Trump's Sentencing Delay Sucks but Is Probably the Right Call

Transcript

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

0:00:02 Clip: Well, when the president does it, that means that it is not illegal.

0:00:18 Clip: What's my crime? I got bold? And a little negligent? Nope!

0:00:26 Clip: Bailiffs are coming to take away my will to live. Well, one count of being a bear, and one count of being an accessory to being a bare. This is a free court!

0:00:45 Thomas: Hello and welcome to Opening Arguments. This is episode 1068. I'm Thomas Smith. That over there is real-life attorney Matt Cameron. How you doing, Matt?

0:00:54 Matt: Thomas, I was supposed to come up with a show today, but I think I have more of a concept of a show, if that's okay.

0:00:59 Thomas: Ah, yes, the debate. That was, you know, that let - I can't wait to talk about it. Obviously we have to take our usual break first, but yeah, I'm excited to get into that. That was - it's nice to have a bit of, like, somewhat good feeling, you you know?

0:01:14 Matt: Felt good. It really did. Still feeling good.

0:01:17 Thomas: And, uh, ADHD years everywhere unite over concepts of a plan. I really think that's, uh... I do... I think you've said it. I think it makes sense. Trump suffers from crippling ADHD and probably doesn't know it. Uh, that I think fits. I have concepts of a plant. I love, too, that it's been... She let off with, so, here we are nine years later. Later. Do you have a plan? Oh boy. We'll get into it, but the moderation is so much better. So much better!

0:01:45 Matt: Real moderation.

0:01:46 Thomas: See. Anything else in the announcement phase? Oh, I got an announcement that Matt is going to do more work. It's my favorite kind of announcement. We've been wanting to do something like this for a while, but Matt is doing a lot of work. I think on these Friday episodes, at the very least, there's always some story that Matt doesn't get a chance to talk about some little tidbit, something. And so in a segment, I think we're calling Matt's footnote fetish. We'll see if it sticks. We're going to do like the underreported kind of story at the end, you know, isn't getting enough attention, a tid bit like that. So it'll be something to look forward to at the End of Episodes and give us that little, you Finishing kind touch that used to be T3BE, but now with this new structure, it's not that way. So I think it's a great idea. Looking forward to it. All right. Well, after this break, which of course you can avoid if you go to patreon.com/law, we will talk debate and then, oh, I didn't even preview the other stuff. We're going to talk New York. There's a lot of updates in the New York Trump legal stuff, right, that we haven't gotten to.

0:02:28 Matt: Got a really interesting one this week, so we'll get to it.

0:02:48 Thomas: Looking forward to getting into that after this brake. Great. Do you want to start? I got takes. I got a few takes. You got takes?

0:02:47 Matt: A few. Yeah my take is that Kamala Harris's face won this one. She had great facial expressions, I thought. Maybe not quite our purview on this show, but I was very impressed, yeah.

0:03:04 Thomas: And she took some risks there. You know, there was one where she did the, not just the face, but she'd got the on the chin action when it got really bad. And that was a bold move because that would have been, if that was me, I immediately would have done that and been like, oh, I'm doing a weird thing with my hands and then like put them them down but she pulled it off and like the camera angle it worked and you knew like the freeze frames were going to be huge you know in the in the discourse and it worked so credit to her yeah well and it undeniably went well for team not evil I think but I will say I everyone can feel free to throw stuff at me I don't think kamala did as well as I thought she would do She seemed nervous, especially at the beginning. She was, you know, swallowing a lot of words, which, hey, hey. I would not be doing any better. But I was kind of surprised. And I also think, but my theory is, especially toward like the middle, I think she's overwhelmed with how many responses she could do.

0:03:11 Matt: That was great dare I say presidential I yeah yeah

0:04:02 Thomas: Like, I Think that would be a real, real challenge. Like, there's no way in a bajillion years I would ever say she was like underprepped. If anything, it might be like, boy, how do I how do I pick which insane thing to respond to which, you know, like Trump does really offer you just a bevy a veritable bevy of choices every time and so I felt like there were a lot of opportunities missed but I really feel like she did what she needed to do. She found her moments of especially toward the end in the middle. She did a brilliant thing that that I think everybody's pretty much noticed where she just paired a little, it's brilliant. She paired a little Trump bait into like probably like

0:04:03 Matt: That's natural yeah yes yes

0:04:41 Thomas: Three answers in a row toward the, at the very least, which is so smart because like some of the stuff, you know, her, you know, alleged flip -flopping on fracking, like some of this stuff is places where it's like, you know, it'S a little awkward for her to answer because she did, I think she did probably change her mind on that or I don't, I don'T care. I mean, I, from my memory, I THINK she kind of changed her mind on it don't care it's not relevant uh the scheme of what's happening right now but awkward a little bit of an awkward answer and then she throws in the crowd size thing I think it was that one or maybe some other bait into that answer and they're all wouldn't you know it little trump who just cannot he can't not there's he's just absolutely 100 can't not matt and he just he goes for the bait like three four times in a row absolutely brilliant brilliant successfully made the story what we needed is the story to just not honestly not be kamala like unless she just landed like an absolute haymaker we needed the conventional wisdom story that that goes everywhere that pretty much is the only thing most average people probably hear to be anything but kamala's performance being bad uh there's plenty and it's mainly I think the debating really and the concepts of a plan is just such a what a stupid thing to say that I'm I'm I'm feeling very optimistic after this. What do you think?

0:04:45 Matt: So good yeah oh no I feel good about it and honestly the I've almost forgotten about the last presidential debate just a couple months ago it's almost out of my mind uh that was a nice palate cleanser but uh yeah I had some real favorite moments I wanted to highlight some of the legal moments of course uh being opening arguments uh of all my favorite fact check in any presidential debate of all time I think we just have to play it it's incredible so good

0:06:18 Clip: There is no state in this country where it is legal to kill a baby after it's born. Madam Vice President, I want to get your response to President Bloomberg.

0:06:24 Thomas: Just like, oh,

0:06:26 Matt: Good straight face doesn't because of course he said the thing he's been saying about how it's illegal to execute a baby after it's born like on the table apparently

0:06:33 Thomas: No shit, dude. I love this idea that like, again, we're just the the Democrats are committing literal murder because because we have a policy about it. See, that's the thing. If we have like a yeah, if we have choice policy, that means murder is free. You get to do murder. That's how that would work.

0:06:45 Matt: Hate babies yeah we just just you want to kill a baby that's that's totally legit um so that was my favorite fact check I think of all time and I just really appreciate it you know there's a lot of complaints about the fact checking in this debate but it was on point which which is why they were complaining. It was just very well done.

0:07:02 Thomas: Well, time there was a lot of like, hey, what the F? The fact checkers I actually had used to have some amount of respect for. Tapper. I used to Have some amount respect for him. I actually was was genuinely surprised at how gutless he was in the first debate. Like genuinely, I thought he would at least do a little bit. He did nothing. They did nothing I must have been a network policy or something. Thing. And people were like, Hey, it's not the, it'S not their fault. Biden is a million years old. Yeah, sure. I could almost believe that like line of argument, like, yeah, okay. Yeah. I mean, yes, Biden was a million years old, he was, he had problems in that debate, but, but you see it done this way, which was, it was not like super heavy handed. It wasn't like every question they're going to like fact check the hell out of stuff. They're You know, just in moments where it, you know, was the most egregious, they quickly fact check. They also kept kept trying to make him answer questions at least a couple times, which I think is very important. You know things

0:07:11 Matt: Tap, right? Yeah.

0:08:00 Thomas: That are neutral things.

0:08:00 Matt: Push it. Push it? I appreciated that they had fact checks ready to go on. They're eating the cats. They're feeding the cats, they're feeding pets. They had a fact check ready for that because they knew that eating household pets is going to come up in a presidential debate, which is really sad to begin with.

0:08:14 Thomas: Yeah. And so seeing it done well is just like, yeah, you could have just done this last debate at the. This is like the bare minimum, and they did a good job.

0:08:24 Matt: They did. They really did. It and of that please uh shocking legal moment that I wanted to play though before we move on uh other one I sent you so

0:08:30 Clip: Many, many years, a lot of people, including Red Bloomberg, agreed with me on the Central Park Five. They admitted. They said. They pled guilty. And I said, well, if they pled guilty, or they badly hurt the person, killed the person ultimately.

0:08:44 Thomas: Of course talking about his full -page ad he put out for their execution.

0:08:48 Matt: Saying they should be executed yep uh off I think trisha mailey would be very surprised to learn that she is dead uh she's doing just fine fortunately but that was that really jarred me when I heard that

0:08:56 Thomas: He double -clutched that one because he had it at first. He was like, oh, I heard pretty bad. Killed him. Damn. If he just stopped short.

0:09:02 Matt: Just had to go the extra yeah no

0:09:04 Thomas: I'll admit I couldn't remember. I was like oh, yeah.

0:09:06 Matt: No I I had to check just to be totally sure her because you never know but uh it was a horrible horrible thing I mean she uh really was badly hurt but and she I think she still has a memory of it but I think he's in a new york investment banker last I looked but

0:09:12 Thomas: Course. Yeah. Yeah. Mean, had I paid a bunch of money to take out a full page ad calling for people's heads, I would I would have checked. And I think that memory would have stuck with me, you know.

0:09:27 Matt: But I just I wasn't aware that he was still relitigating this I thought that he'd kind of dropped it after the point at which they were cleared by dna and someone's admitted to full responsibility a serial rapist took responsibility for for his his offense here uh the central park five of course were interrogated without counsel they were kids uh for a very long period of time until they were coerced into confessing and I mean this is a story that I thought we all knew it's certainly a story the new yorker donald trump knows and just to throw that out there in the middle of this debate as if there's still questions about whether or not these people were guilty of an offense that they've been cleared by dna for but

0:10:01 Thomas: Well, fairness, I don't I think this is him. Obviously, he can't ever have been wrong, but I think his point was more like, oh, everybody thought they're, you Know, he's trying to do one of those. Oh, they pled guilty. So even though they were ultimately innocent, he didn't exactly say. But his logic is like, yeah, but they pled. So it was ironclad for me to take out, you know, an ad saying they should be killed because they pled guilty, which they didn't.

0:10:26 Matt: It turns out this actually isn't the first time that donald trump has tried to re -litigate this case recently in 2019 uh new york times ran a story in which he He said, in his typical way, when he's asked about the Central Park Five and the newspaper ad that he ran, well, you have people on both sides of that, he said at the White House. This was, you know, in terms of good people on Both Sides, apparently. You look at Linda Ferristini, look at some of those prosecutors, they think the city never should have settled that case. So we'll leave it at that. So he's still got doubts. He clearly is not willing to let this go. And he, you Know, apparently doesn't care about DNA exoneration or the fact that a serial rapist took sole responsibility for this. But yeah

0:11:01 Thomas: I will note 2019 19 is now five frigging years ago. So I do, I do think maybe it's possible. He's like adjusted slightly. You know, I think he, he moves like the, the continents, uh, you know? Like he'll move one fingernail length per year. I think on some stuff and not toward like, Oh gee, I was wrong. It's like, okay, I'm going to adjust my bullshit excuse to slightly more match reality, even though it's bullshit.

0:11:10 Matt: Tectonic plants yeah yeah sure and you know if we want to talk about all the lies in this debate we could do another 55 hours so

0:11:29 Thomas: I just want to make a final point then about that, which is like, always the problem, but I looked at some of the fact checks afterwards and it's, here's what I think should be Thomas Smith's law of fact checking. You're Ready fact -checking two sides or candidates met you ought to be required to do so at the same resolution you they do this thing they that don't go so far as to equalize it they don'T go like all right 10 things he said wrong 10 things they know they've learned at least to not do that because it's insane but they do pepper in some that are really not falsehoods for for Harris I mean they might be things she got wrong here and there But to do so, they have to zoom in a lot. They have to be like, well, okay, if you look at this thing, she said, for example, the one that's really getting me that I saw from ABC was, hey, she says Trump will sign a national abortion ban. He says, nuh -uh, false. False. And it's like, come on, man. Like at least say he, context or ambiguous or something. Cause like, yeah, man,

0:12:25 Matt: Speculative

0:12:25 Thomas: He says a lot of things. He says a lot of Things. Yeah.

0:12:26 Matt: It doesn't matter he said that babies babies get executed on the table. So yeah, no.

0:12:30 Thomas: And And he also said, Oh, Kamala, everyone knows she's a Marxist and they don't even bother to fact check that that is the same resolution though. That's the same level of detail. Okay. He's, she's claiming he has X view. He's going to do X thing. And, uh, okay. Maybe you can say he disputes it at least. Sure. But if he's claiming she's a Marxist like that, you, if so that would mean, I guess my point is if you're going to have to go to that level of detail to make sure she's wrong. And there was one where she was truly just saying something that was like a bit of an exaggeration. Like it's not, it was clearly not meant literally one of the things. And it's like, okay, you're going to nitpick that hard. You have to do the same for both candidates. And then what we'll have is a list of 700 things that Trump did that were that and like four or five that Kamala did. And then like, yeah, that's fine. Sure. Do that.

0:13:04 Matt: That'll happen. Not supposed to be equal. You're not suppose to go through and find a tit for tat. And I saw Ben Shapiro and other people complaining about how like, oh, you didn't get her on the, you know, she said that they were fine. He said there was fine people at both sides in Charlottesville, right? Which he did say. And they have all kinds of nuance about that, of course. But that's not a lie. That's just sort of repeating what he said. It's not, you're killing babies on the table or that Central Park Five pled guilty, right. These are just obviously lies. Just things that aren't true. But yeah, no, I'm with you. Resolution matters. It matters a lot.

0:13:31 Thomas: They always. Right. Well, I think it's onward to our next segment. Good job, Vice President Harris. Done. Great performance.

0:13:51 Matt: Presidential. Speaking of presidential behavior, let's talk about immunity. It's time. Going to check in now on what's going on with everything in New York with People v. Trump and Justice Marchand taking a look at these post -verdict motions. And you might have heard recently that sentencing was pushed back. And I originally, for today's show, I just wanted to talk about how it ended up getting pushed back and to the mechanisms of that. But then as I started to look into it, I realized we should really talk about what Trump is actually saying in support of pushing this back, as well as talking about the decision to push it back, because it's a little controversial. And I think there's good points on both sides of that one. Was originally schedule for July 11. And unfortunately, on July 1, Court dropped Trump v. U .S. And as we all know, and of course, we did an entire episode on it, completely changed how we can prosecute presidents, or if we can prosecute presidents. Todd Blanch sent a letter to Judge Marchand on July 1st, the same day that it came out. They were ready to go with this, and he requested that leave to file a motion under CPL 330.31, and I'll just explain very quickly what that is. That is a motion to set aside the verdict. It's pretty normal to file something like this after a jury trial. Hardly ever granted, of course, but at any time after rendition of a a verdict of guilty and before sentence so in that period between the verdict and the sentencing the court may upon motion of the defendant set aside or modify the verdict or any part thereof on the following grounds and the one they're citing is any ground appearing in the record which if raised on appeal from a prospective judgment would require a reversal or modification of the judgment so basically there's a serious error here that you got to catch judge before you send this up for an appeal and

0:15:23 Matt: One of those reasons can be there's been a change in the law as there was a change in the law. Obviously, the guilty verdict was on May 30th. The Supreme Court came down on July 1st, and so they were able to get this motion in before sentencing, just 10 days before senticing was scheduled.

0:15:37 Thomas: Law changed. We used to not have a God Emperor King who's immune from any anything. Thing and now we kind of do have that so changing the law

0:15:45 Matt: May 30, that seems like a very long time ago right now. So during that time as well, he also has filed a completely pointless third motion to recuse. Just one more run at it to see if maybe Mershon will will recuse himself before sentencing. Will just very briefly, before we address some of the immunity stuff, tell you about what was in that. Court found it didn't merit extensive discussion, of course. It's just the same old stuff about his daughter working for the Democratic Party, working for Democratic candidates. It turns out she has received at least $468 from Kamala Harris, which we'll talk about by the end. Her company. Company. Is about her strategy company, because she is doing strategy at the highest levels for Democrats.

0:16:15 Thomas: Wait what oh 468 dollars wow no

0:16:22 Matt: Yeah, look out. Yeah. It's going to change everything. Also argues that it matters more that there's a relationship with Kamala Harris because she's now the nominee, which she wasn't when they filed the other motions for recusal. So because she now the the nominee it matters. So people, of course, Forrest argued that this motion to renew was a vexatious and frivolous attempt to relitigate an issue that was twice addressed by this court, and the court basically agrees with that. Court now reiterates for a third time that which should already be clear. Innuendo and mischaracterizations do not a conflict create. Recusal is therefore not necessary, much less required. As has been the standard throughout the pendency of this case, this court will continue to base its ruling on the evidence of the law without fear of favor, casting aside undue influence. Defendant has provided nothing new for this court to consider. So one more try on that. That during she's actually the nominee now right so you know I guess it matters for some reason uh of course during this time uh mershon clarified in a letter dated august 5th that the scheduled most recently scheduled sentencing date of september 18th that was what he pushed it back to after the immunity decision when they asked for leave to file this immunity argument we'll talk about he put in italics remains unchanged he really wanted wanted that date of September 18th to be the sentencing date. And he's now changed his mind on that, and we'll get to that. But I wanted to get into what Todd Blanche was arguing when he was looking for leave to file. And pretty much, Marchand had to give him permission to file this motion because there was a bona fide change in the law, and he has to be able to consider it because this has to go up on appeal. And as we've been discussing all the way through in Gavel Gavel, the defense, as much as we were kind of laughing at it going through, they did preserve this issue. They preserved it pretty well. And there's one point at which Marchand was like, well, you don't have to raise immunity on every one of your questions. I get it. Let's just say that immunity has been raised. You

0:16:41 Thomas: Kidding yeah lawyers usually get in trouble for doing the same thing over and over like filing

0:18:05 Matt: Might remember there was that moment. They were thinking ahead and full credit to them because I don't think most of us thought it was going to be as broad as it was, but they clearly did. So they were prepared for anything. Obviously the main argument here is that there is several different buckets of evidence that they don't like that touch on official acts. But of course, you remember from the Supreme Court's decision, it's not just about the acts, it's about the evidence. And that's where things get really messy. Course, the Supreme court found that use of evidence about official conduct, even when an indictment alleges only unofficial conduct, is too prejudicial, that you can't use it at all. That was one of the things we had the biggest problems with. I think that most legal analysts had the greatest problem with. This is a serious issue that you're saying you can't use any evidence that touches upon any kind of official conduct, even if you're only looking at a crime involving unofficial conduct. And this whole thing, as we're going to bring out a little bit, brings out how bad this can get. Taking a perfectly good joke from the Supreme Court and taking it, well, I guess exactly where they wanted it. I was going to say taking it too far, but this isn't even really too far. Honestly, I can't blame Blanche and the defense team for doing any of this. It was handed to them. This is what they were given, and they're using it. He lays out what they think the issues are, and their main focus in this letter initially on July 1st, when he's putting this in front of Merchan, is that they're concerned about the testimony from Hope Hicks, his presidential advisor. They're concerned about some of the forms, some of social media posts, someof the call logs, and the testimony from Madeline Westerhout, his assistant. We'll kind of break that down, but, you know, he's saying this is worthy of getting into a motion so I can bring it back in front of this court and show you that this entire thing, the whole trial, has to be vacated because because you introduced evidence that involves something that touches on official acts that's the fundamental argument here um in the backdrop of this as well before we get to the actual immunity motion uh has once again twice now tried to remove this case and I don't know have we talked about the removal issue at all on this show I don'T think we have it

0:19:56 Thomas: All goes in the category of nonsense that shouldn't work and hopefully

0:20:00 Matt: Is It's nonsense. Yeah, right. You have the right to try to remove something to federal court if it raises a federal issue in your state case. And of course, in in 2023, he raised a discussion called a removal notice. It's not even a motion. It just saying, hey, we're removing this. What do you think about that? And so, the federal judge denied that, and he's denied it again.

0:20:00 Thomas: Won't work so you thinks that just like deals with oh you can just remove it oh okay

0:20:21 Matt: Oh, yeah, right. This thing was pretty inconvenient. Let's remove it. September 3rd, actually, they filed this removal notice, and Judge Alvin Hillerstein came right back the same day and entered a four -page order denying this. And I just wanted to read a little bit from this order because this is exactly how you should deal with these arguments. This is just as as straightforward as he should be. Starts by saying, the first thing he was arguing in favor of removing to federal court was, of course, about Judge Mershon, the most conflicted judge in history, as evidenced by his daughter's work and her statements and his financial contributions we'll get to. And of course he says straight up that this court doesn't have any jurisdiction to review a state trial. We just can't do that. That's for a state appellate court. It would be highly improper for this court to evaluate issues of bias, unfairness, or error in the state trial. Done. Easy. Then he actually has to talk about the immunity decision, because that is an actual federal question. And I'm just going to read his conclusion here, which I think is quite very good. I held in my order and opinion of July 19th, 2023, that, quote, hush money paid to an adult film star is not related to a president's official acts. It does not reflect in any way the color of the president's oficial duties, end quote. And he explains this is an evidentiary hearing. He decided this completely did not touch on official acts, I held that Trump had not satisfied the burden of proof required to show the basis of removal. My holding of a hush money reimbursement remains true regardless of who has the burden, whether the people or Trump. Nothing in the Supreme Court's opinion affects my previous conclusion that the hush -money payments were private, unofficial acts outside the bounds of executive authority. Period. Easy. This is two paragraphs he completely dismisses, and the first one is really just setting up the immunity standard.

0:21:56 Matt: So that's how you should take care of these. But of course, we have a very long motion that I wanted to take you through a little bit because I think it's kind of interesting to see immunity now being used in the wild, because we talked about how it might work, how it might play out, arguments that these attorneys might make. And I know that motions have been filed in some of the other cases, but seeing it in this one especially, in a case that's already been tried, and a case in which I happen to be extremely familiar with the record, having now read every word of People v. Trump, I don't know how many people can actually say that.

0:22:29 Matt: You've heard quite a lot of it and reenacted quite a bit of it yourself, probably and more than enough, but kind of a fun read.

0:22:26 Thomas: Not many yeah but I sure as shit I'm not reading the whole thing matt that's all you that

0:22:38 Matt: I mean, I, you know, I will admit I do, I have skimmed some of the more boring testimony that anyone weren't going to use. I didn't feel like I had to read all of it, but I can still say I read it. Feel like this motion, it's a motion to dismiss the indictment and vacate the jury's verdict based on the presidential immunity doctrine. One I think is so good at some point it would merit probably reading, because the introduction itself in Todd Blanche's voice is really something. But I mean, parts of this, and often like a lot of Blanche's arguments and a lot of the sorts of things we heard as we've been talking about on Gavel Gavel all the way through, it seems like Trump himself was dictating some of this. Like, it sounds like a press conference. Literally, second paragraph of the introduction, "No president of the United States has ever been treated as unfairly and unlawfully as District Attorney Bragg has acted toward President Trump. In connection with the biased investigation, extraordinarily delayed charging decision and

0:22:58 Thomas: Doesn't have anything to do

0:23:29 Matt: Baseless prosecution yeah right nothing nothing to do with immunity you just want to get into your bias thing uh

0:23:29 Thomas: With it guy that has a job that only 45 other people have ever had does a prime you can be like fuck more unfairly than ever ever in this position it's like yeah well

0:23:43 Matt: You might want to sit down but have you heard what they did to jfk because I feel like it may be well

0:23:45 Thomas: I don'T think the justice system did that did they

0:23:49 Matt: I know he's saying no president united states has ever been treated as unfairly or and unlawfully like ever as anything like that's what he's saying

0:23:54 Thomas: I thought he said by brag or something I thought he oh

0:23:57 Matt: But you know as brag has treated him he's not saying by a prosecutor by a government official yeah just ever right yeah so yeah just saying um have definitely been treated less fairly I so this this is quite an introduction it's very dramatic but than wait for the supreme court's guidance the prosecutor is scoffed with hubris at president trump's immunity motions and insisted on rushing to trial honestly I did true I I also scoffed with hubris so you got me there

0:23:59 Thomas: As oh gotcha yeah sure sure is it hubris though or is it just like annoyance and disbelief I don't think it's hubristic to be like boy this sure is a pile of crap I'm not gonna agree with that is that hubris yeah

0:24:25 Matt: Well you know hubris is not really the word um this too that they point out despite the fact that quote no court has ever been faced with the question of a president's immunity from prosecution end quote yeah of course we know yeah

0:24:39 Thomas: Man at a certain point can they just do a sir this is a Wendy's and call it a day like just it's a waste of all of our time she's

0:24:46 Matt: Just yeah Yeah. Yeah, the DA's office urged the court to front -run the Supreme Court on a federal constitutional issue. The record is clear, colon, D -A -N -Y was wrong, very comma, wrong. So that kind of tone, kind of all the way through. I don't know. I think Michon's going to be very impressed by this, but let's talk about sort of the issues raised here. Of course, they point out, rightfully, I don'T argue with this, they did raise this issue over and over again, so they have every right to bring it in this motion now because they wrote they brought it to the court's attention and and over again they detail all the different ways that they brought this up and they start with the uh testimony of hope hicks and I think we had some of that on gavel gavel you might remember mostly she was talking about uh trump reacted when the news broke

0:25:25 Thomas: Like step one I hate michael cohen everyone here hates michael cohen we all hate michel cohen the entire jury box in unison chanted we hate michuel cohen that was step one that's all the main thing I remember from the testimony yeah

0:25:37 Matt: And she gave us that great line about how he calls himself mr fix it but mostly just break stuff that was my favorite part yeah that's right yeah yeah um they go through and they they talk about hope hicks's you and how she is of course acting and she was acting as a campaign advisor but she was also a presidential advisor and they're talking about official capacity conversations and they'RE just pulling out everything they can possibly find from the transcript but they left something out that I thought was kind of interesting and again as somebody who's very familiar with the transcript I thought I might as well use this knowledge college, I went back and found it. There were two different times in Hope Six's testimony where she said things that were actually pretty helpful for his defense. Because one of the things that they were best able to argue, and again, none of us find this to be very compelling, I don't think, but in terms of a defense, this is a defense would

0:25:41 Thomas: Fixes things he broke yeah sure right

0:26:24 Matt: Be that he was not trying to cover it up to throw the election. He was trying to covered up to his wife didn't find out. And she said in two different occasions that he was very concerned about how all of this would be seen by his wife and she actually said that he wanted me to make sure the newspapers weren't delivered to their residents that morning when the stormy daniels story broke and so I think that's dispositive because michael cohen was like no he doesn't really care that wasn't really a factor but you know here she is saying that it does matter and that gives him something to argue on um said also in her testimony that trump really values mrs trump's opinion that she doesn't weigh in all the time but when she does it's really meaningful he just really respects and cares about what she has to say and you know on and on like that and so you know it's not I'm just just pointing out that by striking him you know that's

0:27:01 Thomas: I can see it in the love Loving their eyes when they're together. Matt, I knew.

0:27:06 Matt: Yeah when he's walking 10 feet ahead of her it's just out of love uh just want to point out that if you strike her testimony you're going to lose some stuff that might help you as well but I think they're just really concerned with making sure because uh did say some other things about how he responded to the scandal symbol about her communications with different people involved.

0:27:23 Thomas: Now, would that matter? Because we were. Is this in a world in which they have to, like, redo the trial or something?

0:27:28 Matt: What they're saying here is that harmless error even doesn't matter. The Supreme Court, and they might not be wrong, the Supreme Court said that any use of this evidence is enough. Like if you used any kind of evidence about things that happened while he was president, and certainly the prosecution could have made the decision to think ahead a little bit and not use this stuff, but I don't blame them for not thinking the Supreme court wasn't going to let them use evidence of anything to to do with the president when you're talking about this hush money case like I I don't blame them at all for thinking that might not be a factor uh there is an argument here that the way that the immunity decision was written it's pretty strict it doesn't matter if it was error or not it's just the fact that you're prejudicing the case uh get to that when we get to the legal part in a second but I also wanted want to to mention Madeline Westerhout, which is kind of funny about the way this came out. They're summarizing Westerhalt's testimony, they really go for it. They talk about everything that she said that might be relevant. And let me tell you, there's some blockbuster stuff here. President Trump, quote, liked speaking with people in person or on the phone, end quote. It's a bullet point in this as one of the things that's

0:28:28 Matt: Brought out about his official acts. Trump took a a lot of calls every day as early as six in the morning. The complicated process for calling the president of the United States, including calls that were more secure that might need to be on a secure line.

0:28:38 Thomas: Sorry.

0:28:39 Matt: Trump did not use a computer email.

0:28:39 Thomas: Did I black out or what does this mean? Is this something? I know I lose focus sometimes, Matt. What does this have to do with anything? I don't understand.

0:28:43 Matt: You this is a list of bullet points and the top of it is Ms. Mangold, the prosecutor, elicited information from Westerhout about the following presidential practices, colon, including they like to talk to people on the phone is completely irrelevant yeah you didn't miss anything and uh this was a waste of paper uh

0:29:04 Thomas: So is it, I'm trying to understand what's the attempt. Is it like, no, the name The game of this game is, you you're trying to get stuff to be official so that this is the thing where you can't even use it as evidence, even if he admitted it to entirely, like to some crime, if it's official. So they're saying because Mr. President Trump liked to talk on the phone, therefore, any phone call is an official act.

0:29:26 Matt: Right and he liked speaking with people as she's describing the way that he is being president

0:29:30 Thomas: He liked it. Does that matter? Say the Constitution and the president shall only do things that he likes.

0:29:31 Matt: Also I yeah I well there's another actually now that I'm reading this she might have committed perjury because it says president trump quote likes to read end quote I missed that printer testimony actually it's

0:29:45 Thomas: My God. Arrest that woman. That's not there's no there's no way. One of my favorite debate moments was where he's like, I haven't read Project 2025. I'm like, yeah, yeah. I believe you. Actually, I believe Trump.

0:29:49 Matt: Straight up perjuring yeah yeah no

0:29:57 Thomas: I believe you on that.

0:29:57 Matt: Doubt that was true yep uh so point being that there is they're just trying to elicit everything from all of this testimony to show that there's an overwhelming amount of information between westerhout and hicks of them talking about what it's like when he's the president, what he's doing as the president. Now, of course, it's extra frustrating because the acts in question were almost completely committed while he was a candidate. And there was just that other meeting with Michael Cohen in the Oval Office where he confirmed he was going to get the rest of the checks out. I think that was about it for anything that happened after. And for the most part, and this motion is making the point that the DA's office was talking about a pressure campaign that happened in 2017 and 2018, you know, to get Michael Cohen to cooperate. That's actually kind of where we're at with Gavel Gavel right now at that stage, and they're saying that they were so desperate because as they put it michael cohen was their only witness which is a very strange thing to say that's just not true uh as we've been discussing all the way through gabble gavel they've been using all of the other testimony that they elicited before Michael Cohen to make sure that by the time cohen got there that it was covered that everything that

0:30:56 Matt: Cohen is about to say has pretty much been said

0:30:58 Thomas: He was the last witness, right?

0:31:00 Matt: The last witness on purpose uh

0:31:01 Thomas: That mean he testified on day one, Matt?

0:31:03 Matt: Yeah, apparently, yeah.

0:31:04 Thomas: Him to be the last and I'm just using my logic skills to be the last and only witness, I think you would have to be first up, right?

0:31:11 Matt: Says this case turned on a single witness which is just not true I mean they certainly I it's true that they could not have actually brought this case they wouldn't have tried it if michael cohen were somehow unavailable or dead or whatever but uh doesn't mean it turned on him they still could have I mean there are other people that were in the room certainly for the trump tower conspiracy um very frustrating because you know having having read the trial having talked about this trial for quite a while, having covered it as much as we have in Gavel Gavel. Certainly, I think the average listener, though, knows that this case had nothing to do with Trump being the president at all. It had a lot to do with Trump becoming the president. It certainly might have made a difference, as we've been discussing. But again, they're not doing anything with this decision that the Supreme Court didn't allow them to do or want them to. And that's what really is so annoying to me as I'm reading this, because just seeing it in the wild, seeing it actually play out they might be right yeah

0:31:54 Thomas: When the Supreme Court breaks, our law, just like ruins it. Sometimes it's like, well, I don't really, I mean, it's kind of same with Hunter Biden trying to use some of those arguments. It's like I wish he wouldn't, but like, okay, I guess if they broke it, you can try to do that.

0:32:09 Matt: Yeah it's right there for you um also talk about his twitter statements they don't want any of the tweets to come in because those are all official statements made while he was president uh the silly ones so

0:32:18 Thomas: I guess I kind of have a point there. I don' t think

0:32:20 Matt: Yeah the uh of government ethics form that didn't really come up in what we covered but there's several forms that were put in that he signed while he was president um

0:32:26 Thomas: Think think about the tweets and how stupid that, mean, we already know that this is stupid, this decision, the Supreme Court's decision, especially the part where you can't use the stuff as evidence. Do you think about that? Is it right? Like, what if the tweets are official acts? Like, is it by the logic of that decision? He tweets, yes, I did it. I, I killed Ned Johnson. I killed a man on my off time. Time, what does it mean to say, well, we can't use that as evidence because that the logic was like, well that's going to just open up his official acts to a level of scrutiny that you can't do. Right. I mean like, so questions for you, Matt, do you think that logic, I worry that that logic based on the ruining of the law we've talked about might actually kind of be sound and also like how stupid is that? That's my other question.

0:33:13 Matt: Pretty stupid yeah I know I think I can clear that one uh no it's true I mean his twitter account that those were official statements from the president they were stupid and often you know badly spelled and whatever but uh those were his official statements and including that pressure campaign on michael cohen where he said things about michael cowan uh those are coming from his presidential account that makes it worse in my my mind but

0:33:33 Thomas: Yeah, but I guess the point I'm making is this, it might've been maybe just me, but I was sort of thinking of it as, okay, this is one of those deliberative privilege things. Like, okay, you can't, look, if we crack open the official act box, you know, like we don't, but it's not like the logic of that, that horrible decision. Know. I think about it. And this is kind of my question. It's not really about like, yeah, you Can't open up these communications that that's a, you know, these are deliberations. These are private presidential, whatever. It sounds like, no, No, if it's just official, meaning he could confess to a crime on like an official, as like long as it's using the letterhead of the White House, then you can't use it.

0:34:11 Matt: Is what they're arguing and that doesn't seem to be wrong I mean that's what we said from the beginning on july 1st when this thing came down it really seemed that way that, uh, you know, even if he's openly pressuring Michael Cohen which he was doing it pretty openly but you know it was still somewhat coded uh if he is intimidating a witness in one of his pending criminal cases from the presidential account that's still presidential communication it's still something and remember that Roberts even wrote that even even if it's something that would otherwise constitute a crime, they can't use it, which is insane.

0:34:17 Thomas: Unbelievable. Jesus.

0:34:38 Matt: Insane. I mean, that's just, that that's, uh, again,

0:34:40 Thomas: For slowing you down to make that point. But this decision, the Supreme Court decision bothers me so much, Matt. It bothers me. So much. I can't believe it.

0:34:47 Matt: And much more so, much more. So now, honestly, seeing a defense attorney actually fully using it. Uh, and I believe something like this has been filed in the other ones as too, but I just, I know this case so well. And also because it's a state case where he was not president at the time. And it's just so much worse than even the ones, you know, I get it in the January 6th case, because you do do actually have to kind of sort out where he was president where he wasn't in the course of you know trying to overthrow the election um the logic of the decision but applying it to this case is just I'm just concerned that they might be right that presidential immunity errors are not harmless that there's just no such thing as a harmless error and that if any of this stuff that wasn't supposed to be used came in as evidence it doesn't matter if it influenced the jury or not that's the argument they're making yeah yeah

0:35:27 Thomas: God. This makes me very nervous. We know that obviously Marchand's not going to go for any of that, but know, you, the worry is an appeal to the Supreme court eventually. Oh

0:35:35 Matt: That is a concern since it does touch directly on their own decision and I mean was talk from beginning that the immunity decision was just an opening Salvo they would have to come back and reconsider this but potentially with every one of the cases to see how the courts did in considering all of this stupid as it seemed all the way through the trial for them to object to every one of these things and say no this is going to be immune because you know we can't be can't introduce this kind of evidence about him being president uh might have had something to it based on what ended up happening with the court so yeah we'll see um know I don't know I want to look at it a little bit more get a sense of and again it sounds like there's case law to look at right this is completely new completely out of nowhere these are the first times yeah Yeah. Yeah. All they do all the way through is just quote the Court's case.

0:36:07 Thomas: You invented a whole new stupid thing. So yeah. Which is so weird. 'Cause I thought things needed to be in the rich tradition of the country, you know, be deeply rooted, Matt, I thought, in the history and tradition of the country. Isn't it weird that they also, just for extra credit sometimes, can invent an entirely new stupid thing that never existed and no one ever would have thought it existed? That's cool. Why don't we do that, but for abortion rights and gun rights, you know?

0:36:19 Matt: That's right. Sure.

0:36:34 Thomas: Why don'T we do THAT?

0:36:36 Matt: It turns out there's a deeply rooted tradition of not prosecuting presidents. So let's continue that on. So I want to talk about why sentencing was actually pushed back. We'll obviously be watching the immunity thing. We're be watching the appeals that come out of this. But the letter from Marchand, really let me have appreciated Judge Marchand all the way through this trial, just from having read it and seeing how professional he's been and, you know, the way he hasn't really taken the bait from Trump in any of this stuff. He seems a little tired in this letter. This is September 6th. So, what's interesting to me about New York practice as well is something I gotta ask Liz Skeen about next time we talk to her about this this thing where they're exchanging letters there's no motions they're just like publicly exchanging letters back and forth about what they're going to do with the case this is the kind of thing that usually would be resolved in status conferences but I guess they like to do it by letter and I'm okay with that I like letters uh Both sides had commented on this idea because the, uh, the defendant on August 14th requested an adjournment, which had been set for September 18th, and he specifically said he needs to have this after the election. He's arguing that it's necessary because they're still looking at their appellate options, because they're expecting the court's going to deny the motion I was just talking about, and they're also concerned about the potentially, quote, politically prejudicial impact that a public sentencing could have on him and his prospects in the upcoming election. He attempts to bolster his application by repeating a litany of perceived and unsubstantiated grievances from previous filings that do not merit this court's attention and will not be addressed, which I appreciate, just dispose of that. That's, again, you know, a bunch of stuff about who accused himself most conflicted judge in history, etc, etc. So he basically says it doesn't seem like the government is disagreeing with the defendant here, it seems like the prosecution is just saying do what you will, which is basically what they are saying. You know, the court finds that despite the people's stated neutrality, they present concerns in their letter of August 16th in a manner which seemingly supports defendant's application for an adjournment. The people certainly do not oppose, and a careful reading of their response can be fairly construed as a joinder of the motion. It's kind of interesting. He's saying that Trump v. U.S. did really throw a wrench in all of this, that he was fully prepared to do sentencing on July 11th, he was prepared to fully do it on September 18th, but that this matter is one that stands alone in a unique place in this nation's history, and this court has presided over it from its inception, from arraignment to jury verdict and a plenitude of motions and matters in between. Were this court to decide after careful consideration of the Supreme Court's decision in Trump that this case should proceed, it will be faced with one of the most critical and difficult decisions a trial court judge faces, the sentencing of a defendant found guilty of crimes by unanimous jury. He says that he's just doing this the way he's done everything else, and that this thing is extremely complex, that it's fraught, even just the complexity of holding the sentancing hearing is going to be complicated. Is a fair, impartial, and apolitical institution. Adjourning decision on the motion and sentencing, if such is required, should dispel any suggestion that the court will have issued any decision or imposed sentence either to give an advantage to or to create a disadvantage for any political party and or any candidate for any office adjournments for sentencing are routinely granted often several times in any number of other criminal matters this is not a decision this court makes lately etc etc so he's

0:39:23 Matt: Just saying why not just kick it until after the election I don't want to have to deal with this headache you know, you can imagine kind of, we're talking about September 18th, yeah, Trump would be able to do for those couple of months if he was actually sentenced in any way on September 18th. I mean, just the field day that he would have, the fundraising, the martyrdom that it would subject him to. I think I agree that it's better to just wait until after.

0:39:45 Thomas: This one, yeah, I was very curious to hear not only obviously your your opinion but also kind of the legal breakdown, the we come to the show for. It's true because I wasn't sure how to feel about this, you know, because Marchand has been a really good, seems to me, um, on what I've learned from you and Liz, and, uh, so I wasn't sure how to feel about this one but if it'S true that sentencing adjournments are done routinely. You know, my thing is always I want to the extent possible. I know it can't be 100 percent, but to the extend possible, I would like him to be treated like any other person in the criminal justice system to the extent that it makes sense, you know. Unfortunately, that's not going to be 100 percent just because he's a rich, privileged white dude who is running for president and was the president. But I get being like, hey, if this is a thing that routinely happens where are sentencing gets adjourned for different reasons. You're right before an election and you're sentencing the president on something that's, you not, I it. I think that's a reasonable, that's like the kind of like reasonable thing that we probably should want the law to do more. Don't you think? I don't know. That's my, that

0:40:51 Thomas: Was my impression. What do you you think yeah

0:40:51 Matt: And what Judge Chalkin said just a couple of weeks ago about how this isn't like, I'm not considering whether this guy's running for president, I'm considering four counts of federal felonies. That's all I care about. That's all they should care about. It's a little strange to see Marchand actually acknowledge that the presidential election matters in this. But I think he's just thinking logistically. I completely agree that he should be treated like anybody else, any other defendant. Starting to wonder, because he's kicked it over to November 26th, a couple days before Thanksgiving. Well after the election, we will know, I assume, I hope, by the end of November, who the next president is let's not make that happen by saying it uh you that point things will be clear he will either be the president-elect or he will be a guy who had just been running for president and is now facing all kinds of crimes yeah yeah uh and and will be clearly up for the rest of the offenses and I assume the Florida case will be restored at some point once Cannon is eventually taken off the case and the case gets brought back um you You know, I've been thinking about just what an ass Trump made of himself during this trial and how frustrated

0:41:23 Thomas: Help so just be some felon yeah

0:41:49 Matt: Marchand has to be. And the fact is, like, these offenses do carry four years each. Know? We're talking about 34 felony counts.

0:41:49 Thomas: Yeah oh so are you thinking this is a sign maybe he's thinking this could be a more serious sentence and better to wait till after the election for that's that's an interesting point

0:42:02 Matt: I think that if he loses the election, that Marchand's, I don't know. If I were Marchand, I'd give him some time. I'd maybe give him a couple weeks or whatever.

0:42:10 Thomas: Well okay we've talked about this and this is not just us libs you know like this is hey you've got an unrepentant defendant who multiple multiple times throughout the trial, you know, and thereafter has done really bad stuff that any other defendant would be in the courthouse jail for probably. And so I think like it's reasonable to think, hey, man, if you're not going to acknowledge what you did, if you're going to show any regrets, if You're not gonna repent whatsoever. Yeah, man. You might do jail time for this prison time for This. And yeah. Wow. The fact that Marshawn is willing to delay this. I was looking at it as kind of just like a reasonable thing to do, just a practical consideration, you think it's a judicially conservative thing to do, in a good way. Like, okay, I don't want one judge to kind of do something this significant for a national, the biggest national election. I feel like there's a certain amount of modesty to that that I do think is actually warranted as much as my heart would desire that this happened sooner um maybe that's interesting to consider maybe it could be because if he's considering a harsher sentence it would be it would be pretty crazy to try to jail trump before the election like that would be that

0:43:25 Thomas: Would be nuts again

0:43:25 Matt: It would. As much as we all would want to see it. But, you know, it would. It. And honestly, it's just not...

0:43:28 Thomas: We all everyone here should know that we all want that but like that would be pretty nuts like I I I don't think that's feasible yep

0:43:34 Matt: And likewise, if he does become president-elect, then I don't think he can... I mean, he's going to have to stay the sentence, whatever the sentence is, he's gonna have to say it till after he's done serving his term. He can't possibly even impose probation because the guy's got to travel. He's got be the president at that point. And then you have to treat him differently because he's the president-elect of the United States. So, he'll get four more years of not serving, I guess.

0:43:56 Thomas: New meaning to four more years yeah

0:44:00 Matt: As I said, the maximum on this charge is four years so he could get four more years that way too

0:44:04 Thomas: Oh that's what I thought you were saying yeah yeah

0:44:06 Matt: It goes all the way yeah there's three different ways uh but and again I don't think he's gonna get years I really don't but it has happened and you know that they're looking into the last time on this charge that somebody went to jail it was over a corruption scheme uh, bribery scheme involving a construction company, and this seems a little more significant, he did actually throw a presidential election potentially, uh, that was what the intent was and he was held in contempt 10 times during these proceedings. You know, that seems like it's got to be relevant to something that once, actually, not at one time.

0:44:32 Thomas: You ever had a client that was held in contempt 10 times would okay but you've been around the system what would you expect to happen if a normal everyday defendant was held in contempt ten times yeah

0:44:46 Matt: He would at least be spending the night in jail, like, just to let the judge a little think about it, I think. I think if it's the kind of stuff that we're looking at here, where you're going out and just talking about the jury, you're talking about the judge constantly, the judge's family. I don't know, It's just so far from appropriate. Course, during the contempt hearing, I remember that Marchand said that it was truly a last resort to lock him up for contempt. He said the logistics alone were a nightmare, and he's right. The logistics would be somewhat less nightmarish if he were not the president -elect, I will point out. I

0:45:08 Thomas: I think I the more we talk about this the more you talk about this, the more I think this is the right call. Don't know. I think there's the right call. What do you think?

0:45:21 Matt: Doesn't give him the kingdom, and it does mean that you don't get the drama of imposing a sentence and then having to stay it no matter what that sentence is, which you would have had had to do, pretty much guaranteed, you can actually perhaps carry through. I think my prediction, honestly, is more along the lines of house arrest, because I think the logistics of actually sending him into an actual New York prison are pretty difficult. But house arrest would be great. That would be something, right? I mean, it's better than nothing. It's better the probation we were talking about from the beginning, at least to have some kind of consequences. I mean that's to me, at the end of the day, we have to show people that you can't just keep doing this. There has has to be something somewhere so we'll see but

0:45:54 Thomas: Yeah, wow. There's a lot more to that than I would have thought. So I'm so glad we do this show. That's really interesting to consider. But yeah, the more we talk about it, I think it's the correct call. Call. I think I, you know, and I'm the last person to want to take the high road. I'm the last version to be like, we ought to, uh, Democrats have to have honor. Even when Republicans have not, like, I don't care about that. I don'T care about honor for just honor's sake, even then when it means it ruins everything and you lose. But I think that with all the considerations, I think this makes sense. I THINK THAT'S THE RIGHT CALL.

0:46:25 Thomas: All right. Well, um, thanks for catching us up on that. And, uh. We can get to the new segment that, uh, you're so excited about. I'm excited about as well.

0:46:24 Matt: I so too good think let's Right, well, you know how I feel about footnotes and I thought it'd be a good chance to just get into a quick story here uh this actually touches a little bit of the trump thing because because you might remember that Trump filed a last -minute motion to change venue from New York because he argued he couldn't get a fair trial in New York City, which, you know, I don't know, maybe that's true. Nobody really likes him there. I want to talk about, we talked last week about news from Moscow, and we're going to talk About the news from the other Moscow, Idaho. I've been to both of them, actually, weirdly enough. Yeah.

0:46:58 Thomas: Why is that the other Moscow?

0:47:00 Matt: The only other one I'm aware of. Probably it's like a Moscow, Ohio or something, but

0:47:03 Thomas: It's literally, you are talking about a Moscow in Idaho. I thought you were making some weird comparison that I wasn't getting. I was, I was doing so much math, the lady with the, with the geometry meme. I Was like, is this like, where that's not where the company of the, of Dave Rubin and all that, That was in Tennessee or whatever. Okay, so this is actually called Moscow. Okay, gotcha.

0:47:04 Matt: Moscow, that's right. No connection. I think they actually pronounce it differently. I've been there. It's been a long time. Nice little college town. But unfortunately, this nice little college time was rocked in November 2022. It was the most brutal murder. It is the kind of thing that really never happens. It's an incredibly freakish case of a criminology student at UW who's now been charged with this home invasion where he just killed four of the people who lived there brutally. Totally random break -in and killing. Of evidence that he was there that night. It'll be an interesting trial to cover, but I didn't really want to talk about the facts.

0:47:24 Thomas: Why bother? Oof.

0:47:48 Matt: I wanted to talk About the

0:47:48 Thomas: Yeah, I don't want to hear about that.

0:47:50 Matt: Motion that he put in to change venue, because this comes up all the time. Constantly, you've got defendants saying, I can't get a fair trial in this town. You've got to let me go somewhere else. And it's very, very rare that these actually work. But this was actually granted, and I wanted To explain why. Moscow, Idaho is in Latah County, which has a population of 39,517 people. That is just a little bit smaller than my Neighborhood in Boston, like the one place in boston where I live uh know let alone a larger city so I can't imagine this is a large county spread out over that much place but wow incredible uh the has rules about when you can change venue I'll just review very quickly uh of all of course venue has has to be where the injury was caused, where the murder happened, typically. And Code, we've got Title 19-3907, Section 2. When in a justice's court, it appears from affidavits that the defendants cannot have a fair and impartial trial by reason of the prejudice of the citizens of the precinct. The cause must be transferred to a justice of the precinct where the same prejudice does not exist. Exist. And then the rules that implement this actually talk about how if the original judge is trying to get it reassigned, it actually goes up to the Supreme Court of Idaho and they get to pick where it's going to be. So they haven't done this yet, but the Supreme court of Idaho will actually pick where the trial is held. And this is very good for the defense because there is no way in a tiny little town like this. I mean, I have, I know a lot about this case, Casey, I've been following it pretty closely. I can only imagine the people who live there know everything about it. And no doubt with a place that small, there's a good chance you have some connection to it somehow. Judge wrote, considering the undisputed evidence presented by the defense, the extreme nature of the news coverage in this case, and the smaller population of what to county, the defense has met the rather low standard of demonstrating reasonable likelihood that prejudicial news coverage will compromise a fair trial. So that really happened. He actually granted a change of venue in a murder case. Maybe it's happened more than I think, but I just can't think of any other time recently in a big case where that's actually happened.

0:48:17 Thomas: 20 times bigger than my home town. Sorry, Yeah, a good basis for comparison, like you say, with all the the totally... totally frivolous requests that I feel like we've seen, it's interesting to see how that actually happens in real life. It also makes me wonder, in my town of 2 ,000 people, could there be such a thing as a fair trial? I kind of think no. Or is it like county?

0:49:46 Matt: Good question. In a case like this, yeah, yeah

0:49:49 Thomas: Do you do, is it, how does it work? It's county -wide, right? I don't know how big my county is.

0:49:52 Matt: This is countywide, but it's a small county, yeah sure. You know know I gotta say I'm on Bryan Kohberger's side for this one uh it'll be interesting case to follow but uh also I noted in the when I was looking at this that the county's board of commissioners had to boost the trial budget from 3,500, which was the anticipated 2024 budget, to $150,000, so a 40 time increase on their trial budget because nobody expected they were going to be holding one of the biggest murder trials in the country uh it is scheduled for trial in june next june we will see I'm sure I'll be following it a bit uh see how it plays is on which place sent to. I just want to note as well, in Massachusetts, when this does happen, it does happen occasionally, we are dense enough, county -wise, we're dense enough that you can actually change venue.

0:50:32 Thomas: My hometown, again, same thing. No,

0:50:34 Matt: Very, very dense. But we're urban enough that something like Suffolk and Middlesex County, which is Boston and Cambridge, basically, they're next door to each other. So what you can do to change venue, Casey pointed this out last night, I'd never thought about it. You can actually just pull jurors from the other county, from the county over and you just put those jurors into that courthouse so I don't think they can do that necessarily here but right yeah doesn't even change the cafe you're going to to you know get your coffee in the morning because

0:50:53 Thomas: It's like, nah, it doesn't even change their commute much. Oh, that makes so much sense. I never even thought about that.

0:51:01 Matt: It's about the jurors it's not about you know which courthhouse you're in nobody cares about the building so it's just an interesting detail there that uh this actually does happen once in a while and

0:51:09 Thomas: What are the rules of like where it needs to go? Like it's, like, okay, you get a change of venue, how do they decide where to change to? I've never thought aboutthat.

0:51:17 Matt: Well in this case in idaho I will tell you it is up to the supreme court of idaho to assign that so I think they're just going to probably do it somewhat went randomly

0:51:22 Thomas: So it's really like a case, literal case -by -case basis. There's no, like a, some sort of procedure or anything. Yeah, I guess it's rare enough.

0:51:29 Matt: Now I'm looking at the rule uh icr 21 uh 2a the original judge desires to continue the judge may so indicate and refer to the administrative director of the courts for assignment by the supreme court to a court of proper venue and for assignment a specific judge etc so uh makes sense you're pulling it out of the local judge's hands and you're just saying let's let's the state decide what the you know presumably somewhere pretty far away but again idaho is is a fairly rural state and it's a case that everybody's heard of so you're still going going to have some issues but at least you're not going to be in the actual town where it happened and this I think is an appropriate use of that sorry

0:52:00 Thomas: Right. Right well this has been matt's uh footnote fetish I hope next time it's not as like horrible but you know gotta start somewhere yeah

0:52:04 Matt: Interesting legal point at least that's kind of the point of these so

0:52:07 Thomas: All that's the show thanks so much for listening uh appreciate you thanks so for supporting at patreon .com slash law and uh we'll see you on monday

0:52:17 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.

0:52:34 Matt: Just kind of an opening salvo and they're going to have to wow sorry about that uh all on the record and allows us to see what's going on god I don't know sorry let that pass um oh we're taking a break for that or that doesn't probably not

0:52:45 Thomas: Just go into it. I'll decide later, I guess.