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If You Voir Something, Dire Something · 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,
0:13
SPEAKER_00: we spoke last week just as the Trump trial in Manhattan was getting started,
0:17
SPEAKER_00: as they were about to embark on jury selection.
0:19
SPEAKER_00: Now we're taping.
0:20
SPEAKER_00: It's early in the second week, which means we're actually into the trial.
0:23
SPEAKER_00: We've had opening statements.
0:24
SPEAKER_00: I want to start by talking about what happened last week.
0:28
SPEAKER_00: It took three days in Judge Juan Merchant's courtroom to seat a jury in this case.
0:33
SPEAKER_00: And I think jury selection is always fascinating for people to watch and,
0:37
SPEAKER_00: you know,
0:38
SPEAKER_00: watch this process where the attorneys try to figure out who's favorable to me.
0:41
SPEAKER_00: Who do I keep?
0:42
SPEAKER_00: Who do I strike?
0:43
SPEAKER_00: First of all,
0:43
SPEAKER_00: I assume this was very unusual compared to a normal jury selection because every
0:48
SPEAKER_00: single juror came in with an opinion about the defendant and many of them also had
0:52
SPEAKER_00: an opinion about the case.
0:53
SPEAKER_00: Yeah.
0:54
SPEAKER_00: Many did,
0:55
SPEAKER_00: although,
0:55
SPEAKER_00: I mean,
0:56
SPEAKER_01: not having an opinion one way or the other about Donald Trump would seem to be to
1:00
SPEAKER_01: be something of a matter of concern.
1:02
SPEAKER_01: I think you'd have to be isolated from the world in an odd way, not not to like him or hate him.
1:08
SPEAKER_01: So it is unusual.
1:09
SPEAKER_01: I mean, it's a big case.
1:10
SPEAKER_01: They had questionnaires.
1:12
SPEAKER_01: They were going much more deeply than.
1:14
SPEAKER_01: then many jury selections would go.
1:17
SPEAKER_01: But the real difference here was that so many of the jurors were concerned about
1:23
SPEAKER_01: their safety or about what would happen if their names got out as someone on the jury.
1:29
SPEAKER_01: And the judge expressed concern about that as well, at least one juror having been selected
1:35
SPEAKER_01: expressed concerns and was excused.
1:38
SPEAKER_01: And the feeling seems to be that it's not safe for whatever reason to be a juror on this.
1:44
SPEAKER_01: And they're concerned about their identity getting out there.
1:48
SPEAKER_01: And that's not an unreasonable,
1:50
SPEAKER_01: I fear,
1:50
SPEAKER_01: I think,
1:51
SPEAKER_01: because really both Trump's team and the press were very vigorously reporting
1:59
SPEAKER_01: details that could make someone be easily identifiable.
2:04
SPEAKER_01: And the judge was not happy about that.
2:06
SPEAKER_01: Judge Mershon scolded the press.
2:08
SPEAKER_01: I mean, they probably have the First Amendment right to report these details under these circumstances.
2:13
SPEAKER_01: But the question is whether they should,
2:15
SPEAKER_01: you know,
2:16
SPEAKER_01: whether it is how do you balance the newsworthiness of getting a sense of the type
2:21
SPEAKER_01: of people who are going to be on the jury with giving details that specifically
2:26
SPEAKER_01: identify a person so that someone so inclined can go find them.
2:30
SPEAKER_00: It seemed to be especially that often in the questioning of the potential jurors,
2:34
SPEAKER_00: the identities of their current or former employers were disclosed.
2:37
SPEAKER_00: And that can make it fairly easy to figure out,
2:39
SPEAKER_00: you know,
2:40
SPEAKER_00: like corporate lawyer in Manhattan,
2:41
SPEAKER_00: hard to narrow down corporate lawyer at some specific firm.
2:45
SPEAKER_00: And then maybe, you know, something about the kind of law they practice.
2:47
SPEAKER_00: Eventually, it becomes possible to figure out who they are.
2:50
SPEAKER_00: And in fact,
2:50
SPEAKER_00: the attorneys were figuring out who they are because they would then go and find
2:54
SPEAKER_00: statements that the potential jurors had made on social media about Donald Trump.
2:58
SPEAKER_00: Another way in which this trial is unusual,
3:00
SPEAKER_00: it's not just that the potential jurors have familiarity and opinions about the defendant.
3:04
SPEAKER_00: A huge fraction of them had made public comments about the defendant.
3:08
SPEAKER_00: And in some cases,
3:09
SPEAKER_00: you had the defense or the prosecution saying,
3:13
SPEAKER_00: you know,
3:13
SPEAKER_00: well,
3:13
SPEAKER_00: this thing that we know about this defendant,
3:15
SPEAKER_00: now that we know something about,
3:16
SPEAKER_00: you know,
3:17
SPEAKER_00: the way they've thought about Donald Trump,
3:18
SPEAKER_00: that that affects their impartiality as a juror.
3:21
SPEAKER_01: Well, sure.
3:21
SPEAKER_01: I mean, it's not unusual to have your team scoping out potential jurors' social media presence.
3:28
SPEAKER_01: That's pretty standard these days.
3:30
SPEAKER_01: But it is very unusual to have it where you can expect them to have commented about your client's
3:36
SPEAKER_01: on social media specifically before.
3:38
SPEAKER_01: That doesn't happen a lot.
3:40
SPEAKER_01: And certainly there was a lot of follow-up by that from Trump's lawyers.
3:45
SPEAKER_01: Judge Merchan was,
3:47
SPEAKER_01: I think,
3:47
SPEAKER_01: mostly reasonable in terms of determining what sounded like something that should
3:52
SPEAKER_01: require a strike for cause,
3:54
SPEAKER_01: showing bias and what didn't.
3:56
SPEAKER_01: But yeah, I mean, this is not a normal case in any way.
4:00
SPEAKER_01: Very rarely
4:02
SPEAKER_01: has almost everybody expressed an opinion about the thing.
4:05
SPEAKER_01: In kind of a weird way,
4:07
SPEAKER_01: this harkens back to,
4:09
SPEAKER_01: you know,
4:09
SPEAKER_01: when a jury was,
4:11
SPEAKER_01: you know,
4:11
SPEAKER_01: not some group of anonymous people you'd never met,
4:13
SPEAKER_01: but,
4:14
SPEAKER_01: you know,
4:14
SPEAKER_01: 12 people from your small town who all knew you and knew about the crime being
4:19
SPEAKER_01: shoved into a box.
4:21
SPEAKER_00: Right.
4:21
SPEAKER_00: Yeah,
4:22
SPEAKER_00: it was it was interesting that the discussion of,
4:23
SPEAKER_00: you know,
4:24
SPEAKER_00: what sorts of public comments indicated a bias that made it impermissible for
4:28
SPEAKER_00: someone to be seated on the jury.
4:29
SPEAKER_00: You know,
4:29
SPEAKER_00: they they went through the there was one juror who had on when the election was
4:33
SPEAKER_00: called in 2020,
4:34
SPEAKER_00: had posted on,
4:35
SPEAKER_00: I believe it was Facebook about going outside in Manhattan and hearing all of these
4:40
SPEAKER_00: people honking their car horns and this celebration.
4:43
SPEAKER_00: And they bring the potential juror out.
4:44
SPEAKER_00: And this was one interesting thing for me in the jury selection is that you had this juror
4:48
SPEAKER_00: basically trying to make a case for herself and saying,
4:51
SPEAKER_00: well,
4:51
SPEAKER_00: I just thought it was a great celebratory moment.
4:55
SPEAKER_00: There are people who definitely didn't want to sit on this jury,
4:57
SPEAKER_00: whether for concerns about safety or for the ordinary reasons that one might not
5:01
SPEAKER_00: want to be on jury duty for weeks and weeks.
5:04
SPEAKER_00: But it also seemed like there were some people there who really did want to sit on
5:07
SPEAKER_00: this jury,
5:07
SPEAKER_00: maybe because they had opinions about it,
5:09
SPEAKER_00: maybe just because it is a super interesting case and it might be an interesting
5:13
SPEAKER_00: experience to sit on this jury.
5:14
SPEAKER_00: But you had some of these potential jurors who were really trying to argue quite vigorously.
5:18
SPEAKER_00: Yeah, you know...
5:33
SPEAKER_01: As a rule, lawyers are concerned about jurors who want to be on a jury.
5:39
SPEAKER_01: So,
5:39
SPEAKER_01: you know,
5:39
SPEAKER_01: who you're looking for is probably someone who's somewhat reluctantly doing their
5:44
SPEAKER_01: civic duty,
5:45
SPEAKER_01: not someone who,
5:46
SPEAKER_01: you know,
5:47
SPEAKER_01: wants to be on this jury because that's just,
5:50
SPEAKER_01: you know,
5:51
SPEAKER_01: that makes them unpredictable and sort of maybe have their own agenda.
5:55
SPEAKER_01: But you can see why, because, I mean, it is sort of a brushwork.
5:59
SPEAKER_01: with fame, a brush with notoriety.
6:03
SPEAKER_01: There's probably a book deal in it afterwards.
6:06
SPEAKER_01: You know,
6:07
SPEAKER_01: you're certainly going to get to go on all the shows if that's the way you want to
6:10
SPEAKER_01: play it after you've served as a juror.
6:13
SPEAKER_00: And so that juror, Judge Merchant, decided that was not grounds for a strike for cause.
6:17
SPEAKER_00: The Trump team then used one of their peremptory challenges to strike her.
6:21
SPEAKER_00: We'll come back to that in a second.
6:22
SPEAKER_00: Then the next potential juror comes up,
6:25
SPEAKER_00: and what the Trump team has found is that he posted on social media,
6:28
SPEAKER_00: get him out and lock him up.
6:30
SPEAKER_00: about Trump at one point when he was president.
6:31
SPEAKER_00: And I think fairly reasonably,
6:33
SPEAKER_00: Judge Merchant decided,
6:34
SPEAKER_00: yeah,
6:35
SPEAKER_00: if you were posting lock him up on social media,
6:37
SPEAKER_00: maybe you should not be on this jury.
6:39
SPEAKER_00: And so that was one of many strikes for cause.
6:42
SPEAKER_00: Can you describe this process?
6:43
SPEAKER_00: Because Donald Trump has been complaining about this on his own social media website,
6:47
SPEAKER_00: saying that he didn't get enough strikes.
6:49
SPEAKER_00: And so you get to argue before the judge about, you know, the judge should remove this potential juror.
6:53
SPEAKER_00: And if the judge says no, then you get a fixed number of jurors that you can just remove for any reason.
6:59
SPEAKER_00: How do you decide how to use those for any reason strikes?
7:02
SPEAKER_01: Right.
7:02
SPEAKER_01: So you've got for cause strikes, which are unlimited and peremptory strikes.
7:07
SPEAKER_01: The for cause is when there are indications that someone can't serve as a juror, can't
7:13
SPEAKER_01: be counted on to be neutral and follow the law and follow the judge's instructions
7:18
SPEAKER_01: or maybe doesn't speak English well or has other things that prevents him from
7:22
SPEAKER_01: being a juror.
7:24
SPEAKER_01: The other strikes are at your discretion.
7:27
SPEAKER_01: Now, they're limited in that nobody is supposed to use them based on race or gender or factors like that.
7:37
SPEAKER_01: That being said, that happens all the time, and it's often a scandal.
7:40
SPEAKER_01: And there was just a scandal this week in Oakland about revelations that the DA
7:46
SPEAKER_01: there had been kicking African-Americans and Jews off of death penalty cases routinely.
7:52
SPEAKER_01: So the defense isn't supposed to do it either.
7:55
SPEAKER_01: So that's always kind of a factor hanging over all this stuff.
7:59
SPEAKER_01: But, you know, there are a lot of people who try to gamify this, who try to
8:04
SPEAKER_01: make it semi-scientific.
8:06
SPEAKER_01: There have been tons of TV shows where, you know, it's portrayed as scientific.
8:11
SPEAKER_01: It's really not.
8:12
SPEAKER_01: I think you can charge a lot of money by pretending it is, but it is more an art than a science.
8:17
SPEAKER_01: It is about your gut and about your sort of sense of a person.
8:22
SPEAKER_01: What is someone with this background and this set of circumstances likely to feel about this case?
8:27
SPEAKER_01: And it always kind of comes down to,
8:29
SPEAKER_01: you know,
8:30
SPEAKER_01: the prosecution wants the solid,
8:33
SPEAKER_01: ideally somewhat boring citizen,
8:35
SPEAKER_01: and the defense wants sort of the iconoclast and the free thinker and that type of thing.
8:41
SPEAKER_00: And so how do you approach that when you have a criminal defendant that you're representing?
8:47
SPEAKER_00: How do you figure out who is that iconoclast?
8:51
SPEAKER_01: Well,
8:51
SPEAKER_01: I give my client a lot of input because I always feel it's important for the client
8:57
SPEAKER_01: to feel invested in the process.
8:59
SPEAKER_01: And frankly, their insights may be as good as mine about this type of human behavior.
9:05
SPEAKER_01: I look to see whether or not someone seems like they're willing to go against the grain,
9:10
SPEAKER_01: whether they're an independent thinker or whether they're sort of conventional
9:15
SPEAKER_01: conservative thinkers.
9:16
SPEAKER_01: And likely to just go along.
9:19
SPEAKER_01: I look for any indications the person might not automatically believe,
9:22
SPEAKER_01: prosecution,
9:23
SPEAKER_01: police,
9:24
SPEAKER_01: that type of thing.
9:25
SPEAKER_01: All of these are things that kind of go into the mix.
9:27
SPEAKER_01: And then I look for indications that someone,
9:30
SPEAKER_01: you know,
9:30
SPEAKER_01: might be very sort of thin blue line culture,
9:35
SPEAKER_01: very much into whatever the police or the heroes or whatever they say must be right.
9:39
SPEAKER_00: The big question that Todd Blanch used,
9:42
SPEAKER_00: Donald Trump's attorney,
9:43
SPEAKER_00: in starting off the jury questioning was,
9:46
SPEAKER_00: what is your opinion of Trump?
9:48
SPEAKER_00: And this was interesting in a couple of ways.
9:50
SPEAKER_00: One was a lot of the potential jurors were pretty coy about it and,
9:54
SPEAKER_00: you know,
9:54
SPEAKER_00: would say almost,
9:55
SPEAKER_00: I mean,
9:56
SPEAKER_00: some of them literally were attorneys,
9:57
SPEAKER_00: but sort of they would say lawyerly things about,
9:59
SPEAKER_00: you know,
9:59
SPEAKER_00: well,
9:59
SPEAKER_00: my opinion is every defendant is equal before the system,
10:02
SPEAKER_00: et cetera,
10:03
SPEAKER_00: et cetera.
10:04
SPEAKER_00: But it was interesting because it was,
10:05
SPEAKER_00: you know,
10:05
SPEAKER_00: clearly he's trying to tease out people who are politically favorable.
10:09
SPEAKER_00: To the former president and Judge Merchant seemed somewhat irritated about this
10:13
SPEAKER_00: line of questioning afterward,
10:14
SPEAKER_00: although the prosecution didn't object to it.
10:16
SPEAKER_00: So he didn't stop him from from going along with it.
10:19
SPEAKER_00: But do you think that was a sensible approach basically to sort of go out there and
10:22
SPEAKER_00: try to figure out,
10:23
SPEAKER_00: you know,
10:23
SPEAKER_00: who likes Trump,
10:24
SPEAKER_00: who doesn't like Trump?
10:25
SPEAKER_00: That's the number one question here.
10:28
SPEAKER_01: It's a valid strategy.
10:30
SPEAKER_01: And the reason is it's kind of a Rorschach test.
10:32
SPEAKER_01: You're just throwing it out there and seeing what the response is.
10:34
SPEAKER_01: So you learn something about the person if they kind of respond with a cliche.
10:39
SPEAKER_01: You learn something if they sort of dissemble and try to avoid answering the question.
10:44
SPEAKER_01: So a lot of the times the questions, a lot of the time the voir dire process is
10:50
SPEAKER_01: is about putting your themes out to the jury and trying to forge a connection with
10:56
SPEAKER_01: the jury for the first time before you even make an opening statement.
11:00
SPEAKER_01: And so that type of question can fulfill that purpose.
11:03
SPEAKER_01: But it can also just, you know, you're just throwing something out there and people react to it.
11:07
SPEAKER_01: And it's not so much the exact question or the exact answer,
11:12
SPEAKER_01: it's just the way they react to kind of an open-ended question,
11:16
SPEAKER_00: see what they do.
11:17
SPEAKER_00: In Manhattan, you get a more educated jury pool than you would have in certain other places.
11:21
SPEAKER_00: And indeed,
11:21
SPEAKER_00: the jury that was selected in this case is highly educated,
11:24
SPEAKER_00: as you can infer from the professions that are represented on the jury.
11:27
SPEAKER_00: You have two lawyers, an investment banker, a retired wealth manager, an engineer, a software engineer.
11:33
SPEAKER_00: a teacher, a physical therapist, a speech therapist.
11:36
SPEAKER_00: By my count,
11:36
SPEAKER_00: 11 of the 12 jurors have or had jobs that would typically require at least a
11:41
SPEAKER_00: bachelor's degree,
11:42
SPEAKER_00: in some cases more than a bachelor's degree.
11:44
SPEAKER_00: Does that create a different trial environment than you might see with a more
11:48
SPEAKER_00: demographically representative jury?
11:51
SPEAKER_01: It does.
11:51
SPEAKER_01: And whether that's good or bad for the prosecution or the defense really depends on
11:57
SPEAKER_01: the type of case it is.
11:58
SPEAKER_01: So on the one hand,
12:00
SPEAKER_01: a blue-collar jury,
12:03
SPEAKER_01: traditional thinking is,
12:04
SPEAKER_01: is more likely to be sort of law and order and less likely to be prone to
12:11
SPEAKER_01: questioning the government.
12:13
SPEAKER_01: Of course,
12:13
SPEAKER_01: that's flipped often in many cases of race because different ethnic groups have
12:19
SPEAKER_01: different experiences with the police in America.
12:21
SPEAKER_01: And so you can get very different experiences on that.
12:25
SPEAKER_01: So yeah, having a more educated jury is kind of the extremes come out.
12:33
SPEAKER_01: The more education makes people sometimes more rule-following and more prone to go
12:38
SPEAKER_01: prosecution or much more iconoclast,
12:42
SPEAKER_01: much more sort of prone to go out on their own.
12:45
SPEAKER_01: It kind of magnifies the outer edges.
12:49
SPEAKER_00: So now we have a jury.
12:50
SPEAKER_00: We have 12 jurors and six alternates seated.
12:53
SPEAKER_00: Took three days.
12:54
SPEAKER_00: I mean, that was clearly that was what Judge Merchant scheduled for and expected.
12:58
SPEAKER_00: Certainly,
12:58
SPEAKER_00: you know,
12:58
SPEAKER_00: compares to,
12:59
SPEAKER_00: you know,
12:59
SPEAKER_00: taking nearly a year to get a jury in the Young Thug RICO trial down in Atlanta.
13:04
SPEAKER_00: That's sort of a preview for how that RICO case involving Donald Trump might go.
13:08
SPEAKER_00: Was this reasonably efficient in your view?
13:11
SPEAKER_00: It was.
13:12
SPEAKER_00: For a case like this,
13:14
SPEAKER_01: for,
13:15
SPEAKER_01: you know,
13:15
SPEAKER_01: this many lawyers involved,
13:17
SPEAKER_01: for this much press interest,
13:18
SPEAKER_01: for this many factors like,
13:20
SPEAKER_01: you know,
13:20
SPEAKER_01: the press constantly reporting about the jurors,
13:23
SPEAKER_01: I think it was reasonably efficient.
13:24
SPEAKER_01: I would have expected it to go a bit longer.
13:27
SPEAKER_01: But Merchant seems to be running a reasonably tight ship.
13:31
SPEAKER_00: We talked about Donald Trump griping about not having enough strikes.
13:34
SPEAKER_00: The number of peremptory strikes that you get is set in state law in New York.
13:38
SPEAKER_00: Depending on the kind of offense that you're accused of,
13:40
SPEAKER_00: you get more strikes,
13:41
SPEAKER_00: the more serious the offense.
13:42
SPEAKER_00: So it's not, you know, he thought he was supposed to get unlimited strikes, he said.
13:46
SPEAKER_00: Not only does he not get them, nobody accused of this sort of felony gets unlimited strikes.
13:50
SPEAKER_00: But he also broadly, you know, seemed upset.
13:53
SPEAKER_00: And, you know, he's a criminal defendant.
13:54
SPEAKER_00: It's reasonable to not be enjoying this process.
13:57
SPEAKER_00: But he was he was pretty sullen through the process.
13:59
SPEAKER_00: At one point, he was admonished by the judge for sort of muttering about one of the potential jurors.
14:04
SPEAKER_00: And then I also saw a lot of people commenting on that,
14:06
SPEAKER_00: you know,
14:06
SPEAKER_00: when when the jury came in and everyone,
14:09
SPEAKER_00: including his attorneys,
14:10
SPEAKER_00: stood up to greet the jury,
14:11
SPEAKER_00: Donald Trump stayed seated.
14:13
SPEAKER_00: And that's considered bad form.
14:14
SPEAKER_00: Very bad form.
14:16
SPEAKER_01: So,
14:17
SPEAKER_01: you know,
14:17
SPEAKER_01: state court is less formal than federal court,
14:20
SPEAKER_01: but there are some ceremonial and traditional things are expected.
14:24
SPEAKER_01: One tends to be that when the jury comes in, everyone, including the judge, stands.
14:31
SPEAKER_01: And if you don't stand, you really stand out.
14:33
SPEAKER_01: And I've had to jab more than one client hard in the ribs to get their attention,
14:38
SPEAKER_01: to get them to stand up because it looks disrespectful because everyone else is
14:45
SPEAKER_01: giving this sign of respect.
14:46
SPEAKER_01: And the idea is that the jury is the
14:50
SPEAKER_01: who's going to be the judges of the facts.
14:52
SPEAKER_01: We appreciate their service.
14:54
SPEAKER_01: We appreciate the time they're sacrificing.
14:56
SPEAKER_01: They're entitled to some respect.
14:58
SPEAKER_01: And to kind of deny it is both petty and petulant and almost certainly something the jury notices.
15:06
SPEAKER_00: There was also an interesting courtesy that's not being extended here.
15:11
SPEAKER_00: They were discussing some logistics about witnesses and the defense asked,
15:15
SPEAKER_00: well,
15:15
SPEAKER_00: can you tell us who the first three prosecution witnesses are going to be?
15:19
SPEAKER_00: And the prosecution said, no, Donald Trump keeps tweeting about the witnesses.
15:23
SPEAKER_00: We don't want to give him a heads up about who's coming in so we can comment on them.
15:27
SPEAKER_00: And I guess Judge Merchant said he wasn't going to order the prosecution to
15:31
SPEAKER_00: disclose those identities for that reason.
15:35
SPEAKER_00: Normally,
15:35
SPEAKER_00: this is just sort of like a courtesy that's extended that,
15:38
SPEAKER_00: you know,
15:39
SPEAKER_00: for things to run smoothly,
15:40
SPEAKER_00: it's good for people to know what's coming next.
15:42
SPEAKER_00: And maybe that's a reason to get the defendant to behave.
15:45
SPEAKER_01: You know, it differs jurisdiction to jurisdiction.
15:47
SPEAKER_01: I've heard some lawyers express shock and deep jealousy that we get that type of
15:52
SPEAKER_01: courtesy in some places,
15:54
SPEAKER_01: but particularly for longer trials.
15:57
SPEAKER_01: The judges like it if the parties share who the next day's witnesses are going to
16:02
SPEAKER_01: be because they perceive correctly that you're going to be more ready and there are
16:05
SPEAKER_01: fewer delays.
16:06
SPEAKER_01: Sorry, judge, I just had to pull this exhibit for this cross-examination.
16:09
SPEAKER_01: Can I have a recess to look at this issue?
16:12
SPEAKER_01: So on and so forth.
16:12
SPEAKER_01: So,
16:13
SPEAKER_01: I mean,
16:13
SPEAKER_01: it's not required in any jurisdictions laws that I'm aware of,
16:17
SPEAKER_01: but it is not uncommon for judges to basically say they expect it.
16:22
SPEAKER_01: And if you refused and the judge was mad,
16:25
SPEAKER_01: they could probably do all sorts of things to screw you over since judges just have
16:30
SPEAKER_01: vast power to do that during a trial.
16:32
SPEAKER_01: But it is really bad not to have that when you have a case with lots of witnesses
16:37
SPEAKER_01: because it basically means that you as the defense or during the defense's case as
16:42
SPEAKER_01: the prosecution have to be ready on a moment's notice to cross-examine anybody.
16:48
SPEAKER_01: in the case.
16:49
SPEAKER_01: And that is really hard.
16:51
SPEAKER_01: Cross-examinations take an immense amount of preparation and effort.
16:55
SPEAKER_01: It's very hard to stay ready on all of them at once.
17:00
SPEAKER_01: It's much more feasible to stay primed and ready to go on
17:05
SPEAKER_01: say, two to four of them for the witnesses coming the next day.
17:09
SPEAKER_01: In trial,
17:09
SPEAKER_01: I'm typically armed with that information,
17:12
SPEAKER_01: clarifying and editing and reviewing my crosses for the next day.
17:17
SPEAKER_01: And that makes all the difference in how crisp they are and how successful they are.
17:21
SPEAKER_01: So this is a bad thing for Trump's lawyers.
17:24
SPEAKER_01: But, I mean, it is not surprising under the circumstances because, yeah, I mean, I'm not out on –
17:31
SPEAKER_01: blue sky attacking the witnesses in the case I'm trying.
17:35
SPEAKER_01: And if I did, hardly anyone would notice.
17:38
SPEAKER_01: But,
17:38
SPEAKER_01: you know,
17:38
SPEAKER_01: you can see why if someone is consistently attacking witnesses,
17:42
SPEAKER_01: how the judge would not be inclined to make you reveal them.
17:44
SPEAKER_00: Yeah.
17:44
SPEAKER_00: And what the prosecutors say is not only is what Trump is doing discourteous and
17:48
SPEAKER_00: the reason that we don't want to disclose this information,
17:49
SPEAKER_00: they're saying it's a violation of the gag order and the judge should hold him in
17:53
SPEAKER_00: contempt of court for violating the gag order.
17:55
SPEAKER_00: So listeners will remember a few weeks ago because of Donald Trump's persistent
17:59
SPEAKER_00: public statements attacking various people around him,
18:02
SPEAKER_00: there was this gag order restricting the way that he may talk about witnesses and
18:05
SPEAKER_00: jurors and certain other people surrounding the case,
18:08
SPEAKER_00: including family members of staff.
18:11
SPEAKER_00: And so Trump has made quite a few public comments and the prosecution says,
18:16
SPEAKER_00: you know,
18:16
SPEAKER_00: there needs to be some sort of sanction for this.
18:17
SPEAKER_00: They're not asking for him to be put in jail yet.
18:20
SPEAKER_00: They want fines.
18:21
SPEAKER_00: They want Judge Merchant to direct him to take down certain posts and they want the
18:24
SPEAKER_00: judge to say that jail is an option if he continues to violate the gag order.
18:29
SPEAKER_00: The line from Trump's side has been basically that,
18:31
SPEAKER_00: you know,
18:31
SPEAKER_00: that these people are out there attacking him in the press and that he has a right
18:35
SPEAKER_00: to respond to them.
18:36
SPEAKER_00: And, you know, in certain aspects of this, I'm sympathetic to that.
18:40
SPEAKER_00: I
18:40
SPEAKER_00: I mean, you know, Michael Cohen is literally out there making statements about Donald Trump.
18:44
SPEAKER_00: Shouldn't Trump be able to call Michael Cohen a liar?
18:47
SPEAKER_00: I mean,
18:47
SPEAKER_00: Michael Cohen,
18:47
SPEAKER_00: first of all,
18:48
SPEAKER_00: is a liar,
18:49
SPEAKER_00: which is not to say that he's necessarily going to lie about the specific matters
18:51
SPEAKER_00: in this case.
18:52
SPEAKER_00: But also,
18:52
SPEAKER_00: I mean,
18:53
SPEAKER_00: when we look back at the purpose of the gag order,
18:56
SPEAKER_00: which is to prevent intimidation of witnesses so that we can have a fair trial and
19:00
SPEAKER_00: get the information the court needs.
19:02
SPEAKER_00: It doesn't seem to me that Michael Cohen is likely to be intimidated by attacks from Donald Trump.
19:07
SPEAKER_00: He almost seems to actually relish them.
19:09
SPEAKER_00: He does.
19:09
SPEAKER_00: It seems to me like an odd result if basically it's that all of these public people
19:13
SPEAKER_00: may make claims about Donald Trump in the press about the matter that he's being
19:17
SPEAKER_00: tried for and Trump is not allowed to respond to them.
19:20
SPEAKER_01: Yeah.
19:20
SPEAKER_01: I think that is the real problem because – I mean Michael Cohen the other day –
19:25
SPEAKER_01: After one of Trump's attacks,
19:27
SPEAKER_01: put up a tweet that says,
19:29
SPEAKER_01: hey,
19:29
SPEAKER_01: Vaughn shits and pants,
19:30
SPEAKER_01: which is a reference to which is a reference to rumors that Trump had a flatulence
19:35
SPEAKER_01: problem during jury selection.
19:38
SPEAKER_01: Your attacks of me stink of desperation.
19:41
SPEAKER_01: We're all hoping you take the stand in your defense.
19:43
SPEAKER_01: I mean, he's absolutely throwing hands on social media at Trump.
19:47
SPEAKER_01: And yeah, it's more difficult to justify Trump.
19:52
SPEAKER_01: under the somewhat exacting standards for gag orders,
19:55
SPEAKER_01: that you should prevent Trump from responding to that.
19:58
SPEAKER_01: Now,
19:59
SPEAKER_01: during the hearing that's been going on as we've been recording,
20:03
SPEAKER_01: Judge Merchant has been fairly specific.
20:06
SPEAKER_01: He's been demanding that Trump's lawyers say,
20:08
SPEAKER_01: okay,
20:08
SPEAKER_01: you're saying these are responses,
20:10
SPEAKER_01: these things the DA has called out.
20:12
SPEAKER_01: What exactly are they responses to?
20:14
SPEAKER_01: So Trump the other day published on social media
20:18
SPEAKER_01: an old statement that stormy daniels had written the declaration when she was still
20:22
SPEAKER_01: on board with the cover-up saying oh no i never had a relationship with him that
20:26
SPEAKER_01: type of thing saying that he had just found it and so judge merchant was saying
20:30
SPEAKER_01: well this is clearly attacking her credibility and attacking the subject of her
20:35
SPEAKER_01: testimony what is this in response to
20:38
SPEAKER_01: He wound up,
20:39
SPEAKER_01: Judge Merchant,
20:39
SPEAKER_01: being fairly blunt,
20:41
SPEAKER_01: some would say brutal,
20:43
SPEAKER_01: to Todd Blanch,
20:45
SPEAKER_01: the lead attorney for Trump,
20:47
SPEAKER_01: basically saying,
20:47
SPEAKER_01: you're not giving me any authority.
20:50
SPEAKER_01: Your arguments are kind of dumb.
20:52
SPEAKER_01: And, you know, you're not persuading me.
20:55
SPEAKER_01: As we record, the judge has taken this issue under consideration.
21:00
SPEAKER_01: He's taken it under submission as to how he's going to rule.
21:03
SPEAKER_01: So that means he's not going to rule from the bench today?
21:07
SPEAKER_01: At least not right now.
21:08
SPEAKER_01: It might be later in the day, conceivably.
21:10
SPEAKER_01: But he showed a considerable amount of skepticism towards Trump's position that he's allowed to respond.
21:17
SPEAKER_01: And he was also very skeptical that his responses should be classified as political
21:21
SPEAKER_01: as opposed to about the case.
21:23
SPEAKER_01: So,
21:23
SPEAKER_01: you know,
21:24
SPEAKER_01: he was analyzing the the Avenatti tweet that we talked about a couple episodes ago
21:29
SPEAKER_01: when Avenatti was saying,
21:30
SPEAKER_01: you know,
21:31
SPEAKER_01: Cohen and Stormy Daniels are terrible.
21:33
SPEAKER_01: And the First Amendment allows Trump to respond to them.
21:36
SPEAKER_01: And, you know, basically all the ways for Avenatti to be desperate for attention and in prison.
21:41
SPEAKER_01: And because Trump had reshared that.
21:43
SPEAKER_01: That's why this is relevant here.
21:44
SPEAKER_01: Right.
21:45
SPEAKER_01: And praised it and thanked Avenatti.
21:47
SPEAKER_01: And so the judge is saying,
21:48
SPEAKER_01: well,
21:48
SPEAKER_01: wait,
21:48
SPEAKER_01: how is this not being part of a questioning the credibility of witnesses based on
21:53
SPEAKER_01: what they're about to testify to?
21:55
SPEAKER_01: So as you said, the government's only asking for a fine this time.
21:59
SPEAKER_01: But people's read of the hearing that went on as we recorded this was that it was
22:05
SPEAKER_01: sounding as if Judge Merchant was inclined to fine him in contempt for at least
22:09
SPEAKER_01: some of the statements.
22:11
SPEAKER_01: As I said, this does not seem to be going well for Trump or his lawyers.
22:15
SPEAKER_01: At one point, Judge Bursch had said to Todd Blanch, Trump's attorney, you're losing all credibility.
22:21
SPEAKER_01: I have to tell you right now, you're losing all credibility with the court.
22:26
SPEAKER_01: Not a great lawyer moment, but, you know, it happens.
22:35
SPEAKER_00: Let's get to the opening statements because this is, you know, we're getting into the meat of the trial.
22:40
SPEAKER_00: And so the prosecution is basically saying,
22:42
SPEAKER_00: you know,
22:43
SPEAKER_00: this was an illegal scheme to interfere with an election,
22:46
SPEAKER_00: that they were trying to keep information away from voters that voters would have
22:49
SPEAKER_00: found relevant.
22:50
SPEAKER_00: And obviously that's politics, but that they did certain illegal things along the way to doing that.
22:56
SPEAKER_00: There's this New York law that prohibits the falsification of business records,
23:00
SPEAKER_00: which is a misdemeanor,
23:01
SPEAKER_00: but it's a felony if you do it in furtherance of an underlying crime.
23:04
SPEAKER_00: And so there's this claim that –
23:06
SPEAKER_00: The hush money payment was an illegal campaign contribution, that it was both unreported and excessive.
23:12
SPEAKER_00: There's also a claim that they made misrepresentations on tax filings by disguising
23:18
SPEAKER_00: the hush payment as a payment for labor.
23:21
SPEAKER_00: And one odd thing we've talked about is that actually probably increased their tax liability,
23:25
SPEAKER_00: but the tax law says you can't intentionally lie to the tax authorities even if the
23:29
SPEAKER_00: lie causes you to owe more in taxes.
23:31
SPEAKER_00: So there's that theory and then there's also a New York state election law about
23:35
SPEAKER_00: the you can't use unlawful means to try to influence an election.
23:39
SPEAKER_00: And that sort of circularly goes back onto the federal offense that if you make an
23:43
SPEAKER_00: excessive federal campaign contribution,
23:45
SPEAKER_00: they're saying that's also a crime under New York state law.
23:49
SPEAKER_00: And that bumps the falsification of business records up to a felony.
23:53
SPEAKER_00: The defense is basically that, you know, the first of all, this case relies on Michael Cohen.
23:57
SPEAKER_00: You can't trust Michael Cohen.
23:59
SPEAKER_00: These really were payments for legal services.
24:01
SPEAKER_00: And they're also basically saying that,
24:03
SPEAKER_00: you know,
24:03
SPEAKER_00: this stuff is politics and they're trying to criminalize politics here and that,
24:07
SPEAKER_00: you know,
24:07
SPEAKER_00: that's not what the criminal code is for.
24:09
SPEAKER_00: What did you make of these openings?
24:11
SPEAKER_01: Well, they showed two very different approaches.
24:13
SPEAKER_01: The prosecution's approach is telling a story.
24:17
SPEAKER_01: And,
24:18
SPEAKER_01: you know,
24:19
SPEAKER_01: my classmate and friend of the show,
24:20
SPEAKER_01: Mitch Eppner,
24:21
SPEAKER_01: commented,
24:22
SPEAKER_01: this kind of illustrates the adage that facts don't persuade,
24:26
SPEAKER_01: stories do.
24:27
SPEAKER_01: And so they're kind of putting all this into the context of storytelling.
24:32
SPEAKER_01: a series of events that tell a story.
24:34
SPEAKER_01: And so a lot of it was, in effect, slights on Trump's character.
24:39
SPEAKER_01: His character for not paying his bills went into why he would structure things a particular way.
24:47
SPEAKER_01: His narcissism and vanity went into why he would try to quash these stories and things like that.
24:53
SPEAKER_01: And so
24:54
SPEAKER_01: They're telling the story.
24:55
SPEAKER_01: The defense is much more, this is all BS and you can't trust these witnesses.
25:00
SPEAKER_01: So the defense repeatedly,
25:02
SPEAKER_01: specifically attacked Michael Cohen,
25:04
SPEAKER_01: as one would,
25:06
SPEAKER_01: and actually drew objections that were sustained by the judge for saying that he
25:10
SPEAKER_01: was a perjurer and trying to go into his criminal case.
25:14
SPEAKER_01: Why is that not allowed?
25:16
SPEAKER_01: Well,
25:16
SPEAKER_01: the theory is that the way he was doing it and trying to delve into the facts
25:20
SPEAKER_01: underlying the perjury conviction was inappropriate at this stage.
25:25
SPEAKER_01: So it's kind of showing the different burdens they have.
25:29
SPEAKER_01: The defense only has to point that there's not proof beyond reasonable doubt.
25:33
SPEAKER_01: And the prosecution has to do the whole thing.
25:35
SPEAKER_01: They have to tell the whole story, prove every element.
25:38
SPEAKER_01: Everyone thought that both sides did well in this.
25:41
SPEAKER_01: stating their cases.
25:42
SPEAKER_01: But the government really seems to be leaning primarily on the theory of the
25:48
SPEAKER_01: election interference,
25:50
SPEAKER_01: this somewhat circular theory that he falsified the records to promote the crime of
25:58
SPEAKER_01: election interference,
25:59
SPEAKER_01: which is a crime of interfering with an election by unlawful means,
26:03
SPEAKER_01: which was the falsification of the records.
26:05
SPEAKER_00: Well,
26:05
SPEAKER_00: which was the falsification of records and also was the federally illegal campaign
26:10
SPEAKER_00: contribution or what they theorize is a campaign contribution under federal law.
26:15
SPEAKER_00: One of the – the defense would dispute that this was a campaign expense at all and
26:19
SPEAKER_00: in fact would say that if you tried to have your campaign pay for the hush payment,
26:22
SPEAKER_00: that that would be illegal because it would be a personal expense paid by the campaign.
26:26
SPEAKER_00: But in any case,
26:26
SPEAKER_00: there are sort of two theories of what the underlying illegal act could be under
26:30
SPEAKER_00: that state law about election interference.
26:32
SPEAKER_00: Yeah.
26:32
SPEAKER_01: Yeah.
26:33
SPEAKER_01: And I think what the government is counting on is what we've talked about before,
26:36
SPEAKER_01: that juries tend to look at things somewhat holistically.
26:40
SPEAKER_01: They tend to accept the story or not accept the story.
26:43
SPEAKER_01: And in my view,
26:46
SPEAKER_01: if they come up with facts or specific factual holes,
26:50
SPEAKER_01: that tends to be sort of an afterthought.
26:53
SPEAKER_01: Well, I didn't buy the story.
26:54
SPEAKER_01: And oh,
26:54
SPEAKER_01: I guess I didn't buy the story because X,
26:56
SPEAKER_01: Y,
26:56
SPEAKER_01: Z.
26:57
SPEAKER_01: So I think the government's counting on the jury not thinking too hard about the
27:02
SPEAKER_01: particular theory of the case or how it may be circular.
27:06
SPEAKER_00: I just have this viscerally negative reaction to the use of this term election
27:11
SPEAKER_00: interference to describe what the offense is supposed to be here,
27:14
SPEAKER_00: because this is a term that's been thrown around a lot.
27:17
SPEAKER_00: over the last six or seven years, and sort of in two contexts.
27:20
SPEAKER_00: One has to do with foreign entities trying to influence US elections,
27:24
SPEAKER_00: which there are laws significantly restricting their ability to do that.
27:28
SPEAKER_00: Not just a foreign government,
27:29
SPEAKER_00: but even a foreign person does not have the same rights to contribute money and
27:33
SPEAKER_00: spend money in US elections the way that a domestic person does.
27:37
SPEAKER_00: And the other has had to do with efforts to actually interfere in vote counts.
27:41
SPEAKER_00: You know, Donald Trump calling up Georgia and saying, find me 11,000 votes.
27:45
SPEAKER_00: This is basically a theory that they interfered with the election by changing the
27:50
SPEAKER_00: way that voters cast their valid legal votes,
27:52
SPEAKER_00: basically that by causing people to not know something about Donald Trump that they
27:56
SPEAKER_00: otherwise might have known,
27:58
SPEAKER_00: that interfered,
27:59
SPEAKER_00: quote unquote,
28:00
SPEAKER_00: with the election result by causing certain people to vote for Trump who might
28:03
SPEAKER_00: otherwise have voted for Hillary Clinton.
28:06
SPEAKER_00: And, you know, that's really core political activity.
28:08
SPEAKER_00: That is what, you know, what we do in elections is try to influence the way that voters act.
28:14
SPEAKER_00: And not even all of that has to be done under the auspices of a campaign organization.
28:18
SPEAKER_00: You know,
28:18
SPEAKER_00: if you're a media outlet or you're someone who writes in newspapers or even
28:21
SPEAKER_00: comments on social media,
28:23
SPEAKER_00: you can go out there and try to influence the election,
28:26
SPEAKER_00: interfere in the result of the election.
28:28
SPEAKER_00: And you don't even have to file a report with the FEC about that.
28:30
SPEAKER_00: Now, I understand there's this underlying theory of a campaign finance violation.
28:35
SPEAKER_00: I'd note it's a theory that federal prosecutors chose not to prosecute.
28:40
SPEAKER_00: And that's normally how this sort of thing would be handled.
28:43
SPEAKER_00: You know, it's a federal election.
28:44
SPEAKER_00: You'd have a federal, either a civil action or a criminal action around it.
28:48
SPEAKER_00: But we don't normally talk about campaign finance law violations in terms of quote
28:51
SPEAKER_00: unquote election interference.
28:53
SPEAKER_00: We talk about them as campaign finance violations.
28:56
SPEAKER_00: It feels like this weird effort to smuggle in certain other activities that were
29:00
SPEAKER_00: illegal for other reasons or that were a public policy problem for other reasons
29:04
SPEAKER_00: and apply it to something that at least has strong elements of being really core
29:10
SPEAKER_00: political activity of trying to influence people to vote for you.
29:13
SPEAKER_01: Yeah, I admit that I'm uncertain about that, too.
29:16
SPEAKER_01: And I think a large component here is just the sort of the fever.
29:20
SPEAKER_01: You know, we've got him this time and we've got to get him on something.
29:23
SPEAKER_01: And he's skated on so much stuff and there has to be something.
29:26
SPEAKER_01: And this is something.
29:27
SPEAKER_01: And therefore, we're going with it.
29:29
SPEAKER_01: I agree with you that this would,
29:30
SPEAKER_01: I mean,
29:32
SPEAKER_01: if used aggressively,
29:33
SPEAKER_01: capture a lot of political behavior,
29:36
SPEAKER_01: both lying about and trying to conceal things about yourself,
29:40
SPEAKER_01: which all candidates do.
29:41
SPEAKER_01: Or even, you know, aggressively going after information about the opposing candidate.
29:46
SPEAKER_01: So some of the scenarios I thought about is,
29:48
SPEAKER_01: let's say I'm running for the Senate and I send one of my kids to rehab and I send
29:55
SPEAKER_01: them under a false name.
29:56
SPEAKER_01: So the press doesn't find out, you know, that I just commit a felony in New York.
30:02
SPEAKER_00: Or at least a misdemeanor by falsifying the business record.
30:04
SPEAKER_01: Well,
30:05
SPEAKER_01: but a felony,
30:05
SPEAKER_01: if my intention is to keep from the voters the information that I have a kid in rehab,
30:10
SPEAKER_01: or if you pay a bribe to someone to leak some information,
30:16
SPEAKER_01: is that now a felony under the statute if you convince people to reveal information?
30:23
SPEAKER_01: So I would be concerned about how it could be used.
30:27
SPEAKER_01: And I think that the problem is that Trump's
30:31
SPEAKER_01: argument is that I'm being singled out for a very aggressive exercise of the
30:36
SPEAKER_01: statute that would not normally be done.
30:38
SPEAKER_01: And on that, I think he's right.
30:40
SPEAKER_01: I mean,
30:40
SPEAKER_01: I don't think there's really any prospect that anyone who didn't have a background
30:45
SPEAKER_01: like his,
30:46
SPEAKER_01: who didn't have sort of a career of lawlessness like him,
30:49
SPEAKER_01: that they wouldn't go after him like this.
30:53
SPEAKER_01: Now, that's the way they go after high profile people.
30:56
SPEAKER_01: It always has been.
30:57
SPEAKER_01: Al Capone's taxes were not necessarily the type of tax violations that would
31:02
SPEAKER_01: normally have been investigated and prosecuted.
31:05
SPEAKER_01: But,
31:06
SPEAKER_01: you know,
31:06
SPEAKER_01: the specter hanging over all of this is that,
31:08
SPEAKER_01: yeah,
31:09
SPEAKER_01: they are somewhat,
31:11
SPEAKER_01: they are signaling him out by,
31:13
SPEAKER_01: you know,
31:14
SPEAKER_01: they found this theory that's very aggressive and they're going with it.
31:16
SPEAKER_00: Yeah.
31:17
SPEAKER_00: And I mean just to remember the history,
31:19
SPEAKER_00: the original way that the Manhattan DA was looking into Donald Trump had to do with
31:23
SPEAKER_00: the matters that ultimately became the attorney general's civil action.
31:27
SPEAKER_00: These business matters about inflating or depressing claims about the value of
31:32
SPEAKER_00: assets and the square footage of Donald Trump's apartment and all of these things,
31:35
SPEAKER_00: the idea that this was fraud on certain financial institutions.
31:38
SPEAKER_00: They ultimately decided they couldn't make that as a criminal case.
31:41
SPEAKER_00: The attorney general successfully brought it as a civil action, which has a lower standard of proof.
31:46
SPEAKER_00: And a lot of people were really mad at District Attorney Alvin Bragg when he came
31:49
SPEAKER_00: into office and shut down that investigation that had been conducted by his predecessor.
31:54
SPEAKER_00: And then,
31:54
SPEAKER_00: you know,
31:55
SPEAKER_00: after a lot of criticism around that and after Alvin Bragg faced a lot of political difficulty,
31:59
SPEAKER_00: like many DAs around the country on unrelated matters to do with,
32:02
SPEAKER_00: you know,
32:03
SPEAKER_00: increased violent crime in New York and was he being aggressive enough,
32:06
SPEAKER_00: they sort of dug under the couch cushions and
32:08
SPEAKER_00: And they found this other theory on this other – this other action that had not
32:12
SPEAKER_00: been at the top of the list of what are Donald Trump's bad – what are his criminal
32:16
SPEAKER_00: acts and came up with,
32:18
SPEAKER_00: as you note,
32:19
SPEAKER_00: this quite aggressive theory.
32:20
SPEAKER_00: I think there's also this odd situation that – and Jed Sugarman,
32:23
SPEAKER_00: who's a law professor at Boston University,
32:25
SPEAKER_00: has an interesting op-ed in The New York Times this week that we'll link to about
32:28
SPEAKER_00: the aggressiveness of these theories about the underlying campaign finance violation.
32:33
SPEAKER_00: Maybe the cleanest legal theory that the state has here is actually their other one,
32:37
SPEAKER_00: which is that there's an underlying tax violation.
32:39
SPEAKER_00: As I noted,
32:40
SPEAKER_00: if you take a hush payment and you instead mischaracterize it as labor income to
32:45
SPEAKER_00: your attorney,
32:46
SPEAKER_00: then that changes the amount of tax due.
32:48
SPEAKER_00: Now, it changes it upward.
32:49
SPEAKER_00: But that's not necessarily material in the same way that if you lie to a bank on a
32:54
SPEAKER_00: loan application,
32:55
SPEAKER_00: the bank doesn't actually have to lose money for that to be a crime.
32:58
SPEAKER_00: They may have a cleaner legal case here about that he falsified business records in
33:03
SPEAKER_00: furtherance of this tax violation where they misreported tax information to the New
33:06
SPEAKER_00: York state tax authorities.
33:08
SPEAKER_00: But that doesn't make a very good story for the jury.
33:10
SPEAKER_00: It does not.
33:10
SPEAKER_00: Because both it is,
33:11
SPEAKER_00: you know,
33:11
SPEAKER_00: it's not about this big matter of consequence,
33:13
SPEAKER_00: the election,
33:14
SPEAKER_00: and there isn't even a harmed party.
33:16
SPEAKER_01: Right.
33:16
SPEAKER_00: There's not even money that the state of New York lost as a result of it.
33:19
SPEAKER_00: But it might be the cleaner legal theory.
33:20
SPEAKER_01: I think you're right that it might be the cleanest theory,
33:23
SPEAKER_01: but I also think it's very unappealing to a jury.
33:25
SPEAKER_01: It's not a story that moves them, particularly with a total lack of loss.
33:31
SPEAKER_01: issue uh you know tell a jury we're going to tell you the story about how a guy
33:34
SPEAKER_01: falsified business records so he'd have to pay more taxes you know that doesn't
33:38
SPEAKER_01: grab them out of the gates
33:42
SPEAKER_00: We'll leave it there on the trial for this week.
33:44
SPEAKER_00: And,
33:44
SPEAKER_00: you know,
33:45
SPEAKER_00: we've already had our first witness,
33:46
SPEAKER_00: David Pecker,
33:46
SPEAKER_00: but we're going to talk about when we've had a number of witnesses testify.
33:49
SPEAKER_00: We're going to come back and do our update on how the trial is going.
33:53
SPEAKER_00: There's also some Bob Menendez news that we'll cover in the next episode.
33:56
SPEAKER_00: But Ken,
33:57
SPEAKER_00: one thing that I want to do before we go,
34:00
SPEAKER_00: because I love this so much and I love how you don't love it.
34:04
SPEAKER_00: George Santos back in the news with his lawsuit against the Walt Disney Company.
34:08
SPEAKER_00: I guess they had a pretrial conference and George Santos was psyched because he got
34:11
SPEAKER_00: to go to court for a reason other than that he's on criminal trial.
34:15
SPEAKER_00: In case anyone could possibly have forgotten this, George Santos is on Cameo.
34:19
SPEAKER_00: You can hire him to send birthday and anniversary wishes to your loved ones.
34:22
SPEAKER_00: Jimmy Kimmel,
34:23
SPEAKER_00: under various false names,
34:24
SPEAKER_00: hired him to record ridiculous messages about furries and that sort of thing,
34:29
SPEAKER_00: and then broadcast them on his show on ABC.
34:31
SPEAKER_00: And George Santos is waving around the license that comes with any Cameo and saying,
34:35
SPEAKER_00: This did not give you the right to take the cameo and broadcast it on TV.
34:38
SPEAKER_00: It was for personal use.
34:40
SPEAKER_00: I want to be paid for the labor that I did producing this intellectual property for
34:43
SPEAKER_00: you that you then violated the license.
34:47
SPEAKER_00: And so there's a scheduling hearing and Santos is extremely irritated that Jimmy
34:53
SPEAKER_00: Kimmel did not show up for this hearing.
34:56
SPEAKER_00: What kind of disrespect to the court is that that Jimmy Kimmel didn't even go to
34:58
SPEAKER_00: the scheduling conference?
35:00
SPEAKER_01: This fucking cousin, Oliver.
35:01
SPEAKER_01: I'm just going to have this guy wrapped around my neck for the rest of this podcast, aren't I?
35:06
SPEAKER_01: So,
35:07
SPEAKER_01: yeah,
35:08
SPEAKER_01: George Santos,
35:09
SPEAKER_01: the longer this goes,
35:10
SPEAKER_01: the more clear it is,
35:11
SPEAKER_01: is that the primary purpose of this case is self-promotion for George Santos and
35:18
SPEAKER_01: giving him opportunities to caper around exactly like he's doing here.
35:22
SPEAKER_01: So, you know, the answer to George Santos is no client goes to a scheduling hearing in a civil case.
35:28
SPEAKER_01: That's a thing for lawyers.
35:29
SPEAKER_01: It's deadly boring.
35:31
SPEAKER_01: Nothing of substance happens other than the judge setting dates.
35:34
SPEAKER_01: And there's no reason Kimmel would be there.
35:36
SPEAKER_01: It would be very weird, deeply weird.
35:39
SPEAKER_01: for him to be there.
35:40
SPEAKER_01: And George Santos was there just because George Santos wants to get on camera,
35:43
SPEAKER_01: as you said,
35:43
SPEAKER_01: in context not involving him potentially going to federal prison.
35:48
SPEAKER_01: So the only thing we really learned is the completely unsurprising point that
35:52
SPEAKER_01: Kimmel is going to use a fair use defense.
35:56
SPEAKER_01: The defense that he was permitted under the law to make these uses on TV of these
36:01
SPEAKER_01: cameos because they are for satire and parody and news commentary and that type of thing,
36:07
SPEAKER_01: which
36:08
SPEAKER_01: I have to say, is not an easy defense.
36:11
SPEAKER_01: But what's clear is Santos is going to continue to use this case to get his face on
36:16
SPEAKER_01: camera and to take shots at Jimmy Kimmel and try to draw people into fights that
36:23
SPEAKER_01: attract attention to him in a non-criminal context.
36:27
SPEAKER_00: I mean, you know, he could have more than one objective.
36:29
SPEAKER_00: He might like damages and attention.
36:31
SPEAKER_00: Who doesn't like money and attention?
36:33
SPEAKER_01: Well,
36:34
SPEAKER_01: you know,
36:34
SPEAKER_01: it's entirely possible by the time this case is drawing to a trial,
36:38
SPEAKER_01: he's going to be in federal prison.
36:41
SPEAKER_01: So I don't really like his chances necessarily of prevailing in the long run.
36:45
SPEAKER_00: How does that work if you're the plaintiff in a civil suit and you're in prison?
36:49
SPEAKER_00: I assume you can't get out of prison to go attend it or can you?
36:52
SPEAKER_01: Well, you might convince the judge to issue a writ.
36:57
SPEAKER_01: It might be a writ ad testificanum,
37:01
SPEAKER_01: I believe is the Latin,
37:04
SPEAKER_01: and sometimes they use that to get— That's near the taint,
37:06
SPEAKER_01: the testificanum?
37:10
SPEAKER_01: Well played.
37:11
SPEAKER_01: Well played.
37:12
SPEAKER_01: And they use that sometimes to bring in a prisoner who's going to testify against
37:16
SPEAKER_01: another defendant or something like that.
37:18
SPEAKER_01: But theoretically,
37:19
SPEAKER_01: you could probably get a judge to have you brought and kept in lockup during a
37:23
SPEAKER_01: civil trial,
37:23
SPEAKER_01: though that's complicated because a lot of times,
37:26
SPEAKER_01: you know,
37:28
SPEAKER_01: in some cases,
37:28
SPEAKER_01: they don't have the civil and criminal courtrooms in the same building.
37:32
SPEAKER_01: But here with federal court, it should be easier.
37:35
SPEAKER_00: Yeah.
37:35
SPEAKER_00: We'll be watching the developments in the trial and coming back to you when we have
37:40
SPEAKER_00: plenty of news to share.
37:41
SPEAKER_00: We'll figure out when the right time is for that.
37:43
SPEAKER_00: But also, we would love your questions.
37:45
SPEAKER_00: This is certainly, you know, a fascinating process.
37:48
SPEAKER_00: And I have a lot of questions and I'd love to hear what questions you have.
37:50
SPEAKER_00: Ken, if people have questions, where should they send them?
37:54
SPEAKER_01: Straight to hell, Josh.
37:55
SPEAKER_01: But barring that to RicoHotline at SeriousTrouble.show.
38:00
SPEAKER_00: For Ben Dreyfuss' benefit, could you take that last part again?
38:03
SPEAKER_00: What comes after the dot?
38:05
SPEAKER_00: Ben, it's dot show.
38:07
SPEAKER_00: S-H-O-W.
38:09
SPEAKER_00: Thank you, Ken.
38:10
SPEAKER_00: Thank you, Josh.
38:12
SPEAKER_00: Serious Trouble is created and produced by Very Serious Media.
38:14
SPEAKER_00: That's me and Sarah Faye.
38:16
SPEAKER_00: Jennifer Swannick mixed this episode.
38:17
SPEAKER_00: Our theme music is by Joshua Mosier.
38:19
SPEAKER_00: Thanks for listening, and we'll be back with more soon.
38:21
SPEAKER_00: See you next time.