this promise that the IRS would never audit he
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SPEAKER_00: or his family or anyone connected with him, at least for past things.
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SPEAKER_00: So based on all that, Josh,
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SPEAKER_00: she goes into and decides she will look at sanctions,
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SPEAKER_00: and she looks at sanctions against Trump's lawyers,
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SPEAKER_00: including Alejandro Brito of Florida,
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SPEAKER_00: and she reports him to the Florida Bar,
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SPEAKER_00: and the acting attorney general of the United States,
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SPEAKER_00: Todd Blanch, issuing this even as he's going through confirmation hearings.
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SPEAKER_00: And the Associate Attorney General Woodward and she reports them to their respective bars.
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SPEAKER_00: But it's a very remarkable order.
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SPEAKER_00: It is kind of a judge flexing the outer boundaries of their power.
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SPEAKER_00: But I think it's really because this was such an extraordinary case
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SPEAKER_00: and that's what leads her to do that.
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SPEAKER_01: So what's the practical effect of the remedies that she's pursuing here?
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SPEAKER_01: I mean, the state bars could take action here.
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SPEAKER_01: It's an interesting political question whether the New York bar wants to get in
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SPEAKER_01: the business of disbarring the attorney general of the United States.
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SPEAKER_01: I would be more worried if I were Alejandro Brito, who is in private practice.
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SPEAKER_01: And then she says that she has authority to order monetary sanctions,
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SPEAKER_01: but it's not really clear what those would be.
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SPEAKER_01: There's,
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SPEAKER_01: you know,
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SPEAKER_01: some Amici that she appointed who have declined to have their fees reimbursed.
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SPEAKER_01: There are the 35 retired judges who brought the – what was it?
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SPEAKER_00: It was a friend of the court brief or – It was a request to intervene or
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SPEAKER_00: an alternative friend of the court brief.
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SPEAKER_01: Right.
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SPEAKER_01: So, I mean, it would be a little weird to award money to them.
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SPEAKER_01: I suspect that's not where we're going to end up.
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SPEAKER_01: So, like, what are the financial sanctions?
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SPEAKER_00: Well, as you said,
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SPEAKER_00: she decides that under – Under Rule 11 of the Federal Rules of Civil Procedure,
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SPEAKER_00: she can't order monetary sanctions because the case is over,
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SPEAKER_00: but she can do non-monetary.
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SPEAKER_00: So that's the reports to the bar and another part we'll get to in a second.
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SPEAKER_00: But under her inherent authority,
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SPEAKER_00: she can do – that means her non-rule-based but inherent – all courts have
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SPEAKER_00: an authority – What she does is she asks the 35 judges to submit a brief about
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SPEAKER_00: whether or not they're asking for their attorney's fees to be reimbursed,
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SPEAKER_00: since presumably the judges didn't write it themselves.
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SPEAKER_00: They probably used a lawyer and paid the lawyer something.
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SPEAKER_00: So we'll see whether or not they decline to do that or whether they ask for money.
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SPEAKER_00: The more interesting part,
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SPEAKER_00: I think,
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SPEAKER_00: and you flagged this, Josh,
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SPEAKER_00: is the section where she says that The settlement agreement is null and void and
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SPEAKER_00: the parties are prohibited from using,
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SPEAKER_00: offering,
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SPEAKER_00: admitting,
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SPEAKER_00: or citing any of its provisions in any judicial,
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SPEAKER_00: administrative,
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SPEAKER_00: regulatory, arbitration, or other official proceedings as evidence of a settlement.
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SPEAKER_00: So she's striking it from all the tablets, right?
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SPEAKER_00: She's saying that because it was procured through fraud on the court,
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SPEAKER_00: it has no legal effect and they can't cite it.
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SPEAKER_00: Can she do that?
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SPEAKER_00: You might not be surprised to know there's not a lot of precedent on this exactly.
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SPEAKER_00: So you could generally cite it as a judge can generally find a settlement void for some reason.
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SPEAKER_00: It's another thing to basically say you can never cite it in any proceeding
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SPEAKER_00: and argue there that the judge was wrong.
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SPEAKER_00: You can never even basically Mention it.
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SPEAKER_00: I think that's very unusual.
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SPEAKER_00: I'm not quite sure where she gets the power to do that
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SPEAKER_00: because I don't see how she has the power to say – they can't even
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SPEAKER_00: in another proceeding say there was a settlement reach,
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SPEAKER_00: but this judge found that it was improper and void,
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SPEAKER_00: but you shouldn't have to – that's not binding on you to a different judge or
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SPEAKER_00: a different tribunal.
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SPEAKER_00: I think where it comes up is because DOJ at least for now seems to have abandoned –
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SPEAKER_00: The weaponization fund,
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SPEAKER_00: at least,
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SPEAKER_00: you know,
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SPEAKER_00: while the lights are on and they haven't like done it properly in writing or
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SPEAKER_00: through official proclamation,
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SPEAKER_00: which is something that Todd Blanch got asked about at his confirmation hearings,
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SPEAKER_00: but they pretty much said repeatedly they're not going to do it.
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SPEAKER_00: I think where this could come in more of an issue is
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SPEAKER_00: if there's ever another IRS proceeding audit of Trump or his kids or any
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SPEAKER_00: of his entities,
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SPEAKER_00: there obviously he would be wanting to say,
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SPEAKER_00: you know,
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SPEAKER_00: DOJ settled with me, IRS settled with me, they're prohibited from doing that.
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SPEAKER_00: And this purports to prevent them from doing that.
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SPEAKER_00: Because, I mean,
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SPEAKER_00: she never
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SPEAKER_01: reaches the question of whether the government could settle with Trump.
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SPEAKER_01: It's all about whether the use of her court and the proceedings there toward
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SPEAKER_01: that settlement was...
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SPEAKER_01: It's not clear that they even needed to file a lawsuit in order to settle.
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SPEAKER_01: I mean, is it that this specific document was a product of proceedings in her court?
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SPEAKER_01: They could rip it up and write a document that said substantially the same thing and
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SPEAKER_01: then she wouldn't have any jurisdiction to talk about whether that was proper
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SPEAKER_01: or not?
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SPEAKER_00: Well, first of all,
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SPEAKER_00: she does kind of reach whether or not it's proper because in the course
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SPEAKER_00: of her analysis,
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SPEAKER_00: as a basis for finding there was no real adversity that the fix was in,
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SPEAKER_00: she notes that there's all these legal problems with the settlement,
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SPEAKER_00: including the So, in a way, she reaches it.
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SPEAKER_00: But, yeah, the question is –
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SPEAKER_00: Could she say if they just said, fine,
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SPEAKER_00: we'll do it, you know, we'll have our own settlement on the side without a lawsuit?
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SPEAKER_00: Can she say that's a product of this case and she still has power over it?
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SPEAKER_00: I think that would be quite a reach even though – I mean it is
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SPEAKER_00: so transparently bogus, the settlement, so transparently lawless.
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SPEAKER_00: The question would be,
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SPEAKER_00: you know,
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SPEAKER_00: can anyone do anything about that if they do it without the ruse of having gone
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SPEAKER_00: through federal court first?
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SPEAKER_01: Is the law that prohibits the president from directing who the IRS can audit,
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SPEAKER_01: is that constitutional after the recent line of Supreme Court decisions about
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SPEAKER_01: that you can't have independent agencies?
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SPEAKER_00: It's not so much directed at the president.
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SPEAKER_00: It's directed at structurally no one can do it, that you can't have an agreement like that.
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SPEAKER_00: So the question would be,
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SPEAKER_00: I don't think that that restricts the president in the same way As a law just saying
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SPEAKER_00: that, you know, only Congress can do it or something like that.
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SPEAKER_00: So it's not something saying that the president doesn't have – this power exists but
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SPEAKER_00: the president can't exercise it.
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SPEAKER_00: That might be unconstitutional because it's an executive rant that's saying nobody can do it.
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SPEAKER_00: So I think that may well be constitutional.
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SPEAKER_00: So I guess where does this leave us
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SPEAKER_01: is the question.
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SPEAKER_01: I assume the administration will appeal this and so we'll be up in the 11th Circuit.
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SPEAKER_00: I think they will appeal it.
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SPEAKER_00: I think it'll be interesting to see what the 11th Circuit does because
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SPEAKER_00: the case stinks to high heaven.
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SPEAKER_00: So, you know,
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SPEAKER_00: we've seen kind of repeatedly,
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SPEAKER_00: even in circuits relatively friendly to Trump,
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SPEAKER_00: that they don't want to get their hands dirty with truly gratuitous,
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SPEAKER_00: ridiculous things.
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SPEAKER_00: And so they may just...
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SPEAKER_00: They may find some easy way to get rid of this that doesn't really approach
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SPEAKER_00: the substance or they may – who knows what they do.
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SPEAKER_00: And probably the administration will appeal but it might not simply –
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SPEAKER_00: or Trump might not either just because they don't really want this in the headlines.
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SPEAKER_00: It's embarrassing and it's clearly an effort at a scam that didn't work.
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SPEAKER_00: And so maybe they don't want focus on this that comes with continuing to appeal it.
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SPEAKER_01: Meanwhile,
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SPEAKER_01: one case that has gotten to final, final,
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SPEAKER_01: final disposition, E.
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SPEAKER_01: Jean Carroll has gotten $5 million plus interest,
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SPEAKER_01: so $5.6 million in one of her two civil cases against Donald Trump,
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SPEAKER_01: the sexual abuse and defamation case.
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SPEAKER_01: Yeah, he didn't actually himself pay up.
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SPEAKER_01: So here's what happens when you get a judgment against somebody.
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SPEAKER_00: Under normal circumstances,
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SPEAKER_00: they can immediately start doing all the things you can do to collect a judgment.
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SPEAKER_00: They can put liens on your property.
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SPEAKER_00: They can take your deposition to find out what property you have.
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SPEAKER_00: They can garnish your wages, all sorts of stuff like that.
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SPEAKER_01: If you don't want that to happen— They can confiscate your Joe DiMaggio jersey,
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SPEAKER_01: even though that's apparel.
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SPEAKER_00: And even though that's just cruel, Josh.
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SPEAKER_00: Yeah.
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SPEAKER_00: How could you do that to a decrepit old man?
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SPEAKER_00: Anyway— If you don't want all that to be happening while you're appealing
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SPEAKER_00: the judgment, then you have to post a bond.
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SPEAKER_00: It is generally 150% of the amount of the judgment to accommodate interest.
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SPEAKER_00: And the different ways to do it are to get a bonding company to do it for you,
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SPEAKER_00: kind of like posting a bail bond or to post the cash yourself with the clerk of
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SPEAKER_00: the court.
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SPEAKER_00: And the whole idea is that if it's affirmed,
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SPEAKER_00: You don't want to then have to screw around chasing the person.
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SPEAKER_00: You want the money just to be there in the court and just snap their fingers
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SPEAKER_00: and say, OK, money released.
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SPEAKER_00: So that's what happened here.
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SPEAKER_00: The money – Trump had already put the money on deposit and the money was just released to her.
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SPEAKER_00: And Trump made a lot of kind
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SPEAKER_00: of deeply embarrassing last-minute legal maneuvers trying to stop that.
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SPEAKER_00: Including saying that the court should not let it move forward because he was asking
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SPEAKER_00: the Supreme Court to rehear and reconsider its denial of cert, which is not a thing.
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SPEAKER_00: It's just not a thing.
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SPEAKER_01: It's like the justices forgot to take it up or something.
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SPEAKER_00: Yeah.
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SPEAKER_00: But no one wants to be the lawyer who has to tell Donald Trump,
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SPEAKER_00: sorry, your money got paid to E.G.
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SPEAKER_00: Carroll, the person you hate.
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SPEAKER_00: This is a real win for her and it took a long time.
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SPEAKER_00: And remember, this is an egregious case.
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SPEAKER_00: This is actually the second lawsuit she filed
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SPEAKER_00: that she filed once New York passed this law that allowed you to sue outside
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SPEAKER_00: the traditional statute of limitations for sexual assault.
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SPEAKER_00: And so she got a jury to find that he sexually assaulted her.
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SPEAKER_00: The jury didn't find rape,
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SPEAKER_00: but judges have said basically colloquially calling it rape is within bounds.
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SPEAKER_00: The term of art in the New York Code is sexual abuse was what the jury found.
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SPEAKER_00: Exactly.
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SPEAKER_00: So this is a huge win and probably nothing different is going to happen in her other case.
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SPEAKER_00: That's going to get rejected by the Supreme Court, I expect.
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SPEAKER_00: And then the bond he's posted on that,
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SPEAKER_00: which is a lot more money, is going to get turned over to her.
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SPEAKER_00: Now, I would not be the least bit surprised if something horrible happens to her,
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SPEAKER_00: some sort of completely bogus crime.
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SPEAKER_00: Criminal prosecution or something like that.
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SPEAKER_00: That's completely the sort of thing this administration is doing.
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SPEAKER_01: Well, there was that news report that they were somehow in the Chicago U.S.
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SPEAKER_01: Attorney's Office,
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SPEAKER_01: which is a rat's nest for reasons we've discussed repeatedly on here,
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SPEAKER_01: that they were looking,
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SPEAKER_01: I guess, into whether she had lied in a deposition or something.
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SPEAKER_00: Yes, although they later disavowed that, said it's not true.
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SPEAKER_00: But it would not surprise me at all if he tries to find some way to lash out at her.
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SPEAKER_01: Yeah.
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SPEAKER_00: But she wins.
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SPEAKER_01: Yes.
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SPEAKER_01: Meanwhile,
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SPEAKER_01: Mahmoud Khalil,
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SPEAKER_01: who is one of these pro-Palestinian activists who
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SPEAKER_01: the Trump administration has sought to deport,
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SPEAKER_01: despite – my recollection is that he is
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SPEAKER_00: or was a green card holder.
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SPEAKER_01: Yes.
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SPEAKER_01: And so he has now sued a variety of government officials in the government and
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SPEAKER_01: a variety of private actors under the Klan Act, 42 U.S.C.
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SPEAKER_01: 1985, alleging that they engaged in a conspiracy to violate his rights.
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SPEAKER_01: The private actors being sued here include the Heritage Foundation,
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SPEAKER_01: Canary Mission, which is a pro-Israel pressure group.
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SPEAKER_01: Basically saying that these groups identified various activists that they wanted
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SPEAKER_01: the government to deport and made various statements about those activists and
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SPEAKER_01: that they then worked with government officials to deprive him
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SPEAKER_01: of his constitutional rights.
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SPEAKER_00: Does this work?
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SPEAKER_00: This seems like a very aggressive legal theory.
17:04
SPEAKER_00: It is a very aggressive legal theory.
17:07
SPEAKER_00: And to answer that,
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SPEAKER_00: I'd have to say I would have said, no, this is too far to reach a few years ago.
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SPEAKER_00: No, I'm not sure.
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SPEAKER_00: So just to set up the background a little bit,
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SPEAKER_00: remember Mahmoud Khalil is this Columbia graduate student.
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SPEAKER_00: He has a green card and the government invokes this law that they says that allows
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SPEAKER_00: the secretary of state to unilaterally decide that you,
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SPEAKER_00: green card holder,
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SPEAKER_00: are bad for foreign policy and therefore I'm revoking your green card.
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SPEAKER_00: And here they say, well, he's anti-Semitic.
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SPEAKER_00: It's bad for relations with Israel.
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SPEAKER_00: We're revoking his green card and we want to deport him.
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SPEAKER_00: A lower court said, no, that's bullshit, you can't do that.
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SPEAKER_00: The Third Circuit said,
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SPEAKER_00: well, maybe you can because it should be an immigration judge deciding this.
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SPEAKER_00: And so it's now...
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SPEAKER_00: On cert application to the Supreme Court and he's kind of in limbo,
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SPEAKER_00: although he's out of custody.
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SPEAKER_00: So his argument here is that Heritage came up with this blueprint for how
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SPEAKER_00: to attack pro-Palestinian activists and demonstrators and,
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SPEAKER_00: you know,
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SPEAKER_00: everybody and to target them,
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SPEAKER_00: identify them as being anti-Semitic,
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SPEAKER_00: identify them as being bad and then have the government go after them.
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SPEAKER_00: Working hand in hand with people like Stephen Miller and Marco Rubio
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SPEAKER_00: and Mark Wayne Mullen who are all co-defendants here.
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SPEAKER_00: So it's very aggressive.
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SPEAKER_00: So the theory is the Klan Act was designed basically for groups of people trying
18:35
SPEAKER_00: to violate the civil rights of new black voters.
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SPEAKER_00: So you can't congregate together, get together to conspire.
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SPEAKER_00: I mean, in theory, it could work.
18:50
SPEAKER_00: There are some elements of the case that I think are a little nutty,
18:52
SPEAKER_00: like saying that it's a, Bill of attainder to be doing this.
18:56
SPEAKER_00: I don't think that works.
18:57
SPEAKER_00: But the fundamental theory that everybody conspired together to go
19:03
SPEAKER_00: after these people and invoke the government's power to abuse them is plausible.
19:07
SPEAKER_00: The question is, I think, whether there's an actual rights violation.
19:11
SPEAKER_00: So it kind of puts the cart before the horse, right?
19:13
SPEAKER_00: We haven't yet – the Supreme Court may yet find that Yes, the secretary of state can do that.
19:21
SPEAKER_00: We're deciding or this is purely in the executive's power.
19:25
SPEAKER_00: And that's the case.
19:26
SPEAKER_00: It may not be a violation of rights if the Supreme Court finds that's not a right.
19:31
SPEAKER_00: But it's a clever way,
19:33
SPEAKER_00: if nothing else,
19:34
SPEAKER_00: to dig into the coordination between entities like Heritage and Canary Mission and
19:41
SPEAKER_00: the insiders like,
19:43
SPEAKER_00: you know,
19:43
SPEAKER_00: Stephen Miller,
19:44
SPEAKER_00: who has a,
19:44
SPEAKER_00: you know,
19:45
SPEAKER_00: very overtly Kind of white nationalist,
19:48
SPEAKER_00: expel all the pro-Palestinian people type of outlook on this.
19:53
SPEAKER_00: So once upon a time, I would have said absolutely not.
19:56
SPEAKER_00: But just as in that 35 retired judges case,
20:00
SPEAKER_00: I think if you get it in front of the right judge,
20:02
SPEAKER_00: he's going to let it go for a while.
20:04
SPEAKER_00: I don't think that he or she,
20:05
SPEAKER_00: I don't think some judges are going to think that things have gone so far
20:10
SPEAKER_00: that I'm going to let this go forward somewhat.
20:14
SPEAKER_01: Setting aside the government defendants here,
20:17
SPEAKER_01: aren't the actions of
20:18
SPEAKER_01: the private defendants described here core protected First Amendment activity?
20:22
SPEAKER_01: They're petitioning the government for redress of grievances.
20:24
SPEAKER_01: They want the secretary of state to take a policy action to revoke certain visas.
20:30
SPEAKER_01: It can't be that you have no constitutional right to petition the government
20:33
SPEAKER_01: to do something that is unconstitutional.
20:37
SPEAKER_00: Well, so that's a great point.
20:38
SPEAKER_00: And yeah,
20:39
SPEAKER_00: there's always a tension in cases like this between First Amendment rights
20:45
SPEAKER_00: and conspiracy to violate civil rights.
20:48
SPEAKER_00: So the idea is you would have to show that all the actors knew
20:54
SPEAKER_00: that this would violate the rights of the people involved,
20:57
SPEAKER_00: that would violate their constitutional rights,
20:59
SPEAKER_00: and that all the actors intended the conspiracy be to violate the law.
21:05
SPEAKER_01: But isn't it impossible to show that because it is a live controversy right now as
21:09
SPEAKER_01: to whether this violates its constitutional rights?
21:11
SPEAKER_01: I mean, the Supreme Court is going to rule on that.
21:13
SPEAKER_00: It would be difficult, certainly.
21:14
SPEAKER_00: You'd have to show that they knew and intended that the government would do
21:18
SPEAKER_00: at least some illegal things to execute this plan.
21:22
SPEAKER_00: So, Josh,
21:23
SPEAKER_00: if you have the theory the government's wrong,
21:24
SPEAKER_00: the courts are wrong,
21:25
SPEAKER_00: that black people should be able to vote and therefore I should be able to Say
21:29
SPEAKER_00: the local sheriff and coordinate with them to wrongfully arrest
21:33
SPEAKER_00: and harass black voters.
21:34
SPEAKER_00: That wouldn't be protected speech if you know that you're intending to get
21:38
SPEAKER_00: the government to do something that is against the law.
21:41
SPEAKER_00: But like you said, that is a big lift.
21:44
SPEAKER_00: But I think that the Heritage Foundation and Canary Mission rhetoric so much
21:49
SPEAKER_00: of it is so nakedly about wanting to use the power of the government
21:54
SPEAKER_00: to crush dissenters to go after people who don't agree with them that it's going
21:58
SPEAKER_00: to have some jury appeal and judge appeal.
22:00
SPEAKER_01: But that's – I mean the question is like is whether a non-citizen has
22:06
SPEAKER_01: a First Amendment right to retain a visa that the statute says the secretary
22:12
SPEAKER_01: of state can revoke, right?
22:13
SPEAKER_01: I mean the – and I'm not saying that Heritage is right about that.
22:16
SPEAKER_01: It's just – isn't it good enough if Heritage believes the arguments
22:19
SPEAKER_01: that they would be advancing in their own legal briefs?
22:22
SPEAKER_00: It depends.
22:23
SPEAKER_00: So if Heritage can't be sued for a conspiracy to violate civil rights for engaging
22:28
SPEAKER_00: in a campaign to say,
22:31
SPEAKER_00: We should take all this away to the Supreme Court if we have to.
22:34
SPEAKER_00: The Secretary of State should take this position,
22:36
SPEAKER_00: and we should push this all the way to the Supreme Court.
22:39
SPEAKER_00: We should continue to try to get the right Supreme Court justices appointed
22:43
SPEAKER_00: so it goes the right way.
22:44
SPEAKER_00: This would have to be different.
22:45
SPEAKER_00: This would have to be we're going to identify specific people
22:51
SPEAKER_00: whose speech we don't like,
22:52
SPEAKER_00: set them up,
22:53
SPEAKER_00: provide the government with information,
22:55
SPEAKER_00: and agree with the government that they're going to do things that violate an array
22:59
SPEAKER_00: of rights.
23:01
SPEAKER_00: But yeah, that is going to be the defense, Josh, what you articulated.
23:04
SPEAKER_00: They're going to say we actually believed that this isn't a civil right.
23:07
SPEAKER_00: And in fact, as of this time, it's unsettled whether it's a civil right.
23:11
SPEAKER_01: Right.
23:12
SPEAKER_01: What kind of remedies could Khalil get if he is able to sell a court on part or all of this?
23:18
SPEAKER_00: Well, he's asking for, you know, damages, compensatory damages.
23:22
SPEAKER_00: But I think probably the real focus is going to be the injunctive relief,
23:27
SPEAKER_00: seeing trying to use that vehicle.
23:30
SPEAKER_00: To stop the administration insiders from using this kind of coordinated targeting
23:36
SPEAKER_00: of people to go after them based on their exercise of rights.
23:39
SPEAKER_01: Meanwhile, some interesting subpoena action that has been happening in a couple of cases.
23:44
SPEAKER_01: I guess let's start with the New York Times.
23:48
SPEAKER_01: There was a news report about the president took this trip.
23:50
SPEAKER_01: He went to Turkey, went to England.
23:52
SPEAKER_01: He has his gold-plated noose 747 that Qatar gave him as a gift that he has wanted
23:58
SPEAKER_01: to be able to fly on because it's,
24:00
SPEAKER_01: I guess, plusher than the existing aging Air Force One planes.
24:05
SPEAKER_01: There have been security concerns about how effective this Qatari plane is
24:10
SPEAKER_01: at preventing a missile being shot at it.
24:14
SPEAKER_01: And so he flew to Turkey on the plane, but then he did not fly back on this plane.
24:18
SPEAKER_01: He flew to England on the existing old Air Force Ones.
24:22
SPEAKER_01: And the New York Times reported that this was because of a specific security concern
24:26
SPEAKER_01: about him getting on the new plane.
24:27
SPEAKER_01: And the president was very upset about this ending up in the press.
24:30
SPEAKER_01: And they are trying to figure out who leaked to the press about this.
24:33
SPEAKER_01: And among other things,
24:34
SPEAKER_01: they have subpoenaed New York Times reporters – Which a lot of the privilege stuff
24:41
SPEAKER_01: for journalists is not really a legal privilege.
24:44
SPEAKER_01: It's a set of conventions about what the government doesn't try to force people
24:47
SPEAKER_01: to produce or testify about.
24:50
SPEAKER_01: If the administration has good reason to believe that there has been an illegal leak
24:54
SPEAKER_01: of information that ended up in the New York Times – I mean it's not illegal
24:56
SPEAKER_01: to report the information.
24:58
SPEAKER_01: But I mean,
24:59
SPEAKER_01: can they enforce subpoenas like this if they want to try to figure out who
25:02
SPEAKER_01: the leaker was?
25:03
SPEAKER_00: Potentially, yes.
25:04
SPEAKER_00: Because like you said,
25:06
SPEAKER_00: even if someone leaked it illegally,
25:08
SPEAKER_00: so long as the reporters did not participate or induce the illegality,
25:14
SPEAKER_00: they can't be prosecuted.
25:16
SPEAKER_00: So unless the reporter says, OK,
25:17
SPEAKER_00: I want you to hack into this part of your internal server and get the information
25:22
SPEAKER_00: and send it to me, that's not illegal.
25:24
SPEAKER_00: But as you say,
25:26
SPEAKER_00: a lot of the limits we put on how aggressive the government is
25:29
SPEAKER_00: with reporters are prudential and traditional and based on DOJ policies
25:35
SPEAKER_00: and things like that.
25:36
SPEAKER_00: And this administration has steadily cut back on those policies or ignored them
25:40
SPEAKER_00: and been more aggressively.
25:42
SPEAKER_00: In part, just because Trump has a real issue about leaks and really hates them.
25:48
SPEAKER_00: So, no, there's not an absolute right to refuse to identify a source.
25:53
SPEAKER_00: There are many state laws that put limited privileges in place.
25:59
SPEAKER_00: But, you know, people have wound up in real trouble and gone to jail for contempt sometimes.
26:04
SPEAKER_00: Right.
26:04
SPEAKER_00: Judith Miller back during the Iraq War.
26:06
SPEAKER_00: Right.
26:07
SPEAKER_00: In refusing to do this.
26:08
SPEAKER_00: And here,
26:09
SPEAKER_00: you know,
26:11
SPEAKER_00: it's all kind of silly and embarrassing because, I mean,
26:14
SPEAKER_00: everyone is talking from day one about how this plane is insecure,
26:19
SPEAKER_00: how it might have,
26:19
SPEAKER_00: you know— Qataris are a little on the nose calling it the Trojan horse.
26:22
SPEAKER_00: I don't think you have to be that obvious.
26:24
SPEAKER_00: But Aaron was saying that it's probably stuffed with bugs and surveillance equipment
26:31
SPEAKER_00: and who knows whether it's reliable and all this.
26:34
SPEAKER_00: And to have a big fit about how someone reported what everyone knew,
26:40
SPEAKER_00: that all sorts of insiders are worried about this, is pretty ridiculous.
26:44
SPEAKER_00: So the New York Times has filed motions to quash.
26:47
SPEAKER_00: We don't have them because they filed them under seal.
26:51
SPEAKER_00: But we know from the context and from what they said, the thrust of what they're arguing.
26:56
SPEAKER_00: And what they're arguing is going to be a kind of a riff on the recent arguments we've seen.
27:01
SPEAKER_00: And traditionally, I think that would not work.
27:04
SPEAKER_00: But once again, we were living in an era where
27:31
SPEAKER_00: Because the administration is so sort of overtly lawless with a lot of its conduct,
27:36
SPEAKER_00: I think you're going to have judges more willing to step out and say,
27:39
SPEAKER_00: no, I'm finding that this was in bad faith and I'm quashing the subpoena.
27:44
SPEAKER_01: So there's a funny thing that I wonder your view on whether it's going
27:47
SPEAKER_01: to be relevant to that analysis, which is that.
27:51
SPEAKER_01: As you know,
27:51
SPEAKER_01: there's already been a lot of public discussion about concerns
27:55
SPEAKER_01: that this plane is insecure,
27:56
SPEAKER_01: including about missile defense systems,
27:58
SPEAKER_01: the idea that there's very specialized stuff in Air Force One.
28:01
SPEAKER_01: They couldn't fully retrofit this plane in just a few months.
28:05
SPEAKER_01: And so if you made a list of news stories that have come out over the last year and
28:10
SPEAKER_01: a half and the extent that they could be damaging to national security
28:13
SPEAKER_01: because they disclose – Previously unknown information that would be important
28:17
SPEAKER_01: to U.S. adversaries.
28:19
SPEAKER_01: This is probably pretty far down the list.
28:21
SPEAKER_01: But the president has a personal hard on about this plane.
28:25
SPEAKER_01: And so he clearly cares a great deal about this.
28:28
SPEAKER_01: He finds the story to be embarrassing.
28:30
SPEAKER_01: Is a judge going to like do that sort of policy evaluation where they say,
28:34
SPEAKER_01: you know,
28:35
SPEAKER_01: if the administration was really focused from a national security perspective on
28:40
SPEAKER_01: the prevention of leaks that undermine the national security,
28:44
SPEAKER_01: this would not be their top priority?
28:46
SPEAKER_01: Or, you know, I mean,
28:47
SPEAKER_01: ordinarily judges give a lot of discretion to the executive there
28:50
SPEAKER_01: to figure out what's really important for national security
28:53
SPEAKER_01: and wouldn't second guess the administration about the rank order importance
28:57
SPEAKER_01: of various disclosures.
28:58
SPEAKER_00: The judge may absolutely second-guess,
29:00
SPEAKER_00: and that's what we saw happen in both the Fed case and the Minnesota case.
29:05
SPEAKER_00: The judges,
29:06
SPEAKER_00: in going through their analysis,
29:09
SPEAKER_00: look at the government's asserted basis for issuing the subpoenas and then ask,
29:14
SPEAKER_00: well, is their behavior consistent with that?
29:16
SPEAKER_00: If that's truly their concern,
29:18
SPEAKER_00: have they done all the things you would expect them to do to demonstrate
29:21
SPEAKER_00: that concern?
29:22
SPEAKER_00: And in both cases, the answer was no, they haven't.
29:25
SPEAKER_00: So here,
29:25
SPEAKER_00: I think I expect something similar,
29:27
SPEAKER_00: that that In evaluating the claim that these are retaliatory and bad faith
29:31
SPEAKER_00: and harassment,
29:34
SPEAKER_00: the judge may,
29:36
SPEAKER_00: depending on the judge you draw,
29:38
SPEAKER_00: look at How the government has been policing this area and whether
29:42
SPEAKER_00: or not it's really shown it cares about this type of security leak.
29:46
SPEAKER_00: This again goes to the whole presumption of regularity thing.
29:49
SPEAKER_00: So what you're referring to, don't they normally give deference?
29:52
SPEAKER_00: Yes.
29:53
SPEAKER_00: But again, we're kind of past the presumption of regularity era for a lot of federal judges.
29:59
SPEAKER_00: And they're more and more willing not to give the government the benefit
30:02
SPEAKER_00: the doubt and to say that, you know, we presume that they have good motives.
30:05
SPEAKER_01: Yeah.
30:05
SPEAKER_01: And then there's a very fun subpoena story,
30:07
SPEAKER_01: this one reported in the New York Times,
30:09
SPEAKER_01: though not directly involving the New York Times,
30:11
SPEAKER_01: to do with those nine major law firms that settled.
30:20
SPEAKER_01: That's it for this week's free episode of Serious Trouble.
30:22
SPEAKER_01: For paying subscribers, we have some unusually fun subpoena actions.
30:27
SPEAKER_01: ... ... ...
30:44
SPEAKER_01: And so the administration therefore has issued its own subpoenas trying
30:47
SPEAKER_01: to get those communications between Boris Epstein and the firms,
30:52
SPEAKER_01: which is funny in
30:53
SPEAKER_01: a few ways including shouldn't they already know what their agent was saying to
30:56
SPEAKER_01: the firms?
30:57
SPEAKER_01: But it puts the firms in this very awkward situation where do they want to comply
31:00
SPEAKER_01: with this subpoena or do they want to fight it and then be adverse
31:03
SPEAKER_01: the administration and then maybe they still get sued even though they settled it.
31:07
SPEAKER_01: I'd say it's a fun predicament for firms that are,
31:09
SPEAKER_01: you know, maybe getting a little bit of what they deserve there.
31:12
SPEAKER_01: Also, subpoenas to The New York Times about national security reporting related to
31:16
SPEAKER_01: the president's shiny new plane.
31:19
SPEAKER_01: And this week, we talk about Vicky Pacheco.
31:22
SPEAKER_01: A really outré member of the New York City Council
31:26
SPEAKER_01: who made some pretty gross statements about a woman
31:28
SPEAKER_01: whose boyfriend was murdered who's now being sued for defamation over those.
31:32
SPEAKER_01: And Jacob Wohl and Jack Berkman moving steadily toward that possible big boy federal felony.
31:38
SPEAKER_01: We're proud of them for getting closer in this case involving a rapper named Boozy Badass.
31:43
SPEAKER_01: You'll get every full episode.
31:44
SPEAKER_01: We would love to have you join us.
31:46
SPEAKER_01: Thanks.