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More Than Incremental Damages · Serious Trouble

0:09
SPEAKER_00: Hi, it's Ken White.
0:10
SPEAKER_00: And it's Josh Barro.
0:11
SPEAKER_00: And this is Serious Trouble.
0:13
SPEAKER_00: So, Ken, the biggest news this week is this very large judgment in Carroll v. Trump.
0:19
SPEAKER_00: What is technically there are the two cases.
0:21
SPEAKER_00: Technically, this is Carroll v. Trump one.
0:23
SPEAKER_00: Carroll v. Trump two arose later, but got to the verdict stage first.
0:28
SPEAKER_00: Last year, there was a five million dollar judgment for E. Jean Carroll for damages for both Donald Trump having told lies about her and damages for him having sexually assaulted her.
0:39
SPEAKER_00: Then we got this second case that went to trial involving statements that were made both prior to and subsequent to the statements at issue in the trial that happened first.
0:47
SPEAKER_00: And this time the award against Donald Trump is $83.3 million.
0:54
SPEAKER_00: So more than 15 times as much as in the first trial.
0:58
SPEAKER_00: And Ken, we got this case wrong a fair amount in the way that we had been discussing it in the lead up to it.
1:04
SPEAKER_00: where we've been very focused on this issue of incremental damages that basically Donald Trump told lies about E. Jean Carroll.
1:11
SPEAKER_00: E. Jean Carroll sued him and won and received millions of dollars in damages related to those lies.
1:17
SPEAKER_00: And now to go to court over additional lies, we were focused on the idea that she would need to show that she was additionally harmed by the additional lies, that whatever damage there was to her reputation, that she faced significantly more damage.
1:29
SPEAKER_00: And we thought that was going to be a significant problem.
1:32
SPEAKER_00: for her showing damages that she would be able to show that she had been defamed but the question of you know at the margin how much you know how much more did she have to do to repair her reputation how much more emotional distress did she face that sort of thing that that would be a difficult showing and and that doesn't seem to have been the case at all here in fact that this jury not only awarded a large amount of punitive damages
1:53
SPEAKER_00: which could be explained by outrage over Donald Trump's behavior in the course of the trial and his unwillingness to respond to the first verdict by stopping, saying that he hadn't sexually assaulted Eugene Carroll.
2:05
SPEAKER_00: But they actually fined much more, you know, $11 million, for example, for repairing her reputation, you know, but something like eight times as much as in the first trial.
2:14
SPEAKER_00: So how did, how was it the case that this trial that we had thought of as being less fruitful likely for Eugene Carroll?
2:20
SPEAKER_00: How is it that we got this enormous judgment?
2:23
SPEAKER_01: Well, I mean, we could take the juries always follow jury instructions scrupulously and carefully consider the facts.
2:32
SPEAKER_01: And they must have seen a path to damages that was different for this trial than the last one.
2:37
SPEAKER_01: Or you could just say they just got supremely repulsed and pissed off by the conduct of Donald Trump.
2:43
SPEAKER_01: not just
3:02
SPEAKER_01: Things like that came off in the three questions that were asked of him on the stand, very smug and arrogant and defiant.
3:12
SPEAKER_01: And his lawyer, Alina Haba, as we've said, was just a dumpster fire all the way through, not knowing how to do things, talking back to the judge, being defiant, all the things that seemed calculated much more to play to their outside political audience
3:28
SPEAKER_01: Serious Trouble is a
3:43
SPEAKER_01: In
4:06
SPEAKER_01: where, you know, you engage in theater are extremely dangerous because a jury can just look at that and say, these people aren't sorry for anything.
4:16
SPEAKER_01: They don't accept any limits.
4:18
SPEAKER_01: We're going to have to show them limits.
4:20
SPEAKER_00: Yeah, I mean, and it seems like that's been extremely costly here for Donald Trump.
4:24
SPEAKER_00: And we've often talked about these aspects of his courtroom strategy where he's doing things that really don't seem to be aimed at the people in the court.
4:30
SPEAKER_00: They're aimed at the broader public.
4:32
SPEAKER_00: They are aimed at political viewers.
4:35
SPEAKER_00: And
4:35
SPEAKER_00: You can have a theory of that where Trump has good reason to think that what's going to happen in the courtroom is a foregone conclusion, that the deciders in a case have already decided against him.
4:45
SPEAKER_00: He doesn't need to argue to them.
4:46
SPEAKER_00: He might as well focus on a different audience.
4:48
SPEAKER_00: And that can make sense if you're talking about a binary question where a jury is just going to decide yes or no about something.
4:54
SPEAKER_00: But here, the jury got to decide how much to award in damages.
4:59
SPEAKER_00: And it's not merely theoretical that a jury could have arrived at a different number.
5:03
SPEAKER_00: You know, Trump faced a very similar trial over very similar issues just last year, where instead of being tried by Alina Haba, it was tried by Joe Tacopina.
5:11
SPEAKER_00: And you didn't have the same sort of theatrics from Donald Trump personally in that trial.
5:16
SPEAKER_00: And it was possible to get a substantially lower damage award out of a jury.
5:21
SPEAKER_00: So, you know, it seems like it's possible that through all of these theatrics, Donald Trump cost himself, you know, tens of millions of dollars here.
5:28
SPEAKER_01: I think it's pretty clear that that's what happened.
5:30
SPEAKER_01: I mean, here, the strategy was very much not
5:35
SPEAKER_01: trying to lean into the issues that you mentioned earlier, Josh, not into saying, you know, ladies and gentlemen, the jury, you know, she's already been compensated for this.
5:43
SPEAKER_01: You should only look at things that are new and different harm.
5:47
SPEAKER_01: And instead, they really leaned into, you know, she's a tramp.
5:51
SPEAKER_01: She's a liar.
5:53
SPEAKER_01: She deserved it.
5:54
SPEAKER_01: She's making it up.
5:55
SPEAKER_01: She's publicity hungry, all this, all this sort of reviling her.
5:59
SPEAKER_01: I'm
6:17
SPEAKER_01: to do a narrowly focused defense like that.
6:21
SPEAKER_01: I don't think he's capable of doing anything anymore other than a big splashy defiant defense that winds up with results like this.
6:29
SPEAKER_00: Yeah, I mean, specifically Joe Tacopina, who tried the prior trial, has left the Trump legal team.
6:35
SPEAKER_00: He's also done what seems to be a tradition now where he goes on television and bears his soul.
6:41
SPEAKER_00: about why he's not Donald Trump's lawyer anymore.
6:43
SPEAKER_00: He was on Al Sharpton's show on MSNBC talking about how he had to, you know, follow his conscience and leave the Trump legal team, which, again, as we've discussed, I mean, it's not the gravest sin that we're observing in the world right now, but it is really weird to go on TV and badmouth your client, even if your client is Donald Trump.
7:00
SPEAKER_00: It doesn't send great messages to future clients.
7:01
SPEAKER_00: But anyway, Joe Takapina, who, aside from that, was a very talented courtroom lawyer, was not there and instead you had this Alina Haba show.
7:10
SPEAKER_00: And people have been sort of puzzling about this, you know, is it just because she's good looking and she can, you know, she fights in the way that he would like to see people fight on television and therefore he picked someone who is extremely unqualified to be his courtroom lawyer in this case and again cost him tens of millions of dollars.
7:29
SPEAKER_01: Well, yeah, I mean, there's always this temptation because of Trump successes to portray him as this political genius.
7:36
SPEAKER_01: But the truth is, we know he responds very well to people who are rude and abrasive and obnoxious in his favor.
7:47
SPEAKER_01: and that he loves that.
7:49
SPEAKER_01: And so I think she's someone that appeals to him because she will talk smack and mouth completely obvious lies and stupid theories and things like that.
7:59
SPEAKER_01: And he likes that.
8:01
SPEAKER_01: He likes people who, as he sees, fight for him.
8:05
SPEAKER_00: One thing that I always wonder when I see really big jury awards like this is whether they're going to stand up.
8:09
SPEAKER_00: There are various reasons that awards get reduced.
8:13
SPEAKER_00: Is Trump going to end up actually paying this $83.3 million?
8:17
SPEAKER_01: Not clear.
8:17
SPEAKER_01: So Judge Kaplan himself has the most discretion to reduce it as being excessive.
8:25
SPEAKER_01: He can reduce both the substantive awards, the reputation repair and the emotional distress damages.
8:33
SPEAKER_01: And he can reduce the punitive damages.
8:37
SPEAKER_01: But I mean, he would have to reduce it a lot.
8:39
SPEAKER_01: And I haven't seen anything from him suggesting he do that.
8:43
SPEAKER_01: I mean, I could see him doing something like, guess what, Mr. Trump, I'm going to do you a favor.
8:46
SPEAKER_01: Now you only owe $50 million.
8:48
SPEAKER_01: Well, that would be a big reduction.
8:50
SPEAKER_01: Yeah.
8:52
SPEAKER_01: On appeal, I think he's a lot less likely to get relief.
8:55
SPEAKER_01: There was evidence supporting what was asked for and granted, and the punitive damages are relatively low multiplier.
9:04
SPEAKER_01: of the compensatory damages.
9:06
SPEAKER_01: You know, they're right between three and four times, which is what the Supreme Court has said is, you know, supposed to be around maybe the maximum, maybe not.
9:14
SPEAKER_01: They're a very low percentage of what Trump has claimed is his net worth.
9:19
SPEAKER_01: So I think he has a real uphill battle over turning in on appeal with a standard of appeal that's not favorable to him.
9:25
SPEAKER_01: I think probably his best hope, ironically, is with Judge Kaplan, who clearly thinks he's disgusting.
9:30
SPEAKER_00: Yeah.
9:31
SPEAKER_00: I mean, do you think it's plausible that Judge Kaplan will reduce that award?
9:35
SPEAKER_00: Judge Kaplan, as you note here in the script, has seemed furious and at one point threatened that he might throw Alina Haba in jail for her conduct in the courtroom in the same way that we talked about how the outrageous conduct by Donald Trump likely influenced the jury.
9:51
SPEAKER_00: Is that the sort of thing that also influences a judge who, you know, might think, hey, you know, this award seems a little excessive and maybe I would normally reduce it, but I'm so mad at you that I'm not going to?
10:00
SPEAKER_01: Yeah, he did say to her you're on the verge of spending time in lockup.
10:04
SPEAKER_01: Now sit down and lock up so you know is sort of like the the mini jail on the same floor as the courtrooms where they keep defendants before and after hearings, where occasionally a lawyer spends some time.
10:19
SPEAKER_01: So yeah, you know, the way I could see Judge Kaplan deciding to reduce this is sort of bending over backwards to appear neutral and fair, which is a mindset that sometimes overtakes judges.
10:31
SPEAKER_01: And he might say, I'm going to reduce it a bit just to show that I exercise my discretion, which in a way would make it even more bulletproof on appeal.
10:40
SPEAKER_01: Like if he say, let's say just hypothetically, he took it down to $60 million.
10:45
SPEAKER_01: Then the Court of Appeal would have to say, well, the district court exercised its discretion.
10:50
SPEAKER_01: It knew the record the best.
10:51
SPEAKER_01: It already exercised its discretion to reduce it.
10:53
SPEAKER_01: We see no reason to reduce it further, make it even more bulletproof.
10:57
SPEAKER_01: Or maybe he'll just leave it.
10:58
SPEAKER_01: You know, he's demonstrated throughout this that even though he can have a sharp word as much as any federal judge,
11:07
SPEAKER_00: He's been long-suffering.
11:09
SPEAKER_00: I think, you know, we have the contest and we're going to announce at the end of this show who won the contest for identifying the very first long-suffering federal judge, but Judge Lewis Kaplan is, you know, he's well into that club.
11:20
SPEAKER_00: He gets like if it was SNL, he'd have one of those five-timer jackets.
11:24
SPEAKER_01: No doubt, but the point is he hasn't been doing big splashy things that he could have done.
11:29
SPEAKER_01: He didn't put Alina Haba in jail.
11:31
SPEAKER_01: He didn't hold Donald Trump in contempt.
11:34
SPEAKER_01: And so I suspect he will resist doing big splashy things to punish.
11:39
SPEAKER_00: Donald Trump will appeal this verdict.
11:41
SPEAKER_00: How does that work with the judgment like this?
11:43
SPEAKER_00: He has to post some sort of bond while they're waiting for the appeal.
11:47
SPEAKER_01: Right.
11:48
SPEAKER_01: So the way it works is that a judgment like this after the statutory time period, which I believe is 30 days here.
11:55
SPEAKER_01: After the judgments entered, Carroll could start collecting on it.
11:58
SPEAKER_01: That means putting liens on property and seizing assets and stuff like that.
12:03
SPEAKER_01: And to get around that on appeal, he has to post a bond.
12:06
SPEAKER_01: And so either he does cash like he did in the first Eugene Carroll case, where he had to put up $5.5 million, or he has to get a bonding company to do it.
12:17
SPEAKER_01: And the arrangements with that depend on what the bonding company requires, but it usually would be collateral for the full amount.
12:24
SPEAKER_01: and sometimes more than the full amount because you have to do more to cover anticipated interest.
12:29
SPEAKER_00: And so that's, I mean, that's a really, can you get a surety bond for $90 million?
12:34
SPEAKER_01: Well, I'm sure if you're willing to give them real property that's worth $150 million, you can.
12:41
SPEAKER_00: So it could be secured by 40 Wall Street or some other, some other real estate asset that he owns.
12:45
SPEAKER_01: Some other asset where they're going to carefully measure the actual square feet before accepting Trump's word on how much it's worth.
12:51
SPEAKER_00: Well, I mean, that's the funny thing, though, right?
12:52
SPEAKER_00: I mean, he he faces this other civil case, the New York attorney general's case, where there may also be substantial financial penalties coming down the pike.
13:01
SPEAKER_00: It's going to add up to a substantial claim, even relative to Donald Trump's high net worth, whatever it is.
13:09
SPEAKER_01: Josh, here's why I think maybe he's going to have an easy time to get a bond.
13:12
SPEAKER_01: His consistent defense in the New York AG case has been none of these accidental misstatements about my net worth or value of things really mattered, because banks are super eager to do business with me.
13:24
SPEAKER_01: the podcast.
13:42
SPEAKER_01: Welcome back.
14:02
SPEAKER_00: uh they would say it's people credit real estate you look at those things in that order and literally the example my boss gave me of someone you would not lend to because they failed the people category was Donald Trump this is before Donald Trump was a political figure it was before the birthers it was it was based purely on his reputation as someone who tried to get out of paying back his real estate loans uh and so you know the relationship that he had with Deutsche Bank
14:25
SPEAKER_00: was so extensive and shady in part because the other banks of Deutsche Bank stature generally didn't want to do business with Donald Trump.
14:32
SPEAKER_00: Now, I assume when you're looking for a surety for a civil case, that's not the sort of thing where you go to Bank of America or JP Morgan anyway.
14:40
SPEAKER_00: That seems like a fairly specialized product.
14:42
SPEAKER_00: And I don't know exactly what that corner of the industry looks like, but there are a lot of financial institutions that do not want to do business with Donald Trump for the very obvious set of reasons why you might not want to enter into a high stakes agreement with Donald Trump.
14:54
SPEAKER_01: Sure, but there are clearly financial institutions that still do.
14:58
SPEAKER_01: He still has ongoing businesses.
14:59
SPEAKER_01: He still has financial relationships.
15:01
SPEAKER_01: And some of these banks are probably thinking there's a good chance he's going to be president again.
15:05
SPEAKER_01: And that plays into their thinking.
15:08
SPEAKER_01: So I would be surprised if he can't find a bond.
15:18
SPEAKER_00: Let's talk about Peter Navarro.
15:19
SPEAKER_00: Peter Navarro, an economist who was a senior official in the Trump administration.
15:24
SPEAKER_00: He was assistant to the president and director of trade and manufacturing policy.
15:29
SPEAKER_00: He just basically he was subpoenaed to appear before Congress and he just didn't show up.
15:34
SPEAKER_00: He blew off the subpoena.
15:35
SPEAKER_00: He was held in contempt of Congress.
15:37
SPEAKER_00: He was prosecuted for this.
15:38
SPEAKER_00: And now Peter Navarro has been sentenced to four months in prison for his contempt of Congress.
15:43
SPEAKER_00: And so it's, you know, it's a lesson for some other political figures out there who may or may not be blowing off subpoenas from the US Congress.
15:51
SPEAKER_00: You can end up in prison for doing that.
15:54
SPEAKER_01: Yes.
15:54
SPEAKER_01: Now, these are two counts with a six month maximum sentence, but they have mandatory prison.
16:03
SPEAKER_01: You have to be sentenced to some amount of time.
16:05
SPEAKER_01: Peter Navarro was asking for two months.
16:08
SPEAKER_01: Government was asking for six.
16:10
SPEAKER_01: Judge Amit Mehta split the different sentence to four months.
16:15
SPEAKER_01: But Mehta was not happy with Peter Navarro and Peter Navarro's
16:21
SPEAKER_01: line of bullshit.
16:22
SPEAKER_01: He was saying, the judge said, I guess what bothers me ultimately here is that after a year and a half plus, you still want to suggest that this is a political persecution.
16:31
SPEAKER_01: You still want me to believe that, but you were not a victim.
16:35
SPEAKER_01: You were not the object of a political prosecution.
16:37
SPEAKER_01: These are circumstances of your own making.
16:40
SPEAKER_01: So he was really calling out this narrative
16:43
SPEAKER_01: And Peter Navarro was kind of blown away by this during the sentencing.
16:47
SPEAKER_01: He spoke fairly extensively on his own, which I'm sure was a sphincter clenching moment for his attorneys and did not make it.
16:54
SPEAKER_01: better.
16:55
SPEAKER_01: He expressed surprise.
16:56
SPEAKER_01: He thought he was just trying to, he thought, adhere to the executive privilege and uphold that.
17:03
SPEAKER_01: And he dropped the line that, you know, he's a Harvard educated gentleman.
17:09
SPEAKER_01: And yet, when the Justice Department comes after you, that doesn't matter.
17:13
SPEAKER_01: So note, word to the wise, Josh, I think both you and I should take note that is not an effective sentencing argument.
17:20
SPEAKER_00: Because we are both Harvard educated gentlemen.
17:22
SPEAKER_00: That's why you're saying that.
17:23
SPEAKER_01: Yes, exactly.
17:24
SPEAKER_01: So, not a good argument.
17:27
SPEAKER_01: So, you know, he's saying this is a death sentence.
17:30
SPEAKER_01: It really is not.
17:31
SPEAKER_01: This is a huge travesty.
17:33
SPEAKER_01: Wait, he called it a death sentence?
17:35
SPEAKER_01: Four months in jail?
17:37
SPEAKER_01: Here's the thing.
17:38
SPEAKER_01: I think he could have avoided this if he had simply done
17:43
SPEAKER_01: written objections shown up and refused to answer on the basis of the executive privilege, basically taking it a hair more seriously, right, probably could have avoided this outcome.
17:54
SPEAKER_00: But well, yeah, if he hadn't broken the law, he probably would have avoided being sent to jail.
18:00
SPEAKER_01: Yeah, but what I mean is he could have achieved the same result of not being helpful without simply completely blowing it off.
18:07
SPEAKER_00: Right.
18:07
SPEAKER_00: But I mean, he could have made that executive privilege claim, maybe the claim would have held up and maybe it wouldn't have.
18:13
SPEAKER_00: But there's a process, he would litigate that through the courts.
18:16
SPEAKER_00: The problem is that he didn't do what the court instructed him to do instead of, you know, using the available legal process to put a barrier.
18:23
SPEAKER_01: Exactly.
18:23
SPEAKER_01: He just decided to pretend it didn't exist and it didn't bind him.
18:27
SPEAKER_00: But then the other thing is, once you've been convicted, I mean, isn't this sort of sentencing 101 that you're not supposed to go in there and try to relitigate the case itself?
18:34
SPEAKER_00: You're not supposed to go in and make arguments about why you, in fact, didn't break the law?
18:38
SPEAKER_00: Aren't you supposed to say, I'm very sorry, and I regret it, and I will do better next time, rather than saying, well, really, executive privilege meant that I didn't have to testify?
18:48
SPEAKER_01: Absolutely, Josh.
18:49
SPEAKER_01: And this is a big problem in representing people like Peter Navarro, that is Harvard educated gentleman and similar, you know, white collar criminals, used to being sort of masters of their own destiny, who wind up in front of the judge are very unreliable and showing contrition.
19:08
SPEAKER_01: And so often you just have to sit on them and make them shut up.
19:14
SPEAKER_01: and very carefully script anything they're going to say and deal with the possibility that if they insist on speaking at sentencing, they're going to go off script and wind up getting more time because they just feel so much self-pity.
19:27
SPEAKER_01: So, that's a big problem.
19:29
SPEAKER_01: It's always better simply to have the person say, I appreciate the court's consideration and time and, you know, I will submit to your sentence rather than say anything.
19:40
SPEAKER_00: Right.
19:40
SPEAKER_00: And the other thing about a sentence this short is presumably regardless of the outcome of this year's presidential election, he'll probably have served it by then.
19:48
SPEAKER_00: So he can't even be saved by a pardon if Trump were to win again.
19:52
SPEAKER_01: Yeah, and also a lot of the time a problem is with a shorter sentence like this can ironically be worse because you wind up serving it in something like the Metropolitan Detention Center and sort of like a holding area because there's not time to designate you out to a minimum security club fed.
20:11
SPEAKER_01: Unless you can get the judge to set your surrender date way out, Bureau of Prisons may not have yet
20:17
SPEAKER_01: assigned you to a nice cushy low security for Harvard educated gentleman type place and you wind up, you know, basically in the tubes.
20:27
SPEAKER_00: There's been some discussion of Judge Royce Lamberth, who is a very long tenured federal judge.
20:32
SPEAKER_00: He was appointed to the bench by Ronald Reagan, and he had a case that was related to January 6 events.
20:40
SPEAKER_00: He sentenced James Little to both jail time and probation related to parading at the Capitol, which is basically the lowest level of
20:49
SPEAKER_00: offense to which people were sentenced for the events related to January 6th.
20:53
SPEAKER_00: Circuit court said no you can give probation or jail time you can't give both in exchange for that and so it got back to him he's sentencing the case again and he has some venting to do about the way that people are talking about these January 6th defendants.
21:07
SPEAKER_01: He sure does, and to put it in context of who is venting here, Judge Lamberth is, you know, he's a Reagan appointee, he's conservative, he's a, you know, a Federalist Society luminary, he's somebody who was issuing a lot of rulings that the Clinton administration hated during the Whitewater investigation and the Ken Starr investigations that really favored those investigations over Clinton.
21:33
SPEAKER_01: He's famous for
21:35
SPEAKER_01: holding multiple administrations feet to the fire.
21:37
SPEAKER_01: In one case involving Native Americans suing the United States, he held two secretaries of the interior, a treasury secretary, and two assistant secretaries in contempt over the course of, I believe, three administrations.
21:51
SPEAKER_01: So he's not someone to trifle with and this came back down and he is just furious.
21:56
SPEAKER_01: So first of all, he's furious because he's resentencing this guy, James Little, who he says that during the probationary period has not been compliant with probation, has not done the things he's supposed to do and has been openly defiant and, you know, clearly not at all remorseful
22:11
SPEAKER_01: about the offense and so he gives him 90 more days instead of you know probation and then he just blasts all the people carrying water for this narrative that the January 6th defendants are all victims and just you know protesters and maybe got a little out of hand
22:32
SPEAKER_01: and that type of thing.
22:34
SPEAKER_01: And he just says that he can't believe and it's the worst thing he's seen in his 37 years on the bench.
22:40
SPEAKER_01: And people are saying all this stuff about how these were just, you know, slightly misguided, good American protesters.
22:48
SPEAKER_01: And he's saying, no, that's not the time.
22:49
SPEAKER_01: They tried to overthrow the government.
22:50
SPEAKER_01: They tried to, you know, disrupt an absolutely essential government function.
22:55
SPEAKER_01: And it's appalling that people are apologizing for them or lying about them.
23:01
SPEAKER_01: And I think it really illustrates the gulf that we're continuing to see between Trump conservatives and, you know, classic, or as some people would say, establishment conservatives.
23:12
SPEAKER_01: So, you know, Lambert is establishment as they come.
23:15
SPEAKER_01: And he thinks the Trumpist narrative that January 6 was just, you know, a big boisterous protest is complete bullshit, and he's offended and appalled by it.
23:25
SPEAKER_01: But that is absolutely mainstream now.
23:28
SPEAKER_01: among Trump people and people who are basically trying to be plausibly appealing to Trump people.
23:34
SPEAKER_01: You know, you've heard rhetoric like that from some of the other candidates for the Republican nomination, not as starkly as from Trump, but you've heard them, you know, cozying up to it.
23:45
SPEAKER_01: So I think we've heard more and more of these statements from federal judges in D.C.
23:52
SPEAKER_01: because they've had to do so many of these cases.
23:54
SPEAKER_01: Josh, remember we talked about how there are hundreds and hundreds of these capital cases, and that is taking up such a huge segment of the workload of federal judges in Washington, D.C., in the District of Columbia.
24:09
SPEAKER_01: And they are seeing so much of it.
24:10
SPEAKER_01: They're seeing themselves spending all their time in it to the exclusion of other cases.
24:15
SPEAKER_01: And then they're seeing this rhetoric out there about how what they're doing is illegitimate.
24:20
SPEAKER_01: And these are victims and political persecutions.
24:22
SPEAKER_01: And it's just making them mad.
24:23
SPEAKER_00: Do you think this tells us anything about what the Supreme Court might do with the case that's going to come before them about obstruction of an official proceeding, which is a charge that has been brought in many of these Capitol riot cases.
24:35
SPEAKER_00: And there's a dispute over whether this law, which originates out of the Sarbanes-Oxley Act, which has to do with securities regulation,
24:42
SPEAKER_00: Whether it was really intended to apply to this sort of thing where, you know, rather than submitting false testimony or something like that, you are causing a physical disturbance in a government building in a way that interferes with the conduct of business within that building.
24:56
SPEAKER_00: That's an opportunity that the Supreme Court is going to have that would significantly undermine some number of these prosecutions.
25:01
SPEAKER_00: It wouldn't lead to them all being thrown out.
25:03
SPEAKER_00: This is a charge that has been brought many times and would undo a lot of that work that all of those federal judges have been spending their time on.
25:11
SPEAKER_00: It seems like it would, you know, that a lot of the headache that Judge Royce Lamberth and these other people have gone through will have been for significantly less result than it would be otherwise if the court goes with that argument.
25:22
SPEAKER_01: You're right that it would disrupt a lot of January 6th prosecutions.
25:26
SPEAKER_01: It would even be a significant problem for the Trump prosecution in D.C.
25:32
SPEAKER_01: for some of the theory of that.
25:34
SPEAKER_01: The distinction, I think, is that when the Supreme Court goes at this, with the exception maybe of Thomas and Alito, I don't think they're going to come at it from the January 6th was a legitimate protest angle.
25:48
SPEAKER_01: The conservatives, the
25:50
SPEAKER_01: Today we're
26:07
SPEAKER_01: So, I don't see them leaning into the Trumpist narrative that this is a political persecution of legitimate protesters.
26:15
SPEAKER_01: But I do see a distinct possibility that they'll decide to narrow the interpretation of that law.
26:24
SPEAKER_00: Finally, this week, before we get to the contest winners, I want to talk about the Trump tax returns case.
26:29
SPEAKER_00: Now, remember, we finally, after years of Donald Trump having claimed he was going to release his tax returns, and then, oh, I can't release them because I'm under audit, blah, blah, blah, I will release them, you know, approximately never.
26:40
SPEAKER_00: Finally, one day they leak.
26:42
SPEAKER_00: And there was also a leak of tax returns belonging to a lot of extremely wealthy Americans.
26:48
SPEAKER_00: These documents ended up in the hands of publications like the New York Times and ProPublica and eventually the government figured out who had done this leak and it was a contractor to the IRS named Charles Littlejohn.
26:58
SPEAKER_00: He's now been sentenced to five years in prison, which was the maximum sentence associated with the plea that he took in this case.
27:06
SPEAKER_00: And he also has an extremely mad federal judge at his sentencing.
27:10
SPEAKER_01: He does, and that's United States District Judge Anna Reyes.
27:14
SPEAKER_01: She's a Biden appointee, and she has a background that, you know, is fairly classically liberal.
27:21
SPEAKER_01: I'm sure it would be derided that way by conservatives.
27:24
SPEAKER_01: But this, she was furious.
27:25
SPEAKER_01: This is, you know, as I told you before, Josh, this is the week of furious federal judges, to the extent there ever
27:31
SPEAKER_01: Weeks of Not Furious Federal Judges.
27:34
SPEAKER_01: She was super mad.
27:35
SPEAKER_01: She said, let me be absolutely clear, what you did targeting the sitting president of the United States was an attack on our constitutional democracy.
27:43
SPEAKER_01: Regardless of how many people may consider little John a hero, I want you to know that I'm not one of them.
27:48
SPEAKER_01: So, she took a very institutional approach that, I don't care that you were doing this because you think rich people get treated better, you leaked a huge number of tax documents, you broke the law very deliberately, and I'm hammering you with the maximum.
28:04
SPEAKER_01: And so, this is another sort of illustration, I think, in the flip direction of how what could be seen as classically progressive or liberal, this narrative that, you know,
28:14
SPEAKER_01: Well, that's unsurprising, right?
28:15
SPEAKER_01: I mean, it's the judge's job is to enforce the law.
28:40
SPEAKER_01: It is, and they got to the bench by being institutional and by going through usually channels that are deeply institutional, that have distinct cultures.
28:50
SPEAKER_01: We've talked before about the mere process of becoming a federal judge and being part of the community of federal judges tends to smooth people out to some extent, most people.
29:00
SPEAKER_01: So this is just an illustration of how judges don't think
29:04
SPEAKER_01: you know, in the way that in the on off black white ways you see on Fox and MSNBC.
29:10
SPEAKER_01: I also just wanted to mention that.
29:12
SPEAKER_01: Yeah, her speech is great.
29:15
SPEAKER_01: She's absolutely outraged by what this guy did.
29:18
SPEAKER_01: I saw she graduated from Transylvania University, which I was deeply disappointed to learn is in Kentucky.
29:27
SPEAKER_00: It's not in the Carpathian Mountains.
29:28
SPEAKER_00: Yeah, right.
29:29
SPEAKER_01: I had a federal judge vampire hunter thing going in my mind, a whole script, but alas.
29:34
SPEAKER_00: Yes.
29:35
SPEAKER_00: So we talked about some judges who have been suffering through some nonsense this week.
29:40
SPEAKER_00: Some of them have been suffering longer than others.
29:42
SPEAKER_00: Some of them qualify as long-suffering.
29:44
SPEAKER_00: But you know, we talk, Ken, about these long-suffering federal judges.
29:47
SPEAKER_00: It's a phrase we use here on this show.
29:49
SPEAKER_00: It's a phrase we used on all the president's lawyers back at KCRW.
29:53
SPEAKER_00: And we asked listeners, who was the first judge who we declared to be long-suffering?
29:59
SPEAKER_00: And we got hundreds of responses.
30:01
SPEAKER_00: They were sent, Ken, how did people send in the responses?
30:03
SPEAKER_01: They sent it to our email address, which is RicoHotline at SeriousTrouble.show.
30:09
SPEAKER_00: That's right.
30:10
SPEAKER_00: I should note, by the way, this contest was only available to premium subscribers to Serious Trouble.
30:14
SPEAKER_00: If you're not a premium subscriber, you can go to SeriousTrouble.show and become one and maybe you'll get in on the next contest.
30:19
SPEAKER_00: But the prize was these Serious Trouble mugs.
30:22
SPEAKER_00: We have three of them left.
30:23
SPEAKER_00: They say, I survived the Josh and Ken podcast hiatus.
30:27
SPEAKER_00: And they're going to the three people who submitted the correct answer first.
30:31
SPEAKER_00: And I would note there were some popular answers that were wrong.
30:34
SPEAKER_00: Amy Berman Jackson, long suffering, but not the first long suffering federal judge.
30:38
SPEAKER_00: Emmett Sullivan.
30:40
SPEAKER_00: Also not the first long-suffering federal judge.
30:42
SPEAKER_00: In fact, these responses were thousands of miles away from correct because the suffering began on the West Coast.
30:50
SPEAKER_00: Isn't that right, Ken?
30:51
SPEAKER_01: That is right.
30:53
SPEAKER_01: Long Suffering Federal Judge is not the name of a particular person.
30:56
SPEAKER_01: It's more like a title, like people speculate James Bond is, you know, just a new one appointed every now and then.
31:02
SPEAKER_01: But the original, the OG Long Suffering Federal Judge, a phrase coined by you, Josh, was United States District Judge James Otero.
31:12
SPEAKER_01: Clifford v. Essential Consultants
31:32
SPEAKER_01: Yeah, and you know what?
31:34
SPEAKER_01: This just shows how much things have changed because that was in December of 2018 when you dropped that now immortal honorific and what was then to us a long-suffering federal judge was one who is having a
31:50
SPEAKER_01: proceeding where there was a lot of attention.
31:52
SPEAKER_01: There was some bizarre issues, but mostly the attorneys involved in it were competent and making competent legal arguments.
32:00
SPEAKER_01: It just seems sad that this judge had to put up with these political disputes.
32:04
SPEAKER_01: How naive we were, Josh, in December of 2018 to think that was long suffering.
32:09
SPEAKER_00: When you say the attorneys in this proceeding were competent, you mean Michael Avenatti?
32:13
SPEAKER_01: Well, Michael Avenatti was competent in court.
32:17
SPEAKER_01: Uh, he his papers were not crazy.
32:21
SPEAKER_01: He did not act like Alina Haba in court.
32:23
SPEAKER_01: He made some poor decisions.
32:25
SPEAKER_00: Didn't Stormy Daniels, Stephanie Clifford, end up having to pay hundreds of thousands of dollars in legal fees because she brought a claim that was unwise and that got her a slap award against her?
32:36
SPEAKER_01: But Josh, look who we're comparing to here.
32:40
SPEAKER_01: Comparatively, yes, that was a dumb slap suit to bring and Avenatti should not have brought it, but his arguments in court and his performance in court in this case were not bizarre.
32:52
SPEAKER_01: They were not Alina Haba-ish.
32:54
SPEAKER_01: They were not the sort of thing we've been seeing for the last few years when Roger Stones and Rudy Giuliani's and Donald Trump's show up in court and just pretend like it's a vaudeville show.
33:07
SPEAKER_00: I don't know, Ken, this nostalgia for a time of dignified courtroom lawyers like Michael Avenatti, who merely cost their clients hundreds of thousands of dollars through poor legal strategy decisions, plus the theft of parts of their book advances, as opposed to, you know, maybe Alina Haba cost Trump $60 million with her antics in this trial.
33:28
SPEAKER_00: I mean, I guess that is that's less incompetent, but it feels like we're back again to you contending that Michael Avenatti is a good lawyer.
33:36
SPEAKER_01: I was not saying that.
33:38
SPEAKER_01: I was saying that and maybe my my glasses are a bit rose colored on there.
33:44
SPEAKER_01: But Josh, I was there.
33:47
SPEAKER_01: I was in the courtroom.
33:49
SPEAKER_01: I was there when the strength of Avenatti failed.
33:51
SPEAKER_01: And I can just tell you that Avenatti's capering in that case was qualitatively and quantitatively different
34:02
SPEAKER_01: than the craziness we're seeing now and the stuff we have now gotten hardened to in these cases.
34:10
SPEAKER_00: So James Otero is no longer suffering.
34:12
SPEAKER_00: He's retired, right?
34:13
SPEAKER_01: Yeah, I believe he may be with one of the private dispute resolution services.
34:18
SPEAKER_00: Very smart.
34:19
SPEAKER_00: So if he's suffering, he's getting paid handsomely for his suffering now.
34:22
SPEAKER_01: Oh, they don't suffer on those, Josh.
34:23
SPEAKER_01: They get paid hugely.
34:25
SPEAKER_01: There are fresh chocolate chip cookies at lunch, lavish facilities.
34:31
SPEAKER_01: Yeah.
34:32
SPEAKER_00: Did Judge Otero at one point reference having been described as suffering?
34:36
SPEAKER_00: And also, I believe you said that perhaps he had run over a nun in a past life, and God was punishing him for that with this litigation involving Stormy Daniels and Michael Avenatti and Michael Cohen.
34:46
SPEAKER_00: Okay.
34:47
SPEAKER_00: And he denied that from the bench.
34:49
SPEAKER_01: Okay, Josh, but the keyword there is perhaps.
34:52
SPEAKER_01: I carefully qualified it.
34:55
SPEAKER_01: Yes, Judge Otero on one occasion remarked from the bench, and I think I was there for this one, that he didn't see himself as so beleaguered.
35:03
SPEAKER_01: He didn't use the term long-suffering because he had these cases.
35:06
SPEAKER_01: And apparently once, I'm told by several attorneys, he made reference to the fact that he had not, in fact, done something terrible in a past life or run over a nun.
35:15
SPEAKER_01: So someone on his staff, if not he himself, was a listener.
35:19
SPEAKER_00: Well, sounds like maybe you were responsible for a little bit of his suffering, Ken.
35:23
SPEAKER_01: I do what I can.
35:26
SPEAKER_00: We will notify the winners the three winners who will be receiving their three mugs.
35:30
SPEAKER_00: Congratulations, and thank you for your attention to detail Serious Trouble is created and produced by Very Serious Media.
35:36
SPEAKER_00: That's me and Sara Fay, Jennifer Swaddock mixed this episode.
35:38
SPEAKER_00: Our theme music is by Joshua Mosher Thanks for listening, and we'll be back with more soon.
35:43
SPEAKER_00: See you next time