Transcript

YSLRICO · Serious Trouble

0:09
SPEAKER_00: Hi, it's Ken White.
0:10
SPEAKER_00: And it's Josh Barrow.
0:11
SPEAKER_00: And this is Serious Trouble.
0:13
SPEAKER_00: Ken, top news this week, Hunter Biden convicted on all three counts in his federal gun case in Delaware.
0:20
SPEAKER_00: This is the case about him buying a firearm and falsely claiming that he was not
0:25
SPEAKER_00: that he did not have an addiction at the time that he bought the firearm.
0:28
SPEAKER_00: And so I guess, first of all, three hours of jury deliberation.
0:31
SPEAKER_00: Is it surprising that this produced a guilty verdict and produced one so quickly?
0:35
SPEAKER_01: No.
0:36
SPEAKER_01: I mean, it was a pretty straightforward case.
0:38
SPEAKER_01: There was really no dispute that he bought the gun or submitted the statements.
0:43
SPEAKER_01: The evidence that he was an addict and a user of illegal drugs at the time was very strong.
0:50
SPEAKER_01: Including his own memoir.
0:51
SPEAKER_01: Right.
0:52
SPEAKER_01: The defense in this case was mostly legal.
0:54
SPEAKER_01: The concept that it was somehow selective prosecution and the concept that under
1:00
SPEAKER_01: current Supreme Court precedent that the statute is unconstitutional because it's
1:07
SPEAKER_01: the concept of keeping guns away from addicts is not something legal.
1:10
SPEAKER_01: that was embraced at the time the Constitution was drafted and the Second Amendment was drafted.
1:16
SPEAKER_01: So it's not a very surprising result.
1:19
SPEAKER_01: There was always a chance that a jury would think it was bullshit and just nullify,
1:23
SPEAKER_01: but juries don't do that so often.
1:26
SPEAKER_01: So now,
1:27
SPEAKER_01: of course,
1:27
SPEAKER_01: we're seeing the exposition of the theory that convicting Hunter Biden of three
1:33
SPEAKER_01: federal felonies is actually a sinister plot to help Joe Biden.
1:39
SPEAKER_00: Yeah, I don't know.
1:40
SPEAKER_00: But the path forward here,
1:42
SPEAKER_00: when you say this is a legal argument about that the law is unconstitutional,
1:47
SPEAKER_00: that has to be raised at the appellate level?
1:49
SPEAKER_00: How does that work?
1:50
SPEAKER_01: Yeah, he's raised it once already.
1:51
SPEAKER_01: He needs to raise it at the appellate level.
1:54
SPEAKER_01: There will probably be a split of the various circuits, the federal courts of appeal on that issue.
2:01
SPEAKER_01: The Fifth Circuit has already said that the statute's unconstitutional under
2:06
SPEAKER_01: current Supreme Court precedent.
2:08
SPEAKER_01: I think that's probably the right reading of current Supreme Court precedent,
2:12
SPEAKER_01: whether you agree with that precedent or not.
2:14
SPEAKER_01: So sooner or later,
2:15
SPEAKER_01: I suspect the statute will be found at a higher level to be unconstitutional,
2:20
SPEAKER_01: and that would potentially wipe out the conviction.
2:23
SPEAKER_01: There is some argument that even if it's unconstitutional to say that you can't
2:29
SPEAKER_01: possess or buy a gun when you're an addict,
2:32
SPEAKER_01: that it is legal to say you can't lie about it in application forms.
2:36
SPEAKER_01: But I think
2:37
SPEAKER_01: that's a tricky argument.
2:38
SPEAKER_01: I'm not sure that works.
2:40
SPEAKER_01: Because remember,
2:41
SPEAKER_01: he was convicted basically for doing the thing and lying about the thing,
2:45
SPEAKER_01: which is typical federal chicken shit.
2:48
SPEAKER_01: So now he's left staring down the barrel of this much more complicated and
2:54
SPEAKER_01: difficult tax case in California.
2:56
SPEAKER_00: Right.
2:57
SPEAKER_00: So I guess before we get to the appeal stage, he'll be sentenced, right?
3:00
SPEAKER_00: Yes.
3:01
SPEAKER_00: That's in a few months from now?
3:03
SPEAKER_01: Yes,
3:03
SPEAKER_01: although it would be very common for something like this,
3:05
SPEAKER_01: for it to be delayed extensively further by months or even a year.
3:10
SPEAKER_00: And is it likely that he'll get a custodial sentence?
3:12
SPEAKER_01: I don't know.
3:13
SPEAKER_01: So I looked at the guidelines on this.
3:15
SPEAKER_01: Remember,
3:16
SPEAKER_01: the United States sentencing guidelines are the fill out your taxes type
3:20
SPEAKER_01: calculations that come up with a recommended sentence based on the conduct and your
3:24
SPEAKER_01: background and that sort of thing.
3:26
SPEAKER_01: I calculated it out to be a recommended sentence of somewhere between one and two years.
3:31
SPEAKER_01: I could be wrong because I don't know the case in the minute detail the parties do,
3:36
SPEAKER_01: but I think it's unusual enough.
3:39
SPEAKER_01: And the judge will have a sense that this is so rarely charged,
3:42
SPEAKER_01: as we've discussed before,
3:44
SPEAKER_01: that it would not be out of the realm of possibility to get a non-custodial sentence,
3:48
SPEAKER_01: particularly based on the nature of the case,
3:51
SPEAKER_01: based on the idea he's in recovery now.
3:54
SPEAKER_01: And so on.
3:55
SPEAKER_01: If I were his lawyer,
3:56
SPEAKER_01: I would be cautiously optimistic that I could get a non-custodial sentence or at
4:01
SPEAKER_01: least something a lot less than a year or two in federal prison.
4:07
SPEAKER_00: There's also a couple other things that I'm wondering if they will weigh on Judge
4:10
SPEAKER_00: Mary Ellen Noriega as she decides how to sentence in this case.
4:14
SPEAKER_00: One is that, you know, this this almost pled out.
4:17
SPEAKER_00: an arrangement that would not have involved any jail time for Hunter Biden.
4:21
SPEAKER_00: And the plea fell apart in her courtroom when she correctly delved into the plea
4:27
SPEAKER_00: agreement and the non-prosecution agreement and the sort of complicated set of
4:31
SPEAKER_00: documents the government had come up with here and found that Hunter Biden's team
4:35
SPEAKER_00: and the government didn't have a shared understanding of what the deal actually was
4:39
SPEAKER_00: and what they were agreeing not to prosecute him for in the future.
4:42
SPEAKER_00: So Hunter got in this sort of unfortunate situation for a defendant where he was
4:46
SPEAKER_00: almost there on this agreement to plead out in a way that would have been
4:50
SPEAKER_00: significantly less serious than facing this conviction.
4:52
SPEAKER_00: And he sort of – that ended up not being available to him.
4:55
SPEAKER_00: And then also,
4:56
SPEAKER_00: as you note,
4:56
SPEAKER_00: he's about to be tried on these significantly more serious charges or at least
5:00
SPEAKER_00: significantly more normal charges over tax evasion in an upcoming trial in Los Angeles.
5:07
SPEAKER_00: And so I'm wondering if both of those things sort of weigh against the idea of
5:11
SPEAKER_00: giving a prison sentence if you're the judge in this case.
5:13
SPEAKER_01: I think they do,
5:14
SPEAKER_01: because remember,
5:15
SPEAKER_01: the disposition that was going to happen was two misdemeanors on the tax case and
5:21
SPEAKER_01: diversion on this gun case.
5:23
SPEAKER_01: Diversion meaning he had to stay clean for a couple of years and then the charges
5:27
SPEAKER_01: would go away with no conviction at all.
5:29
SPEAKER_01: So I think definitely that being the type of deal that was floated around is going
5:33
SPEAKER_01: to weigh on the judge's mind and make her think that it's not that appropriate for
5:38
SPEAKER_01: him to get a custodial sentence.
5:41
SPEAKER_00: We've talked some about why it was the DOJ couldn't find a way to get away from
5:45
SPEAKER_00: charging this,
5:46
SPEAKER_00: you know,
5:46
SPEAKER_00: this odd,
5:47
SPEAKER_00: rarely charged thing,
5:48
SPEAKER_00: especially since they have a viable prosecution that looks a lot more solid on the
5:54
SPEAKER_00: tax issues.
5:55
SPEAKER_00: And so,
5:55
SPEAKER_00: I mean,
5:55
SPEAKER_00: one thing,
5:56
SPEAKER_00: obviously,
5:56
SPEAKER_00: is the political pressure around this and the blow up in Congress about the idea
6:00
SPEAKER_00: that Hunter Biden was getting sort of some sort of special deal with this plea
6:03
SPEAKER_00: agreement would have made it awkward to dismiss some of the charges.
6:06
SPEAKER_00: I assume another factor is that, you know, to the extent that Hunter Biden wins on appeal here,
6:11
SPEAKER_00: It's going to be on a Second Amendment argument saying that here's yet another way
6:15
SPEAKER_00: in which the federal government is not allowed to restrict gun rights.
6:18
SPEAKER_00: Presumably the DOJ in a democratic administration doesn't want to be in a position
6:22
SPEAKER_00: of arguing even implicitly that the reason they can't prosecute this is that the
6:27
SPEAKER_00: Second Amendment is more expansive in the right that it creates than some courts
6:31
SPEAKER_00: have already said.
6:33
SPEAKER_01: Right.
6:33
SPEAKER_01: I mean,
6:33
SPEAKER_01: the Biden administration's position on the Second Amendment is a more restrictive
6:37
SPEAKER_01: one that allows the government to have more anti-gun laws.
6:42
SPEAKER_01: So they're not happy with their prosecution being the vehicle by which the statute is overturned.
6:48
SPEAKER_01: But yeah, I mean, this is a statute that, as we've said before, is very rarely prosecuted.
6:53
SPEAKER_01: It's generally only prosecuted when it comes up in combination with other bad conduct.
6:59
SPEAKER_01: And that other bad conduct is
7:00
SPEAKER_01: somehow isn't reachable.
7:02
SPEAKER_01: Many people have noted that it's not really in dispute.
7:06
SPEAKER_01: I think that if it were not Hunter Biden,
7:08
SPEAKER_01: he would just be prosecuted on the tax stuff and they wouldn't bother with this gun thing.
7:13
SPEAKER_01: So he's like,
7:16
SPEAKER_01: I mean,
7:16
SPEAKER_01: frankly,
7:16
SPEAKER_01: he's like Trump to the extent that I think if you were just Joe Blow,
7:21
SPEAKER_01: who had a tire dealership,
7:23
SPEAKER_01: and cooked your books to high that you were paying off your stripper girlfriend,
7:28
SPEAKER_01: that probably wouldn't get the full court press by the Manhattan DA's office.
7:33
SPEAKER_01: Similarly with Hunter Biden.
7:34
SPEAKER_01: So if you're in the national eye,
7:37
SPEAKER_01: you're more likely to get prosecuted for something that someone else wouldn't.
7:40
SPEAKER_00: You noted some grousing from people in Trump world,
7:44
SPEAKER_00: basically saying that this is a distraction from the Biden crime family and their
7:49
SPEAKER_00: more serious offenses.
7:51
SPEAKER_00: As a conspiracy theory that they prosecuted Hunter Biden in order to protect Joe Biden politically.
7:57
SPEAKER_00: It's obviously a ridiculous claim.
7:59
SPEAKER_00: As a descriptive matter that,
8:01
SPEAKER_00: you know,
8:02
SPEAKER_00: that this charge that a lot of Republicans have been,
8:03
SPEAKER_00: I think,
8:04
SPEAKER_00: pretty frankly,
8:05
SPEAKER_00: and,
8:05
SPEAKER_00: you know,
8:05
SPEAKER_00: not not in a way that it's been saying,
8:07
SPEAKER_00: you know,
8:07
SPEAKER_00: this charge is sort of BS.
8:08
SPEAKER_00: I don't think anyone else would have been charged with this.
8:10
SPEAKER_00: You had Lindsey Graham, for example, saying that.
8:13
SPEAKER_00: I think it's true that this this conviction is not really politically useful to the Trump campaign.
8:18
SPEAKER_00: In fact,
8:18
SPEAKER_00: there was news suggesting that if he'd been acquitted,
8:20
SPEAKER_00: they were planning to fundraise off of that.
8:23
SPEAKER_00: I think, you know, the the tax prosecution that's coming up is going to pose significantly more.
8:28
SPEAKER_00: I mean, I don't.
8:29
SPEAKER_00: I still don't think this is a central political issue,
8:32
SPEAKER_00: nor do I think that the tax charges really tied directly to President Joe Biden.
8:36
SPEAKER_00: But I do think that the tax charges at least,
8:38
SPEAKER_00: you know,
8:39
SPEAKER_00: go at,
8:39
SPEAKER_00: you know,
8:39
SPEAKER_00: what seems like significant wrongdoing and wrongdoing that had to do with Hunter
8:43
SPEAKER_00: Biden engaging in certain kinds of influence peddling,
8:45
SPEAKER_00: even if it didn't directly involve his father.
8:49
SPEAKER_00: We had a fair amount of sort of salacious personal detail that came out in this case.
8:53
SPEAKER_00: Is that something we're also going to see in the tax case?
8:55
SPEAKER_01: Yeah, I think so.
8:56
SPEAKER_01: Because,
8:56
SPEAKER_01: I mean,
8:56
SPEAKER_01: a lot of the evidence there goes to whether or not he tried to write off high
9:02
SPEAKER_01: living and,
9:03
SPEAKER_01: you know,
9:04
SPEAKER_01: women and drugs as business expenses,
9:07
SPEAKER_01: which in most businesses they are not.
9:09
SPEAKER_01: That's the one that comes that raises the questions of why he was getting all this
9:14
SPEAKER_01: big income when he's kind of,
9:16
SPEAKER_01: you know.
9:17
SPEAKER_01: careening around in crisis, an addict behaving badly.
9:22
SPEAKER_01: Why is he making big bucks?
9:24
SPEAKER_01: Those are legitimate questions, even if you don't come out to the same place Republicans do on them.
9:30
SPEAKER_01: And that's going to be much more embarrassing than the part that an addict bought a gun.
9:34
SPEAKER_00: Joe Biden said when the verdict came down that,
9:38
SPEAKER_00: you know,
9:38
SPEAKER_00: they support their son as he's going through into as he considers whether to appeal
9:42
SPEAKER_00: and they,
9:43
SPEAKER_00: you know,
9:43
SPEAKER_00: they support the legal process as it as it unfolds here.
9:46
SPEAKER_00: He's also committed that he's not going to pardon his son, Hunter.
9:50
SPEAKER_00: And so I know you said it's fairly likely that there won't be a custodial sentence in this case.
9:53
SPEAKER_00: And there's also significant likelihood that the conviction will be overturned entirely on appeal.
9:58
SPEAKER_00: But I assume it's fairly likely that if he's convicted in the tax case,
10:01
SPEAKER_00: that there may be a custodial sentence in that one.
10:04
SPEAKER_00: And Joe Biden will actually face the prospect of his son doing some time in custody if he's not pardoned.
10:10
SPEAKER_00: Yes.
10:11
SPEAKER_01: I don't get any sense that Joe Biden thinks that he should save his son from custodial time.
10:18
SPEAKER_01: I don't get that read from him at all.
10:20
SPEAKER_01: And I think sometimes we lose track of how different the approach to norms of the
10:27
SPEAKER_01: criminal justice system are between the parties and how Joe Biden's approach is
10:33
SPEAKER_01: sort of the approach we would have expected 20 years ago.
10:37
SPEAKER_01: And right now,
10:38
SPEAKER_01: Trump's approach is very much everyone seems to be just assuming that if he's
10:42
SPEAKER_01: elected president,
10:42
SPEAKER_01: he's going to pardon himself,
10:43
SPEAKER_01: pardon absolutely everybody,
10:45
SPEAKER_01: do everything he can to eliminate all charges.
10:47
SPEAKER_01: And we just sort of price that into the way we're looking at the whole thing,
10:51
SPEAKER_01: which I think we shouldn't lose sight of how extraordinary that is.
10:55
SPEAKER_00: It's also interesting,
10:55
SPEAKER_00: though,
10:55
SPEAKER_00: in light of there's been a number of news stories about the president being very
10:59
SPEAKER_00: frustrated with Merrick Garland for having allowed these prosecutions to get to
11:02
SPEAKER_00: this point,
11:02
SPEAKER_00: for having appointed a special prosecutor.
11:04
SPEAKER_00: And so it seems at least implicitly like Joe Biden's view is that Hunter didn't get
11:09
SPEAKER_00: the benefit of certain norms.
11:11
SPEAKER_00: He seems to think that not only would the gun case not have been prosecuted,
11:13
SPEAKER_00: but the tax case also wouldn't have been prosecuted or would have been able to
11:16
SPEAKER_00: plead out in a way.
11:18
SPEAKER_00: We saw the agreement that they almost got to the finish line on would have been
11:21
SPEAKER_00: able to plead out with a misdemeanor and no jail time.
11:24
SPEAKER_00: And that sort of the political process has deprived Hunter of the norm that would
11:28
SPEAKER_00: have gotten him that better outcome.
11:30
SPEAKER_00: And at least, you know, so far publicly, Biden is committing anyway to not involving himself in it.
11:34
SPEAKER_00: But I think that he doesn't,
11:35
SPEAKER_00: you know,
11:36
SPEAKER_00: he clearly has a view that the DOJ should have handled this differently.
11:39
SPEAKER_01: Yes,
11:40
SPEAKER_01: particularly because I think Hunter Biden has been cooperative throughout in the
11:45
SPEAKER_01: sense of talking to the Department of Justice and providing information and negotiating.
11:51
SPEAKER_01: And that's kind of in stark contrast with Trump's approach from the very beginning in his criminal cases.
11:56
SPEAKER_01: But I think that both Hunter Biden and Donald Trump can say credibly that.
12:00
SPEAKER_01: that other people wouldn't have been treated exactly the same because of how pro
12:04
SPEAKER_01: high profile they are and how their actions and their prominence brought them to
12:08
SPEAKER_00: the attention of prosecutors do you think that's true even at the tax case i mean
12:12
SPEAKER_00: i've seen a lot of people say basically well hunter paid the money back in the end
12:16
SPEAKER_00: um and that that makes it somehow odd or improper that he's being criminally
12:20
SPEAKER_00: prosecuted over the tax charges now of course you know you don't get to wait and
12:23
SPEAKER_00: decide to pay later and then also the only reason hunter was able to pay back was
12:26
SPEAKER_00: this benefactor
12:28
SPEAKER_00: who has advanced him millions of dollars, both for the back taxes and for his legal defense.
12:33
SPEAKER_00: Do you think the tax charges are the sort of thing that an ordinary citizen could
12:36
SPEAKER_00: have expected not to be prosecuted for?
12:38
SPEAKER_01: I think there'd be a strong possibility there wouldn't be,
12:41
SPEAKER_01: Josh,
12:41
SPEAKER_01: because very few tax cases are prosecuted.
12:45
SPEAKER_01: Very few cases that could be theoretically prosecuted are.
12:49
SPEAKER_01: Usually, someone takes an off-ramp long before that.
12:53
SPEAKER_01: So I think Hunter Biden has a credible argument that other people might have gotten
12:58
SPEAKER_01: an off-ramp,
12:59
SPEAKER_01: and he didn't,
13:01
SPEAKER_01: in part because of the political pressure.
13:06
SPEAKER_00: Let's talk about some of the criminal proceedings involving former President Trump.
13:09
SPEAKER_00: Eileen Cannon down in Florida has issued another order denying a motion to dismiss
13:15
SPEAKER_00: from Donald Trump related to a number of causes of action in the case and
13:18
SPEAKER_00: dismissing only like one tiny bit of the indictment that Jack Smith brought.
13:22
SPEAKER_00: Is this a significant impairment to the indictment that happened here?
13:26
SPEAKER_00: No.
13:27
SPEAKER_00: And she didn't dismiss it.
13:28
SPEAKER_01: She struck it.
13:29
SPEAKER_01: So Trump filed a motion,
13:31
SPEAKER_01: kind of a grab bag of stuff,
13:33
SPEAKER_01: saying there are all these defects in the pleading in the indictment.
13:37
SPEAKER_01: Some of the charges are duplicative.
13:38
SPEAKER_01: Some of them don't allege enough information, blah, blah, blah.
13:42
SPEAKER_01: And also there's all this irrelevant stuff in there,
13:44
SPEAKER_01: accusations about me and what I did that's not relevant to the charges and should
13:47
SPEAKER_01: be stricken from the indictment.
13:50
SPEAKER_01: And what Cannon did is said, no, no, it's not dismissing all this.
13:54
SPEAKER_01: All this is fine.
13:55
SPEAKER_01: It gives you enough information.
13:57
SPEAKER_01: And for striking,
13:59
SPEAKER_01: you know,
13:59
SPEAKER_01: it's Jack Smith's position that these other facts alleged to here go to intent and knowledge.
14:05
SPEAKER_01: And I'm not going to strike most of it except for this one story about Trump at Bedminster,
14:11
SPEAKER_01: which is,
14:12
SPEAKER_01: after all,
14:12
SPEAKER_01: in a completely different jurisdiction.
14:14
SPEAKER_01: showing off a war plan to somebody and talking about how,
14:18
SPEAKER_01: you know,
14:18
SPEAKER_01: what a big duty is and how he could have attacked people and that sort of thing.
14:22
SPEAKER_01: And she said that was just a little too far outside the realm of what's being
14:26
SPEAKER_01: prosecuted in this case to extraneous,
14:28
SPEAKER_01: you know,
14:29
SPEAKER_01: not charged and not even chargeable in that district.
14:33
SPEAKER_01: So she struck that.
14:34
SPEAKER_01: This is a fairly typical ruling.
14:37
SPEAKER_01: It's actually a fairly temperate and measured ruling.
14:41
SPEAKER_01: Not that most critics of canon would ever want to admit that.
14:45
SPEAKER_01: So it's not the outrage that it's getting spun as.
14:49
SPEAKER_01: Not every judge would strike that part.
14:51
SPEAKER_01: Some judges would strike more.
14:53
SPEAKER_01: Some judges would strike none.
14:54
SPEAKER_01: But it's well within the general norms.
14:58
SPEAKER_00: It's funny.
14:58
SPEAKER_00: There's a couple of things about that war plan story.
15:01
SPEAKER_00: I mean, obviously, as you note, it's not charged in this case.
15:03
SPEAKER_00: It didn't occur in Florida.
15:06
SPEAKER_00: But it's this very colorful story about his use of the documents that got a lot of
15:10
SPEAKER_00: attention in the press because it's an interesting,
15:14
SPEAKER_00: notable example of what the hell was he doing with all these classified documents
15:17
SPEAKER_00: that he had.
15:18
SPEAKER_00: The New York Times also reports that it's widely believed that the person he showed
15:22
SPEAKER_00: the war plan to at Bedminster was Susie Wiles.
15:25
SPEAKER_00: who is one of the two people running his presidential campaign with Chris LaCivita.
15:28
SPEAKER_00: So I assume,
15:29
SPEAKER_00: I mean,
15:30
SPEAKER_00: first of all,
15:31
SPEAKER_00: I realize we're years away from the possibility of even having a trial in this case,
15:34
SPEAKER_00: but if that were admissible,
15:37
SPEAKER_00: would that mean that Susie Wiles might be a witness in the case?
15:40
SPEAKER_00: Could be, yes.
15:42
SPEAKER_01: And she definitely doesn't want to.
15:44
SPEAKER_00: Right.
15:44
SPEAKER_01: Particularly not against a guy who throws around war plans.
15:48
SPEAKER_01: So and might be commander in chief again before long.
15:51
SPEAKER_01: So,
15:52
SPEAKER_01: yeah,
15:53
SPEAKER_01: the decision of whether or not it comes in as evidence at trial is different from
15:56
SPEAKER_01: the one of whether or not it's in the indictment.
15:59
SPEAKER_01: I don't think that locks cannon into what's going on at trial.
16:03
SPEAKER_01: But that will be the whole other acts evidence analysis that we've talked about
16:08
SPEAKER_01: before about whether uncharged acts should be admitted because they're probative of
16:13
SPEAKER_01: intent or knowledge or whether they should be excluded because they're too inflammatory.
16:18
SPEAKER_01: Wait,
16:19
SPEAKER_00: so what does it do to strike it from the indictment if that doesn't govern whether
16:23
SPEAKER_00: it can be introduced at trial?
16:24
SPEAKER_00: How is the defendant advantaged by it being stricken?
16:27
SPEAKER_01: Because it's no longer part of the accusation in this public document.
16:30
SPEAKER_01: The answer is really not in any goddamn way at all, Josh.
16:33
SPEAKER_01: It's pretty insignificant.
16:35
SPEAKER_01: Sometimes an indictment will be read to the jury or shown to the jury.
16:39
SPEAKER_01: That's generally not the case with speaking indictments like this one that tell a story.
16:44
SPEAKER_01: So, honestly, it doesn't make a huge amount of difference.
16:48
SPEAKER_01: I suppose you could say that if she's stricken from the indictment,
16:51
SPEAKER_01: that strengthens their argument later that it should not be permitted at trial,
16:55
SPEAKER_01: but it's not binding.
16:56
SPEAKER_00: But so overall,
16:58
SPEAKER_00: this week,
16:58
SPEAKER_00: we don't have a lot of new evidence about Judge Eileen Cannon being either bad at
17:01
SPEAKER_00: judging or being improperly in the tank for the former president.
17:05
SPEAKER_01: Well,
17:05
SPEAKER_01: I mean,
17:05
SPEAKER_01: there's this other thing that happened where Trump has this motion to dismiss the
17:10
SPEAKER_01: case because Jack Smith was improperly appointed under this,
17:14
SPEAKER_01: you know,
17:14
SPEAKER_01: arcane administrative theory.
17:17
SPEAKER_01: And he's claiming that a recent Supreme Court case strengthened that.
17:20
SPEAKER_01: And she scheduled an oral argument and permitted a bunch of...
17:25
SPEAKER_01: People who talk about politics to appear as amicus,
17:29
SPEAKER_01: as friends of the court to argue on behalf of various people who are sending in briefs.
17:35
SPEAKER_01: You know,
17:36
SPEAKER_01: it's the equivalent of like the dictionary having a symposium and let me talk about
17:40
SPEAKER_01: what literally means.
17:41
SPEAKER_01: So it doesn't signal necessarily she's going to grant it.
17:46
SPEAKER_01: Often judges just say, hey, if they want to talk, let them talk.
17:50
SPEAKER_01: I'm just letting everything come in and then I'll deny it.
17:52
SPEAKER_01: But it's a little weird and not very typical.
17:55
SPEAKER_00: And then in New York,
17:57
SPEAKER_00: where Donald Trump has been convicted of 34 counts of falsification of business
18:01
SPEAKER_00: records as felonies,
18:03
SPEAKER_00: he did his video interview with the probation office.
18:06
SPEAKER_00: Do we know anything about what happened in that interview?
18:08
SPEAKER_00: Well,
18:08
SPEAKER_01: one thing we've heard is that he was asked about his firearms because,
18:11
SPEAKER_01: you know,
18:12
SPEAKER_01: once you've been convicted of a felony,
18:14
SPEAKER_01: you're not supposed to have firearms.
18:15
SPEAKER_01: And so there's been all this speculation.
18:16
SPEAKER_01: Oh, is he committing new crimes by retaining firearms and all this type of thing?
18:22
SPEAKER_01: You know, everyone's always very eager to find any theory on which to go after him.
18:27
SPEAKER_00: Well, Trump would never retain anything that he legally wasn't supposed to retain.
18:30
SPEAKER_01: No, and he wouldn't show it to anyone either.
18:33
SPEAKER_01: But other than that,
18:34
SPEAKER_01: apparently it was fairly uneventful,
18:37
SPEAKER_01: at least to the extent any conversation with Trump is uneventful.
18:40
SPEAKER_01: And these things generally are.
18:42
SPEAKER_01: I mean,
18:42
SPEAKER_01: it's just a conversation with the probation officer to find out how much your
18:47
SPEAKER_01: father hated you and how bad school was and all this sort of thing that goes into
18:51
SPEAKER_01: your life story that tells the judge who you are and how the judge should feel
18:55
SPEAKER_01: about you.
18:55
SPEAKER_00: Yeah.
18:56
SPEAKER_00: And then Trump is also seeking to have the gag order in the New York case lifted from him.
19:02
SPEAKER_00: I guess I hadn't thought very deeply about this.
19:03
SPEAKER_00: I sort of assumed that the gag order was automatically extinguished when the case was over.
19:07
SPEAKER_01: It wasn't.
19:09
SPEAKER_01: And remember, this is the gag order that Judge Mershon put in to stop him from
19:15
SPEAKER_01: attacking witnesses about their anticipated testimony,
19:18
SPEAKER_01: attacking jurors,
19:20
SPEAKER_01: attacking attorneys and court staff,
19:21
SPEAKER_01: etc.
19:22
SPEAKER_01: And Trump's point is, well, the grounds for those are no longer present.
19:27
SPEAKER_01: You no longer have to prevent witnesses from being deterred from testifying.
19:32
SPEAKER_01: They've testified.
19:32
SPEAKER_01: You no longer have to protect jurors from wanting to be jurors.
19:38
SPEAKER_01: They've already been jurors and so forth.
19:41
SPEAKER_01: So it's a fairly strong argument because,
19:43
SPEAKER_01: I mean,
19:44
SPEAKER_01: obviously,
19:45
SPEAKER_01: any type of restriction on speech is very difficult under the First Amendment.
19:48
SPEAKER_01: And once you undermine the primary bases for the speech restriction, it makes it much harder to justify.
19:55
SPEAKER_01: I don't believe Judge Marchand has ruled yet.
19:58
SPEAKER_01: I don't know.
19:59
SPEAKER_01: Even, in fact, I haven't seen that the government has responded yet.
20:02
SPEAKER_01: I mean, there's an argument that...
20:05
SPEAKER_01: You want to continue to stop him from attacking his own jurors,
20:09
SPEAKER_01: to stop jurors in future cases from being deterred,
20:13
SPEAKER_01: serving in other circumstances.
20:16
SPEAKER_01: And I mean,
20:16
SPEAKER_01: frankly,
20:16
SPEAKER_01: that's a concern just for jurors who might serve in other Trump cases,
20:20
SPEAKER_01: of which there are quite a few.
20:22
SPEAKER_01: But I don't think it's enough to justify keeping the gag order in place.
20:26
SPEAKER_00: I mean, is there also an argument that the proceeding's not done?
20:28
SPEAKER_00: He hasn't been sentenced yet.
20:29
SPEAKER_00: There's going to be appeals.
20:31
SPEAKER_00: I mean, I guess, you know, the jurors and the witnesses are done, but the court is not done.
20:36
SPEAKER_01: The court's not done.
20:38
SPEAKER_01: And I guess maybe you could keep the restriction on attacking the court staff.
20:43
SPEAKER_01: You know, again, any restriction on the content of speech really has to fight uphill.
20:49
SPEAKER_01: And once you undermine all the part about allowing a trial to go forward,
20:53
SPEAKER_01: I think it becomes very difficult to justify.
20:56
SPEAKER_00: Meanwhile,
20:56
SPEAKER_00: in Wisconsin,
20:57
SPEAKER_00: there have been felony forgery charges against certain lawyers who worked for
21:01
SPEAKER_00: Donald Trump on his efforts to overturn the 2020 election result.
21:04
SPEAKER_00: Jim Troupis, Kenneth Chesebro, Mike Roman.
21:06
SPEAKER_00: These are names we've heard before in other states, and now they are also under indictment in Wisconsin.
21:11
SPEAKER_00: We've seen Arizona most recently bringing a prosecution similar to this.
21:16
SPEAKER_00: And then, of course, the Georgia RICO prosecution, which we will discuss in a moment.
21:21
SPEAKER_00: Ultimately,
21:22
SPEAKER_00: are these people going to end up in prison,
21:24
SPEAKER_00: you know,
21:24
SPEAKER_00: being charged in all these different states?
21:26
SPEAKER_01: I'm not even going to speculate about that because I think the legal tradition and
21:30
SPEAKER_01: the politics of the different states are too different.
21:33
SPEAKER_01: Josh,
21:33
SPEAKER_01: at one point we had to do a painstaking,
21:36
SPEAKER_01: let's remind the listeners of which cases are against Trump.
21:39
SPEAKER_01: And we're getting to the point where we need to do this for state cases against his election people.
21:44
SPEAKER_01: Because you've got Wisconsin, Michigan, Arizona, Nevada.
21:49
SPEAKER_01: Georgia.
21:49
SPEAKER_01: That's a lot to keep track of.
21:51
SPEAKER_01: And these are all cases basically on more or less the same theory that people
21:56
SPEAKER_01: fabricated documents and lied about Trump being the actual victor in those states.
22:02
SPEAKER_01: So I would defer to practitioners in those states.
22:06
SPEAKER_01: If I were generalizing based on California or similar states, I'd say it's unlikely that
22:12
SPEAKER_01: They would get jail time,
22:13
SPEAKER_01: particularly with no prior criminal record,
22:16
SPEAKER_01: white collar crime,
22:18
SPEAKER_01: the taint of politics,
22:19
SPEAKER_01: that type of thing.
22:20
SPEAKER_01: But I wouldn't rule it out in other states.
22:22
SPEAKER_00: These stories are interesting to me in the context of a lot of the threats that
22:26
SPEAKER_00: we're seeing out of Trump world about what they're going to do if Trump is elected
22:29
SPEAKER_00: president again.
22:30
SPEAKER_00: This idea that, you know, we're going to turn the quote unquote lawfare back on Democrats again.
22:36
SPEAKER_00: We're going to bring a bunch of political prosecutions and then more broadly,
22:39
SPEAKER_00: there's a whole bunch of extremely aggressive ideas about using the legal system to
22:44
SPEAKER_00: their benefit.
22:46
SPEAKER_00: Of course,
22:46
SPEAKER_00: Trump ran in 2016 saying he was going to lock Hillary Clinton up and did not end up
22:50
SPEAKER_00: bringing prosecutions against her.
22:52
SPEAKER_00: But it sort of looks to me like one of the difficulties or one of the things that
22:56
SPEAKER_00: makes it more difficult for him to behave in a truly bad manner in this area.
23:01
SPEAKER_00: is that he needs lawyers to do a lot of these things for him on his behalf.
23:05
SPEAKER_00: And he's not going to be president forever, even if he is elected again in 2024.
23:10
SPEAKER_00: And I think what we've seen in a lot of these cases is that even if Trump did not
23:13
SPEAKER_00: end up facing significant negative consequences from his efforts to steal the 2020 election,
23:18
SPEAKER_00: a lot of the people who worked with him on it
23:20
SPEAKER_00: have gotten themselves in a lot of trouble.
23:22
SPEAKER_00: You know,
23:22
SPEAKER_00: the people who went out and did the PR on his behalf,
23:25
SPEAKER_00: like Rudy Giuliani,
23:27
SPEAKER_00: in some cases have ended up financially ruined.
23:29
SPEAKER_00: And the attorneys are losing their law licenses and in a number of cases are under
23:34
SPEAKER_00: criminal indictment,
23:35
SPEAKER_00: which I think will make it somewhat more difficult
23:38
SPEAKER_00: for him to try to use illegal means in these areas.
23:43
SPEAKER_00: There are people who will be willing to do it, but not all of them.
23:46
SPEAKER_00: And you sort of won't have your A-team.
23:48
SPEAKER_00: And then you still have these state courts that could end up causing a lot of
23:51
SPEAKER_00: trouble for these people in the future.
23:53
SPEAKER_01: Absolutely.
23:54
SPEAKER_01: I mean, successful revolutionaries don't get prosecuted.
23:58
SPEAKER_01: Unsuccessful revolutionaries get lined up and shot.
24:02
SPEAKER_01: And it's the same thing here.
24:04
SPEAKER_01: If he successfully attacks these norms and gets reelected,
24:08
SPEAKER_01: I think he's going to have a lot of power to protect his people,
24:12
SPEAKER_01: certainly in all federal circumstances and probably indirectly in a lot of state cases.
24:17
SPEAKER_01: But if he loses, then I think you're just going to have another generation of people
24:22
SPEAKER_01: Who are screwed over for having helped him.
24:24
SPEAKER_00: Well, nobody, even if even if he wins, he doesn't control the state courts.
24:27
SPEAKER_00: He doesn't control the federal courts forever.
24:29
SPEAKER_00: I mean,
24:29
SPEAKER_00: you know,
24:29
SPEAKER_00: for example,
24:30
SPEAKER_00: the Arizona prosecution was a little late getting off the ground because there had
24:34
SPEAKER_00: been a Republican attorney general in Arizona who was favorable to Donald Trump.
24:38
SPEAKER_00: Republicans lost that election.
24:39
SPEAKER_00: Democrats came in and they brought the prosecutions.
24:42
SPEAKER_00: And so, you know, you have the risk.
24:44
SPEAKER_00: It's not it's not even like,
24:45
SPEAKER_00: you know,
24:45
SPEAKER_00: maybe Trump can sort of protect you now,
24:48
SPEAKER_00: but you're dependent on that,
24:49
SPEAKER_00: you know,
24:50
SPEAKER_00: ongoing in the future.
24:52
SPEAKER_00: Sure.
24:53
SPEAKER_00: You know, the risk that he's not going to be in charge forever and he's not in charge at the state level.
24:58
SPEAKER_00: Sure.
24:59
SPEAKER_01: But I think people – and this is an ongoing thing I've seen in American politics
25:05
SPEAKER_01: where when the pendulum swings in one direction,
25:08
SPEAKER_01: everyone tends to think it's forever,
25:10
SPEAKER_01: right?
25:10
SPEAKER_01: So I don't know if you remember.
25:12
SPEAKER_01: You were probably –
25:13
SPEAKER_01: Six or something.
25:14
SPEAKER_01: The concept of the permanent Republican majority when the Republicans had some
25:19
SPEAKER_01: electoral successes,
25:21
SPEAKER_01: whenever the hell that was.
25:23
SPEAKER_01: Or, you know, Barack Obama's elected and it's like the Republicans are permanently out of power.
25:28
SPEAKER_01: So there's always this narrative and people can buy into it and think that we're
25:31
SPEAKER_01: going to win and then we're going to be in power forever and I'm safe.
25:35
SPEAKER_00: Speaking of those state proceedings, let's talk about the mess in Georgia.
25:39
SPEAKER_00: A lot of these states,
25:42
SPEAKER_00: the prosecutors there have gone in a narrower direction,
25:44
SPEAKER_00: narrower charges,
25:45
SPEAKER_00: in some cases not charging Donald Trump personally,
25:48
SPEAKER_00: producing cases that are relatively easy to try.
25:51
SPEAKER_00: Fonny Willis, of course, she makes her own path and does things her own way.
25:58
SPEAKER_00: And so the latest fact in this case is because there was the effort to disqualify
26:03
SPEAKER_00: her from the prosecution on the grounds that there was conflict of interest because
26:07
SPEAKER_00: she was sleeping with her special prosecutor whom she appointed to prosecute the case.
26:12
SPEAKER_00: And the resolution from Judge Scott McAfee was that she wouldn't have to step aside
26:16
SPEAKER_00: from the case but that he would have to – Nathan Wade would have to step aside,
26:20
SPEAKER_00: which he did.
26:21
SPEAKER_00: And then Trump and some of his codependents and then Trump and some of his
26:24
SPEAKER_00: codependents appealed that decision,
26:26
SPEAKER_00: his codependents.
26:28
SPEAKER_00: Both terms are appropriate.
26:30
SPEAKER_00: Now,
26:30
SPEAKER_00: there's the Georgia Court of Appeals has said that,
26:33
SPEAKER_00: you know,
26:33
SPEAKER_00: while they're considering that appeal of the decision not to disqualify Fannie Willis,
26:38
SPEAKER_00: the whole case is paused.
26:40
SPEAKER_00: And this is not one of those things where, you know, everyone grouses because the U.S.
26:43
SPEAKER_00: Supreme Court is taking three or four months to consider something.
26:46
SPEAKER_00: This likely pauses the case for like a year plus.
26:49
SPEAKER_01: Right.
26:51
SPEAKER_01: And remember, the case had been going forward on the pretrial basis while this appeal was going on.
26:57
SPEAKER_01: But now the Court of Appeals says, no, we're shutting the whole thing down until we decide.
27:02
SPEAKER_01: So,
27:02
SPEAKER_01: yeah,
27:03
SPEAKER_01: if there ever was any chance that this would go to trial before the election and
27:07
SPEAKER_01: there was not or that it would be finished in 2025 and I don't think there was.
27:13
SPEAKER_01: Those hopes are now dashed.
27:15
SPEAKER_01: You'd be lucky to start this trial at this point in 2026.
27:20
SPEAKER_00: And so my sense is that this is not unusual special treatment from the from from
27:25
SPEAKER_00: the appeals court in Georgia,
27:26
SPEAKER_00: that this is sort of what they would typically do in this sort of situation.
27:29
SPEAKER_01: Yeah,
27:29
SPEAKER_01: that's my sense from the Georgia practitioners that I've read and heard from is
27:33
SPEAKER_01: that this is not some sort of weird special treatment for Trump.
27:36
SPEAKER_01: This is, you know, this is the consequences of an appeal with some plausible issues.
27:43
SPEAKER_01: And I think it bears repeating.
27:44
SPEAKER_01: This is very much an own goal by Fannie Willis.
27:48
SPEAKER_01: Terrible judgment throughout and derailed her own case and in every way.
28:02
SPEAKER_00: There's other news out of Georgia.
28:03
SPEAKER_00: We've occasionally referenced and we've talked about what an unwieldy mess Georgia RICO prosecutions are.
28:09
SPEAKER_00: We've talked about this other case, the Young Thug case, also known as the YSL case.
28:14
SPEAKER_00: This is another ongoing RICO prosecution in Georgia with a sort of a more ordinary
28:20
SPEAKER_00: set of RICO allegations.
28:22
SPEAKER_00: It's that this rapper Young Thug and his associates were a criminal street gang
28:25
SPEAKER_00: that did things like assault and robbery and murder.
28:28
SPEAKER_00: They were a criminal organization.
28:30
SPEAKER_00: They've been charged with RICO.
28:31
SPEAKER_00: This is the case where it took a year to seat the jury.
28:35
SPEAKER_00: Now the case has been ongoing for months.
28:37
SPEAKER_00: And I think it's getting national attention this week because there's been really
28:41
SPEAKER_00: high drama in the courtroom that actually involved Judge Ural Glanville,
28:46
SPEAKER_00: who is presiding over this case,
28:49
SPEAKER_00: ordering one of the attorneys,
28:50
SPEAKER_00: ordering young thugs attorney Brian Steele to jail for contempt of court.
28:55
SPEAKER_01: Yeah, this is an alarming spectacle.
28:58
SPEAKER_01: Now and then you see something that seems like a sort of an ego spiral by a judge.
29:04
SPEAKER_01: They make mistakes, then they double down, double down.
29:07
SPEAKER_01: When they're called on it, they double down until it just gets worse and worse and worse.
29:10
SPEAKER_01: That seems to be,
29:11
SPEAKER_01: to some extent,
29:12
SPEAKER_01: what's happening here with the chief judge of the county,
29:16
SPEAKER_01: I should point out.
29:17
SPEAKER_01: So what happened was this.
29:18
SPEAKER_01: There are, of course, cooperators in the Young Thug trial.
29:22
SPEAKER_01: There's going to be an Enrico gang cooperating.
29:24
SPEAKER_01: prosecution.
29:25
SPEAKER_01: One of these is a guy named Copeland, and he was given state immunity.
29:32
SPEAKER_01: The state can't give federal immunity to compel him to testify.
29:36
SPEAKER_01: But when he was called to the stand,
29:38
SPEAKER_01: he started to be evasive and dodge questions and even assert the fifth.
29:45
SPEAKER_01: This is not unusual.
29:47
SPEAKER_01: In gang cases and similar cases, cooperators are often squirrelly and you have issues with them.
29:52
SPEAKER_01: What apparently happened here that is unusual is that the judge held a hearing in chambers
30:01
SPEAKER_01: with copeland and someone who at least at some point was acting as copeland's
30:07
SPEAKER_01: lawyer okay so far so good a judge can with a witness when there's questions about
30:12
SPEAKER_01: that witness's fifth amendment assertion have an in-camera hearing with that
30:16
SPEAKER_01: witness here's where things go completely off the rails the judge has the da there
30:21
SPEAKER_01: too so this is a witness who's on the stand who's a sworn witness who's testifying
30:27
SPEAKER_01: And you're having a secret hearing with the district attorney,
30:30
SPEAKER_01: the prosecutor and the witness outside the presence of the defendants or their lawyers.
30:35
SPEAKER_01: And what Young Thug's lawyer found out apparently is that they were basically leaning hard on Copeland.
30:42
SPEAKER_01: They were telling him that,
30:44
SPEAKER_01: you know,
30:44
SPEAKER_01: if you don't smarten up and testify and stop taking the fifth and this other stuff,
30:49
SPEAKER_01: you're going to stay in jail until this case is over.
30:52
SPEAKER_01: This case that took a year to pick a jury.
30:56
SPEAKER_01: And that's just not right.
30:58
SPEAKER_01: I mean, I'm in trial right now.
30:59
SPEAKER_01: And we started picking a jury yesterday.
31:01
SPEAKER_01: We're going to finish today.
31:03
SPEAKER_01: You don't take a year.
31:04
SPEAKER_01: So that's basically saying you're going to be in jail forever.
31:07
SPEAKER_01: And that is a huge threat.
31:09
SPEAKER_01: It's hugely coercive.
31:10
SPEAKER_01: It is extremely relevant.
31:12
SPEAKER_01: to cross-examine him about whatever he winds up testifying.
31:16
SPEAKER_01: So,
31:17
SPEAKER_01: on Monday of this week,
31:19
SPEAKER_01: Youngthug's lawyer comes into court and says,
31:23
SPEAKER_01: you know,
31:24
SPEAKER_01: wait a minute,
31:24
SPEAKER_01: I've just found out about this and
31:28
SPEAKER_01: This was ex parte.
31:29
SPEAKER_01: It was inappropriate.
31:31
SPEAKER_01: And I want to find out exactly what was told to him.
31:33
SPEAKER_01: It's relevant to our cross-examination of Copeland.
31:36
SPEAKER_01: And I insist on finding out more.
31:40
SPEAKER_01: And there are a number of ways the judge could have handled this.
31:44
SPEAKER_01: Some of them are saying, well, actually, here's the law under which it was appropriate.
31:47
SPEAKER_01: Or let me disclose what happened because it is,
31:50
SPEAKER_01: in fact,
31:50
SPEAKER_01: relevant to the witness being,
31:52
SPEAKER_01: you know,
31:53
SPEAKER_01: you can cross-examine about whether he was coerced.
31:55
SPEAKER_01: What the judge did instead is start demanding to know where Brian Steele,
32:00
SPEAKER_01: this lawyer,
32:01
SPEAKER_01: found out that this meeting had happened.
32:03
SPEAKER_01: That's what he focused on.
32:04
SPEAKER_01: That is focusing on entirely the wrong thing.
32:07
SPEAKER_01: He demanded that Steele reveal this.
32:09
SPEAKER_01: Steele said that he ethically could not under his obligation of confidentiality and integrity.
32:16
SPEAKER_01: He implied it might be partially attorney client privilege.
32:19
SPEAKER_01: Not completely clear.
32:21
SPEAKER_01: But the bottom line is the judge said, you're going to tell me you're going to jail.
32:25
SPEAKER_01: And he sends Steele to jail for contempt for not answering during trial.
32:30
SPEAKER_00: At first, he tried to send Steele directly to jail.
32:33
SPEAKER_00: Right.
32:33
SPEAKER_00: And then Steele's co-counsel was going to have to handle the witness testimony from
32:38
SPEAKER_00: Kenneth Copeland,
32:39
SPEAKER_00: also known as Little Woody.
32:41
SPEAKER_00: And actually,
32:41
SPEAKER_00: the DA or the ADA interceded and asked the judge,
32:44
SPEAKER_00: you know,
32:45
SPEAKER_00: can you please let Mr.
32:46
SPEAKER_00: Steele,
32:47
SPEAKER_00: you know,
32:47
SPEAKER_00: be here and represent his client in court?
32:51
SPEAKER_00: She basically said,
32:52
SPEAKER_00: you know,
32:52
SPEAKER_00: this was,
32:52
SPEAKER_00: you know,
32:53
SPEAKER_00: in the interest of time because certainly the defense was going to object over that.
32:56
SPEAKER_00: But there's also it seems like there's this undercurrent that the DA is even a
33:00
SPEAKER_00: little bit uncomfortable with what the judge is doing here and I assume is trying
33:03
SPEAKER_00: to avoid a situation where the judge commits reversible error and then they,
33:07
SPEAKER_00: you know,
33:07
SPEAKER_00: they can't get a conviction.
33:09
SPEAKER_01: Yeah.
33:09
SPEAKER_01: The DA is worried the judge is going to blow up the whole thing.
33:13
SPEAKER_01: You know, sometimes being a DA is kind of like being the dog that catches the car it was chasing.
33:19
SPEAKER_01: That's not something that happens to defense lawyers.
33:22
SPEAKER_01: But with a DA, you can have a judge who is
33:26
SPEAKER_01: too friendly to you and goes and just does reversible stupid stuff in the prosecution's favor.
33:31
SPEAKER_01: And I think we kind of saw that in that Weinstein conviction that got overturned by the Court of Appeal.
33:37
SPEAKER_01: But here, the DA is clearly concerned about preserving any conviction that happens.
33:41
SPEAKER_01: So the judge,
33:42
SPEAKER_01: the judge realizes that he hasn't really clearly articulated what the basis for the
33:47
SPEAKER_01: jailing is and what type of contempt it is,
33:50
SPEAKER_01: because there are different types of contempt findings with different procedural rules.
33:54
SPEAKER_01: So he kind of retcons it and says,
33:57
SPEAKER_01: okay,
33:57
SPEAKER_01: actually,
33:58
SPEAKER_01: this was a direct criminal contempt,
34:00
SPEAKER_01: which is something that happens in front of me that interferes with the
34:02
SPEAKER_01: administration of justice that I can punish immediately.
34:06
SPEAKER_01: I'm putting you in jail for 20 days to be served on the weekends during this trial.
34:12
SPEAKER_01: And Brian Steele,
34:12
SPEAKER_01: to his credit,
34:13
SPEAKER_01: this is a badass move,
34:14
SPEAKER_01: says,
34:15
SPEAKER_01: well,
34:15
SPEAKER_01: can I serve it in jail with my client so we can prepare for trial every weekend?
34:19
SPEAKER_01: Yeah.
34:20
SPEAKER_01: And that is a huge fuck you to the judge, which I delight in.
34:24
SPEAKER_00: Glennville granted that request, I would note.
34:26
SPEAKER_01: Right.
34:26
SPEAKER_01: Georgia practitioners seem fairly uniform that this is completely out of bounds on all types of levels.
34:34
SPEAKER_01: It's an ex-party communication meeting, an improper meeting with one side of the case.
34:39
SPEAKER_01: So the problem isn't that the judge met alone with Copeland and someone purporting
34:43
SPEAKER_01: to be Copeland's lawyer.
34:45
SPEAKER_01: The problem is he added the DA, one of the two parties to the case and shut out the other side.
34:50
SPEAKER_00: Shouldn't that have been obvious to both the judge and the DA in the context of the meeting?
34:54
SPEAKER_00: Like when you sit down in the judge's chambers and the other party isn't there?
34:58
SPEAKER_00: Absolutely.
34:59
SPEAKER_00: How did they not all realize this was going to be a problem?
35:02
SPEAKER_00: Well, because remember, it's DAs and judges.
35:04
SPEAKER_01: And the judges do anything DAs want too often, and they don't really reflect on these issues.
35:11
SPEAKER_01: So that's wrong.
35:13
SPEAKER_01: The contempt process was wrong because it seems pretty clear under Georgia law that
35:17
SPEAKER_01: if the judge is finding someone in direct contempt for basically accusing the judge
35:22
SPEAKER_01: of misconduct,
35:23
SPEAKER_01: he should recuse himself and have someone else do it.
35:25
SPEAKER_01: There should be procedural protections.
35:28
SPEAKER_01: There should be a hearing and an opportunity to
35:30
SPEAKER_01: to present evidence.
35:32
SPEAKER_01: And the judge basically said,
35:33
SPEAKER_01: you've got another due process you're going to get,
35:36
SPEAKER_01: which is not something you want the judge saying on the record if you want to
35:39
SPEAKER_01: preserve something.
35:40
SPEAKER_01: So this really seems like a judge who got caught doing something flatly wrong,
35:46
SPEAKER_01: maybe more out of laziness and stupidity than malice,
35:52
SPEAKER_01: and then just got his back up and would not admit he did something wrong,
35:56
SPEAKER_01: would not backtrack and kept doubling down.
35:58
SPEAKER_01: But it's
36:00
SPEAKER_01: really bad for the prosecution's case.
36:03
SPEAKER_01: It blows a huge hole on it.
36:04
SPEAKER_01: It puts a huge question mark over any result.
36:08
SPEAKER_01: The Georgia Court of Appeal is probably going to get involved.
36:11
SPEAKER_01: There's been an emergency motion filed trying to get him bail from the court.
36:18
SPEAKER_01: And it's just an embarrassment to the system.
36:21
SPEAKER_01: And it kind of makes you say, and this is on top of the case being so ridiculous to begin with.
36:26
SPEAKER_01: The ridiculous thing is not that you're prosecuting someone for running a street gang.
36:30
SPEAKER_01: The ridiculous thing is you're doing in this unnecessarily convoluted.
36:35
SPEAKER_01: Let's be big boys into Rico type of way that makes it needlessly long, complicated and impossible to try.
36:43
SPEAKER_00: I mean,
36:43
SPEAKER_00: this is one of these cases where rap lyrics have been a matter of evidence and even
36:48
SPEAKER_00: Young Thug's name itself.
36:50
SPEAKER_00: I mean,
36:50
SPEAKER_00: in the opening arguments,
36:51
SPEAKER_00: one of the things Brian Steele was saying is,
36:53
SPEAKER_00: you know,
36:54
SPEAKER_00: the state has all these claims about him,
36:56
SPEAKER_00: but Thug actually stands for truly humbled under God.
37:01
SPEAKER_00: And YSL is variously said to mean young slime life.
37:07
SPEAKER_00: But according to Brian Steele, it's a reference to the luxury brand Yves Saint Laurent.
37:12
SPEAKER_00: And sort of,
37:12
SPEAKER_00: you know,
37:12
SPEAKER_00: the arguing over not just,
37:14
SPEAKER_00: you know,
37:15
SPEAKER_00: was somebody murdered,
37:16
SPEAKER_00: but all of this,
37:16
SPEAKER_00: you know,
37:16
SPEAKER_00: coded stuff about what were they saying about themselves.
37:21
SPEAKER_00: But so how do you go forward from a situation like this in a case like this?
37:25
SPEAKER_00: I mean, you know, the Court of Appeals likely to get involved and might throw out the contempt.
37:34
SPEAKER_00: It's not a conviction.
37:35
SPEAKER_00: How do you even refer to the criminal contempt?
37:37
SPEAKER_00: The penalty penalty?
37:38
SPEAKER_00: For Brian Steele, a finding, I guess you're right.
37:40
SPEAKER_01: I don't know whether it's a conviction,
37:42
SPEAKER_01: but if the judge could climb down off his ego,
37:45
SPEAKER_01: the way to handle it would be to vacate the contempt finding,
37:52
SPEAKER_01: release the transcript of the the in chambers hearing.
37:57
SPEAKER_01: And allow the defendants to question Copeland when he testifies further about that
38:02
SPEAKER_01: hearing and exactly how the threats made it impact his testimony.
38:07
SPEAKER_01: You could climb back off all that and solve a lot of problems,
38:11
SPEAKER_01: but I don't see a very good chance that he's going to do that.
38:14
SPEAKER_00: One thing that has been really strange for me watching this,
38:16
SPEAKER_00: and before this episode,
38:19
SPEAKER_00: this case,
38:19
SPEAKER_00: I would watch the proceedings occasionally,
38:21
SPEAKER_00: and it looked so wildly unprofessional compared to what I expect to happen in a court.
38:27
SPEAKER_00: And not just with the defense attorneys.
38:28
SPEAKER_00: There was previous times where you had Judge Glanville really getting into it with
38:31
SPEAKER_00: the DA and basically yelling at each other in the courtroom.
38:35
SPEAKER_00: It is not my image of what a serious criminal trial looks like.
38:39
SPEAKER_00: And I realize it's state court.
38:41
SPEAKER_00: And state court can be more informal and more screwed up than federal court is likely to be.
38:46
SPEAKER_00: But Judge Glanville is the chief judge,
38:48
SPEAKER_00: has been on the bench for 20 years,
38:50
SPEAKER_00: was a magistrate judge before that.
38:52
SPEAKER_00: So to the extent he's making mistakes here, it's not because he's inexperienced.
38:54
SPEAKER_00: He's also, by the way, a brigadier general in the Army Reserve.
38:58
SPEAKER_00: So like this is this is a guy with like a, you know, a serious accomplished career.
39:02
SPEAKER_00: It is just sort of remarkable to me to watch him,
39:06
SPEAKER_00: you know,
39:06
SPEAKER_00: presiding over this,
39:07
SPEAKER_00: you know,
39:08
SPEAKER_00: this totally chaotic courtroom and then also making what look like,
39:12
SPEAKER_00: you know,
39:12
SPEAKER_00: enormous,
39:12
SPEAKER_00: obvious errors here.
39:14
SPEAKER_01: Well, Josh, I did not have the honor of serving in the military.
39:18
SPEAKER_01: My impression is that a brigadier general is another person you would not
39:21
SPEAKER_01: necessarily expect to be quick to admit error.
39:24
SPEAKER_01: Right.
39:25
SPEAKER_01: And that could be an issue, too.
39:27
SPEAKER_01: Sometimes these things are personality driven and judges just.
39:31
SPEAKER_01: Keep doubling down on the mistake they made from being unable to say, OK, I'm going to reverse myself.
39:35
SPEAKER_01: I'm going to change that, which is probably what he should have done here.
39:39
SPEAKER_01: And sometimes it just spins out of control wildly.
39:42
SPEAKER_01: This one reminded me of a case from a few years ago where a judge somewhere on the
39:47
SPEAKER_01: East Coast in a morning hearing someone's cell phone went off.
39:52
SPEAKER_01: And he said,
39:53
SPEAKER_01: OK,
39:53
SPEAKER_01: until someone admits who that is,
39:55
SPEAKER_01: I'm jailing all the defendants here who are in the courtroom.
39:59
SPEAKER_01: And these are people who are like, you know, they're going to lose jobs.
40:02
SPEAKER_01: They're going to lose custody.
40:03
SPEAKER_01: They're going to all these things are going to happen.
40:05
SPEAKER_01: And so he just summarily arrested everybody and sent him to jail.
40:10
SPEAKER_01: And he didn't climb down until the media started calling.
40:13
SPEAKER_01: And he got suspended as a judge.
40:15
SPEAKER_01: And all those cases got blown up.
40:17
SPEAKER_01: And,
40:18
SPEAKER_01: you know,
40:18
SPEAKER_01: the problem with having this enormous power that you have as a judge is that you're
40:22
SPEAKER_01: still a human being.
40:23
SPEAKER_01: And sometimes you're going to fuck up.
40:25
SPEAKER_01: And if you're exercising your power when you're fucking up, that can have dramatic consequences.
40:29
SPEAKER_00: Well, I think we can leave it there this week.
40:30
SPEAKER_00: Ken, thank you for speaking with me as always.
40:32
SPEAKER_00: Thank you, Josh.
40:33
SPEAKER_00: Serious Trouble is created and produced by Very Serious Media.
40:36
SPEAKER_00: That's me and Sarah Faye.
40:37
SPEAKER_00: Jennifer Swannick mixed this episode.
40:39
SPEAKER_00: Our theme music is by Joshua Mosier.
40:40
SPEAKER_00: Thanks for listening, and we'll be back with more soon.
40:42
SPEAKER_00: See you next time.