A Tale of Two Dons in Criminal Court

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:52 Thomas: Hello and welcome to Opening Arguments. This is episode 1010. I'm your host Thomas Smith and that over there is Matt Cameron. How you doing, Matt?

0:01:00 Matt: I'm living life in the fast lane, once again.

0:01:03 Thomas: I just hate the ego... Oh, I got to play the Big Lebowski quote. Like, I'm definitely gonna go find that.

0:01:08 Matt: Yes, I you're going to have to.

0:01:11 Thomas: First let's start off with you're an immigration and criminal defense attorney,

0:01:15 Matt: Yeah, am a practicing criminal immigration Immigration Defense Attorney, and I'm here to talk about the Eagles and is some illegal Eagles that we're talking about.

0:01:15 Thomas: Right. Gonna say and practicing Eagle's law attorney, Eagle at law. Oh.

0:01:27 Thomas: Yeah, Matt, I know there's a lot of major news. How in in the world are we going to decide what we get to put in this all too short time we have? I we got the Trump Supreme Court stuff, seems really significant to me. I feel like we should talk about that. We've got crazy updates in Fulton County that that. Like we've got to see that one through. Like, we're going to have to see it. We're going to have that so extensively. I

0:01:47 Matt: It is. For sure. We we got Donald Trump trying to get out of a bunch of money, too. We have to talk a lot about that. A whole lot of money.

0:01:50 Thomas: Yeah. Yes. And of course, the Eagles that you you referenced. So a lot to pack in. We'll see if you can do it right after this brief commercial break for non -patrons. Sorry, non-patrons, patrons enjoy not that. And you can go to patreon.com/law if you would like to enjoy not that.

0:01:54 Matt: Mean, it easy.

0:02:14 Clip: Man, come on, I had a rough night, and I hate the fuckin' eagles, man!

0:02:19 Matt: Start off today with a story from my dad, and dad's everywhere.

0:02:21 Thomas: OK, the Eagles have good harmonies. I'll give them that. It is the daddest of dad rock. I

0:02:26 Matt: I can't get my head around the fact that it's the number one selling album of all time, the Eagles' greatest hits.

0:02:30 Thomas: Hotel California. Oh, oh, the greatest hits is what of

0:02:31 Matt: No, and Hotel California is number three, but yes, I mean, of times, 38 million sold, yeah.

0:02:36 Thomas: All time? Hold on. I'm

0:02:39 Matt: So yeah, it's

0:02:40 Thomas: Googling you in real time because that's not possible. I'm sorry. I meant to fact check in real real time, it is Michael Jackson's Thriller. That's the number one.

0:02:42 Matt: True, it's absolutely correct, I honestly, that makes me feel a little better, I... he deserves it, hmm.

0:02:52 Thomas: That's So after Michael Jackson, after being wrong, you're absolutely right, because it is Eagles greatest hits as the number two best selling album of all time. What? And then number three is Hotel California. Come Come on.

0:03:03 Matt: True. Yeah.

0:03:06 Thomas: No way.

0:03:07 Matt: A lot of dads out there, no, yeah, you got your Pink Floyd and otherwise.

0:03:08 Thomas: Nary a beetle. There is not a beetle in the top 20. I don't. Yeah. Like, wow. Yeah.

0:03:17 Matt: So Don

0:03:18 Thomas: And meatloaf, weirdly. Bad out of hell. What the? Okay. This is crazy. New episode. We're just talking about this list, everyone. Sorry.

0:03:25 Matt: Henley is worth $250 million. So something worked out pretty well for him here. Henly was in court all week. And I want to talk about this because it's the most interesting criminal case I've seen in a while.

0:03:28 Thomas: Yeah. Did someone finally sue him for this? They're like, I'm sorry. You can't be the top two and three selling albums. We're

0:03:41 Matt: This case is centered around some legal pads that are worth about a million dollars.

0:03:45 Thomas: Legal pads.

0:03:46 Matt: Yeah, I've got a bunch of legal pads, and I don't think they're worth more than a few cents. But my legal pads don't have the notes for all of the lyrics for Hotel California and a number of other songs on The album. So he calls it work product, which is usually what you think of for attorneys. But in this case, he's saying that it's like the in stages, right, how they wrote out the lyrics to Hotel California, and Life in the Fast Lane, and New Kid in a Town, a bunch bunch of other songs that they've written. And I'm guessing part of this, I've been trying to think about why he's so committed to getting this back, because he's such a big fan of this song. He's so obsessed, right? He filed multiple police reports. He's been hounding the NYPD, hounding that the New York DA's office, Alvin Bragg is all in for this case. It's a weak case, I got to tell you, after looking through. Really don't know how they're going to prove this beyond a reasonable doubt. There's no jury here, but know, they, I don't know what they're doing.

0:03:55 Thomas: Okay.

0:04:29 Thomas: Got to back you up. What are the facts? Where did they come from? When did this happen? Who,

0:04:33 Matt: Is all in dispute. We don't know anything about any of this. So all we we really know is that somebody named Ed Sanders was working on a book about the Eagles in 1979. He was given a bunch of papers at the time, which may or may not have included these lyrics. Henley's changed his story several times. The other side has changed their story several time. Never came out because they actually didn't end up liking it very much.

The guy was kind of weird and didn't really do a good job from Henley perspective. The defense is suggesting that Henley mailed these papers in a box and just sent them on along with some other Eagles memorabilia that he could take a look at to write the book. And Henley acknowledged on the stand that he had no time in 40 years or more ever asked for these things back. He just sent them on and never asked.

He also tried to suggest that they might've been stolen from a barn in 2012 as an alternate theory. So again, these papers, there's about a hundred pages of legal pad that matter so much to him. He doesn't know where they've been or where they're coming from or how anybody got them. So it's a little weird to say these people though, defendants in this case are charged with receiving stolen property,

0:05:17 Thomas: Hell?

0:05:31 Thomas: Okay.

0:05:31 Matt: Essentially

0:05:31 Thomas: So we're talking crimes here. Because I was just about to ask you, what did he even sue for? If you can't even, this now we don't even know if they were taken, when they were taken who has them, what's going on. And I was just about to ask, so what did did he sue whom for? But it's not even him suing. He's someone is charged with a crime over this

0:05:33 Matt: Is crimes. Yeah. Yeah, no, he got the police to do it. And that's one of the things that the defense is arguing is this could have been a civil case, but instead of hiring lawyers, you just got the DA's office to do It for You to come after us. These guys could be facing up to four years for this. Guy who stole them is not being charged, presumably because of statute of limitations or because they can't prove that he stole them. So somebody named Glenn Horowitz, a rare books dealer, bought the legal pads from Sanders, the author, for $50,000 in 2005. He resold them for $65,000 in 2012 to a couple of guys who deal in memorabilia.

Way this came about is they were trying to put it up for auction at Sotheby's, And of course, to put something up for auction at a major auction house, You have to have a pretty convincing story about where you got it, it's definitely not stolen. So there are some kind of damning emails where they're going back and forth and like, how about we try this story or this story? Because they don't really know where the pages came from. They don't know exactly the story. They don't know if Sanders was supposed to have them or not. And it's all so gray. Again, I don't see how any of this goes beyond a reasonable doubt.

And the official story they went with that they sent on to Henley's lawyers when they they're trying to clear all of this was it was about 35 years ago and my memory is foggy, Sanders said, which is a pretty good one. They were also kicking around the idea that maybe he found them in a dressing room or maybe that they were sent by the assistant at some point, uh,

0:05:59 Thomas: What, what for Yeah.

0:06:59 Thomas: Say he, so, okay, let me just track this. So we're not, Because the person being charged with the crime is not the person who maybe kind of stole them. Thief, alleged, thief sold it to somebody who then sold it to somebody, who then wanted to put it up for auction. And, of course, if it's a major auction, as you say, they have to authenticate it. And why didn't that person just say, oh, well, I bought it from this dealer. Did they, why does that person have to come up with a story?

0:07:00 Matt: At One Right Right Nope Correct To be able to show provenance, right? So just like, if you're selling antiques, you know, some old statue, you have to go to show it wasn't looted. It wasn't stolen somewhere that it had an authentic chain of custody. Sotheby's is extra careful about this stuff. And they were very interested in selling this. And finally, after a lot of back and forth, they did briefly put it up. And that's when Henley noticed it, got involved and filed a police report because he was convinced that one way or another that this person wasn't supposed to have these. So that's why these people are charged with conspiracy to receive stolen stolen property. Because he's saying, I know it was stolen one way or another, whether it was that I gave it to this guy and he just never gave it back, which isn't really how theft works necessarily.

0:07:25 Thomas: -huh. Uh -uh. Yeah.

0:07:58 Matt: There was no understanding that he had to give it back. May or may not have been a contract. I mean, again, it's a really messy case. And it only got messier because while Henley was testifying, the prosecution had to bring up the fact that a 16-year-old girl was found naked at overdosing in his house in the 70s. This was not really a story.

0:08:19 Thomas: Is happening here, Matt?

0:08:20 Matt: I know exactly. This is why this whole thing unravels. The prosecution had to bring this up because they knew the defense was going to bring it up as an impeachment thing.

0:08:20 Thomas: What did, what, for impeachment for what? What do we even, okay. How does that impeach that? Now, obviously that's not good. How does dat impeach some legal pad stuff?

0:08:39 Matt: Henley's never supposed to have this stuff. And And I guess you got to put his credibility on the out there. And this was allowed. A story that he probably really didn't want out there, he was actually criminally charged with contributing to the delinquency of a minor. The whole thing was covered up. He was given probation. Nobody knew about it. And now everybody knows about it because he chose to push this case.

0:08:46 Thomas: Huh. Yikes.

0:08:57 Matt: What happens sometimes. One point, there was kind of a funny moment where he was talking about exactly how they put together the basic, like, demo tape for Hotel California. And he starts going on. There's an objection from the prosecution that none of this is relevant. And the judge said, "I don't know the relevance, but it's interesting." Classic TV moment.

0:09:15 Matt: He's like, just, you know, he's probably a dad too.

0:09:15 Thomas: Classic judge. I mean, you can do whatever you want as a judge, right? I mean it's just so hard to, you know, it's not like you get in trouble. I mean you could get appealed, but do you ever get in trouble as a Judge? Like ever?

0:09:21 Matt: Yeah. I mean, you could say something super racist or offensive or otherwise, you can certainly be disciplined. But, you know, if you just want to hear Don Henley tell you about how he made Hotel California, you can let that go. No reason not to. Not really an appealable issue.

0:09:34 Thomas: Yeah. I'm going to allow it.

0:09:37 Matt: Exactly. Literally. So yeah, this is a big old mess. Don Henley doesn't seem like a great guy. He's never really seemed like a great man. And my theory on this is I think there's probably some really embarrassing stuff in those notes, probably some very, very bad and original, you know, initial lyrics to these these things. I can't imagine why else he wants them that bad. He says they're very personal to him, and he just would like to have them.

0:09:39 Thomas: Oh God. Well, I could, okay. As much as all this is weird, the one thing that is not a mystery to me is why Don Henley wouldn't want these to get out. I actually get that entirely. Entirely, I lot of the magic of enjoying a classic song would be lost if you saw all the scrawlings that went into it, I bet. I mean, I could imagine that would happen with some of our favorites if we saw, like, "Oh, at first it was this draft and God that sucked." Okay, weird, sorry.

0:10:22 Matt: This just happened, actually, with Courtney Love. Did you hear about this recently? Went on to 60 songs that explain the 90s, and she gave, the first time ever, she had dug out some old, the original lyrics for Smells Like Teen Spirit. She found them somewhere in an attic. And they're Very Bad. They're just very, very bad. True. I mean, honestly, it's probably better that people didn't know when Kurt Cobain was alive that at point it was, I know I hope to buy the truth who will be the king and queen of all the outcasted teens. It's terrible. It is very bad.

0:10:33 Thomas: Yeah.

0:10:48 Thomas: I mean, his lyrics were weird anyway, so it's not like it turned into Shakespeare after that, but yeah. Yeah, not going to take too much time with this, but I'm I'm a radical in terms of, I don't want to know any of this about my artists that I love. Like, my artists that I want to love, I want know nothing about the process of them making the music at all, because time that happens, it has been the worst thing ever.

I I I told a a story on one podcast about how there's a band I liked called Radical Face that I liked a few of their songs. I wasn't like super into them, but there was a few songs I liked. And I went and saw him in San Francisco, and And the way that the guy was about his music and so affecting to me. Like, I was so affected by it that I never listened to them again.

And he told these weird stories about the songs that were like, "Oh, I had driven meaning into this song, I'd put meaning into this sung, and I thought it was really meaningful." And then he tells me some stupid that involved ghosts, and I was like, that ruined that song for me. Thank you, I now don't like your song. So anyway, point is, that's a lot of people are different than me.

A lot of when I talk about it, people are like, "Oh, I want to know every single thing." That's cool, totally, people are different, but I could at least see why Don Henley would be like, I don't want people to know that this was about ghosts originally.

0:10:51 Matt: Sure. Yeah.

0:12:00 Matt: Never meet your heroes, folks.

0:12:02 Thomas: My better advice is don't have Don Henley be your hero first. And then that kind of, that solves that one. But yeah.

0:12:06 Matt: Yes, very true. Very true. I think this trial is probably going to go another few weeks. Just from looking at what I've seen so far is I don't think they're going to be convicted, but we'll see. It's up to the judge.

0:12:18 Thomas: Do you have any sense of what needs to be proven to

0:12:21 Matt: Right? So you have to prove they knew for sure that it was stolen and not just something that Henley had given to the author, which is probably the understanding, probably. But you have to prove beyond a reasonable doubt, they knew it was stolen. And I don't think they're going to be able to do that.

0:12:32 Thomas: Yeah. That doesn't sound good. Yeah, unless there's some really bad emails, like you say, but wow, okay, well, that's bizarre. Is

0:12:37 Matt: Trying to think of a good way to wrap that up. But yeah.

0:12:39 Thomas: You can check out anytime you want, but I don't know.

0:12:43 Matt: Well, actually, the one thing you can't ever leave is Donald Trump's criminal cases.

0:12:48 Thomas: Much as it was fun to just talk about a weird, bizarre, criminal Eagle story, I think, I think we do need to transition to the Trump, that is, this, this week, because there's so much going on.

0:12:58 Matt: Taking it to the limit. It's true. I will stop now. So the big news.

0:13:02 Thomas: Be right back after one New York minute. OK, here we go. We're done.

0:13:03 Matt: Yeah. Big news this week, of course, was that the Supreme Court on just the 28th, yesterday as of time of recording, takes up the immunity claim that Donald Trump is raising in the D.C. case, the interference January 6th case. I've got to say, I predicted this on this show a couple of weeks ago that they would most likely take it, even though his claims, as we reviewed, are not good. They're not particularly smart or compelling. And I think everyone understands that.

But I'd have to say just in minor defense of the court, a couple of things here. I think they had to take it because we need firm precedent from the Supreme Court that says when you can and can't prosecute a former president, because this is probably going to happen again sometime if this country makes it, I don't know, another few decades. An answer. I think it's better just to have the court take it up. They could have taken it faster.

They certainly could have gotten this going faster. But there's also the fact that that they did limit the question somewhat. I'll read the actual question that they granted. And if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office? That's interesting because

0:14:11 Thomas: Hmm.

0:14:11 Matt: It kind of implies that if they weren't official acts, if he was doing extra legal, unofficial Stuff, that he could still be prosecuted. I'm m not sure if that's exactly what Trump was asking them to review. I think that part of the deal Here with the Supreme Court is they can always narrow the question to whatever they think it is, no matter what the parties are presenting as the questions.

0:14:15 Thomas: Yeah. Yeah, that's interesting. But either way, it will stay the proceedings, right?

0:14:31 Matt: So the trial at this point with this order, it is extremely unlikely, if not impossible, that Donald Trump will be tried and convicted before the election.

0:14:39 Thomas: Well, all right.

0:14:40 Matt: It just won't happen.

0:14:41 Thomas: Already sucks. And my question. They're taking it up specifically for that question, is there any way Jack Smith could be like, well, that's not really the question here. So I think this should continue. Like if I can prove that this wasn't an official act, then that decision has no bearing on what we're doing here. Right. Is there any room for him to do something like that?

0:14:59 Matt: Was in his response to Trump's filings. His official position was basically, let sufficient basis for resolving this case would be that whatever the rule in other contexts not presented, no immunity attaches to a president's commission of federal crimes to subvert the electoral process. Pretty simple. Example. Know, he did also sort of concede that there might be immunity for something like the drone strike example we were talking about, that Trump raised, right, and Obama killing a U.S. citizen in a drone strike. And that gets a little thorny because then you're saying that there are some official acts, and there probably should be some official Acts, but that's all a big mess about what should be protected or not. I hope that we don't have to be considering these questions ever again. That would be great. We'll see.

0:15:13 Thomas: Yeah, sure.

0:15:34 Thomas: Say you understand them taking this up, but was there not already perfectly fine case law on this? I mean, there's Nixon, there're other like, what is missing from the case law?

0:15:42 Matt: A great question. I'm glad you asked, because I do want to talk about USV Nixon. The timing on this is really interesting. July 8th, 1974. The court is hearing arguments in April of 2024. He was

0:15:53 Thomas: Was Don Henley doing that? Nevermind, so we're done with that. Oh,

0:15:57 Matt: Doing a lot of cocaine. Could be coming up up on the 50th anniversary, like within several weeks. It's just really interesting timing of the last time that the Supreme Court considered presidential immunity.

0:16:05 Thomas: They didn't with Clinton?

0:16:07 Matt: That was actually a civil. So there was no criminal aspect to that. We'll talk about that in a sec. Yeah.

0:16:08 Thomas: Oh, gotcha. Okay, important distinction there.

0:16:12 Matt: Very important distinction because the civil stuff is a lot broader, but the, and even in Nixon, they weren't directly considering the president's immunity from crime, but they were considering his ability to withhold privileged information as an executive privilege, when it very well probably was an information that implicated him. And of course, in that case, it was the Watergate tapes where he's talking for quite a while about how they're going to cover Watergate up. And he was trying to withhold those as an executive thing.

Almost exactly 50 years ago, Supreme Court thought this was important enough that they came back with an 8-0 decision. Rehnquist had to sit it out because he had worked for Nixon. But the chief justice wrote for the court, and it was a very messy political situation that got them to this place. But they agreed up front. Justice Brennan brought this to everybody and said, we have to give them a unanimous decision. We cannot have any dissent. We can't have any concurrences.

We have to tell them that the president can't do this as strictly as possible. And they rushed this, and they did actually the same thing that Jack Smith was asking to be done in December. Smith was asking that they skip the appeals court and just go straight to the Supreme Court. He said, this is going to end up in front of the Supreme anyway. We got a trial to do. Back in December, the case was set for March 4th, which is next week.

That's not happening, obviously, but he was trying his best to try to stick to the original schedule. And so they did the same thing in Nixon, where they said, great, we'll take it, because clearly this is an important question. It's going to make the difference for both Nixon's impeachment and possible criminal charges, both of which were a real possibility at that point. And

0:16:12 Thomas: There, okay. Wait.

0:17:36 Thomas: I have you right, did are you sitting the court could have just accepted this when Jack Smith asked, but didn't? And now, is it okay? So, are they just truly this for Trump? Is

0:17:42 Matt: Yes. Enough cover right now that what they're doing isn't explicitly for that, but that argument has been made. It is makeable. I think that you're certainly seeing it from that way. Because you look at the Colorado election case, they rushed that. They got that done pretty quickly to argument, and they're taking taking a lot longer. The argument in this case now has been been scheduled for April 22nd, is which pretty much, you know, about a week short of a month from when they took up the case. And they certainly could have done it a lot faster because I don't think this is a particularly complicated issue after looking at the briefing. It doesn't have to be.

And of course, if they're hearing it in the last week of April, then they could actually wait until June or end of June when their term ends to actually release this. There's no reason they couldn't. And at that point, no matter how hard you try to set it for trial, and it's up to Judge Chutkin at the end of the day to set up for trial, she has the the authority on the date, but I don't see how there's any way. I mean, imagine a trial set in October 1st, right? Going to take more than a month. The president is going to be on trial at the point at which he wins an election, potentially. It's pretty messy.

0:18:10 Thomas: Yeah. Yeah, yeah.

0:18:42 Matt: At the same time, there's a lot of public interest in getting this trial started, at least, so we can get some evidence out there so voters know more about the election interference and how he might have have been responsible for January 6th. So it's a mess.

0:18:53 Thomas: Want go back my question though about Jack Smith. I think you answered what he did in response, I guess, to the cert petition. Is that what that was or to the appeal or like, where was that thing you read me from? Motion

0:19:04 Matt: Was his response to Trump's motion to stay. It right? He was trying to get them to stay every second. So he could go back to the, that is what we talked about before. So, and what Jack Smith said, which is very reasonable, and it is what what the special prosecutor said in the Nixon case, was just treat this as a cert request. Basically, this whole motion to stay is essentially what they would say in the cert. You're going to have another 90 days before they could file the cert, right? Just get this over with. If you're going see it, see it. Took him up on that. And they specifically said that they were taking the special counsel's request to treat the stay application as a petition for writ of certiorari as granted. That's a nice little shortcut there. They could could have certainly, if they really wanted to stretch this out, they could have just granted the stay and then invited Trump to file the cert and, you know, gone on from there. It would have been a lot more.

0:19:11 Thomas: That's right. Okay. Okay. Huh. Oh, okay. So requested a stay and Jack Smith was like, treat this like a cert petition. But it sounds like even though you're saying they did that, they also granted the stay.

0:19:59 Matt: So, Well, the stay is moot. They dismissed the stay as moot because, right, because at this point, they're skipping over the appeals court and they're just, because he was trying to seek an en banc review from DC Circuit. And they're saying, let's skip that and let's just get to it. We know where this is going. We're going to hear it. So

0:20:00 Thomas: The stay is moot. Oh.

0:20:12 Thomas: Go back over what happened at least at a very distant level because I think those basics are important.

0:20:17 Matt: Trump filed this motion saying that he is immune from prosecution. And of course, if that is true, then there's no case. So it's very important that this question be decided because it's, it's a really central interlocutory issue. So at clearly no, you can be prosecuted. Right. And then he took it up to the DC Circuit. The DC Circuit issued a very long decision saying he's definitely not immune from prosecution.

0:20:30 Thomas: Then the judge was like, like, that's nah, stupid.

0:20:38 Thomas: Right. And they made sure to say this is not stayed while you go on bonk. Right. And so that up until the other day, we still technically had a trial date, right?

0:20:44 Matt: Right. I'm not sure when it was canceled, but it was called off at some point, because you this wasn't going to be dissolved before that point.

0:20:53 Thomas: I guess I'm just trying to understanding how this is stopped. So if Trump, what a stay because the circuit court did that thing where they're like, hey, game on. Like this is still going, right. Right. Requests a stay. Jack Smith said, don't treat it as a stay treated as a cert petition and the Supreme Court kind of agreed. Wondering why then are stayed necessarily. Is it just an automatic law thing that like, well, because they're taking up a question involved in this, then it's all stopped. Stopped.

0:21:18 Matt: Actually, me yeah, explain this a little more simply. We something called a mandate. When the appeals court actually says, okay, we mean it, this order is entering. And that mandate is often some period of time after, usually a few weeks in our circuit court here. It's not official until it's official, until that mandate comes down. So in this ruling, when the Supreme Court accepted this and accepted it as a cert petition. They specifically said, without expressing a view on the merits, they're directing the Court of Appeals to continue withholding issuance of the mandate. So their order is not final until the sending down of the judgment of this court.

0:21:48 Matt: So that's why it was dismissed as moot. And I should have explained that better.

0:21:45 Thomas: Okay. Okay, I see.

0:21:51 Matt: Is why it's dismissed as moot, because this court is saying, just hold off. We have to resolve this question. This is not official until it's official, and we're not going to have you do the mandate yet. So that's the effective way to do it, and they don't have to decide on the stay that way.

0:22:02 Thomas: I see, so had Court's decision been allowed to, like, actually go into effect, then things would have progressed, but because we're still, they were in some sort of legal limbo period, and the Supreme Court is like, hey, continue that purgatory, like you're Just still not entered. Okay, that's so there's no way for Jack Smith to get around that. I guess what I was trying to get at was like, is there any way for him to argue that things should continue because the question they're taking up doesn't really impact much of the case, I would imagine? But it sounds like no.

0:22:08 Matt: Yes. Right.

0:22:34 Matt: It's potentially the entire case. That's the problem, is if they find this defendant is immune from prosecution, then there's no case. So it would be really, really bad to try him.

0:22:42 Thomas: No, because the question they took up was official acts. Right. So if Jack Smith can say none of this was official acts, then that doesn't affect the case at all.

0:22:45 Matt: Right. Right. That's true. That's a good point. I'm sure he'll be arguing that in this Supreme

0:22:52 Thomas: Yeah. So what I Was getting at is when and how can he argue that? Is there any Way for him to go to somebody and be like, hey, cool story, bro, about the Supreme Court taking up this unrelated question to my case. Can we, while they do that, can we keep doing my case? Or is there just no way for him, like go to the actual trial judge and be like, hey, game back on because they took on a question that has nothing to do with anything. Okay, darn, too bad.

0:23:16 Matt: The mandate still stayed either way. Yeah, sorry. No

0:23:19 Thomas: All right, just trying to, find trying one. I'm trying to, I'm trying to do my part as a citizen, you know, trying to help Jack out.

0:23:19 Matt: Loopholes. To outsmarte the Supreme Court. Sure. Was looking more at the Nixon case because it is the closest thing we have. The only thing before that was when Thomas Jefferson was subpoenaed in 1807 to participate in the criminal trial of Aaron Burr, who was being tried for treason for trying to start a new country in the West Coast. And that was the first time that anything like this had happened. And the president asserted executive authority.

He didn't really like Burr very much, but he just thought he shouldn't have to turn over his papers. And he didn't turn over most of them. And Justice Marshall found that was fine at the time. Had to be subject to criminal process in one way, right? So he had be subject subpoenas no matter what, and that's been confirmed again and again. And that's what you're talking about with the Clinton v. Jones case and also Nixon v. Fitzgerald.

There was another case involving Nixon in which an Air Force contractor had been fired for testifying against the administration. Nixon v. Fitzgerald in 1984 was the first case to find that former presidents are immune from all civil liability for official acts. So So you have like a clean blanket slate not to get sued for things that you do as president in your official capacity.

It did leave the open question about whether you can be prosecuted for things that you doing your official capability, because potentially that could be very serious that you need to be prosecute for doing something really egregious. They found that we can't have the president getting sued all the time for decisions that he makes as the president, which makes some sense.

0:23:25 Thomas: Yeah. Yeah,

0:24:39 Matt: But in Clinton v. Jones, they distinguished that in 1997, because you might remember that Paula Jones was was talking about conduct, alleged sexual assault that happened before he was president. And she was suing him for that. And they were considering whether he could be sued while he's in office. And they found that he could, that this harassment lawsuit could go forward. That it was perfectly fine for the president to be sued for non -official acts done before taking office, that he's not completely immune while he is in office just because he's an office. So, you different for civil immunity. But this particular question of direct criminal immunity has never come up because no president has ever been charged with the crime before.

0:24:39 Thomas: Right. Yeah I

0:25:10 Matt: So here we are. Did think it was interesting, though, about reading the U.S. v. Nixon decision -making because, of course, this was a combination at that point in 1974 of the old Warren Court, the very liberal court, and then some of the new Nixon appointees kind of clashing and trying to figure out what they were going to do. But everybody agreed. All eight people that were participating in this agreed that the president did not have this privilege, did not have this immunity.

But it's really interesting to read in Bob Woodward's The Brethren. It's the first Supreme first Supreme Court book I ever read in covers the 1974 U.S. Phoenix case. He has a whole chapter on it. And the absolute sausage factory inside the Supreme Court. It's incredible, especially before email. You know, you can imagine they're just sending out these short little memos to each other, just nonstop, just piling memos on.

And he's got all of these memos all the way through this chapter going back and forth and back and forth because they all agree on what's supposed to happen. They're all all intent on having a unanimous decision. But the initial draft that was put out by Warren Berger was terrible. Everybody hated it. Had a real ego. He didn't want everybody to touch his draft. Had to come back with all these other proposals, and they had to cobble together this whole working plan to actually do it.

It's interesting to see the difference. I just don't think things work quite the same way inside this Supreme Court. I don't think they're quite as able to work together even as these people were. And a lot of these people did not like each other very very much. There was actually in the draft, it's just interesting to think how things could have gone, right? Because this case is going to be directly on point in many ways with what they're looking at now in April.

There was a draft that almost made it through where Berger would have provided immunity for the president's core functions. And everybody kind of fought back against that because Nixon could say that his conversations with his aides are core functions and you don't ever get to hear these tapes, right, or that it's a very vague term.

0:26:47 Matt: And Trump could could say that looking out for the election is one of his core functions, and he sincerely believed that he was doing something to fight election fraud. So it's a good thing that didn't go in.

0:26:47 Thomas: Yeah yeah because it does say in the constitution that the president administers elections. That is, no, but I I take your point.

0:27:01 Matt: Yes, very important that he's very concerned with elections. But again, he could make this argument. Yeah, there's... there's all kinds of ways that that core functions thing could have gone wrong. One detail I thought was interesting, Brennan went to Earl Warren in the hospital. He was dying in the Hospital at that point, and And he told him that the ruling was going to go against Nixon, that this was going to be the thing that was going take Nixon down, which it was. It was the reason Nixon had to resign, because these tapes came out. And Earl Warren died three hours later. It was one of the last things he knew, was that Nixon was going down after years and years of fighting him. So I thought that was a nice detail.

0:27:06 Thomas: Yeah. Wow. Yeah.

0:27:34 Matt: See. We'll see what the next step is for immunity. We'll be following the briefing and the arguments, and we'll get back to you on that. I'm

0:27:40 Thomas: Yeah. So what's your view on, is the Supreme Court effing with us to try to help Trump? What Like, do you think about that?

0:27:48 Matt: Kind of neutral, honestly. I don't know that it's necessarily to help him. I think they could have done this a little faster, but in Supreme Court calendar terms, they're still pushing it.

0:27:56 Thomas: Well, they could have just said no, right? They could have been like, this is settled law.

0:28:00 Matt: But it's not really. That's the problem. There is no direct precedent about whether or not the president can be charged with crimes. So it is helpful to get that precedent out and to just close the question. And a lot of people would be mad on both sides, I think, if we didn't have an answer to this. I don't know. I get it. I understand why they stepped in, even though I I think the question is stupid, and I think that his briefing was stupid. Think it probably does need to be heard.

0:28:10 Thomas: Okay. Okay. Don't know if the court does this, but is there a question so stupid that they're like, we don't need to do a whole rigmarole? Like, let's just say, oh, I guess. Is that a, what's opinion? Could they have theoretically just been like, hey, here's what we think about this because it's obvious. They have that option?

0:28:28 Matt: Yeah. We cert, and we're just calling it stupid. Done.

0:28:40 Thomas: Yeah, like do they not have to do like oral arguments? I don't know what the rules are. Also, are there any rules? Like what even governs all of this crap? Like they could just, I mean, with Bush v. Gore, they just marched right in and did what they wanted, right? So hypothetically, could they have done cert and just issue a decision like now. Like, hey, we wrote a brief paragraph that is this decision because it's so easy.

0:28:40 Matt: No.

0:29:00 Matt: I don't think they still have to have a briefing schedule and oral arguments. I'm pretty pretty sure. But they could still change their minds about taking cert, I think. So there's that. But they won't. They're going to do it. An interesting question, too, about how this all plays into the Florida case, because Trump just filed four motions to dismiss earlier this week, in which he's raised a bunch of other stupid things. He's actually raising the immunity thing again in Florida, even though the D.C. Circuit has completely dismissed it and is now on appeal, just to waste time in front of Judge Cannon. He's filed a motion to dismiss based on presidential immunity, again, with those same arguments, but also under the Presidential Records Act, saying that he has unreviewable discretion to designate the records at issue as personal, even though the exact point of the Presidential Records Act was to stop Nixon from doing that exact thing of designating his records presidential as personal and ditching them. But there is going to be an open question about how much this affects, because he's saying this was a presidential act.

0:29:02 Thomas: Okay, okay, gotcha.

0:29:53 Thomas: Was not when he was in office. Right.

0:29:56 Matt: It was after.

0:29:57 Thomas: Then would this Supreme court case, how would it interact you saying just cause he's saying he somehow designated these personal when he Was still in office, right?

0:30:05 Matt: The Presidential Record Act, it as part of his job. I think some of them actually might have been started to be designated while he's in office, but point is he can just do it anytime he wants to as the post -president. But he's trying to raise this, again, as an immunity point. I don't think it's going anywhere, but he's going to try everything he possibly can, obviously.

0:30:20 Thomas: So that seems ludicrous to me because Because the if we're saying, OK, how does the Supreme Court case affect that, which is deciding whether or not he's immune from prosecution for official acts. Right. The thing he's being prosecuted for in Florida is not an official act. It's not even an act while he was president. It's just that his defense is, oh, no, I did this while I was president, I I make the records mine. Right. So that wouldn't affect the would it?

0:30:44 Matt: No, I think he's gonna try to say somehow it does, but, you just raising that because he's raising an immunity claim in the same way.

0:30:50 Thomas: The Florida stuff?

0:30:52 Matt: The special counsel's office concedes that the genesis of this case dates back to at least the tail end of the Trump administration. So like the last few days is when he started moving the boxes. So that's the answer, is that they're going to say, right.

0:30:59 Thomas: OK. I see. So. So because any part of it was during the presidency.

0:31:07 Matt: The the very end when he was preparing to leave. And they make the point that he departed the White House before 12 p .m. on January 20th, 2021. And anything he did up to then, he was still the president. And he was starting to make these boxes move at that point. So it's

0:31:09 Thomas: Yeah. Yeah.

0:31:19 Thomas: He agreeing that therefore he would be immune from any crimes here? Or is he saying that because he did some amount of it while he was president, this Supreme Court decision will affect it and therefore you ought to stay the whole thing for now?

0:31:32 Matt: He appears to be making a completely new immunity claim to Judge Cannon. Then he wants this apparently to be litigated all over again. Obviously this this Supreme official acts, because this is unquestionably an official act. If you're designating something as a presidential record or not, that is something that they're allowed to do under the Presidential Records Act. But of course, yeah, claiming But a defense under the presidential records act.

0:31:51 Thomas: Yeah, but that's not the crime. The crime wasn't designating designated something. The prime was taking the stuff, right? And keeping it. Yeah.

0:31:59 Matt: I'm sorry. Crime, so is under the Espionage Act of just holding onto these things he's not supposed to have, but he's blaming that he had absolute authority and it was immune under the Presidential Records Act because he can just just designate anything he wants as personal while he's president.

0:32:10 Thomas: That's bullshit that's been a thing he could claim the whole time. None of that is related to this actual Supreme Court question.

0:32:13 Matt: Right. But it touches on immunity, then then it is. That's what he's arguing, is that this because it was an official act under the Presidential Records Act. It is. It's all silly.

0:32:23 Thomas: Well, that's silly. Okay. No, I wanted to understand the argument though. Like there the crime, it wasn't an official act. That's just his defense for it. So I don't see why that would affect it in any way. Okay. Well,

0:32:36 Matt: Because I just think that's a question that people are going to have is, does this finding of immunity have anything to do with the Florida case? Because he's raising immunity claims there too.

0:32:42 Thomas: Oh okay. So no, we can answer that one for you.

0:32:46 Matt: I'm pretty sure. Yeah. His motions to dismiss are going nowhere. I mean, even with Judge Cannon, these are pretty silly. He's also falling back on the one that Jack Smith was improperly appointed and that this is, you know, just malicious prosecution or whatever. This stuff isn't going to happen. But they they shot out everything they had. They're just throwing every motion they can do at the wall at this point because we're getting closer to the point where it might actually be scheduled for trial, and they don't want that to happen. So the Nixon case, they came back in three weeks with the decision, which is very fast for the Supreme Court.

0:32:49 Thomas: Okay?

0:33:13 Thomas: Question? What would be the a best case timeline. I how, what's the fastest possible way they could resolve it? Back then they had a little something called grit.

0:33:24 Matt: Yeah. And they were very determined. They basically just dropped everything. Even when Earl Warren died and they all had to do official funeral duties, they were still working all the way through this because they really wanted to get it done. And they also, they knew the impeachment was coming and they wanted to make sure that this, that the impeachment would have what it needed to be, you know, these tapes. Different scenario. I think they're a little more motivated. Lot of people that really didn't like Nixon on the court, including some of his own appointees at that point. You this case, the best thing they could do is come back within two or three weeks with a decision. I don't know if they'll do that. And their term ends at the end of June, as we know. So they could hold it till then. We'll see.

0:33:41 Thomas: Yeah.

0:33:54 Thomas: That sucks. All right. Well, at least there's always possibly County, Georgia.

0:33:58 Matt: Possibly. I Was hoping that We Would Have an Actual Trial and Potentially Conviction on Election Interference on January 5th before the Election. Seems like something that would be of great public importance, but that's not going to Happen, I Don't Think. I Really Don't

0:34:09 Thomas: Not. Gonna happen. Is this your way of leading us into what happened in Fulton County? Yeah.

0:34:16 Matt: Yeah, where something did happen, maybe. I don't know. I'm not sure if anybody does, but we can sum up real quick. I know that we've given it quite a lot of coverage, so I do want to make sure we follow up with what we've been talking about. About. You might remember, the thing that happened was that the judge ordered an in-camera review where he was going to meet with Terrence Bradley, who was the special prosecutor Nathan Wade's former law partner.

Just to recap, Terrence Bradley had been called in by the defense because they thought that he was the star witness, that he would be the guy that said, no, actually, this relationship between special prosecutor Nathan Wade and District Attorney Fannie Willis started well before they told you, potentially as early as 2019, when Wade had submitted a sworn affidavit saying that it started in 2021. Didn't do that, short.

In what happened at the in-camera hearing, as far as we can tell, was that the judge found in email to the parties on Monday that the court believed the interested parties did not meet their burden of establishing that communications are covered by attorney-client privilege. Wade had even filed a motion trying to stop the in camera

0:35:13 Matt: Hearing, hearing, and that didn't go anywhere.

0:35:15 Thomas: So. Think this meant because there was a relationship early or did we think this meant because he was gossiping when he shouldn't have been and he violated attorney-client privilege and was trying to like put that genie back in the bottle, maybe? Both?

0:35:27 Matt: Think maybe both. It's certainly possible both, because I think that he had information. Now, we'll get into the text in a second, but, and again, this is all getting even more sordid and bad than it was, but as we know, Bradley had a motive to try to do this to Wade and Willis, potentially, because Wade had been involved in kicking him out of his law firm after he allegedly, again, very specifically allegedly, was alleged to have sexually assaulted potentially both a client and a staff member. It does seem like from the communications that we now have, that he was having with defense attorney Ashley Merchant, that Bradley had some motivation to see this motion filed and to see this information come out. But somehow, one way or another, he changed his mind a little bit or didn't want to get too specific or get nailed down. Right.

0:35:28 Thomas: Wow. Okay. Yeah.

0:36:09 Thomas: That's what I'm wondering Yeah. Ah.

0:36:11 Matt: So there's a theory about how this might have happened. And I don't want to go to Fox News on you, but this is out there and it's worth mentioning. Was an attorney named Gabe Banks who was subpoenaed to testify, but never called here. And we know that he called Nathan Bradley before his testimony. That it was a friend and a frat brother, you know, that somebody he'd known for a long time. And He said that as another member of the bar, that he might arguably be running afoul of the attorney client privilege. And so I did have a conversation with him about that and expressed my concern before he testified. And the unfortunate thing about that is that Gabe Banks's wife, Kyra, is Fonny Willis's chief of staff. So that doesn't look great when the husband of your chief of stuff is calling up a key witness and saying, hey, remember attorney -client privilege might be a thing here.

0:36:38 Thomas: Wow. Okay.

0:37:00 Thomas: I mean, but is he wrong though, like, attorney-class privilege should have been a thing, right? Really?

0:37:05 Matt: And I Judge McGaffey found it wasn't here, that none of his testimony was privileged. And Wade, in that kind of Hail Mary motion, was basically trying to say that this is so privileged that you can't even hold an in -camera hearing to ask if it's privileged, which is a little circular for me. Yeah, that wasn't going to work. It is very interesting to see, though, prosecutors having to put up a defense and having to act like defense attorneys. I've been enjoying this, actually, because they should have to once in a while. I actually understand what we're dealing with when we're up against prosecutors.

0:37:18 Thomas: That's That's crazy. Yeah. Wow. Hmm.

0:37:33 Matt: It read to me as a little desperate that the should not conduct this examination under any circumstance, that was bolded and underlined in the motion. Really, really didn't want it to happen because,

0:37:42 Thomas: Wasn't any like better legal reasoning than just please don't do this.

0:37:46 Matt: And the privilege issue in this, as we've mentioned before, and I still want to talk about, we do not have time to get into it today, but the actual privilege upon privilege, Big Mac here is really something. And it's a fascinating topic. But at the end of the day, the judge didn't find there was any, and then he could testify, at

0:37:51 Thomas: No. Mm -hmm. So Here's my question then. That's true, why was this, and I know this is like a theory, under the theory, why was that threat effective then, the threat of, "Hey, you're going afoul of attorney -client privilege," if in reality no, no, that was BS, like to the point where now the judge is like, "None of that was privileged, you dummy." Why was that an effective threat? Does was going to be a key witness? And And you're saying the texts indicate that he had a motive to like actually kind of screw Wade over, right?

0:38:30 Matt: He's very friendly with with Merchant in a way that I think is very consistent with that. And he really wants this motion filed.

0:38:36 Thomas: And until, again, the coverage, this part I think is obviously true, that that was a surprise to Merchant and all of a sudden he clammed up and wasn't going to talk. And so you're saying one theory of that is that this guy who's a husband of Fonny Willis' chief of staff called and said, "Hey, you might be running afoul of the," because of the privilege. I'm saying, why did Bradley believe that if it sounds like it was absolutely not true? That would suggest that that was a pretext and there's some other reason he wanted to change his mind and not screw Wade over. Over, no, do you think he changed his mind? Because that's a pretty dramatic change, to go from star witness to not, abruptly. Why do YOU think he changes mind, huh?

0:39:14 Matt: I could say is he doesn't want to be on Fanny Willis's bad side at that point. I think that he was happy to work with Merchant behind the scenes to get this motion filed, but I don't think he was ready to testify necessarily. That's what I gather from these texts, is that he WAS very happy to talk the talk while he was communicating privately with the defense attorney.

0:39:28 Thomas: Oh I So that would be kind of a different thing, that would be like, he he was willing to kind of be Machiavellian, he was willing to like kind screw him over when his name wouldn't really come out, but then once it's like, "Okay, put your entire face to this," maybe he wasn't down for that. And then from there he's trying to just find the pretext to not do it, okay?

0:39:47 Matt: Because if you look at these texts, there's a hint of all this in the text because Merchant asks him in September 2023, any idea who I could get an affidavit from on the affair? Bradley responds, no, no one would freely burn that bridge. I he's a little afraid of Willis and, you know, potentially she's pretty powerful and Wade too. Like it seems like, Like, you know, he doesn't, and at this point too, Wade has this information that he can make his life a lot worse as well.

0:39:48 Thomas: Makes Sense Ah Okay Okay Oh The sexual harassment stuff, okay.

0:40:13 Matt: Yeah, which it sounds like was pretty quiet at the time. But the Bradley Merchant texts are not too surprising, but he does say directly, just to read this part, this is the reason that Ashley Merchant wanted him on the stand. This is why she was so surprised when he did not respond and, these you texts. Merchant, do you think it started before she hired him, Wade? Bradley, absolutely. Bradley, started when she left the DA's office and was judge in South Fulton. That would have been 2019. Merchant liked the message.

0:40:41 Thomas: And we all know, your honor, a like means, "I'm gonna use this in court." That's

0:40:45 Matt: Not a heart. A thumbs up. It was a like. Yeah, yeah,

0:40:47 Thomas: Not Heart a is like, personally, I'm a fan of that, "you up is I'm using this in court." Yeah, okay.

0:40:52 Matt: Absolutely. I think that we all understand that. That's the universal emoji language. Which, yeah. Met at the municipal court conference. Merchant, that's what I figured when he was married. Even runs by language that she's going to put in the motion about upon information and belief. So he was the source. He was definitely the source for all the facts that she alleged in this motion. And I think she really thought because she had him saying all these things that he could be subpoenaed and say them on the stand, and he just just didn't. Have a clip I've sent you of his reaction when he was shown these texts. I think that's worth playing.

0:40:53 Thomas: Yeah Yeah Okay

0:41:23 Clip: In defense exhibit 26, which I showed you last time, messages two pages of text messages between you and Ms. Merchant, correct? Correct. All right. Now, the first page starts off by saying, Ms. Merchant like just date, don't hire him. Do you think it started before she hired him? You see see that?

0:41:58 Clip: Yes, I see it. Yes. And your response to that was absolutely correct.

0:42:01 Matt: So, very quiet dang on the record. Yeah.

0:42:08 Thomas: Dang. Yikes.

0:42:10 Matt: Forgot about that text. Yeah, it's very possible he might have thought that would do it.

0:42:13 Thomas: Like he deleted his text. You think? Because when he was like when we covered it on the hearing, she was like, I see this. And he's like, oh, I don't see that. And then to be surprised, like you're going into this and in you haven't reviewed it. I think he's deleted him personally.

0:42:22 Matt: That's true. You're right.

0:42:29 Thomas: Yeah. Delete them and then just hope they weren't as bad as he remembered.

0:42:29 Matt: I be confronted with that. I would think you'd remember. Yeah, we've all been there. Say too, there's also, when you mentioned the Machiavellian backstabbing here, this really nails it for me. Bradley, this is after he gets a draft of the motion. So January 6th, she's going to file it January 8th. He's just checking it out and reviewing it. And he says, "I really appreciate you keeping me out of this, but I think you need to add me in the footnote 15 because I had a contract as well. And that way it doesn't seem like I was involved." It's okay. "Add me to footnote 15 and how much I made." "Merchant, I took you out." "I can add that back." "Yes, add it back." Else? Anything that isn't accurate? Bradley. "Looks good." So He's actively helping her edit it and to sort of mitigate his involvement to make it look like there's some bad stuff coming about him potentially, or there's something else.

0:43:07 Thomas: Interesting.

0:43:17 Thomas: Well, I almost wonder if that was like, all right, going to be noticeable if I'm completely absent from something that he was involved in. So he's like, oh, I'll just put this innocent bit of information in so that it doesn't look like I was the source.

0:43:23 Matt: Exactly. Right. Just drop me in a footnote somewhere, will you?

0:43:31 Thomas: Okay. So that's your interpretation too. Yeah. Interesting.

0:43:31 Matt: Yeah. Yeah. And we've talked before about how these two were definitely friends at some point. And that is confirmed here as well, because she admits in a message on January 8th, when she's going to file this thing, she tells him she's nervous and it's a huge filing. And he responds, you're one of the best lawyers I know. And it's go to be great.

0:43:39 Thomas: Oh, yeah. Yeah.

0:43:50 Thomas: But it sounds like then, OK, if she'd agreed to keep him out, she was the one who changed then. She was the ones who was like, OK now I'm going to subpoena you and you have to testify, even though it sounds like he didn't explicitly agree to that.

0:43:56 Matt: Yeah, I don't know how he wouldn't. I mean, again, as we have talked about before, the motion was filed without an affidavit or any evidence, right? There's no statement from him. So you had to prove it somehow. And he's the guy that texted it to you. And I think she just figured, I've got texts. Of course, he's going to acknowledge that's what he told me. I don't think anybody would have seen that coming.

0:44:07 Thomas: Yeah, that's really weird. But then why would he think?

0:44:18 Matt: Whole thing is.

0:44:19 Thomas: Sounds from those other texts that he thinks he's out of it. He thinks he has been kept out of of it, right? He's just a bad lawyer and he thought that he would be able to stay out of it and then wasn't able to.

0:44:23 Matt: Right. But think he is. I really, honestly, that's my conclusion from watching him testify. And his understanding of privilege was not so great all the way through this. Yeah. I mean, he certainly, Certainly, if the allegations are true, he's a very bad lawyer. But, you who knows?

0:44:34 Thomas: Yeah. Oh, boy. Wow. So what's the effect of all this? Now, do we have any actual proof, though? Like, was there a, very you bad document? Was there anything that like, OK, we've got him dead to rights that this relationship started in 2019? Or is it just that, okay, now this guy who is not very credible ever now has said it. That all we have of

0:45:06 Matt: That's what we have. And so when he was confronted about these texts, he did the lawyer thing. And he said, well, I don't know. I don'T have any personal knowledge. I was just speculating. That'S what I thought. You know, I didn'T actually know. Nobody told me. Right. He'S just trying to back out of it. But so his testimony was pretty much a dud. Took a very long time. There was a lot of bad lawyering all the way through it from what I saw. I didn't watch all six hours of it, obviously. But it seems like, you know, could have been an hour or less from what I saw, just dragged it out. There's More scheduled for March 1st. The day this Episode comes out, so I'm sure we'll be returning to it and

0:45:36 Thomas: We're getting more hearings. What are the other hearings?

0:45:38 Matt: Is at least, I mean, I if there's going to be more testimony. I don't think there's more testimony to be had, but I don't know. I might be. Just I know there's another hearing date set for today. So we will certainly follow up at some point and I'll let you know how that went.

0:45:44 Thomas: Is it like a closing argument type thing? Okay. Is nuts.

0:45:52 Thomas: I would say though, okay., going to just human speculation, they were pretty, pretty on the relationship timing and they were very insistent about him not having been at the house and all that. Like, were they just lying or is, this guy lying when he talked to Merchant?

0:46:10 Matt: It is. Willis and Nathan Wade acknowledged that they met in 2019, but that it was a professional relationship. And he had some reason to believe that he thought it was a romantic relationship or otherwise not than a mentor -friend relationship. That's all. And so he's just saying, I don't know. I don't have any basis for saying that. I was just shooting my mouth off, basically.

0:46:13 Thomas: Yeah. Yeah. Do you think that they were lying or do you think that he's lying now or that he was lying when he told Merchant.

0:46:33 Matt: Getting to the point where I' m feeling bad about speculating, even about a prosecutor's relationship. It just feels like we' ve gone so far off the course from what this case is. And honestly, at the end of the day, I want to remind everybody buddy. Matters to the sense that Wade may have perjured himself. Fannie Willis may have perjured herself on the stand about this relationship. But, you know, this is a very human thing to do to lie about a relationship. It has nothing to do necessarily with this motion to disqualify them.

0:46:36 Thomas: Okay. Yeah.

0:46:58 Thomas: Gave those qualifications before our coverage, and that still applies. But I do, I mean honestly, think I it matters, especially again for a re -election potentially. Think It matters whether or not you think she just completely got up there and lied on the stand. Important, I think. So I, granted, yes, this doesn't have anything to do with the actual case, but I guess I was just wondering what, you think, what you make of that. Cause I could see it either way from the information I have, I haven't kept up to date with this. Could See it being plausible that like he was trying to get back at him and maybe fudge this a little bit too merchant, you know, or was it it actually true? You know, I don't know.

0:47:35 Matt: Well, there's another wrench in all of this. I don't know if you caught The Trump team, Trump's lawyers, hired a tech expert to analyze their phone records.

0:47:37 Thomas: Uh -oh, more wrenches. Oh, God.

0:47:45 Matt: They determined that they were definitely talking a lot more than they acknowledged before the relationship allegedly began, and that he was in her area a whole lot more than he was acknowledging.

0:47:53 Thomas: Oh geez. How How do they have these records?

0:47:59 Matt: They have, from what had been subpoenaed before, they don't, so again, they They don't have texts or whatever between them, but they have sort of, I guess, enough that this expert could analyze the records. I don't really understand this portion of it. I got to be honest, this is very technical. I'm sure that there's got to been a listener who can explain this to us very well about how they could sort determine all of these things. And of course, ironically enough, this the kind of thing that the might in other circumstances say is extremely unreliable if it was introduced by a prosecutor. It does seem like there's something to it and that there's a good chance that they were spending more time together than they had acknowledged. Don't want to give the Trump team too much credit for this, but it does seems like it really calls both of their testimony into question, potentially.

0:48:11 Thomas: Okay. Yeah. Oh wow. Oh jeez.

0:48:38 Matt: Essentially.

0:48:39 Thomas: Okay. I'm gonna have to check that out.

0:48:40 Matt: They had, let defense investigator Charles Mittelstadt wrote in an affidavit that Willis and Wade made more than 2,000 calls and had just under 12,000 interactions during an 11-month period in 2021. but they said It started in November in 2021, I think. So yeah, He's saying that there's definitely something else going on and that you could put him in her neighborhood a lot more when he had no other reason to be there. So who knows?

0:48:52 Thomas: Oh, okay. I wonder, yeah, I know. I don't know. It's not like I trust anything they say, so I I don't know. Cell phone experts. Can you tell us if that was real? I don't know.

0:49:06 Matt: Yeah. Yeah. How reliable? I'd really like to know forensically what they were doing here and how it worked. But Willis's official response is that this is not even relevant. The records do nothing more than demonstrate that Wade's telephone was located somewhere within a densely populated multiple mile radius where various residents, restaurants, bars, nightclubs, and other businesses are located, which fair enough. It's a cell phone tower. It'S a large area. I don't know Atlanta enough to know if there's a reason that he'd be there otherwise. But fair game. Wanted to mention that because that is a wrench that potentially goes to their credibility as well.

0:49:35 Thomas: Many dang wrenches. Too many wrenaches. Enough Wow. Okay. Well, that all continues to suck, Matt. That continues to not look good. Much as there's a bunch of wretches, fundamentally, though, you've predicted that that this judge is not going to like take her off the case or whatever it is. Do you still think that's true?

0:49:51 Matt: Still don't think this meets the standard in Georgia. Obviously, it complicates things if she perjured herself, but that's not necessarily relevant to the disqualification otherwise, to what the defense is bringing. So it is, this thing remains a sideshow. It remains a distraction. And I will say, I do think at the end of the day that it would have been a lot easier as soon as this motion were filed, if she'd given a press conference and said, I've become a distraction, right? That sort of typical language that you use in a situation like this when there's a scandal building. But at the same time, after watching her testify, I'm a little bit more team funny, I think.

0:50:13 Thomas: Yeah. Yeah. I was, if it wasn't true that they had a relationship before they said they did, but if they were lying, then I'm a little more, not at all team funny. I think if going into this, if you were actually lying and you still tried to do the, like, I can't believe we're doing this. How dare you stuff that feels. All right. That doesn't feel great to me.

0:50:29 Matt: Yeah, You have lost a lot of credibility there and a lot, lot of your authority as the prosecutor, unfortunately, at that point. I meant to say that I can see why she's sticking with it. Other than that, if we set that aside, given just what hell it put her through personally to do this case and the amount of work and effort and personal sacrifice she made, I can see why she is sticking with it. I didn't mean to be flip about the fact that I think that it would be better for everybody if she stepped aside. Just think that one person shouldn't stand in the way of something so important. This criminal prosecution in our lifetimes at the end of the day.

0:51:09 Thomas: Yeah. And I have a kind of a slightly different take, which is if they were lying, I think she should have stepped down. If they weren't, I actually think she shouldn't have stepped down because, yeah, I, I thank that she has every right to, you up to these bullies who are trying to do this and remind everyone that she's not on trial. But if the whole time she was actually lying under oath, I don't like that very much. And I think that was bad. I think it was a bad thing to do.

0:51:29 Matt: Then you really become a distraction, truly. Yeah,

0:51:32 Thomas: So yikes. Okay. Well, I'll I'll wait to hear from the expert. I don't, I don'T know. I'm like, that's hard to know. Like in any other case, you would think, okay, cell phone expert, you might be able to reliably trust that. But like when it's coming from Trump's side, I just don't know if I could ever trust anything that comes from their side.

0:51:32 Matt: Yeah, yeah.

0:51:49 Matt: Yeah. Guarantee you, whatever this is, it's something that defense attorneys have challenged in court when prosecutors bring it in. But just another

0:51:54 Thomas: More on that another time, perhaps. We'll see.

0:51:56 Matt: Time. We'll see. Yeah.

0:51:58 Thomas: Is in Led Zeppelin stuff or anything? Are we good?

0:52:03 Matt: There's a bunch of other Trump stuff happening. The main other bit of Trump news is that he does not want to put down any money in the two major judgments against him. And I this is a lot of money.

0:52:09 Thomas: Oh yeah. Yeah. Yeah. I was going to say, gee, I wonder why.

0:52:18 Matt: And just to be clear, this is an $83 million judgment in the E. Jean Carroll case and what amounts to a $355 million judgment and the New York fraud case. And that is picking up as New York Attorney General Letitia James has been tweeting every day. Up the amount because there's now $114 ,554 of interest interest is occurring as sorry. That is the amount per day.

0:52:36 Thomas: Yeah, yeah. Every day, right? That's a lot per day. It's a lot of interest.

0:52:45 Matt: Pretty painful. What he's trying to do, of course, in both cases is do what he always does and delay as much as he can and not have to pay any of this. So in the E. Jean Carroll case, he filed kind of a ridiculous motion. I mean, these are all ridiculous at this point, but saying that he shouldn't have to put down any money at all and that he can appeal this without even securing that, which he really can't do.

Jeanne Carroll fires back a very good response. Reasoning Trump offers in seeking this extraordinary relief boils down to nothing more than, trust me, he doesn't offer any information about his finances or the nature and location of his assets. He doesn't specify what percentage of his assets are liquid or explain how Carroll might go about collecting.

He doesn't even acknowledge the risks that now accompany his financial situation, from a half -billion -dollar judgment obtained by the New York Attorney General to the 91 felony charges that might end his career as a businessman permanently. He simply asks the court to trust me and offers, in a case with an $83.3 million judgment against him, the court -filing equivalent of a paper napkin, signed by the least trustworthy

0:53:38 Thomas: Yeah.

0:53:38 Matt: Of borrowers. That's a good introduction. Well Well done. Judge Kaplan, who's already not a Trump fan, orders a very quick briefing schedule. It's kind of a funny order here where he's like, OK, I guess you have the right to try to seek a stay of this, but you're not getting it. It's just not going to happen. Right. Seeks that relief without posting any security. The court declines to grant any stay, much less an unsecured stay, without first having afforded plaintiff a meaningful opportunity to be heard.

So on February 24th, he does a very expedited briefing schedule saying the plaintiff gets to file a response by February 29th, and then the reply is due by March 2nd, which is just a few days later. So he's not messing around on this. He has no interest in staying in this judgment, obviously. That's the case, of course, in the N 'Goran decision in New York, where Trump was seeking the same thing.

And he basically came back with an offer to be like, well, I know that it comes out to whatever amount, but how about if I just gave you $100 million now. And that doesn't seem like that's going to work. He's bargaining,

0:53:41 Thomas: Yeah. Ah.

0:54:37 Matt: Right?

0:54:36 Thomas: Art of The deal right there, I

0:54:38 Matt: That's right. Yeah. But wants to try to have this and it's not going to happen. He is not going to have the amount stayed. It is going to continue to accumulate interest and he can appeal it all he wants. But there is a reason these civil things work this way, that we don't want to have people stretching these things out forever and the plaintiffs never get paid, especially in a case where the defendant has all the resources and the the plaintiff doesn't. So this has got to end. This isn't going to work for him. He's going to have to pay up and it's not looking good for him. Well.

0:55:04 Thomas: Don't know where he's gonna get that money. I'm

0:55:06 Matt: He's complaining he's that he's gonna have to sell properties and he's going have to sell him at a fire sale and lose a lot of money on his properties and really mad about it.

0:55:12 Thomas: Sorry, what relevance does that have to the court? You don't understand. I don't like that I have to pay the- it's like what I- I don't your

0:55:14 Matt: Exactly. Right, yeah. Yeah. Like in this mess because you couldn't tell us how much your properties were worth. So anyway

0:55:21 Thomas: Yeah yeah There's also so many rules around like what he can do now. He can't get loans from people. He- We can't, you know, like that New York case. This is going to be interesting.

0:55:33 Matt: Is, I mean, we are getting to that fantasy of Donald Trump both bankrupted and in prison. Let's not let ourselves go too crazy with this fantasy yet, but it's on the edge. We're getting there.

0:55:40 Thomas: Yeah. We're very close to the bankruptcy because I don't know how he's getting that. But like if he's elected president, like the heck does that work? Question for later. Yeah. Like what's the consequence if he doesn't? He's the president.

0:55:46 Matt: Yes. He's still got to pay. I don't know.

0:55:58 Thomas: Let's not let him be that. Tell you what. Let's now let him do that. And then we don't have to answer that question. How about that?

0:55:58 Matt: I really, I mean, yeah. Let'S not find out. I agree. Really don't want to. More than enough Trump slash Eagles news for one one day.

0:56:12 Thomas: Yeah. Yeah. It's I expect a Trump Eagles update or an equivalent dad band next time, you know, as was quite a journey, Matt. Thanks for taking us through that. Henley sucks, but Trump sucks more. And I'm excited for Monday's deep dive.

0:56:28 Matt: Be back.

0:56:29 Thomas: Right. We'll see everyone then.

0:56:30 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.