Trump's Criminal Trial Is Moving Right Along!

Transcript

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

0:00:52 Thomas: And welcome to Opening Arguments. This is episode 1024. That feels like a good like programery number, right? I'm your host Thomas Smith. That over there is co-host Matt Cameron, actual lawyer, crimmigration attorney. How are you doing?

0:01:05 Matt: Had a little too much news today, Thomas. Feeling a little full of news.

0:01:07 Thomas: Yeah, your blood news content getting a little high. You're pushing the legal limit. Am excited though. There's so much much to talk about. We have a jam packed show for you. I have to talk About the Trump trial, going so much faster than I think I was led to believe. So it's good. And I can't wait to hear about why. And then also a really important Supreme Court case that just had oral arguments, right.

0:01:09 Matt: Yeah. Oh yeah. Sure.

0:01:29 Matt: Oh, yeah. And a weird one. Of course, they're all weird ones these days, of

0:01:32 Thomas: Perhaps a scary opportunity for them to help Trump a little bit, maybe. Then also, uh. An impeachment failed. We covered that impeachment.

0:01:40 Matt: Spectacularly.

0:01:40 Thomas: Yeah. In depth back when they tried to do it stupidly. First few times.

0:01:45 Matt: We'll give it the two minutes it deserves, but we got to talk about it.

0:01:46 Thomas: Exactly. Yeah. Who would have thought an impeachment. Man, if you had told us in the 90s or something, you know, that an impeachment would be, oh, Oh yeah, an impeachment happened and failed and nobody cares because it's stupid. That would have been hard to believe.

0:01:58 Matt: Because the former president was on trial that week instead, right? That's why.

0:02:00 Thomas: Yeah, I was going to try to not even bring in that part of it, but no, you're right. That's a crazy too. We have cell phones. We all have cell phone. They're amazing. They're more powerful that we keep going. Guy with the radio fits That whole thing, he has the Walkman and the picture with the movies and all that. It's right now. They'll never believe it. But anyway, all that, lots to talk about. After this break, go to patreon.com/law if you'd like to avoid the breaks. Good reason to join. Plus a lot of awful movies various and and sundry other goodies. More will come soon, I think. So after this break we'll get to it.

0:02:36 Thomas: I did want to make a note here. So it turns out that, like, made an update that kind of screwed over podcasts a little bit in, if you haven't gone to the podcast and pushed the like plus button, you know, like the subscribe button or whatever, I, it didn't used to work this way, but with the last iOS update, if you're an iPhone, Apple podcast user, after a certain amount of time, it'll stop, like, the show. It'll stop counting you as a listener.

And that's been trouble for podcasters like us. If that's something you could check on, check on your player right now. Now, if you're on an iPhone and hit that plus button, if you don't mind that, that would be really nice. Change they made, I guess. I don't, I don't really understand it, but that's what I'm told. So please do so if you don't mind checking that.

Right, Matt, I was kind of led to believe, and it made perfect sense, that this voir dire could take quite a while, um, jury selection thing, because of, you know, obviously it's Trump, you got to find people who are suitable for that. And lo and behold, I mean, we, we seem to already have a jury. I don't know if that means we're done because I think you need some alternates and stuff, but like it's already done, oh.

0:03:36 Matt: People and one alternate have been seated as of the the time that we were releasing this. So yeah, I had predicted two weeks. It took less than one week. So surprised, I have to say. Compare it to big things like we're talking about the Boston Marathon bombing, that took weeks. The O.J. Simpson trial took two months, right? And

0:03:50 Thomas: That's the one that took two months? Yeah, that's right, okay. Well,

0:03:53 Matt: Yeah, the being, though, that obviously pretty much everybody on earth at this point knows who Donald Trump is. Most people have an opinion about him. I don't really understand who you are if you don't have an opinion about Donald Trump at this point. This crime is really what's on trial here, of course, the actual violation of penal code.

0:04:08 Thomas: I heard the whole damn court's on trial, the whole country's on Trump's to be believed, the system's on trail, yeah.

0:04:10 Matt: That's right. But terms of the violation of Penal Law 175.10, and the actual facts alleged as to these payments to Michael Cohen, which went on to Stormy Daniels, most people don't really know the details of that. Very few people who don't listen to podcasts or do podcasts know exactly what happened. You know, I think that made it a lot easier to pick a jury in this case. Plus, it just seems like, from everything I've read, very efficient jury selection on the part of Judge Marchand really kept it moving.

0:04:36 Thomas: He He wasn't messing around.

0:04:37 Matt: No, it has not been this whole time. Know, some interesting stuff all the way through, but a number let of pretrial motions. One of them, of course, was another desperate attempt at recusal that didn't work out too well. Well, one of them being that Weisselberg's perjury plea, that's just another thing that just happened. Ellen Weisselsberg took a second perjurity plea, is going back to Rikers Island. Were trying to argue that was somehow coerced, but Mershon had no tolerance for any of this. He just wasn't putting up with it. As much as said in open court that he thought the lawyers were just wasting time and making things up in their motions. So we'll see what happens with all that. Lawyers are going to be appearing for the next many weeks here in this trial.

0:04:39 Thomas: Yeah. Sure.

0:05:10 Thomas: Now, as a lawyer, Matt, do you want to start the trial with zero credibility in front of the judge? Like, is that a good place to start?

0:05:18 Matt: Now. At least the lawyers didn't end up testifying about their sex lives. Could have been worse.

0:05:21 Thomas: That's fair. There.

0:05:24 Matt: Yeah, no, none of the pretrial motions have worked out. The testimony of Michael Cohen was the first issue that Trump wanted to try to exclude. The court appreciates defendant's interest in protecting the process of justice and the integrity of this court, but his motion is denied. That was a very good way to put it.

0:05:34 Thomas: So what, on what ground was, what was he trying? What was Trump trying to do there? He wanted all testimony the trial hasn't, oh, he didn't want to let him testify. Is that what it is? Oh,

0:05:45 Matt: Michael Cohen as a liar. He recently committed perjury on the stand. Obviously, he went to prison for it. So he's going to perjure himself all over the place, right? But the court is unaware of any perjured testimony that Cohen has provided in the instant matter. Obviously he hasn't lied about this case yet. So, you know,

0:05:52 Thomas: Yeah. Oh, okay. So my confusion is warranted there. Cause I was like, wait, what do you mean exclude his testimony? He hasn't we haven't started. Is that weird to try to say, Hey, you don't even, this guy he's, he's going to get up here and lie. That's not normally how it's done.

0:06:06 Matt: Right. Yeah. Well, that's What emotion? That's

0:06:12 Thomas: Is it? Well,

0:06:13 Matt: What emotion eliminate is, is like, just to stop the tongue, right? You're supposed to try to keep out evidence you don't like. Oh.

0:06:17 Thomas: But are you normally able to just say one of the key witnesses is going to be a liar, so don't? Does is that successful?

0:06:23 Matt: No. That's Stupid, obviously.

0:06:24 Thomas: Yeah.

0:06:24 Matt: No.

0:06:24 Thomas: That's that's what I mean. Yeah, yeah. You'd

0:06:25 Matt: Yeah. Right, but I mean, I guess it's fair game to bring up that he's been convicted of perjury, but you can bring that up when he testifies. You know, that Yeah, that would be much better than trying to do this. But I mean, these are the kinds of things that Michonne was getting really annoyed about, obviously, um, out. Trying to argue that the court should preclude the people from arguing that President Trump sought to improperly influence the 2016 election. Court should preclude improper arguments on the element of intent to defraud. And the court should proclude evidence and argument concerning the so-called catch-and-kill scheme, which is obviously what, the entire purpose of all of this, you money payment, right, this over to the National Enquirer and kill it.

0:06:31 Thomas: Impeach him as a witness, right? Yeah. It's pretty weird. Yeah.

0:06:59 Thomas: We are opening arguments, and since you are a real attorney, Matt, can you talk about this? I mean, I think know, people, most listeners are more knowledgeable than that one person who is now a judge who didn't know what motions in limine were, famously. Like, this is pretty important, right? Doesn't this, I think this is a kind of a to the layperson, a relatively unknown part of this that, I me, if I'm wrong, seems like it could really make or break someone's case, potentially, depending on what's going on. I mean, you're arguing for the judge, like, hey, we need to keep this particular thing completely out of the proceedings here.

0:07:27 Matt: Yep, important pre -trial motions. You're always going to get these, especially in a case of this size and scope, evidence but professor used to say that you're talking about an arena, right? You're talking about sort of the marking out an arena in which you're going to do battle, and, you know, you can't have one side running up and just dumping a trash can full of stuff into to the arena, right? We have to keep it clean. So the idea is just to limit what's coming in, what the jury actually hears. Obviously, these motions are being done before a jury's even being selected so that we have this all clear and simple, and we know what's going to be coming in and what's not.

0:07:49 Thomas: Mm hmm. Do you have any like experience or anything that you could share with us on

0:07:55 Matt: I can't think of any sexy motion elimination stories. They're usually pretty straightforward. Although I will pronouns were properly used. And that's an eliminate kind of issue. Important because her previous attorney had misgendered her, and the court was misgendering her, and the prosecutor was misgendering her. So it's pretty important. And it's a pretty important part of the case as well in the trial. So, that you kind of thing, like Just clarifying on the record, being sure that we know how the trial is going to be conducted and what's going to be said so we don't have big surprises.

0:08:05 Thomas: Wow. Oh my gosh. No kidding. That's fascinating.

0:08:24 Thomas: Yeah. It's also stuff I think average that person might think, oh, this should be in here. Stuff that's like, well, this is evidence that this person sucks. But then I think it's the, you know, the appropriate role of the court to be like, hey, for the matter at hand, like, we don't, you get to hear a whole bunch of stuff about how this person socks because it's not really, it wouldn't be, it'd be too prejudicial. Right. So there's a lot of that stuff.

0:08:30 Matt: Yeah.

0:08:44 Matt: And that's actually going to come up a lot more if they have Sandoval a hearing, which in New York is a way of clarifying what's gonna happen when the defendant testifies. Now, Trump is saying he's going to testify. I don't think he's gonna testify. He said he's He's going to testify in every one of these cases, and he's promised, you know, big blockbuster testimony. It's never happened.

0:08:54 Thomas: Yeah. Yeah.

0:09:00 Matt: I don't think he's going stand up and do it.

0:09:01 Thomas: The biggest, best testimony you've ever seen. Going to be huge. Huge.

0:09:05 Matt: Because he's saying that he's going to justify, the judge is taking him at his word and is going to schedule a Sandoval hearing, which in New York, yeah, it means that basically they get to consider which prior bad acts get to come in. This is a whole other sort of thing, you know, when the defendant is testifying. And, you know, we were talking prior bad acts with Donald Trump. You got a list. You got months worth. So you got to narrow it down.

0:09:09 Thomas: I like that.

0:09:20 Thomas: I realized this could be his new genius delay tactic. Hey, your honor, I'm going to testify. Let's do the letters for Santa thing where all the bags come in. These are my prior bad acts. Let us sift through these.

0:09:27 Matt: Right. I mean, it's not actually a confessional booth, but you yeah. Well, they can't bring in – I mean it would have to come in through his testimony, most of these things.

0:09:39 Thomas: But I guess, does mean if he testifies, that opens him up to more stuff than if he doesn't, right?

0:09:47 Matt: So if they want to talk about, for example, the fact that he's already been found civilly liable for corporate fraud, right? The fact that they've lied on their business records and inflated the values of their properties for tax purposes, that's directly relevant, obviously, to lying on these business records. He's charged with falsifying business records as the actual crime. Now, that was civil, but it still seems relevant to me, and there's got to be some way to navigate that. Going to be pretty precision baby-splitting, as we like to talk about here. We're going to find lots of different ways to bring in certain parts of these things, but not the other things. It's an important part of introducing prior bad acts to make sure that you're not completely prejudicing the case and bringing in all of the bad stuff the guy's ever done or things that might be related to that. But there's a balance here, and I think that the jury deserves to hear about the fact that he has, in fact, been

0:09:47 Thomas: Mm hmm. Right. Yeah. Yeah. Yeah, wait,

0:10:32 Matt: Involved in other kinds of corporate fraud.

0:10:34 Thomas: Are you saying they wouldn't be able to get that in if he didn't testify, though?

0:10:36 Matt: No, I don't think that in this case, I'm mean, I don't know what other witness that would come in through necessarily. I don'T think Weisselberg is going to testify at this point. If he were, I guess they would. There's an open question about whether Weiselberg is gonna testify.

0:10:45 Thomas: Yeah, this is one of those things I think it's hard, again, for non lawyers to understand that it's like, well, but that's like almost evidence of him doing exactly. Exactly. It's one thing to be like, you know, I've had bar questions. T3B, it's a good reason to listen to that. The Wednesday show where it's like, um, you bring in evidence that this person had the unpaid parking tickets? You and it's like, no, cause not really relevant, but isn't there a thing where it'S like, if it's a direct pattern, like consistent with kind of the crime you're talking about, then is it a different story?

0:11:13 Matt: Right. But it can't be like, if you've done that thing 15 times, the judge is going find some way to limit it so that the jury isn't looking at somebody that they're absolutely convinced has just done the same thing again. You have to still have some presumption of innocence built in here. There are 13 things that the prosecution has brought up in a three-page filing saying they'd like to introduce as prior bad acts here if he testifies, so we will see. Um, prosecution wants to put on Karen McDougal to show a similar pattern of behavior, right? Because she was a Playboy model that Trump paid off after an affair. They're narrowing down sort of the limits of her testimony. And the judge ruled that she could testify, but she can't talk about the fact that Melania was pregnant at the time of the affair. Thing, you can see that this is a judge's duty, is to kind of narrow down how prejudicial it can be, how probative it's going to be.

0:11:25 Thomas: Yeah. Oh, Yeah, I think that's a great example because every, every bone in my body would want to be like, oh, they should know that he's a piece of shit and she was pregnant. But like, when you think about it from a criminal justice, fairness you perspective, it's like, well, that's not not really relevant to like the cover-up scheme trying to defraud the public about election finance. It's not really irrelevant to say, and his wife was pregnant at the time. It's like, as much as I hate him, that's that's fair, right. I

0:12:16 Matt: Right. Right? Sure. I mean, like, or hypothetical a couple weeks ago about Trump kicking a cat, right? I mean, we'd all like to know that he kicked a cat. But that doesn't need to come in at this trial. That's not really relevant. We can maybe.

0:12:28 Thomas: He'll be be on cat cat court for that one. Get him. Don't worry.

0:12:30 Matt: Yeah. Other big thing to come out Monday, and actually, yesterday on Thursday, was that the prosecution is pushing hard to have Mershon find that Trump has violated the gag order. And now we're getting into that timeless question of whether retweets are endorsements. We're coming back to that again. Because his strategy, he thinks he's got a loophole in the gag order, and he thinks that he can just retweet nasty things that other people say.

0:12:47 Thomas: Oh, man. Yeah. Oh, my God. That is so funny. It

0:12:53 Matt: Insteadof doing a retreat, he just typed out a quote from Jesse Waters and put Jesse Waters after it. A really nasty quote. Like, no, you know you can't do that.

0:12:57 Thomas: Yeah. I Yeah, this is amazing. I bet you this is a legal question that's probably not been answered before because this is like, I mean, or if it has, it's pretty obscure. This is like back in the day if someone would have said, okay, I'm under a gag order, but can I have a ventriloquist move my mouth and say stuff while I'm talking, you know, it's like, okay, man, can you just shut up? We can avoid all this, but I just stopped doing any of that.

0:13:09 Matt: Yeah, right. Yeah, right. He can't. Can't and he won't. So the prosecution, I was a little surprised by this, for sanctions, the prosecution is only asking for $1,000 per violation. That's nothing.

0:13:31 Thomas: Yeah. That's chump change. I mean, what are you talking about?

0:13:33 Matt: Even for this guy who's losing all of his money to lawyers very quickly. They're now saying, as of yesterday, that he's violated it seven more times, even since they brought this up on Monday. There's going to be a hearing on this on Tuesday, so it should be interesting to see what happens next week. Because, I mean, Trump is obviously, he has been pushing it the whole time with every one of these judges in every one of these cases, and he's just daring Merchant to do something. Will see.

0:13:36 Thomas: Yeah. Wow.

0:13:54 Thomas: Scary too with jurors the and it seems like all of the right-wing machine is trying to identify these folks and it is scary.

0:13:58 Matt: Oh, yeah. Yeah, it's terrible.

0:14:02 Thomas: Scary.

0:14:02 Matt: We've already had one juror quit, just step out of the case because she just decided, I mean, her family and friends identified her. She was concerned about who else could identify her. I honestly, I was a little concerned in the coverage about how much the media was allowed to report about these people. Because you got a lot of very specific details, details.

0:14:15 Thomas: Yeah, That's, I wanted to ask you that. So, in this process, we've seeing, like, defense is going through all their social media, finding all their Social Media, trying to, you makes sense—trying to prove, like or not biased, they're maybe they have some secret agenda, agenda now I wanted to just a practical question about that for you, are they required to like hand all that over, or is that the kind of thing where literally you got to have like detectives you on your side to be like who is this person, track down everything they have done, I posted, you know, like how does that work? Yeah.

0:14:45 Matt: So people are pretty easy to find these days, but there, the questions having to do with social media are, do you follow any anti-Trump organizations on a social media site, I don't know, have you signed up for any groups or anything else that could be relevant, um, but it's up to the defense to try to find these people, but the defense has very well-paid people to track all these things down, it's not that hard to find most people on social media that's

0:15:02 Thomas: Right. So they have to track down their secret. Mitt Romney is on the jury, potentially, they got to find Pierre. What was it again? I almost had it.

0:15:10 Matt: Yeah. I don't remember if, yeah, it's a

0:15:12 Thomas: I almost Had it. Wasn't

0:15:12 Matt: Ridiculous one. Yeah, want to find out as much as possible about what you ingest, what you know.

0:15:16 Thomas: Can't believe you didn't have my back on the fake Mitt Romoney. I don't know why. I just feel like that's a Matt fact. I feel like Matt would know.

0:15:19 Matt: Yeah, I usually would be. It's been a while. I you know, Mitt Romney was the governor of Massachusetts for many years and I've forgotten about him now. Just completely forgotten about them.

0:15:23 Thomas: Yeah. Way, it's Pierre Delecto. I was so, oh man, I can't believe I remembered the boring part and forgot the Delecta part. And then he said, c 'est moi when he was discovered. It was so good. But it would be up to Trump team to find Pierre Delecto. He's done. That's really, wow. Okay.

0:15:31 Matt: Pierre Delecto. All right.

0:15:44 Matt: Yes. But they've got investigators, they got people that pay very well to track these things down and go through every one of your posts. I'm sure they had a good time.

0:15:48 Thomas: Yeah. Wow. That's creepy though. So any one of those jurors knows that if they're at all like on this, you know, potential, they have people going through everything they can possibly find on them right now as we speak yeah

0:16:01 Matt: It is. And these things have come up, and we've had people already excluded for cause because they had anti-Trump posts of one kind or another, there were things that were too pro-Trump. The most part, I won't get too much time on this, but it is kind interesting. Are the questions you'd usually expect about your background, your marital status, kids, what you do for work, and if you've ever worked in any kind of law enforcement, your feelings about law enforcement. These Are all very standard questions that I've always made sure in any jury questionnaire. But then we get into more specific things. Oh, and also something that's directly relevant to us. Do you listen to or watch podcasts? If so, which ones? You have to list all of their podcasts.

0:16:03 Thomas: What yeah oh

0:16:35 Matt: I hope there's at least one OA OA listener. And if you're listening, OA listener, don't listen right now, please, if you are on the jury.

0:16:38 Thomas: Man yeah Yeah. Wait, could we ever find out if any of them said OA was one of them? Damn it.

0:16:44 Matt: No, these are all, they are never going to come out. Did have to say it at open court. So if somebody said it, then I don't know if anybody wrote it down. But also, we can check back, but just thought that question was a little strange because it's, do you listen to or watch podcasts? And I think you're a little psychotic like if you watch podcasts, I'm sorry.

0:16:51 Thomas: Maybe some reporter somewhere.

0:17:01 Thomas: Yeah. Well, there's the Joe Rogan is on YouTube and so, I mean, some, some of them do that. So yeah.

0:17:05 Matt: My point stands.

0:17:08 Thomas: Well I think it's important because maybe somebody just watches Joe Rogin and then they're like, no, I don't listen to any podcast.

0:17:08 Matt: But yeah, right. A couple of other things on here. Obviously, they want to know if you've worked for a Trump organization company, if you have a relative or close friend who's volunteered for the Trump campaign, if You've ever attended a Trump rally, just basically any possible connections, anything that might disclose. You ever considered yourself a supporter of or belong to any of the following? QAnon, Proud Boys, Oath Keepers, Three Percenters, Boogaloo Boys, or Antifa? Have any feelings or opinions about how Mr. Trump is being treated in this case? Here's my, I think my favorite question here is, do You have any strong opinions or firmly firmly held beliefs about whether a former president may be criminally charged in state court. Yes, yes, I do. He should be. Also had somebody that the defense was challenging because he uses a flip phone, and I thought that was a little offensive.

0:18:00 Thomas: And The Defense was challenging. I would think you'd want someone who uses a flip phone.

0:18:00 Matt: Yeah, he was like a cop, he uses the flip phone. And he said that because he has a flip zone, he doesn't watch podcasts. That was the actual quote, which is true, I guess. To say this is erasure a little bit for me because I don't know if this has come up yet, but I still use a BlackBerry knockoff. I have used a BlackBerry my entire smartphone career. I've never had anything that's not a Blackberry.

0:18:03 Thomas: Oof. Yikes.

0:18:21 Matt: So I got to have my keyboard phones. Don't judge. You

0:18:22 Thomas: Oh. Man. I, I Needed, speaking of voir dire, I needed you to tell me this before we started doing the show together because I don't, I don't know how to handle that. I'm sorry, yeah, so am I and I use a phone that humans use, so

0:18:31 Matt: Might have noticed I'm very fast at texting. That's what happens. Yeah, that's what you get. Yeah. I had to explain mine to my network. It took a while.

0:18:47 Thomas: What, yeah, to your cell network, you're like, yeah, okay,

0:18:50 Matt: Yeah. And my social network. Work. That too.

0:18:55 Thomas: So, saying that the Trump team doesn't want a guy who uses a flip phone, cause that's crazy. Would just think, as a default, like if that was the only thing you knew about him, if you, okay. If you, out there, we're all going to be a expert jury war dearests right now. If your only thing you're told, you're on, you're in the prosecution. Only thing you're sold is a guy uses a foot, only as a flip, on. Are you wanting that juror? Are you not wanting that? Sure, I am not wanting natural.

0:19:17 Matt: Well, I mean, if I were the defense, I think I might want him because he works in law enforcement.

0:19:19 Thomas: I know I'm I'm saying I'm saying, if there's a prosecution, so we because what are likely the good reasons for only using a flip phone, for one being a boomer, and that's, I would think, going to help Trump on average.

0:19:21 Matt: Oh, yeah. I'm sorry. Yes. I mean the prosecution. Sure. Yeah. I am sorry.

0:19:31 Thomas: If two, that means you don't follow the news, so you That's crazy, okay,

0:19:31 Matt: And Yeah? It's true. Reads the Daily News and New York Post and listens to sports radio. It sounds like a Trump guy to me, but but yeah, yeah, come on.

0:19:40 Thomas: York Post are you kidding me, they, the, the defense is that, are you serious, the, the, the defense didn't want, was there something else? Did he have, like, an "I hate Trump" face tattoo or something? Like What, otherwise, that is their guy, I would think, yeah.

0:19:54 Matt: I'm very sorry. That was the prosecution. Shit, I am sorry. Didn't have it in front of me.

0:19:57 Thomas: There that makes a lot more sense, Matt. I'm probably gonna leave that in because I, you know, I sussed that one out, yeah, that, that is absolutely a Trump guy right there, okay, yeah.

0:19:58 Matt: Okay, okay, okay. Okay. That was the prosecution because that was a Trump guy. Just his media consumption alone.

0:20:08 Thomas: Yep. That makes more it's all. Yep. Yeah, you say New York, but if someone volunteers that they read the New Yorg Post, like, that's, a I, come on, you're practically, you were there on January 6th, is all I'm saying.

0:20:12 Matt: Okay. That's pretty much. Anyway, so there are only 10 preemptory strikes allowed. Those are the ones that you don't have to explain yourself on. You can just say, I don't want this person on the jury. Trump complained about that today and said that, I thought strikes were supposed to be unlimited. That was his opinion.

0:20:31 Thomas: What, yeah, you could just complain that you didn't understand. I also, I thought that you could just declare yourself innocent and then it's all over, like, cool, man, that's not worth anything, you were just wrong about a thing's work. Wow.

0:20:35 Matt: Yeah. Defense also tried to strike a juror that had actually stayed at the defense attorney's house. Defense defense Susan Nichols, said that her relationship with the woman was now awkward. And Marshawn had to point out that's not grounds for dismissal, that you have an awkward relationship with a jurors. Husband had actually written a review of Maggie Haberman's book in 2022, so, uh, know, I think those things would be issues, but the judge didn't, so she's on

0:20:50 Thomas: Huh. Wait, it. The person who stayed at a defense counsel's house? Small world. That wouldn't be enough to just be like, all right, or

0:21:02 Matt: Um, 15 years ago, so it really is yeah, you would think, but they were trying that for cause, and the judge found that wasn't cause. Um,

0:21:15 Thomas: What do you think about that? Does that make sense?

0:21:17 Matt: I mean, just because she's saying it's an awkward relationship and they haven't really talked, but the judge's impression of everything was that she said she met you once 15 years ago. I don't know the circumstances under which she stayed at her house, but she said that's enough.

0:21:27 Thomas: Okay. Weird.

0:21:28 Matt: So good enough. So we have a jury is the point.

0:21:31 Thomas: Crazy.

0:21:31 Matt: We have 12 jurors. And by the time this episode is released, we'll be on our way to picking the rest of the alternates. I will note that in Massachusetts, alternates are picked at the end of trial. So it's random and you don't know while you're sitting through the trial if you're going to be an alternate. Alternate?

0:21:32 Thomas: Oh, that makes way more sense.

0:21:44 Matt: Think so too, because what, aren't

0:21:45 Thomas: Holy crap. Why would you do it any other way?

0:21:47 Matt: You, exactly. And they're going to pick the alternates and they know they're alternates just sitting there for weeks. I don't know.

0:21:47 Thomas: Oh My God. Did no one who wrote the rules have ADHD, hd Matt? Because if you tell me I'm not an alternate, I'm not paying attention to any of the, "I it is optional summer reading," that I'm, there's no way, like, I, a barely a chance I'll be able to pay attention enough. Yeah, I would in this trial, but like, I'll probably not be able to pay attention if I'm one of the jurors, but let alone if you tell me ahead of time that this is likely not going to to count, count towards your final grade as a juror.

0:21:58 Matt: Right. This is optional, reading. Yeah. Yeah, sure.

0:22:21 Matt: That's how it is apparently.

0:22:23 Thomas: That's crazy. Now, here's the thing, though, these jurors, um, are dropping like flies. No, maybe not, that that might be too much, but they, there a potential for all along this process to continue if you're Trump's side to continue to bring up Pierre Delecto accounts or anything else, like, is that kind of fair game throughout the entirety of the trial, or is there a time period where it's like, okay, we're done with that? Yeah.

0:22:24 Matt: Yeah.

0:22:44 Matt: You could try for sure. We were talking about that in the Boston Marathon bombing about how they found something like 19 days later. Certainly if it's damning enough and it looks like this person is really not supposed to be on a jury, that they have such strong opinions that it might prejudice them, then you can try. And certainly it's an appellate issue. So the judge wants to be careful about that.

0:22:48 Thomas: Interesting.

0:23:01 Matt: Look ahead though, because this is obviously just the first week and we've got many more weeks to come of this, and we'll be talking about it plenty. But next week we should be having that hearing on sanctions, potentially. We'll see what goes on with the gag order. We may have a hearing on the Sandoval issue that we were just discussing about prior bad acts. And assuming that alternates are able to be picked as quickly as they're picking everybody else, we should have opening statements and we should be on to an actual trial of a former president. So I want to talk about what that charge actually is very quickly, because we did discuss it on Serious Inquiries Only on March 26, 2023, which seems like a very long time ago right now.

0:23:01 Thomas: Uh, It Was A very Long time ago.

0:23:34 Matt: 351, if you want to look it up, we talked about the New York charges. But of course, back then we didn't have charges, and we didn't know what they were going to be or why the DA was going to bring them. We just had some basic form of what it was going to look like. And I had narrowed it down to New York Penal Law 17510, which was in fact what all of these charges are brought under. And the thing about this, it's to make it a felony, and it's a Class E felony in New York, which is the lowest category of felony.

0:23:44 Thomas: Huh. Yeah. Classy felony. Yeah, yeah, I remember.

0:23:57 Matt: It's very classy. Only the classiest felonies for Donald Trump. The statute here, a person is guilty of falsifying business records in the first degree when he commits the crime of falsify in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof. So the question at the time when we were talking about this is, what is that other crime going to be? And they don't have to prove beyond a Reasonable doubt that you were trying to commit another crime, was just that there's another other crime that it could be, so

0:23:57 Thomas: Yeah. Right.

0:24:19 Thomas: And If I remember right, I don't even think I necessarily, maybe it was only at that time, I don't know, but they didn't have to state exactly what that crime was, right? It was just like, there could be a number of options for it, as long as you had, right, it's kind of interesting. It's an interesting thing to think about philosophically, even

0:24:35 Matt: Yeah. Can raise it at trial, but they don't have to tell them ahead of time, um,

0:24:41 Thomas: Right. So at trial, do you do have to have like, OK, this is the other crime that we're talking about?

0:24:42 Matt: Yeah. They're going to spell it out, but they did, in a, in a pre-trial filing a couple of months after he recorded that episode, um, made the point that the people don't actually have to prove intent or to conceal a particular crime, so we don't have to talk about it in the indictment, we don't have to tell you now what we think it is, but notwithstanding, here's some things could give you some Options, uh, So they know, they list an election law, tax law, and a couple of other business record violations, as well as a federal campaign, because we were talking about, you know, would federal crimes count? They absolutely do. Give a couple examples about, things that would qualify here pertaining to the agreement, about different ways they disguise the payments, that they agree to suppress negative stories about the defendant before the election, being an election interference. And this really is an election-interference case when it comes down to it, because who knows? I don't know that it would be spectacularly different if this had come out just before the election, that he'd had this affair with someone while his wife was pregnant.

0:24:59 Thomas: OK. Yeah. Yeah, it might have.

0:25:33 Matt: But I would think a lot of people would want to know that. It really could have in some of those closer states. Who knows? So I think it is serious. I we did have a patron question I want to answer very quickly when we put out our call for questions about today's episode. Jace Browning asked, what are the maximum consequences for Trump's hush money trial? Trial. Can he actually see a prison cell like Cohen did? And why not?

0:25:35 Thomas: Yeah.

0:25:52 Thomas: Why not? Is it good?

0:25:53 Matt: Yeah, it's just kind of assuming he's not. Yeah. Fair game, Jace. Yeah." So classy felonies are the lowest level of felony in New York. Technically speaking, the maximum sentence for each count here is four years, but that doesn't mean he's going to get 136 years, because a 20-year sentencing cap for this kind of offense. You can't actually end up doing more than 20 years. And of course, the decision about whether the sentence is run concurrently or consecutively is always going to be up to the judge. Typically, in a case like this, they're going to run concurrently. It's extremely unusual to have them back-to-back sentences.

0:26:05 Thomas: OK. Oh, I didn't realize that was something the judge could decide. That makes a pretty big difference.

0:26:22 Matt: Oh, yeah. Yeah. Huge difference. If you're going be sentenced to multiple counts, you'd really want to have those done concurrently, but the fact that this is not a violent offense, he has no criminal record, obviously, he's been an ass this entire time all the way through the trial, and certainly Marachan can consider that in sentencing. All around, like his character and what he's doing and the stuff it has to play in somehow, right? But I, at this point, the complication of putting him in jail alone, I think, is going to be giving the judge pause. It would not be at all unusual in a case like this to just get probation and fines. And certainly, Donald Trump on probation alone could just... His propensity for crime could certainly lead to more if you put him on a few years of

0:26:24 Thomas: Jeez. Yeah? Really? Yeah. Yeah. Jeez. No

0:27:02 Matt: Probation, um, know, he just can't seem to follow instructions when he's given them, but I am going to predict at this point that I don't think he's actually going to get jail time, and if he does, I don't think it's going to be more than a year. I yeah, but I don't, yeah, right, right, yeah, I

0:27:02 Thomas: Kidding. Also heard someone say they could do like a home confinement thing, even if they did. And yeah, that makes sense. I mean, look, this is this is our warm up trial, everyone. That's fine. This is we're just getting loose, you know, don't want to pull a hammy when we do our more serious ones.

0:27:25 Matt: He's not going to Rikers, I figure something out here, but all around. Okay, we got plenty more to talk about.

0:27:27 Thomas: That sucks, but yeah. Right. Well, why don't we take a little break and then talk about a whole lot of other stuff? Matt, goings on in the Supreme Courts, oral arguments, and I worry that this has implications for Trump, but hopefully you're going to tell me otherwise. I don't know. What's going on?

0:27:35 Matt: Okay?

0:27:44 Matt: It may, it may not. So this argument on Monday in Fischer v. U.S. involved a Pennsylvania cop named Joseph Fischer, and he was there on January 6th. And he the Stop the Steal rally, and then he heard what was going on at the the Capitol and turned around and came back. And he joined the mob and entered the Capitol at 3:25 p.m. He was yelling a lot, said some pretty nasty things. And, uh, he was in the Capitol for about four minutes, but that was enough to be charged. Now, DOJ has charged 1,350 January 6th defendants at this point, but only 350 of them have been charged with the offense that was up for debate in front of the Supreme Court this week.

0:28:15 Thomas: Jeez. Okay. Well, that's good news.

0:28:22 Matt: And that was 18 U.S.C. 1512 C.2. So let me just read you the statute, because this is one of those where I think you're going to say this sounds pretty clear. And this statute was passed as part of the Sarbanes-Oxley Act, which you might remember came after Enron, and they were trying to close some loopholes. One of the loopholes in Enron, actually, in that prosecution was that they accidentally left that one open. Just totally forgot to plug that one.

0:28:31 Thomas: Hmm. Yeah. Was you could do a Jan 6th? That's weird. Like, whoops. Hey, yeah. In addition to Enron, you know, being a whole financial thing, they also, it turns out they could have done a coup. So let's patch that up real quick.

0:28:54 Matt: Make sure that doesn't happen. So the Problem that was immediately identified after the Enron prosecution was the 18 U.S.C. 1512, a related statute, made an offense to intimidate, threaten, or corruptly persuade another person to shred documents. You might notice there's something missing there. Nothing stopping you from doing it so as long as you do it by yourself.

0:28:56 Thomas: Hell of a loophole.

0:29:13 Thomas: Oh, I didn't notice that just because I figured that would be some other part of the the statute. Wow.

0:29:20 Matt: Nope, totally just miffed that one.

0:29:23 Thomas: So you can't get any help. That a real passive aggressive day, isn't it? Because like you need help with the shredding, but you're like, crap, I know I can't ask anyone else, but if they would notice what I'm doing, maybe they would help something. Yeah.

0:29:23 Matt: Yeah, yeah, right, yeah, right, just can't intimidate, threaten, or correctly persuade, yeah, yeah, so there were a number of things like this that came out after that. They realized that they have to rewrite some of these things and make it harder order for people who are trying to destroy evidence.

0:29:39 Thomas: No.

0:29:50 Matt: Yeah, right. What we end up with is this statute. Tampering with a witness, victim, or an informant. The name of the statute. Corruptly, part one, alters, destroys, mutilates, or conceals a record, document, or other object or attempts to do so with the intent to impair the object's integrity or availability for use in an official proceeding. Now, obviously, everybody concedes this part doesn't apply. Obviously, we're not talking about people trying to store documents. Here's where it gets messy.

Or, otherwise, obstructs, influences, or impedes any official proceeding or attempts to do so, shall be fined under this title or imprisoned for not more than 20 years or both. So, big question here. Congress passed this bill to close out these loopholes around financial crimes, did they actually mean to pass something broad enough that it could include obstructing or impeding the business of Congress. Now, official proceeding is defined in 18 U.S.C. 1515 within the same section as including a proceeding before Congress.

So literally read, if you just read this statute on its face, and we would not be the only people to notice this, otherwise obstructs, influences, or impedes any official proceeding or attempts to do so would cover storming the Capitol and trying to stop them from counting electoral votes.

0:29:48 Thomas: To do an Enron. Yeah, very interesting. Interesting. The way you're framing that, you said, did Congress intend this? Does that matter?

0:31:11 Matt: It doesn't.

0:31:11 Thomas: Well, okay. There's different levels of matter. Yeah. Does it matter to you?

0:31:12 Matt: But you know I don't think it matters. The defendant thinks

0:31:15 Thomas: Does it matter to the court? Does,

0:31:15 Matt: It matters, no. Mattered to at least one of these courts involved here. So the trial judge granted a motion to dismiss in this case because he found that this was a residual clause. When it says otherwise, it's just giving examples of other things that are related to destroying documents and other material. Now out of the 15 judges that are looking at January 6th cases in DC, This was the only judge that agreed with this argument. They all brought it. Every one of these defendants tried it in these cases. The 14 other judges rejected this argument,

0:31:42 Thomas: Sorry. I don't, I wanna make sure I understand the argument. What What, are they even saying?

0:31:46 Matt: Tell you, I don't fully understand the argument myself. It's a little weird. Most of the argument turns on what the word "otherwise" means. Yeah. This is, we're getting there with like the officer of the United States thing. Right, you're spending minutes, like 20, 30 pages of this transcript in front of the Supreme Court are about the word "otherwise." And remember, in the statute the first part is talking about alters, destroys, mutilates, or conceals a record, a document, etc. And then, or otherwise obstructs, influence, or impedes any official proceeding. So, so to me, when you're saying otherwise, you're saying any other thing that we might think of that could obstruct justice in this way.

0:31:53 Thomas: Oh, Jesus Christ. Uh, cool. Mm -hmm. That makes sense. Yeah?

0:32:25 Matt: It's literally a debate about whether otherwise means things that are different or things that are similar. Or things that are similar in a different way.

0:32:32 Thomas: What? What?

0:32:33 Matt: It's a big semantic mess. That it's an adverb that simply makes a compound sentence. That it basically Basically, everything that follows otherwise is just sort of a variation on the original part, the first part, that these two things have to be read together, because you're talking about some way messing with documents, or otherwise does some other thing that messes with documents. That's what they're trying to say. Unfortunately And for them, the clear language of the statute doesn't really sound that way at all. It just sounds like otherwise in the sense of like, here's some other things that could happen, right?

0:33:00 Thomas: What? I just want to make sure I understand their stupid argument. They saying that it means or otherwise disrupt a blah, blah, as in one of the ways you disrupt an official proceeding is by shredding documents?

0:33:15 Matt: Apparently, anything to do with these sorts of financial crimes or this sort of evidence tampering, they're saying, I guess. Yeah. I put my head around it several times, and

0:33:22 Thomas: Huh? Boy, that's a yeah, that'S a stretch. I don't know about that one.

0:33:25 Matt: Yeah. Can I kind of see what they're seeing. Their strongest points actually involves a case called Yates v. U.S. from 2015. This is very entertaining. I think you're going to enjoy this one. So the main question in Yeats was, are fish considered tangible objects?

0:33:39 Thomas: Oh, there you go. Oh, okay. This isn't the, are

0:33:42 Matt: Fish case. Not the bees or whatever being fish.

0:33:45 Thomas: Boy, yeah, bees are fish. Okay. It's not the bees arefish. Gotcha. That was what I was bracing for. I wonder si fish had any idea how much litigation would be done over. A lot more fish are becoming lawyers these days, by the way, because they want, you know, they want representation in the system.

0:33:56 Matt: I would fish would be offended to be not considered tangible objects, but it's fish erasure, really.

0:34:04 Thomas: Yeah. They're like, we're people, Matt. We're not objects.

0:34:10 Matt: Ginsburg wrote for the majority and found that a fish is not a a tangible object for the purpose of the statute. It's a related statute. So this is another part of the Sarbanes-Oxley Act.

0:34:13 Thomas: Oh. Oh, so what part of the Enron scandal involved fish? What is that? Shred that fish while we eat. That fish is a witness. Or he's like, I just want some shredded tuna with my lunch. That's all. It has nothing to do with the cover up, actually.

0:34:22 Matt: So it didn't, fortunately. That snapper knows too much. Yeah. Just raw sushi.

0:34:38 Thomas: Ban it anyway.

0:34:38 Matt: Yeah, Justice Ginsburg did acknowledge in her priority decision, finding that a fish is not a tangible subject. She did acknowledge That a fish is no doubt an object that is tangible.

0:34:50 Thomas: This is, oh my God. This is the law, folks.

0:34:53 Matt: Just want to give you an idea here. But she did find that when Congress was writing about a tangible object, and this, again, is part of the same statute about destruction of evidence. Case involved fishermen, literally, trying to destroy evidence of illegal fish catches. Is. She had to find the tangible object as defined by this part of the statute could not include fish. They were definitely talking about evidence in a case that was documentary of some kind, something that has to be used to record or preserve.

0:34:54 Thomas: Oh boy. Oh, that's really interesting. So in some sort of case, there were some fishermen, people who had perhaps fished illegally and then they're like, dump those fish, their evidence. And then is that what is like?

0:35:21 Matt: Is. Yep. Yeah.

0:35:30 Thomas: Seriously, is that wrong? I don't know. I heard a snort.

0:35:33 Matt: My understanding.

0:35:33 Thomas: Oh, OK. OK. And then this statute doesn't.

0:35:33 Matt: Yeah, no. It's just silly, obviously.

0:35:37 Thomas: Found this statute wouldn't apply because the statute was meant to be like, OK, you can't destroy like documentary type evidence about the crime. That's wow. That's wild.

0:35:47 Matt: You can see how this helps in this case because the... was arguing in that case that this is way beyond the statute and it, that wasn't supposed to include things like fish. But the dissent I found pretty convincing in Yates. It's an unusual dissent because it's Kagan, Thomas, and Kennedy. Thomas is jumping on board this one. And then we get into crocodiles, dead crocodiles also become a factor.

"Congress realizes that in a game of free association with record and document, it will never think of all of the other things, including crocodiles and fish, whose destruction or alteration can thwart law enforcement." So she's saying, basically, we have to read the statute on its face, that when they say tangible objects, they mean tangible objects that could be any evidence. So this is somewhat related. And cite it, and I think it's one of their best points in the brief.

It comes up briefly in her argument, but saying that is an overreach of the Sarbanes-Oxley Act. Yates was, you know, finding that it was too much to say that somehow Congress meant to include fish in a financial crime statute. And this is the same thing, where Congress did not actually mean to talk about invading Congress to stop counting electoral votes.

0:36:49 Matt: As obstructing in this context, right?

0:36:48 Thomas: Yeah, OK. OK, so I see the argument like this comes down to how you interpret law, which I think is a big big topic of the show. But I'm curious your opinions on this, because if it's valid to read sort of the intent and purpose behind the bill and say, well, they were trying to stop people from covering up crimes. Crimes, right? I mean, that seems pretty fair. And if so, then I guess that makes sense to be like, well, the January 6th was a lot of things, but it wasn't an attempt to cover another crime, really. Like, I don't think they were intending to interrupt Congress, unless you could argue, like, in order to get their fake electors in. I don'T know. But if that's the argument, I guess I see how that works. But I just feel like that's not normally how we interpret laws, especially when to lock more people up. I feel like this court is happy to let laws be just the text is read,

0:36:57 Matt: As always.

0:37:41 Matt: Broadways again, sure. Sure. Yeah. Was even some attempt to suggest Justice Barrett kind put in the idea that maybe there's a third way here. Maybe we can actually decide that they were storming the Capitol to try to tamper with documents because literally they were trying to stop the count. And maybe, you know, you can say they were try to get to those documents.

0:37:54 Thomas: Oh that's kind of what I was suggesting just now. Okay, so maybe that is the way to go. Okay.

0:37:58 Matt: Right. Right, yeah, on that's to something there, I think, maybe. And of course, the defense was still saying that doesn't work. To give you a little taste of how weird this got, I have a clip for you.

0:38:09 Clip: I think that's right. I mean, it's awkward. There's no doubt that it's an awkward statute, but if you do the operation that I talked about earlier, which is we're just going to use otherwise to replace the verbs and the nouns in C1, then the statute makes perfect sense. With respect to intent, I mean

0:38:27 Matt: There you go. If you completely rewrite the statute the way I'm suggesting, it makes perfect sense. Kind of the tenor of the argument all the way through is just go back to the statute. Yeah, replace the nouns and the verbs with, I don't even honestly totally understand what he's trying to say there.

0:38:35 Thomas: What would that mean, to change out those? Verbs? Yeah. Or

0:38:43 Matt: Just saying, if you read it my way and say that this is a narrowing of other thing, or just sort of a tying into the other things.

0:38:50 Thomas: So in looking at the language here, which you've read, but just in case: whoever "Whoever corruptly alters, destroys, mutilates," blah, blah, "or attempts to do so, with intent to impair the object's integrity or availability for use in an official proceeding, or otherwise obstructs, influences, or impedes any official proceeding, or attempts to doing so, shall be fine. So is he saying that, oh, the way you read it is you try to combine those two, so that it's like, you, a record, document, or other object, obstructs, influences, or impedes any official preceding. Or attempts to do so with the intent to impair the object's integrity. So is he trying to like make it all count toward that? You have to have obstructed an official proceeding with the intent to impare, you, some sort of evidence or something. I still don't actually see how that works, but

0:39:39 Matt: Right. No, it doesn't because that's not the way Congress wrote it. And Sotomayor points out that one of these halves has an intent part and the other doesn't. So you can't just stick intent in there. That's a pretty big problem.

0:39:46 Thomas: Wow. Oh, that's a good point.

0:39:50 Matt: Of the other things they keep relying on is that it's never been used this way. But Sotomaior points out, of course, that we've never had an invasion of the Capitol before. So that's fair game too. The point that there have been a number of different ways this has been used, usually around blowing the identity of witnesses or trying to interfere with grand jury proceedings or, in one case, making up a court document to try to, you know, forging something to try and move things along.

0:39:57 Thomas: Yeah.

0:40:10 Thomas: In other words, some of Trump's future crimes.

0:40:13 Matt: Yeah, exactly. Just this has Been used fairly broadly in different kinds of criminal proceedings as well. Well, but brought up the point that if you read it the way the government's suggesting, there is a possibility, and I am sensitive to this, there's a possibility that you could charge protesters who are sitting outside a courthouse. Could charge people that stand up and yell at the Supreme Court while they're in session.

0:40:31 Thomas: Interesting.

0:40:32 Matt: And the government attorney points out that, okay, yes, maybe, but what you're talking about, if you're taking about a January 6th level, would be that you'd have to have a bunch of people storm the Supreme court, chase you all out and drive you out and keep you from actually holding a Hearing, right? That's Much worse than what he's suggesting.

0:40:39 Thomas: Yeah. Yeah. Yeah. Yeah. Fair. Fair. Yeah.

0:40:45 Matt: But you afraid that the conservatives are generally convinced by this argument that it's too broad, and he even gives the example of uh, a fire alarm in Congress before, in a vote, which, which of Jamal Bowman did uh, recently. Yeah.

0:40:55 Thomas: That was a weird thing. Time for that now, but yeah.

0:40:57 Matt: She Makes the point that those are just minor inconveniences. You're not talking about actually meaningful interference in the sense of how she's defining it. I think that survives. I don't think that's really a problem. I am concerned about the overbreadth. I'm always concerned about charges being used in these kinds of ways. It's hard to be objective when you're talking about January 6th and about these kinds OF defendants.

0:41:14 Thomas: Yeah. Does feel like there should be some other thing that this is, maybe. I don't know. This the best law we got for this?

0:41:21 Matt: Well, they're charged with any number of other things that make make a lot more sense, obviously, about Trespass and parading or picketing in Congress. Most of those people are charged with those kinds of things that are literally in a place you're not supposed to be doing a thing you're not supposed to be doing. For the people, as the government points out, who had intent, there are ways that you can divine what they were thinking and what they were planning, they wanted to charge them a little harder. And this is a pretty strict statute. It carries up to 20 years. They wanted to bring it down a little harder on them because it seems like they knew what they were doing going in. And in this case, he heard that there was a riot at the Capitol and he went back and joined it. So you can judge that for what it is.

0:41:25 Thomas: Ah, sure. Yeah. That's unfortunate. So if goes a certain way, then a bunch of people about to get off? A bunch of Jan 6 rioters?

0:42:02 Matt: Get off on this charge, but they still have plenty more. There are lots of other things that they could be held accountable on, including this defendant would still be facing serious charges.

0:42:06 Thomas: Sure. Oh, good. Do you think there are defendants who only had this charge against them? Or would that not really make sense based on what you're saying?

0:42:13 Matt: No. I don't think so. Yeah. No, I think that was...

0:42:15 Thomas: Oh, okay. Well, that's a relief. I hadn't really heard that. It's like, this if is something extra that they tacked on to the worst worst offenders. On one hand, that sucks, because, yeah, okay, the worst offenders might, you, this court sucks, um, maybe, because of legitimate argument, I guess, I don't know, that not sure how I feel about it, but they might get their uh charges reduced in a way, but at least that means that nobody just only did this and will now just go free, probably, yeah.

0:42:16 Matt: Yeah. Right.

0:42:38 Matt: I that it would be not a good good idea to discharge somebody with this. And everybody else did something, There's right? Some other act that you can charge.

0:42:47 Thomas: Argument is brought to you Fume! Tried to break a bad habit and it felt like you're climbing Mount Everest in flip-flops? We've all been there, but here's a breath of fresh air. Fume, Fume. Not about giving up, it's about switching up. Fume takes your habit and simply makes it better, healthier, and a whole lot more enjoyable. Is an innovative, award-winning flavored air device that does just that. Instead of vapor, fume uses flavored air. Of electronics, fune is completely natural.

And instead of harmful chemicals, fium uses delicious flavors. Basically, instead of bad, fumes are good. It is a habit that you're free to enjoy and makes replacing your bad habit easy. Fume comes with an adjustable airflow dial and is designed with movable parts and magnets for fidgeting, giving your fingers a lot to do, which is helpful for de-stressing and anxiety while breaking your habit. Has a great flavor. Not super sweet. It's more natural, like a refreshing herbal tea, perhaps.

Fumes released a magnetic stand for your fumes, so, there's not more losing it around the house. The year off right with The Good Habit by going to tryfume.com slash opening and getting the Journey Pack today. Fume is giving listeners of this show 10% off when they use the code opening to help make starting The Good Habit that much easier. Start The Good Habit at tryfum.com to save 10% of the Journey Pack today.

0:44:13 Matt: I don't know what this means for Trump necessarily. Jack Smith has been very clear in a recent brief that he filed on the immunity case, which will be heard next week. We'll be talking about that next Friday. Said in a footnote that he is absolutely certain that even if the court interprets it the that the petitioner wants them to it, their charges are valid in Trump's case. Because Trump is charged with, I think, at least one charge of obstructing Congress in the same way. But he's being charged in a much more subtle way. He's not being charged with charging in with a Confederate flag and yelling.

0:44:34 Thomas: He Wasn't there, so, yeah, well,

0:44:40 Matt: He's being judged with obviously involved in the fake elector scheme and trying to impede the ability of Congress to continue the electoral process. So I think that Jack Smith throws a point there that this is closer to the kind of documentary thing that the statute was contemplating.

0:44:54 Thomas: That's a relief, honestly, I, I mean, it's anecdotal, but I feel like perhaps the coverage was a little bit out of its skis or whatever, there's a little, I was more worried about this based on just absorbing kind of the general coverage, um, that, I mean, it's not, I mean, it's not great, like, predicting that's probably going to go that way that

0:45:07 Matt: Seems like Roberts might be the swing vote on this. So we'll see. I don't know, but it certainly seemed like the conservatives were being very skeptical about the way the statute was being used, um,

0:45:14 Thomas: Just the one guy who's kind, kind of like bringing this case essentially, but if, if it's, it rules in his favor, does that mean everybody will be able to kind of use that and If they've already been convicted and sentenced, which

0:45:22 Matt: Potentially, uh, Would fully expect they would, would bring post-conviction motions. I certainly would.

0:45:28 Thomas: Is good, and that's what we would want in any other situation You know For, for, if It's a bunch of people have been put behind bars for pot or whatever, and actually it doesn't always go that way, I think, I feel like they find ways to keep those people in behind bars.

0:45:30 Matt: Sure. Yeah. Yeah, Do. I will say, as a defense attorney, even though I think the otherwise thing is just really tedious and It went on for way too long, and I don't think it made a lot of sense, I am somewhat sympathetic to, well, more than somewhat sympathetic. I mean, I really don't want to see charges being used this creatively all the time. And I think Gorsuch might have a point that a different kind of government could try to use these charges against protesters or against other people who are doing things that we might agree with.

0:45:46 Thomas: Yeah.

0:46:04 Thomas: I think the only counter, if I were in the room with Gorsuch is I would say, Hey man, well then what will probably happen is they'll take it to you and appeal to literally you like you. And then you can say, no, that's too far. And then that that's that it's weird to be the person in charge of making that decision.

0:46:18 Matt: True.

0:46:22 Thomas: It's like if, if Phoebe asked me, like, can I have cake for dessert? And I'm like, yeah, but if, if I let you have cake for dessert and then you ask me for ice cream, I might also say yes to ice cream. So I can't do that. I'm sorry. Like, well, then, but you could just say no to ice cream later. That would be, that's another way you could do it. Right. Am

0:46:41 Matt: Mean, you have a philosophical point, but practically speaking, as somebody who sees how courts work, I that lower courts would take the opportunity. You'd have district courts, and the Fifth Circuit would certainly find lots of ways to uphold this. And the Supreme Court may or may not review every one of them, May or may not decide. There's a lot of subtlety and a lot nuance that can come out of this. But I, yeah, do think though, just basic textual reading of this statute, and you've got in front of you, too, I don't see how C2 doesn't read in to the

0:46:54 Thomas: Sure.

0:47:05 Thomas: Why would you have a C2? I don't, yeah. Like, why would you even split it into, it's not like it's, oh, that'S the remainder of a paragraph or, oh that, you know, it's like Like literally they marked differently, like a separate thing. It seems crazy to read that as all one thing.

0:47:05 Matt: Right. Exactly. Right. Yeah. An or not an and, so I can't really miss that, sure.

0:47:20 Thomas: And you would think that, you Gorsuch is a texty boy. He's a textualist boy. He likes, he just loves the text. It's weird to see him be making the argument. Specifically cited that he was making like the consequentialist argument, right?

0:47:24 Matt: Yeah.

0:47:35 Matt: Yeah, that weird kind of jab at Jamal Bowman, I feel like that was kind of intentional too. That was, it's kind of like a weird Fox News moment.

0:47:40 Thomas: That's been all over Fox News is there that was their Jan 6th, you Jamal Bowman pulled a fire alarm for I probably shouldn't have done that. I don't really know why he did it, but I t know. I can't remember. Was there a reason for that? It's whatever. He probably shouldn''t have. To But them. That's January 6th. That's the same like literally the same thing. I'm not even exaggerating like they make that equivalency all the time. So I think that's where that comes from.

0:47:42 Matt: Yeah, right. The real, I don't even remember anymore.

0:48:00 Matt: Actually, Jamal Bowman had to a misdemeanor charge in that case.

0:48:03 Thomas: Well, there you go.

0:48:04 Matt: So, I mean, you can't even say you got away with it.

0:48:06 Thomas: He's got a criminal record because of that.

0:48:07 Matt: Yeah, yeah. So one more thing to talk about before we go. Story that we talked about a of months ago at this point. Impeachment of Alejandro Mayorkas, the Secretary of Homeland Security. Security. May remember, is by far the stupidest impeachment in the history of the United States. Just no question about that. Entire thing came down to, there were two counts, and they came down your bad at your job, and you told Congress something that we don't think is true. Those were the two things. And he did not, in fact, perjure himself to Congress.

He was just stating his opinion and a perfectly valid summary of the facts about the border. As to being bad at his job. He wasn't doing his job that differently from lots of other DHS secretaries. They just don't like the way that he's doing it, and they don't Like Biden. So again, none of these things are high crime or misdemeanor, which is why as soon as the articles of impeachment got to the Senate yesterday, immediately, within three hours, dismissed them. There was a motion to dismiss that was filed by the Democrats, and it went 51-49. The motion carried, and all the Republicans except Lisa Murkowski voted against it. Lisa

0:48:20 Thomas: Yeah. Yeah. Yeah. Huh.

0:49:05 Matt: Murzkowski voted present, of course, and a show of courage. Yeah, of course.

0:49:07 Thomas: Oh, yeah. Incredible courage.

0:49:09 Matt: McConnell, of course, was very angry about the fact that you're setting a bad precedent because you're tabling impeachment articles, right? The House of Representatives went to the trouble of coming up with these articles, and you're just shoving them aside. Mitch McConnell ,of course, voted to dismiss the Trump impeachment, the second one. But that's old news, you know.

0:49:18 Thomas: Oh, yes, sure. Yep. We got him. We got Mitch McCollum on not being consistent, everybody. That ought to put an end to his career.

0:49:30 Matt: Hardly worth Worth pointing out. But, But, you know, that's what happened. I pointed out in that episode a few months ago, founders, if you care, specifically did not want maladministration. That was the word they used to be the basis of articles of impeachment. Wasn't happening, uh, the whole thing was just a complete waste of time.

0:49:54 Thomas: Yeah. Yeah. Incredibly dumb. And it's amazing how proud. Republicans, you, they do nothing, the Republicans in the House. They do absolutely nothing. They were so proud to get this one thing after what was it, try number three, I think it was, or at least

0:50:00 Matt: And just yeah, yeah, yeah, at least a second, but yeah, yeah,

0:50:10 Thomas: Yeah, and then they finally, they're so proud of it, and then it goes to the Senate, like, well, this is a pile of crap, let's just get rid of this, and, uh, there you go, it's about what it deserved

0:50:17 Matt: And that's the end of it and just really hope that doesn't happen again, but, uh, you know, it will, so one way or another, uh, they

0:50:19 Thomas: Yeah, then again, I mean, it how, it much damage, much do you think this really did to anybody? I mean, it's stupid, don't get me wrong, but like, they are going to devalue what an impeachment even is. Maybe that's the goal, because I guess it devalues Trump's impeachments or something. But like, know I of anyone who seriously thinks Mayorkas, like, this change anyone's view on Mayorkis or Biden, I guess.

0:50:46 Matt: Can't have moved the needle at all, but I mean, it's, I don't know, yeah, you're right, though, it completely devalues impeachment, which, you know, that's what they say happened with the Trump impeachments, right, which were both yeah. Yeah, of course. And you remember the threat at the time? They said, well, if you're going to impeach our guy, we're going to impeatch your guy all the way for the end of time. Of course, that's still possibly happening, too. We'll get into that at some point, I'm sure. But they're still trying to find something they can dig up, that they can squeeze together.

0:50:54 Thomas: Oh, right. Yeah, sure. Yeah, impeach Biden. Yeah.

0:51:09 Thomas: I know I've done this rant. This is what led to me being a little bit annoyed at the constant fear of, hey, if we do what the law says, they might do not what the loss says. And it's like, okay, come it made sense to impeach Trump and I think it really did, then it makes sense to impeach Donald Trump. We had that one. I think even a lot of liberals were, you least it seemed like at the time we're, sympathetic we're to that argument. And I just, I never understood it. You know, it was the same with, I guess we had that argument with the Colorado electors, election case where it's like, don't think you can operate that way as a society, always being afraid that if you do something that's legitimate within the law, that it'll set a precedent where the other side will do something illegitimate with it. I just think, yeah.

0:51:17 Matt: Right. It did. Yeah. Sure, I agree, of course. But at the same time, if we didn't have a Democratic majority in the Senate, then there would be a stupid show trial going on right now. And they probably would convict him based on this vote. So, you know, no, they just, this is easiest way for them to make noise about the border. You're right.

0:51:57 Thomas: Would, do you think that would have at all been because we impeached Trump?

0:52:06 Matt: I

0:52:05 Thomas: I think so. And not only that, in the alternative, if we didn't impeach Trump for very serious things, like things he deserved to be impeached over, all so that we would hypothetically in this alternative avoid them convicting Mayorkas or something stupid. What have we even really gained there? Like we've given the ability to have any accountability for something all out of a fear that they're going to do something stupid that's illegitimate. I think what we have to do is let them, or not let them but like if they have the power or two, abuse their power, they're going to do that anyway. And we have to try to punish them or, you know, maybe elect people other than them. Like that's always going to be the option, I guess, is my point. There's no, there's not going to Be any brownie points we earn with these fascists, like fascist points where they're like, you know what? You didn't impeach Trump. So we're happy about that. And we will surely give you credit next time. You know, it's like that's nothing all yeah

0:52:40 Matt: Not at all. No, couldn't agree more. And then the system worked in this case, right? The system actually worked because the Senate kicked it away as they should have. At the end of the day, impeachment is a political process. It is not a legal process. It's not a judicial process. It's just whatever its vibes, you now, know, like so many of these things so, uh, happened that we had the the right vibes in the senate but I agree there's no reason not to do the right thing at

0:53:04 Thomas: Yeah well that the end of that or do you think they'll keep trying, um

0:53:19 Matt: I, I mean, no, I, I think that they're going to make their point. They're gonna be able to jump up and down about it for the rest of time that the Democrats, you know, dismiss this righteous impeachment, but I, I think that that's probably going to be it unless some, there's something dramatically different at the border they can try to charge, uh

0:53:34 Thomas: Matt, uh, a little bit extra that you sort of hinted at me toward but I didn't even want to tease the audience with because I wasn't sure we'd have time to get to it, but don't say we never did nothing for you, because bonus round, uh, want to talk about, uh, feud, the rap feud between Jack Smeth and, uh, Cannon, someone dropped another album, them, yeah yeah

0:53:53 Matt: Another diss Track. Yeah, we've got multiple diss tracks that have come out. Really, at this point, US v. Trump has become Smith v. Cannon down in Florida. It's been very hard to try to address everything on this show that is happening. There is just so much Trump news. I appreciate the patron questions. And we put this up every Wednesday we've been asking. And there are so many things I want to get to that have nothing to do with Donald Trump. So many great questions that I have tucked away. But we have to talk about this stuff. It is so vital. We talked quite a lot about Jack Smith's response to Judge Cannon's absurd orders, trying to get them to put together jury instructions based on nothing, just complete fantasy. Essay. Right after we recorded that, Cannon denied Trump's motion to dismiss under the Presidential Records Act. And she finally had to acknowledge in writing that it turns out counts one through 32 make no reference to the Presidential Records Act, nor do they rely on that statute for purposes

0:53:59 Thomas: Really oh that's

0:54:41 Matt: Of stating an offense.

0:54:41 Thomas: Fantastic hey I just found something out, guys, did she take credit for it? Hey I just realized it's like when you correct your manager at something and then they have to take credit for it or something. Hey guys, I just saw that, actually we can't do this because oh, cool, great work, Judge Cannon, well done.

0:54:44 Matt: Yeah, just read the indictment and it turns Turns out, pretty much.

0:55:00 Thomas: Good

0:55:00 Matt: Yes and no, because the bad news is she found that this does not provide a pretrial basis to dismiss. So that's ominous. She's saying that based on the indictment, assuming that everything in the indictments is true, that I don't see a pretrial base. But she's clearly suggesting she didn't deny this with prejudice. They can bring it again, just like these other things we've been talking about that could spike this whole thing if they bring it after a jury is seated when double jeopardy attaches. Something thing to watch out for, that she may still be open to this. Now, at the end of this, the reason I'm bringing up this denial of this motion is she addressed Jack Smith's very good response to her absurd order about jury instructions. And I just have to read you a little bit of this separately. So again, just nothing to do with this motion, but I just want to say something.

0:55:41 Matt: To the extent the special counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the court declines that demand as unprecedented and unjust. Let's just back up for a minute here and remember that she was demanding that they produce these jury instructions, and now she's like, what? Why do you want jury instructions?

0:55:41 Thomas: Oh, my God. Wow.

0:56:05 Matt: That's stupid. And she literally goes on to say, I was just thinking out loud. Should it be interpreted as anything other than what it was, a genuine attempt in the context of the upcoming trial to better understand the party's competing positions. Just a thought experiment. As always, any party remains free to avail itself of whatever appellate options it sees fit to invoke as permitted by law. So go ahead and appeal me, which of course is what he wants to do. But the problem is that she has just made this finding in the course of denying a motion that he wanted her to deny. So she throws this in as dicta in a completely unrelated thing. Instead of making any kind of finding about the jury instructions, we're just pretending that didn't happen. And

0:56:06 Thomas: This person. I hate

0:56:44 Matt: She's blaming him, which is is going to be a theme for the next thing I'm going to talk about, she's blaming him for bringing up this jury instruction thing, as if she didn't create the problem.

0:56:44 Thomas: This person so much. She assigned the essay. She was the teacher who did the homework. When I'm thinking out loud, Matt, I assign others written homework when I'm doing that.

0:56:53 Matt: Yes. Yes. It's just, I mean, she's literally saying jury instructions, it's way too early for that, which is of course what we were saying two weeks ago. Yeah. Oh, no, it gets worse. Let's talk about how it gets worst.

0:57:09 Thomas: Oh, boy. No, there's more?

0:57:12 Matt: Oh, there's more. This feud, I mean, this is really, these two people are at some point, it's

0:57:13 Thomas: You say it's a feud, Matt. It's a Feud of Judge Cannon versus reality, I think is what the feud is.

0:57:18 Matt: Yeah. And I mean the law overall. Might remember, we were also talking about a motion the defense had brought to unseal a number of things that really need to remain sealed, including information about witnesses. And so Jack Smith took the extremely rare opportunity after seeing this, her decision on this, to ask her to reconsider because she was going to unsell some things that really shouldn't have been unsealed. And he, in this motion to reconsider, stated very plainly, without varnishing it at all that had applied the wrong law. She just completely applied the wrong standard to the way that she did this. She'd applied some first amendment standard instead of just the straight up rule 16 good cause standard. And so he's asking her to reconsider. So she did actually, and this is extremely rare. She actually reconsidered the decision and reversed herself because she knew at

0:57:26 Thomas: Yeah. Mm, yeah. Oh, right. Wow. Holy

0:58:11 Matt: That point that that was not going to sustain on appeal. Like there's no way that that was going to stand up.

0:58:11 Thomas: Crap. Yeah. You made a big

0:58:16 Matt: She had to do it.

0:58:16 Thomas: Boo -boo on that one. Oh,

0:58:17 Matt: But she did it in a funny way, honestly.

0:58:20 Thomas: Great.

0:58:20 Matt: Like with this last thing I read you, she blames Jack Smith all the way through for the fact that she has to reverse herself. She literally does. Subheading A, the special counsel's newly raised arguments could have and should have been raised previously.

0:58:28 Thomas: God.

0:58:37 Thomas: What?

0:58:37 Matt: Why didn't you tell me I was wrong earlier, Jack Smith? That's what she's saying. It's so stupid. I mean, it's cringe.

0:58:37 Thomas: What?

0:58:45 Matt: This whole thing is so cringe.

0:58:45 Thomas: That's really beneath a judge, a federal effing judge to be like, well, if I got the law wrong, it's because you didn't tell me earlier that I got it wrong. Idiot.

0:58:49 Matt: Yes. Right. She says he had two opportunities to raise these arguments to do this before. One of them in response to a motion that was brought by a third party was trying to get some of these records, which I don't know. He doesn't necessarily have an opinion on. The one who made the mistake. But she's saying that it's on you to bring this up earlier. And now I have to embarrass myself by reconsidering myself because because I've realized I've used the wrong standard. And then she says the same thing is true of the manifest injustice claim, because he was saying it would be a manifest injustice to release this information. The factual support underlying this claim, i.e. the basis for the assertion that disclosure of potential witnesses' identities could subject them to threats, intimidation, and harassment, was meaningfully developed for the first time in the motion for reconsideration itself. So you've just brought to my attention that exposing these witnesses could lead to threats intimidation and harassment. Hadn't thought of that before. Why didn't you tell me before?

0:59:08 Thomas: Yeah.

0:59:43 Thomas: So what?

0:59:43 Matt: It's so bad.

0:59:44 Thomas: I don't get it. So what he should have. I don't understand. So, well, is there a place where he replied to this motion to do this, where he could have said that, I guess?

0:59:45 Matt: Yes. I don't either. I don't even know. Made the decision. And he's coming back and saying it would be manifest and just. And basically, he's saying things that nobody should have to say, right? That you use the wrong legal standard, and you're about to get a bunch of people hurt, potentially.

1:00:01 Thomas: Right. So, like, it wasn't the kind of thing where he would have said it, but it wasn't the kind of thing, where, he could've said that in some sort of response to something. I assume not, because I imagine he would've, if he could've.

1:00:13 Matt: Right, well, if he'd known that she was going to use the long legal standard, but she didn't do that until she made that decision. So, you know, it's just, it is so circular. And I just, I don't know. And then And just to really close it out, the record is clear, so this is her final decision where she's saying, I'm going to exercise my discretion, and just to be really nice about this, I'm gonna reconsider my decision. Although the record is clear that the special counsel could have and should have raised its current arguments previously, the court elects upon a full review of those newly raised arguments to reconsider its prior order.

1:00:42 Thomas: Can you call applying the wrong standard, like, a new argument? That would just be what your job is, isn't it? Like,

1:00:43 Matt: Yep. No, I don't understand. And then, just one more thing, I can't

1:00:53 Thomas: I know you can't, you can' t help it.

1:00:55 Matt: Believe this.

1:00:55 Thomas: I don't blame you, this is this is frustrating. Yeah.

1:00:57 Matt: Is, I guess, as you said, a federal judge embarrassing herself again and again and again. Notwithstanding the still developing and somewhat muddled questions raised in this criminal case, which include things like, does the the Presidential Records Act apply, right? Which is not

1:01:11 Thomas: Still Unclear on that, obviously, no answer, so

1:01:17 Matt: A criminal statute. It has not been raised here. Ahead and applies the good cause standard because that's the one you're supposed to use and finds that no right of access attaches.

1:01:24 Thomas: Passive Now That I know, I'm aware. I will for the first time apply the right standard. Yeah.

1:01:30 Matt: Mean, we were joking about that last time about how he's literally saying, have you tried using the law? And now she's going to to do that. So small steps.

1:01:36 Thomas: I Guess He should have told her to use the law earlier. Yeah.

1:01:42 Matt: It's definitely his fault that any of this happened. No question. That's what I've learned. There we go. We'll see what further insanity comes out of all of this in Florida. Fortunately, nothing is happening in Georgia, so we can skip over that for now. Thanks, Georgia.

1:01:43 Thomas: That's So Stupid Good Good, I Guess. Yeah, I don't know. I hope that's good or bad, but yeah.

1:01:56 Matt: No, we should be at trial by now, but here we are.

1:01:58 Thomas: Great. Right. Well that, wow. So much good stuff. You really packed a lot into this episode, Matt. Appreciate it. I know that, uh, a lot of Trump stuff, but the former president is on trial. Like we're going to go ahead and we're a law show.

1:02:09 Matt: We've got to talk about

1:02:10 Thomas: I'm, I personally insist we cover that. So don't, don't feel bad, But, uh you know, we always get, uh and Sundry, deep dive episodes, and other things we can cover, of course. No, that was a lot of fun. Please support the show at patreon.com/law. so much, Matt. Become a patron. One more reminder to hit that Plus button on the Apple podcast, apparently, whatever very excited for Monday's episode. So we'll see you all then.

1:02:19 Matt: It. Yeah.

1:02:30 Matt: I'm going to petition whoever to just add more Friday. We just need extra Friday because we've got so much going on here that's

1:02:34 Thomas: Ooh, that's a good idea. And they're like, well, Matt, you could have raised that with me or any time that there should be extra Friday. But OK, I guess I will.

1:02:40 Matt: Right we weren't previously where it's only 24 hours, but sure, whatever, all

1:02:48 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.

1:03:05 Matt: That wasn't necessarily connected to the motion eliminated that the defense filed.

1:03:09 Thomas: Yeah I don't yeah I can't keep I'm not a lawyer. I don't, how would I know?

1:03:12 Matt: Yes, that's okay. No, it's all right. Yeah, no. No,