Trump Has His Own Entire Genre of Law Now

Transcript

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

0:00:57 Thomas: Hello and welcome to Opening Arguments. This is episode 1110. 1110? That's the easy way to say it. I'm Thomas. That over there is real life attorney and John Eastman obsessor. Matt Cameron, how are you going?

0:01:12 Matt: Just concluded John Eastman week at Opening Arguments, but I promise no Eastman today. We got a lot of other stuff to talk about. It is the end of an era. We're...

0:01:20 Thomas: Oh, thank God. Okay. I wasn't going to say, guys, hey, everyone, we don't have to do the intervention. It's fine. I had, so I called everybody here to talk to Matt about his John Eastman problem, but I think, I think we're good. Everybody, he got there on his own. It's fine. No, it's frustrating. Hey, we recorded the Lotawful movies, and we're going to try to get that out to you within the next few days. Boy, there is some good stuff in

0:01:33 Matt: I think Casey still has some words about the giant wall of photos and newspaper clippings, but we'll deal with that at home. Yeah.

0:01:48 Thomas: That Lotawf. We often do things other than movies for Lotawfel movies. We've done different things. This is the first time we've done a movie that's not a movie, I think. Like, it is a visual medium. Medium it's it's flashes of frames that come to you your eyes and There's no sound. It's not a movie though, I'll say this, man, I don't want to give anything away for the film. I don't, I'm so anti-spoilers that's your religion, is John Eastman mine's, uh, no spoilers top journalists have tried to figure out who made this and come up empty but lydia smith didn't come up empty I'll just say

0:02:06 Matt: It's a glorified YouTube video. No director, no crew, no score or anything. She's got the scoop. Our fearless producer.

0:02:29 Thomas: Gosh, and found so much weird stuff about this production and who made it and why and who they are it is wow it is seriously like a journey so I'm really excited to get that to you patreon .com/law at the second tier and above for lot awful movies of course and that'll be that's that's january we're so on schedule we're turning over a new leaf matt can't

0:02:51 Matt: Making it happen so much to talk about today it is possibly maybe the last rapid response friday that we have that's going to be mostly trump criminal case news it has been a busy week the new year is really getting going so we've got some action down in florida with judge cannon making one more final illegal decision it

0:02:55 Thomas: Wait oh boy this seems insane we're just giving a preview here of course but it's hard to not instantly launch into how How in the world she seems to be stopping a thing that has nothing to do with her. I'm not a lawyer. I see the headlines. I'm like, I don't understand. Why? How can you do that? I don'T think that's her job, but I could be wrong. We'll find out.

0:03:11 Matt: Is that is what she's doing that's true uh and we might have the supreme court stopping something that has nothing to do with them we are minute by minute waiting as we record this right now to find out what is going to happen with trump's sentencing hearing which you'll know by the time you hear this, but we do not know right now. So we'll talk about everything we know about the sentencing and what to expect and the really cool stuff that Marshawn's been doing with us.

0:03:44 Thomas: Balls and strikes, Matt. He just calls balls and strikes. I'm sorry. It's so hard. It's hard. I try so hard to not just yell all of every episode because it will get grating. People can't listen to that. But I do wish I do one thing that we do that I try to provide is that I think we are suffering so much by the inability of mainstream news and even like good legal podcasts. Lawyers are too, I think, respectful and proper to appropriately express the anger that is necessary for how outrageous a lot of this stuff is.

0:04:16 Thomas: Like they're just inventing a new kind of law for Trump. They just do whatever. And it's so frustrating to me. I will try to not yell too much, but I do it because we ought to be that infuriated about it. It does us a disservice and it's part of how we got here to just be like, well, and then they made this move. And I don't think that was how it should work. You know, that's definitely, I disagree with that. It's like, no, that'S not enough. That'S not enough to just say like, wow, this is certainly unprecedented how they're handling this in a calm lawyer voice. That's not enough. It'S not accurate.

0:04:47 Matt: That's one of the many things I appreciate about this show, Thomas, is that in law school, they format that right out of us. Our brains get reformatted, but you have never had that training. So good on you.

0:04:52 Thomas: Yeah. I have very little education, Matt. I've never, my brain's been unsullied by education of any kind, but it It really is infuriating. Like, I can't wait to get into it because it just seems to me like two instances of just very incredibly special law rules that have never existed before for Trump and Trump related things. You know, and it's maybe I'll be wrong. And I do. I also another thing that I want the show to do is, hey, if I get that wrong or if a person reading the headline would get this wrong, you know, then I want a way to correct us.

0:05:16 Matt: It is. That's what it is. Sure.

0:05:29 Thomas: So we're going to find out about that. And then also, I think the one other thing we're going to talk about is a little bit of Giuliani update with his, oh my gosh, that guy, he is a

0:05:29 Matt: That's what we're here for. Oh, I'm actually relegating Giuliani to where he belongs, too, a footnote. And we also have to talk about the Lake and Riley Act, which I have some words about and some very strong words for Democrats on this one.

0:05:39 Thomas: Gift that keeps giving. All right. Well, after this break, which you can avoid at patreon .com slash law, we'll get to it.

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0:05:56 Thomas: All right, Matt. So I see in the headlines that someone named Judge Cannon, who I don't think is involved with anything like this anymore, is holding up the special counsel report. I mean, she's not a judge that's on anything, right? Right. She just correct me if I'm wrong. She dismissed a case.

0:06:14 Matt: She did.

0:06:14 Thomas: And so that's that. Isn't that kind of the end? Like for her?

0:06:17 Matt: You would think she's not the judge on the case, but she also believes that Jack Smith isn't the lawyer on the cause. So it's quite a conundrum, isn't it? November 26th, she dismissed the entire case, as we've discussed, because she had this nutty theory fueled in part by a Clarence Thomas concurrence that Jack Schmidt was not lawfully appointed to his job as special counsel. And that has been appealed by the government, as you would expect, up to the 11th Circuit. Now, in the meantime, of course, Jack Smith withdrew the charges having to do with Trump, so there are two people left, Waltine Nauta and Carlos de Alvera, and those are essentially the bag men in this case, the guys that were doing the moving of the boxes and otherwise in the proximity of Trump while he was doing all these crimes. They are co -conspirators, allegedly, in all of this. And we've discussed this before, just as a criminal defense guy, I think it's a little unfair at this point that you've got the two guys left literally holding the boxes in this documents case. But, you know, it's the department's prerogative to prosecute them, but it's also complicating the ability to release the report for reasons we're going to talk about here.

0:07:10 Thomas: Sorry. Stupid question. What is the report? There's been a lot of reports in my life for the last.

0:07:14 Matt: Good point. Yes.

0:07:16 Thomas: So what specifically is this report?

0:07:18 Matt: So the special counsel is required, as we have discussed before under the regulations, to release a report when he's winding up an investigation and he has to turn it in to the attorney general and the attorney General wants to know what happened in the case and to have an official record of everything that happened, whether you won or lost the case or whatever. And of course, this is a very unusual outcome in the Florida case where the case was was dismissed for stupid reasons. But at the same time, there's nothing saying that you can't still write a report when it's been dismissed for Stupid Reasons. So that's what he has done. And we know from the filings that Jack Smith has already given this report to Merrick Garland. He has it in his hands right now. And it is not just one report. It is two reports. Volume one is about the D .C. election case, and volume two is about the Florida Documents case. And is it particularly important that we get the Florida documents case because that case has been dismissed and we need to have a record for all time of everything the government would have been able to prove at trial.

0:08:05 Matt: It's important that we get these in both cases, obviously. I think it is, I should say it's equally important in the D .C. case because that was to the heart of our democracy, all of the things we discussed in the last couple of episodes about January 6th. We need to have that record.

0:08:14 Thomas: But I think the reason you're saying that, though, is that we have a lot of that information through other means, whereas the documents case, a lot lot of this we just will not have seen, right?

0:08:24 Matt: That's right. And that's one of the reasons that the defendants are rightfully very concerned. Now, I will say as a defense -minded person, I can't disagree with the logic here, which is that, look, these cases were dismissed and now Jack Smith is about to dump this report that's going to have all of this information that's never come out before. People are going to read this thing and think we were involved in a crime.

0:08:41 Thomas: Sorry, I'm confused. So they're still,

0:08:43 Matt: They are still potentially facing consequences. Now, the case is officially dismissed, but most people seem to agree that the 11th Circuit is going to send this back because they're going to find that it was unlawfully dismissed.

0:08:50 Thomas: Well, wait, sorry, I just want to, I think I'm not following. So I thought you started this with Trump's part of it is dismissed, but the bag man is not. Okay. So that's not dismissed.

0:09:01 Matt: Let me state this as quickly as I can, because this is very confusing. It's a very unusual procedural history in this case. The Trump charges have been withdrawn, so they're not going forward at all against Donald Trump because he's, you know, the incoming president and Jack Smith is winding that up. The other two cases, the government is pursuing the appeal and trying to get those back in front of a court, preferably not Eileen Cannon, of course, but those cases are alive, but they're also dismissed, if that makes sense. So obviously, if the 11th Circuit reinstates the case, but finding that Eileen Cannon did something ridiculous, then it will go forward again against these two men. And they are saying, we don't want to have all this stuff out there in public if we're going to have to be tried again on all of this. You know, we wanted to come out through the regular course of discovery, but there's a lot of stuff in here that's going to prejudice a jury poll potentially. And of course, if The 11th circuit actually does agree with Cannon, then you're in the position where they have never had charges against them, where they're gone. And you've got this massive report that explains all the crimes they did. So you can see the problem. I really wish that the 11th Circuit would hurry up on this because they've had this. It's been brief for a little while, and we need to know what the precedent is here. And I suspect, I want to believe, that they're going to say that she was wrong, and I would like to get a finding on that. The D .C. Circuit has already held that this theory that she dismissed it on is wrong, but it would be great to also have the 11th Circuit kick in on this, because otherwise, people are just going to keep raising these things. I mean, I'm sure they'll raise it in every single circuit whenever they possibly can with a special counsel for all time, because it worked this

0:10:18 Matt: One time. But still, it'd be good to have more than one federal circuit say that. That.

0:10:18 Thomas: We should note, objectively speaking, she's just wrong, right. It's just a question of whether these other courts are going to, okay.

0:10:25 Matt: I believe she is wrong. Yes. And not just me. It seems like pretty much everybody agrees that she is just wrong. But here's what happened in the last couple of days. It got messy because the defendants found out that the special reports were coming and that they were about to be transmitted to Merrick Garland. Now, again, the regulation has the special counsel transmit the reports to the attorney general, and the attorney journal then gets to decide what to do with them. They're default confidential, but Merrick garland has already indicated that he's going to release them to the public and to Congress. So the defendants filed a motion with the 11th Circuit, which is fine, saying that they wanted an injunction to order that the Department of Justice not release these reports. And at the same time, which is not fine, they filed the same motion with Eileen Cannon, which doesn't make a lot of sense because you got to pick a lane, right? I mean, it's either the case is in the 11 Circuit or it's with Judge Cannon. It's not simultaneously with both. I had misread this the first time and I thought that they had actually remanded it for her to consider this, but that's not what happened. She just stepped in at

0:11:21 Matt: The point at which even before the 11th Circuit had issued this, she read their motion. She's like, oh yeah, great. I will stop both reports, which makes no sense because obviously report one has nothing to do with the Florida documents case. It is entirely about the election interference. So just that on its face is just so obviously an Eileen Cannon move, classic Cannon.

0:11:40 Matt: I was kind of a funny moment on CNN the other night when Ty Cobb, you might remember from the the Trump impeachment. Very much a Trump guy, and until recently, I guess, was asked what he thought about this. And I want to play this for you.

0:11:49 Thomas: He's not a Trump guy anymore. What? What?

0:11:50 Matt: I had a guess. I mean, I don't know what he's doing these days, but he's not working for Trump recently.

0:11:54 Thomas: Working for him or still supporting him is what I guess. Wow. Okay. Let's hear it.

0:11:57 Matt: Well, I wonder, based on this answer, if he's still supporting him. Let's see what you think.

0:12:01 Clip: Why do you think, right, Cannon blocked the report? Well, to the extent that she's brilliant, she's shining, and the only reason she's shining is she is his tool, and he polishes her religiously, he gets the results he needs from her, the 11th Circuit has, already, as we know, two, over two years ago, had to admonish her extensively for the rules that, and, and the remedies that she created out of whole cloth for him after the Mar-a-Lago search and made it clear that she was way out of bounds and overruled her. I suspect they will do so again quickly. In fact, I think strategically one of the mistakes here is that had they only gone to Judge Cannon, This would have probably delayed things a little longer than going simultaneously to Judge Cannon in the 11th Circuit. But as we know, the 11st Circuit has already asked the Justice Department to respond tomorrow morning, which suggests that they may be prepared to mitigate the stain that she is and the stain that she's created again for the judiciary quickly on this.

0:13:10 Thomas: Wow. Wow. Holy moly. That was, that came out and I was not even ready for that. He's like, yeah, she's shining. I was like, what is he getting at? She's shining? She is his tool and he polishes her daily. Holy crap. I Was not ready for that I

0:13:14 Matt: So there you go. Ty Cobb, not a fan. Not a canon fan. She's brilliant because he polishes her. She is a tool. It's such a good line. I like this guy. Yeah, he has not been on Trump's side for a little while now. He has called Trump a disaster for the Republican Party, which is certainly correct. And he has condemned his his, you know, election denial. So, you know, at the end of the day, Ty Cobb is a constitutional lawyer. He did pretty well for him in the impeachment, but I don't know that he was ever really a true believer.

0:13:35 Thomas: See what you mean huh

0:13:55 Matt: And he looks like a 19th century oil painting, just as a little bonus. I don' t know. I like this guy after that interview. That' s pretty impressive.

0:13:54 Thomas: Yeah I know that is yeah I I

0:14:01 Matt: He called her a stain. That's great.

0:14:01 Thomas: Was not ready for that that is amazing yeah I was about to say that's the best part of that I was like well matt you know is this uh clip did I play it too long is it you know did I go pat and then all of a sudden he's like they're gonna remove the stain that she is holy crap there we go there's somebody who's probably now he needs to yell it more to get to the thomas smith school of being mad about things but no No, the words were appropriate.

0:14:14 Matt: It' 's perfect. That's... Yeah. So I can kind of see the argument that if the special counsel were illegally appointed and never should should have existed, that his report shouldn't exist and everything he was doing shouldn't have existed. Again, just working in a world in which that's true, which it's not, it's just not. But again, as a lawyer, just if that were to be found to be true, I see the argument. And so they're saying, we can't release this report. It's too prejudicial. And it's coming from a guy that isn't even doing a job that he's supposed to do. Donald Trump, of course, filed to intervene in this case because he wants to get involved. And he wants us to get out of this case. Of course, that none of this stuff should be released. And she granted this motion. Just to give you the week here that we've had in the Southern District of Florida, On January 6th, they filed this emergency motion. On January 7th at 1 .46 in the morning, special counsel filed a notice suggesting, in the words of the defendants, that they plan to ignore the pending motions, which it doesn't matter that they're pending motions. I mean, it's his job to transmit the report. And he's going to transmit both volumes. And then Trump filed his motion to intervene on the morning of January 7th. And then at 11 .38 a .m. on January 7, the court entered an order prohibiting Merrick Garland, special counsel Smith, and related parties from sharing anyone outside the Department of Justice any information or conclusions in the final report or in drafts thereof. Now, at this point, he had already transmitted it to Merrick garland.

0:15:36 Thomas: What?

0:15:36 Matt: Fortunately, he'd also, for some reason that I don't really understand, given Todd Blanch a chance to look at the report in a special room. He let them go in and look at it as long as they couldn't take pictures. One of the cases except the Georgia case. One of the other things that I thought was kind of funny is that the co -defendants here are saying specifically that they are concerned that there's going to be some disparagement of defense counsel in the reports. And that's one of the reasons they want to block it. I thought that was funny.

0:15:59 Thomas: Oh, man. Now I want to see it even more.

0:16:01 Matt: I know. It's got to be great. So now we're in a weird position because does she even have authority to stop Merrick Garland from releasing these reports?

0:16:08 Thomas: And my first question to you is going to be, can they just ignore it? Can you just be like, well, it looks like this is the wrong address. I don't know. I don'T live here. This is an order for a nothing that shouldn't be happening. Sorry.

0:16:19 Matt: Right? And again, the jurisdictional question, I have not had anybody answer to my satisfaction as to why she's allowed to issue this order at all, let alone why she's allowed to issue it against the Department of Justice, which now is in possession of a thing, but that they didn't author. They just have it. The defendants in their motion, what they're trying to argue basically is that she has jurisdiction because she enforces the local court rules and that somehow this would disrespect the local court rules. I don't know. And the All Writs Act, I mean, they're really stretching, but she doesn't care. She doesn't need a reason. She's just going to say that this is how it is and she's going to issue her report. But generally speaking, when a case is on appeal, the jurisdiction lies with the the place where the case is. And so it is with the federal appellate court right now. They hadn't even had a chance to act before she issued this order.

0:16:41 Thomas: What? That's insane.

0:17:00 Matt: So in the meantime, what happened is that Merrick Garland made it very clear that they are only going to be releasing volume one, the election interference. And for as long as Nauda and De La Vera are still facing any kind of charges, they will withhold the second volume, which is very concerning because obviously by the time Pam Bondi becomes attorney general, do you think she's going to release it? No, of course it's not.

0:17:21 Thomas: Just release it. God.

0:17:21 Matt: It's going to be jammed under a desk somewhere and we'll never see it. So my question is why continue to prosecute these two guys? Are they that important? Is it really worth it?

0:17:29 Thomas: Oh, so just drop the prosecution in order. Yeah.

0:17:31 Matt: Yeah. Moot it. Just moot it just like, why not? It's not, I mean, I don't care about prosecuting these people.

0:17:33 Thomas: Honestly. Yeah, that is a really that's a really good point. I that didn't even occur to me. Are other people saying this? Because, yes, they should do that.

0:17:43 Matt: I assume other people are saying this because it's the easiest way through this. It is more important to history that we get this report than that we prosecute these two sidemen. Like it's just not important.

0:17:50 Thomas: One hundred percent.

0:17:53 Matt: So that is the way through. I hope they do that. I do not want to get to January 20th and not have this report in the hands of somebody that will be able to release it. And what they're saying is that they will have the other one available to the top people in Congress, basically, but they won't release it to the public. And again, I support the idea of not releasing it as long as these two people are potentially still facing criminal consequences. Generally, again, my defense -minded principles here.

0:18:11 Thomas: So, yeah. Why is that exactly?

0:18:16 Matt: Because there's going to be a lot of stuff, as you said, that we've never seen before, a lot very prejudicial information. And you're in a position where, think about if you were being investigated for a crime, it's the same idea. If you're being investigated for a very serious crime and then they don't bring the charge for whatever reason, and then the prosecution goes ahead and dumps this massive 400 -page report about how you did the crime, right? That would be pretty offensive. It would be bad for your constitutional rights, your civil liberties. It also would include a whole bunch of information that maybe other prosecutors could use to do other things to you.

0:18:45 Matt: So again, just in theory, I am provisionally, that's

0:18:47 Thomas: Is the key that they had information because of all the ways that they were able to investigate? Because on one hand, I thought it was more like tainting a jury pool or something. So you're saying it's just.

0:18:57 Matt: Part of it. That's partof it.

0:18:58 Thomas: But like, OK, often crimes, there's plenty of publicly accessible information that, you know, and that's just part of a crime. But is the difference that this is not publicly accessible stuff? This is stuff as a result of a very vigorous investigation.

0:19:12 Matt: Because thanks to Eileen Cannon, we never got very far in the discovery process. So most of this stuff never came out.

0:19:15 Thomas: Investigation yeah can they just release it and then take their chances like if I guess at what stage would you worry about this violating someone's like would it create an issue with trying to prosecute them further so you could just chance it or is this the kind of thing that preemptively a court has to stop just because it's such a violation of someone else's civil rights like how does this even

0:19:35 Matt: Yeah, you can't put this report back in the report tube. Once it comes out, it's out. But again, it needs to come out. And my primary concern right now is that it come out, and I am concerned for their constitutional rights. I want to be fair to two defendants across the board, but I really hope that Merrick Garland does the right thing and make sure that this gets out.

0:19:40 Thomas: Work yeah yeah

0:20:18 Matt: Yeah, the cost benefit is pretty

0:20:19 Thomas: I'm with you that if the main guy isn't getting getting anything then I don't really care absent anything else obviously I would like to see the whoever those two criminals are punished because you should be punished if you commit crimes for someone but if there's a serious reason that we ought to withdraw these charges to be able to see this report I'm totally with you that that that should I mean that really trumps everything for me so I hope he does that.

0:20:20 Matt: Obvious to me here in what we get out of it. So yeah, so we'll keep on this one. We'll see. And obviously, if and when these reports come out we'll dig into them a bit. One other thing that I thought was funny in Trump's amicus brief that he filed just today as the day that we're recording on the 9th of January. And of course, Trump has to get himself involved. One thing he says that it's very harming to him, it's going to be very bad, that all the way through this report, that they're going tobe referred to as co -conspirators, because then it suggests that there's a conspiracy. Is he? But my favorite thing about this entire brief is when he's talking about all of the many things that have come out and how it's going to be so harmful and there's going to be just all the stuff we've never heard before. President Trump cannot respond to it except via his own statements in the press. Except he has the biggest platform in the world and he will never shut up, as we all know, so right,

0:20:34 Thomas: Yeah yeah man we know cat's out of the bag except you know he's the president and stuff yeah yeah but it was important is he can't respond to it in some format that no one would even care about like a legal brief or something yeah yeah yeah give him a pacer account that he can tweet pay paste tweet from yeah that's that's silly all right well yeah let's all call your local attorney general call your local

0:21:14 Matt: Right on pacer when we're yeah which everybody will rush to read yeah

0:21:31 Thomas: Merrick Garland everyone to tell him he needs to do this

0:21:33 Matt: Yeah let's get this going well on to the next possibly illegal thing that a court is going to do for donald

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0:23:25 Thomas: Yeah. Okay. So we've had the one insane thing. Let's get to another thing. What is happening here?

0:23:28 Matt: Trump well you might remember that the president -elect has been convicted of a crime 34 counts of felonies involving business records in new york uh we'll show you can listen to it called uh gavel gavel it'll catch you up if you're out of the loop on it

0:23:38 Thomas: We're just about done with the whole trial.

0:23:40 Matt: Well, we might have another one, we might have an extra episode we got to tack on with a sentencing hearing, which as the time that we were recording this, now I don't usually acknowledge this, but it is 620 on January 9th, 2025. The sentencing meeting is scheduled for 930 tomorrow morning on January 10th, the day that this episode will be out. So you, the listener, will know what is happening, but we don't know right now. I've been waiting to see what the Supreme Court will do because he has a last -ditch appeal right now in front of the Supreme court to try to get them to stay this sentencing. And we'll get to that, but it is an evolving situation. I am thinking at this point they're not going to, but there's no reason to assume that they won't. It does take five votes to stay something. We do have, of course, a six -vote conservative majority on the Supreme Court. And the really odd thing about this, of curse, is this is the first time already, not even four or five months after they did this, that the Supreme court is being asked to interpret its own decision on presidential immunity. What a time. So let's back up for a second because there was a development one I wanted to talk about last week. We just had too much to get into before. So first of all, Judge Marchand denied on December 17th the motion, and we all expected this obviously, but the motion to dismiss based on presidential immunity. It's not like he was going to find suddenly out of nowhere that this jury verdict should be overturned because there's a couple of White House aides who were involved in the trial, which is what Trump is arguing,

0:24:56 Thomas: So silly.

0:24:56 Matt: That even though everything happened pretty much before he was president, the conspiracy, all the witnesses, testimony, everything involved things before that, but Hope Hicks was also there. So he was trying to say, you know, that that should, that's right.

0:25:06 Thomas: So, free crimes, everyone. What a precedent that would set.

0:25:09 Matt: That's right, because the jury heard at one point during all of this that something happened while he was president in the Oval Office. And I believe some of the checks also issued at the time when he was present. So that's basically the argument. So that's not the issue that we're talking about today, but I just wanted to note it because that was one of the motions to dismiss that was filed. And it's one of the reasons that we're now dealing with all of this. So they also filed a motion to dismiss based on a New York case called Clayton. People view Clayton. And this is kind of an unusual New York thing, but Clayton has a number of factors that can allow a case to be dismissed in the interest of justice. So basically, even if there's a jury verdict, you can say that there's some overwhelming reason that it should actually be dismissed. And I'll go through some of the factors. And Judge Marchand, I have to say, I like Judge Marchand quite a lot after doing this. I know you've been reading him for many months now, so you must feel some kinship. But I think he's probably a pretty funny guy. I think just hanging out, I think you'd be pretty entertaining because there are some parts of this that are some very dry jokes that

0:26:09 Matt: I'll get into here. It's an 18 -page decision in which he responds to this Clayton motion. And it really gives him a chance because he hasn't been able to say a lot of things because he's a judge and he doesn't have a platform. So he gets this opportunity. And he's He's also, I think, contemplating the possibility that he might not ever have the opportunity to directly address the president because he knows that there's all kinds of ways with the many, many lawyers available to him that he Might try to delay this because Rashawn is making it clear he wants to get this sentencing done before January 20th, while he is still president -elect.

0:26:34 Thomas: So you don't think he's going to invite Marshawn to the inauguration? You don't Think he'll get to talk to him? Wow.

0:26:39 Matt: Yeah, no, not even the ball, anything. Yeah. So let's go through this. Again, I just want to stress how unusual, what strange territory we're in, that we are now 10 days away from the president -elect becoming the president, president and we have a state judge that is making sure that he sentences him on something that he was convicted of back in May. And of course, he had the opportunity to sentence him in July, but the Supreme Court had to go ahead and say that he can't actually be convicted of crimes or charged with crimes. So this is a real Hail Mary kind of argument to just say, you should just throw this thing out because there are reasons. And I'm going to tell you about some of those factors, which include the seriousness of the offense, the circumstances, and the harm that was done. That's the first sort of set of factors that he's looking at. And Trump's actual argument in this is that the 34 counts of falsifying business records, quote, pale in comparison to the seriousness of the majority of street crimes prosecuted in New York. So that's an interesting standard. Sure, I mean, I was trying to steal an election, but people are out there stealing wallets.

0:27:30 Thomas: Oh, my God. Come on, man. What would one have to do with the other? You can only prosecute the most heinous crime. You get one prosecution per year, I guess. Yes. Yeah. Wow.

0:27:40 Matt: Right, right. You're a hypocrite, I guess, if you don't, I don't really understand this at all. And Mershon certainly doesn't either. He says that the fact that we also prosecute violent crimes in this courthouse does not negate the seriousness and circumstances here. So good luck. Nice try. Evidence of guilt is another factor. And the judge drops a footnote and he's like, look, we all listen to gavel gavel. We know what's in this trial. We're very familiar. I sat here and watched Michael Cohen testify for days and I thought he was credible. And of course, in their motion, the defense is going through all the reasons that this was a sham trial and whatever. Whatever. And Mershon reminds everybody that there were 22 witnesses, 500 exhibits, that there's extensive evidence, that There's really no question. But here's the very best one, the very best factor. As part of the Clayton motion, one of the other factors you have to consider is the defendant's history and character. So the defendant is arguing that his contributions to this city and the nation are too numerous to count. He's done so much for New York and for the country. And I really appreciate that Mershorn agrees with this in the most minimal way possible. The court agrees that the defendant served his country as president. Yep. You get credit for having been the president. Yeah. You were marked present, sir. That's right. And we'll do so again in a matter of weeks, but he says that's just one factor.

0:28:51 Thomas: That's fantastic. You were. That is it. If that were valid, it would seem that if you are president, you get to just do crimes is what that would seem like to me.

0:29:06 Matt: Yes. So my favorite part of this whole entire thing, and we're going to link to it, it's well worth reading. It's a very well -written decision as all of his things are. And of course it's in Garamond, so it's nice to look at.

0:29:14 Thomas: Wow. Are you in love? How are you? In Garamond?

0:29:17 Matt: But it seems to be, Liz has confirmed this is the actual font for New York courts is default. Yeah, it's caramel. Good taste. Despite defendants' unrelenting and unsubstantiated attacks against the integrity and legitimacy of this process, this court has refrained from commenting thereon unless required to do so.

0:29:38 Thomas: Big inhale.

0:29:38 Matt: However, by virtue of the instant motion, the defendant directly asks this court to consider his character as a basis to vacate the jury verdict. Verdict and this court must do so in accordance with the requirements. Right. I mean, I hate to do it.

0:29:51 Thomas: Well, you asked. Oh, that is so good.

0:29:56 Matt: Since you asked Donald Trump, he goes on about how his disdain for courts everywhere is a matter of public record, how he's going to great lengths to broadcast his lack of respect for every court everywhere, including this one. And he's like, hey, remember that time I held you in contempt 10 times? And remember that Time that you were held in contempt in the Letitia James civil case?

0:30:08 Thomas: Wow, oh my god.

0:30:12 Matt: Remember that time that a judge in Florida said you were completely out of line?

0:30:14 Thomas: This is so good. I'm gonna read this.

0:30:16 Matt: Yeah, it's great. It's well worth a read. So many good footnotes too. But defendant's history vis -a -vis the rule of law and the third branch of government must be analyzed under this factor. And in that vein does not weigh in his favor.

0:30:29 Thomas: I think we need to read this for gavel gavel I mean this is crucial to the

0:30:33 Matt: Portions of it. Yeah, no, it is really quite good. Anyway, so he out of hand dismisses in a couple of sentences the possibility that there is any misconduct of law enforcement, which is a possible factor. The purpose and effect of imposing sentence. Defendant is basically saying he can't be sentenced. Marchand has a different opinion about that. That public confidence in the system. Defendant argues that dismissal will improve public confidence, which is a very strange argument. And of course, he says that because Merchan should have recused himself. So this will kind of fix that problem that Merchan didn't recuse himself because of all the many things. Merchan reminds him that the Advisory Committee on Judicial Ethics already cleared him on all of this. There's no actual recusal issue. This is not the only example of defendant pursuing a claim with increasing indignation while simultaneously failing to acknowledge that this court's rulings on this subject have been repeatedly upheld. It is It is therefore bewildering to this court that the defendant continues to file such papers. Never great to bewilder a court. Don't do that. Right.

0:31:22 Thomas: Record papers. I think it's bad if you're like, hey, stop filing papers

0:31:29 Matt: The defendant actually argues that it's bad for the welfare of the community at large if he is sentenced, which is very strange. And then there's the sort of general factor at the end about any of the relevant fact that the judgment would serve no useful purpose. And he says, I understand the magnitude of this. I've looked at everything. But setting aside a jury verdict is not going to help anything. And it would undermine the rule of law, which of course is completely correct. So then we get to the last part, the part that actually made the news, which is about how he is going to sentence him before January 20th. And he acknowledges that this is an unprecedented and likely never to be repeated legal scenario. I love that optimism.

0:32:02 Matt: Yeah, I really hope that's true. And that he is required as a judge to sentence the defendant within a reasonable time. It's already been quite a while because of this delay. It should have happened in July. The prosecution was proposing something called the Alabama rule, which would have allowed the court to essentially end the case, to terminate it here and to drop it in such a way that he still ends up with a conviction. But Mershon is very concerned about Donald Trump's appellate rights. He's mentioned several times he wants to be sure that Trump has the right to appeal. So he acknowledges that it would be best, he's not going to do that one, but that abeyance would be less desirable. We talked about the possibility that they just set it aside until January 20th, 2029 or whatever it's going to be, but then that might be the only viable option. But it seems proper at at this point. So this is where he shows his hand. And this is a little disappointing, but it makes sense that he would do this. And he says explicitly, the court is not inclined to impose incarceration given that the people are not going to see this as practicable. Like the people said directly in their filings that they don't think it's possible to incarcerate this person.

0:32:56 Matt: So unconditional discharge appears to be the most viable solution so that he could appeal. So conditional discharge in New York is pretty rare. That's a pretty rare outcome. That basically means nothing.

0:33:05 Thomas: Does that just mean nothing? Oh

0:33:09 Matt: That means no probation, no fines, no anything else. Unconditional Conditional makes sense in the sense that the defendant is arguing that he can't possibly comply with anything because he's the president and he can'T be held to any kind of conditions because of the immunity decision while he's president. But if he were to impose conditional, I just thought it was kind of funny that the judge could set a conditions which include employment. And I really like the idea of saying you have to remain employed.

0:33:25 Thomas: Boy if you get impeached man you're you're in jail that's really funny

0:33:31 Matt: I would have preferred that he set the condition that he remained unemployed. But here we are. You have to quit your job. Yeah. Yeah. So this, of course, stirred a whole round of responses from the Trump team, as you might expect, because he's got unlimited money to throw at all of this.

0:33:36 Thomas: Man I

0:33:46 Matt: So they file something immediately in the New York appellate court, and Todd Blanch showed up to argue it. And there's kind of a funny exchange there before Judge Ellen Gesmer and the New York appallate division, where he was essentially saying it was too much of an imposition for Trump to appear for sentencing at all. Now, I should mention, Mershon specifically said, you can approve virtually. I see what you're saying about how the mental and physical demands of this transition right now are quite a lot. You shouldn't have to come to New York. You can appear on Zoom, which is crazy. I've never heard of a judge saying you can appear to sentencing virtually, even throughout COVID, because obviously one of the outcomes of sentencing potentially is that

0:33:46 Thomas: Wish could be yeah

0:34:19 Matt: You're going to be led away in handcuffs and starting a sentence. So he's already said right now, that's off the table, so you can just show up on Zoom. And Blanche still argued that that was too much. He said that a criminal sentencing is such a big deal in someone's life, even if it's going to take an hour, that it's just too much, It's just too stressful.

0:34:28 Thomas: Jeez okay man don't do the crimes gosh

0:34:37 Matt: That really is the classic construction, right? The judge cut him off and said that you could have just been sentenced in July. That was an option, but you guys stretched this out, right. So 30 minutes after the hearing, Ellen Gesmer denied this motion, obviously. And so they took that up to the appeals court of New York, the highest court. And court of appeals just earlier today, around 11 a .m. this morning, denied that. So all that's left for him to do is to go to the Supreme Court. And he filed something a couple of days days ago. It is.

0:34:46 Thomas: Yeah which is crazy is there any precedent for this like hey don't don't sentence me yeah there's no other kind of thing that would even be this right I mean there's not even an analog like forget president am I wrong is there anything else where this would happen wow

0:35:15 Matt: The only reason he's able to even do this with something resembling a straight face is because the Supreme Court said, at

0:35:20 Thomas: It's because the supreme court has a red phone that just directly directly deals with President Trump. And he could just be like, hey, can you do me a favor? Do me a solid.

0:35:26 Matt: This point, yeah. Yeah.

0:35:30 Thomas: Doesn't matter. Doesn'T matter how it's supposed to work, Matt. Doesn' t matter how the law ever is supposed to werk. Trump needs something. All right. We' ll look. We'll take a look .We' ll take a look, boss.

0:35:38 Matt: So they're saying, look, the Merchan is violating your ruling in the immunity decision. Also, Merchan specifically found that there is no immunity for a president -elect, and Trump wants to say that there is. So normally, I should specify, too, they are going to appeal on the issue of Merchan's denial of the presidential immunity motion denial, right? But in the typical course of events, a regular defendant would be sentenced and then appeal. That's how it's supposed to work. But they're saying this is so important that they get to do an interlocutory appeal even before sentencing. And arguably, from what I remember of the immunity decisions thing about evidence and about how evidence can be used to get to a crime, maybe, I don't know. There might be some argument there. I don' t care, but it is possible that maybe you do get an interlacutory appeal in this one very special case when you're the president instead of having to be sentenced. I don''t know.

0:35:58 Thomas: Yeah. Yeah, sorry. Some argument where?

0:36:23 Matt: I don't think you should. I think that you should have to be subject to the same law as everybody else. And again, this isn't even a sentence. It's an unconditional discharge.

0:36:23 Thomas: Oh, yeah. They already know nothing's going to happen. And He's like, nothing too steep a price.

0:36:34 Matt: To be clear, an unconditional charge, as I understand it, in my line of work, would mean you couldn't even be deported for this. It doesn't constitute a conviction because there's no punishment. In immigration law, you have to have both the guilty finding and a punishment. This is a really good deal for any defendant. It.

0:36:45 Thomas: I don't even know why they they have a phrase for this, Matt?

0:36:51 Matt: Yeah.

0:36:51 Thomas: Why do you even have like some terminology that means nothing?

0:36:54 Matt: I mean, you can imagine maybe if somebody is imminently about to die of cancer or they're the sole caretaker for a sick kid or something. I can imagine there might be some circumstances, but even then, probation, fines, something, right? Just something to show. Impose the highest possible fine that you can. I don't know. There's got to be something you can do here.

0:36:57 Thomas: There's no, yeah. Wow. Well, that'd be nice.

0:37:11 Matt: Yeah, but he's saying that the unconditional discharge essentially respects the immunity decision, and that's the best way for him to do it. So it is now getting along in the evening, and nothing has happened so far as I can tell, just refreshing New York Times, and it does not appear that anything else has come down yet. We will do a quick update if that happens. But for now, we will be watching the sentencing hearing tomorrow. And if they follow, as I think they will, the tradition, they will be releasing a transcript on Monday and we can just gavel gavel that thing.

0:37:37 Thomas: So the Supreme Court, so they asked the Supreme Court, but the Supreme court just has said nothing. Okay. So it's not like they granted anything or even denied anything. They just haven't even spoken on it.

0:37:37 Matt: Good times. Yeah. Yeah, they've been ruled. So it is possible we could get a late night decision. It's possible maybe they could do something at eight tomorrow morning when sentencing is scheduled for 930. It sounds dramatic, but they might just let it ride. I don't we'll see what happens.

0:37:51 Thomas: Okay, yeah, I mean, mean, it's not like, do they have to answer all their mail, the Supreme Court? Do they have to say no? Or like, I guess what I'm getting at is, does the fact that we haven't heard anything concern you?

0:38:02 Matt: Not necessarily, because they could easily at 11 tomorrow morning just say, yeah, no, we're denying this. They ordered the response from the government to be filed by something like 11 this morning, so they're reviewing everything now. But I don't know. I don'T want to predict too much, and we'll know soon enough anyway.

0:38:23 Thomas: Again, trying to figure out what normally happens if there is the word normal involved in any of this.

0:38:28 Matt: Well, what normally doesn't happen is the defendant calls one of the Supreme Court justices. We got to mention that too.

0:38:32 Thomas: Oh boy, here we go. Time to talk about this. What did I see, Matt? I am too, I am blind with rage. I saw a headline. I just figured I'd wait to talk to you about it. So So Alito, it's reported that Alito was talking to Trump about this.

0:38:43 Matt: They had a phone call. Not about this allegedly, but can you imagine what else they they were talking about.

0:38:49 Thomas: Ah, flags. General flag, love of flags. Yeah.

0:38:51 Matt: Yeah, it gets a great deal and saw some cool flags today. Yeah. No, this was yesterday that it was confirmed. Now here's the actual excuse that was provided. Apparently Trump was allegedly calling Alito to confirm a reference for one of his law clerks. And I love the idea that somebody would lie on their resume about having clerked for Sam Alito. It's a very funny idea. Yeah to confirm the reference. I mean, I'm sorry. I'm not that important. I am the managing partner of a four attorney law firm and we're hiring a receptionist right now, by the way, if anybody knows a bilingual receptionist in the greater Boston area. And I would not call to confirm that. I have a junior law partner to do that, and that's his job.

0:39:07 Thomas: Trump is calling to confirm? He doesn't have anyone else who would do that. That's insane. The president is calling. To check.

0:39:28 Matt: Right. A reference. That's the excuse for somebody named William Levi. It is unspecified in the story.

0:39:33 Thomas: Oh, they got the name of the person? Wow.

0:39:35 Matt: Yeah. Oh, no. Alito said it. He said, William Levi, one of my former law clerks, asked me to take a call from President -elect Trump regarding his qualifications to serve in a government position. It's not even said which one.

0:39:44 Thomas: Oh, okay. Because my secret theory was going to be like, is he the next federal judge or something crazy? You know, but not even that.

0:39:52 Matt: Maybe if he's going to be a federal judge. I mean, yeah, if he can be like chief of staff of the White House or something, then maybe be something super important. Maybe we'll find out.

0:39:58 Thomas: But why would Trump be the one calling? That's so silly.

0:40:00 Matt: Exactly. No. Yeah, they got people for this. They have extensive people to do these kinds of personnel checks.

0:40:06 Thomas: At that point, why not just come up with some other... So this is where you'll have to help me. I don't know what the norms are on any of this. Why can't they just say we were talking golf?

0:40:17 Matt: I guess that's what they agreed on. I don't know. And honestly, even if Sam Alito is telling the truth, and there's no reason to assume that he is based on his past record, there's still like the thing of the president is calling you to remind you that he can call you. He's just reminding you that you have this kind of relationship. I mean, I feel like that's even bad enough in itself, even If they didn't talk about this case, which I am inclined to believe that they did talk about the case. But But yeah, no, they could have come up with anything else. But I guess they have to make it sound like it's somehow related to the transition to make it even seem plausible.

0:40:43 Thomas: Yeah, like it has to be like something urgent, I guess, maybe. That's crazy.

0:40:47 Matt: Alito even said that he didn't know at the time of the conversation that an application would be filed. So that's fine.

0:40:54 Thomas: He didn't know this red phone that is constantly ringing off the hook would be ringing in that particular day. There's always some bullshit going to the Supreme Court about Trump constantly. There's never going to be a time when you don't have something either immediately happening or about to happen at the Supreme Court involving Donald Trump, right?

0:41:14 Matt: That's the world we're in.

0:41:14 Thomas: I mean, if I had all the time in the world, I would make a calendar and just blot out the days where there was or wasn't something pending. And, you know, it's just most of the days that there'd be something involving Donald Donald Trump pending or in, you know, some level of consideration. That's just not okay. Right, Matt? I mean, I'm trying, it's hard for us non -lawyers sometimes with your customs and you're whatever. And I know you're not usually this kind of lawyer, but like, that's just not cool. Right?

0:41:38 Matt: No. And coincidentally, the call was on January 7th, the same day that this application was filed. And Alito was saying, oh, I had no idea. Never could have known. This is also just the filing of this thing itself. And again, John Sauer, who is going to be the next Solicitor General, is filing this thing, this very long 50 -page stay request. This is a test in itself of his Supreme Court. It feels like just a little kind of stress test to see what you're going to do.

0:42:00 Matt: You have a chance to stop me from being sentenced. What are you going to Do? We'll see.

0:42:00 Thomas: For a second, I thought you were saying he, as the solicitor general in that capacity, he was going to be doing this, but you're just saying, because he's also, I forgot this weird thing, Matt, where everyone Trump appointed to anything is also Also, somebody who was his personal attorney in like a criminal case totally forgot about that whole thing because that's weird and has never, ever, ever happened before.

0:42:16 Matt: Yeah, well, there's Harriet Myers, but that was many years ago. You might remember when George W. Bush tried to put his personal attorney on the Supreme Court, and that didn't work out very well for anybody. Other than that, yeah, no, this is pretty weird.

0:42:28 Thomas: Oh, boy. So we will continue to monitor if the Supreme Court is going to answer the call from the red telephone and just put a stop to this. That will be new levels of insane. Right. I mean, how how are we if that happens, Matt, what noises will be coming out of our faces? Like, what do I don't even.

0:42:48 Matt: Well, we can tack on a quick addendum later tonight, if that's so. And maybe we'll get to find out. But I'm hoping we don't need to find out.

0:42:55 Thomas: We'll leave it till then. But I'm just I don'T even know what I'm in disbelief already, if that happens.

0:43:04 Ad: [Ad break 3 — ad music]

0:43:04 Thomas: All right, Matt, you wanted to talk about the Lake and Riley Act.

0:43:07 Matt: I do. It is our top request from superstar patron Shad Raleigh once again, is one of our top requests this week. And it is something I really wanted to talk about because some noises are going to come out of my face on this one. I am very, very angry with Democrats right now. I'm often annoyed with Democrats, but this is crossing something. So just for background here, we're talking Act, which is named for a 22 -year -old Georgia nursing student, horrible, tragic death, killed by a Venezuelan immigrant who's now serving a life sentence appropriately for what he did to her. And this is not a story about a Venezualan killing someone. This is a story of a man killing a woman.

0:43:43 Matt: It is unfortunately a very typical misogynist type crime. He was stalking her. He just out to kill a woman, he basically said. That was what he wanted to do. Turns out, you don't have to be from another country to have that happen.

0:43:51 Thomas: No, we're OK with Americans killing women, Matt. It's only if you're not you don't belong here in quotes. Yeah, yeah.

0:43:54 Matt: Yeah, that's a regular part of life. Then we notice, if you're speaking another language or coming from another county, For the most part, I just want to say, typically, women are more often to be killed by people they know. It is very rare to be killed by a stranger, but it does happen. So they have used this because there's nothing they like better than attractive young white women being targeted by immigrants.

0:44:14 Thomas: Tale as old as this frigging country and older, probably.

0:44:17 Matt: Yeah, absolutely. Let's go back to the yellow apparel and everything else. The House had already put this bill up back in March, but they brought it back with a revised version. And I want to tell you a little bit about what's in it and why I'm so concerned about this and why we need to hold the line on this kind of thing. Sure.

0:44:28 Thomas: Yeah, what is the, okay, just prima facie. Again, as you said, this is an awful misogynistic, horrible crime. This is why they picked these cases, because it puts anyone trying to not fall into their fear -mongering and their hate, it puts us on our back foot. It. You know, yeah, obviously we're not pro murder of women, like obviously, but what you're doing and what has long been done with these kinds of examples is making a huge deal about a victim that's going to be particularly, that's gonna hit the fear reaction.

0:44:58 Thomas: It's going gonna hit the emotions. It''s gonna hit all those things. It' s gonna push all those buttons and it's gonna get people to hate another group of people who are not responsible for this.

0:45:06 Matt: That's right. Right. And remember, Trump ran on criminal migrants. Stephen Miller was doing fascist rallies about criminal migrants, they want this theme, and they're happy to pick it up and run with it.

0:45:13 Thomas: And so So my question to you is, I don't understand why you need an act for the, it's not like this was legal. It's not there. Oh man, loophole in the law. You're allowed to kill Lake and Riley. Now let's get a bill going that will put a stop. What would this bill even be? I don'T get it. Jeez.

0:45:30 Matt: So that is the problem, is they wanted to pass something that's in her name, and this is so stupid, and it is so harmful, and the consequences of this could be pretty bad. Also, as I'll tell you, the consequences Of this could be very unexpected. And there's actually a very hard right -wing angle that could be taken on this. So it turns out that the person who killed Lickin' Riley had a shoplifting conviction, a previous shoplifting, a well -known indicator that you might kill somebody. So the response from the Republicans was to change the law. INA Section 236C, a familiar provision to me, which is about mandatory detention. Detention. So when ICE takes people into custody, usually most people are going to be eligible for bond. For an immigration judge to review their case and say, okay, you don't have to be in custody while we put you through deportation proceedings. I'll let you raise your defenses for asylum or residency or whatever else you have. But there are a number of things that require ICE to hold you and that an immigration Judge will have no jurisdiction to release you on bond. And at the moment, mandatory detention is pretty much what you'd expect. It's hardcore aggravated felonies,

0:46:31 Matt: Violent crimes, and unfortunately things like drug possession, but otherwise pretty much what you'd expect. So what the Republicans want to do is add burglary, theft, larceny, or shoplifting offenses to the list shoplifting, which is not punishable by jail time in Massachusetts. I'm sure it's the same probably in other places too. So something you wouldn't even have the possibility of going to jail for, you could be held indefinitely in immigration custody. Yeah, exactly. Now there are a couple of weird things about this that I happen to care about very much as an immigration policy person. And I think this bill is so poorly drafted, I'm not sure that the authors of this bill considered this at all. So one of the things is that it is charged with. So that's not how mandatory detention works. It only kicks in when you've actually been convicted,

0:46:43 Thomas: Shoplifting. You could be held in jail for essentially. Wow. Oh, really?

0:47:12 Matt: Not when you're being charged. Yes. So here's the weird unintended side effect of putting in charged with, because they're being very eager to make sure that they catch all future shoplifting murderers. What they're going to do is end up allowing a lot of people to get away with theft defenses. Because what's going to happen is they're going to be held in ICE custody and deported, and they're gonna leave the police and prosecutors that want to see this crime through hanging. That's what's gonna happen. Nobody's pointed this out. I don't know why.

0:47:38 Matt: There's a very obvious pro -law enforcement argument against this bill, which I'm afraid I'm gonna have to raise with Democrats because they won't listen to anything else, apparently. So let's tell them about how it hurts cops. If that's what it takes, I don' care. And, you know, if you're talking about serious acts of theft, maybe they should be reviewed by a the state court. But it is so stupid to put arrests rather than convicted in there because you're requiring them to be held outside of state custody. It's much harder for them to get into state custody to finish the cases. So they have to do it habeas every time they want to bring them in. And ICE doesn't always comply with those, at least around here. And it's a lot of work for them to do that. This is also a tremendous strain on ICE's detention capacity because it means they're going to have to hold every single shoplifter, everybody who's ever been charged with a theft offense of any kind forever. I went looking to the Congressional Budget Office to see what they They think this is going to cost, and they haven't calculated it yet. But I really think they should, because this

0:47:48 Thomas: I guess. Yeah. Yeah, oh

0:48:25 Matt: Is going to substantially increase the number of people who are going to have to be held at a time when they're already talking about mass detention and mass deportation. And they're doing it all just so that they can get people mad about criminal migrants. And it gets worse. There is a much worse thing in here that I have to point out that is not getting enough attention. Because I think maybe there might be some people listening who will think, well, why should we care about people who are charged with crimes? Why should we care about but people are convicted of theft defenses. We should deport them. They're undocumented. So here's the real problem. What this thing is doing is handing Ken Paxton a gigantic weapon that he can use. Him and all the other attorney generals around the country who want to mess with our federal system. This gives a cause of action to attorney generals. It gives them an enforcement action possibility. If they think that the attorney general secretary of homeland security is not properly following the law, not just on this, but on all kinds of other things.

0:49:15 Thomas: What?

0:49:15 Matt: If they think that, for example, that the Joe Biden parole programs that we've talked about before that allow some people to enter and stay here, if they think that that is a violation of the way that parole is supposed to be used, and that's an example that's given here, they can go ahead and sue, and they can try to stop it. Each individual attorney general in all of the country can do that. They can also seek financial damages in excess of $100 if they believe that state residents have been harmed. So every time they think the federal government should have enforced against somebody that goes on to commit a crime and hurts somebody or costs them the money. I mean, this is, it's out of control. This is the kind of thing that looks great on Fox News, but will play out in ridiculous ways that they have not even begun to consider. And the Democrats, when they see something like this, should call it. And instead, what they have done, and I'm talking to you, Ruben Gallego, co -sponsor from Arizona, I cannot

0:49:19 Thomas: What? Are you kidding me? Wow.

0:50:01 Matt: Believe that you're involved in this. I am not. I'm so angry with Ruben Gallego right now.

0:50:05 Thomas: Is there something wrong with that seat? Because he's the one who's getting Kirsten Sinema's seat. I guess he's not. Is he in there now? Oh no, he is because they're sworn in, right? Oh, we got to look into this. There's some contamination with that Arizona seat. Weird thing is the other Arizona seat, totally fine. Fine. Seems great to me because that's that astronaut, right? That guy's great.

0:50:24 Matt: He's he's not. Unfortunately, Mark Kelly's on the GOP side on this one too. Mark Kelly and Ruben Gallego are taking this up together. They're co -sponsoring. Yes. So yes. Because my thought was, okay, well, this passes the House, whatever. The House is full of whatever. But the Senate, you've got to get 60 votes in the Senate and we still at least have enough people, don't we, that we could keep this from happening? And New York Times is reporting as of now that it's getting much closer to being able to be passed.

0:50:29 Thomas: Oh, come on. Yeah, this is insane.

0:50:50 Matt: And because the Democrats see where the wind is blowing in immigration enforcement. And rather than standing up to it, and rather than saying this isn't about crime at all, this is about an insane new reinvention of the immigration detention system, which they should be doing. And apparently it's on me to say, I don't know, I don't see anybody else really saying it properly. Aaron Reikland -Melnick, who I'm hoping we'll have on sometime in the next few months, one of the great immigration policy people right now, has pointed out that this actually could result in some bizarre scenarios, such as people with temporary protected status being held indefinitely for reasons that I don'T have time to explain. But again, not thought out, probably written by some intern and supervised very loosely by somebody who's spending time going on Fox News instead of writing laws. And this is what we're going to get. Andthis is a preview of the kind of thing that we can expect. Their guy isn't even in yet. He doesn't even have a chance to sign it yet. AndThis is the kindof nonsense that they're starting to pass. And Stephen Miller has promised that we're going to get a whole package of immigration bills through Congress within the next month or two.

0:51:43 Matt: And if this is the kind of thing we're talking about, then hold on, I guess. You can have a lot of noises coming out of my face.

0:51:43 Thomas: This is, you know, obviously I supported Kamala, I supported the Democratic Party as the only alternative to Republicans and Republicans can't and shouldn't have been let into office or in control of anything ever. And the only way to stop that, the only viable way to stop that is to vote for Democrats. It's just a fact. It is a fact I am not interested in what I I wish were true when it comes to something like voting. It's not important what I wish was true. What's important is what can I do? What is actually possible? And the fact is that Democrats are the alternative we have in 99 % of all elections of anything, unfortunately. I wish we had some better form of voting. We don't. Until we have that, that's what we have. Now that that election is over, yeah, I'm not real happy with the Democratic Party. Not super happy with what happened with AOC and that position. A lot of the leadership is showing that they're just not, they're not fit for this moment at all. And they haven't been for a while. But it surprises me that Ruben Gallego, and there is a serious problem with the gerontocracy of the Democratic Party at a time when we really need people to be able to nimbly make compelling arguments about why the things we want to do are better and the things that the other side wants to do or worse. We just need people who are able to make a better case. Age is not necessarily even the main factor there. Like Bernie Sanders is someone who's always been very capable of delivering a cohesive, convincing, simple message on stuff. I've been worried about the confirmation votes. Now, I'm not going to go so far as to say none of his appointees should have a Democratic vote. That's unrealistic, and I don't even really think that's necessarily true. But most of the main ones we've heard of so far should not have a single Democratic vote in the confirmation process

0:52:39 Matt: Yeah. Yeah, yeah, yeah.

0:53:25 Thomas: At all. And my worry is, and I think this is more than just a worry, I think this is true. I think they're going to have quite a few Democratic votes. Who knows? Maybe I'm wrong. But based on how I'm hearing people talk about this, it's possible that they'll pick one or two that they really try to resist in a serious way. But I worry that there's going to be all kinds of Democratic votes for people like RFK Jr.

0:53:46 Matt: Never would have thought. I honestly wouldn't have.

0:53:46 Thomas: It should be zero. The number should be Zero of Democratic Votes that go towards these people.

0:53:53 Matt: It's not that hard to just not support something like that.

0:53:56 Thomas: It's not. And what credit, what political capital do you think you're building? Give me a single argument for why a Democrat should vote for someone like that or should vote similarly to this Lake and Riley Act. Although I think with Lake and Riley Act, it's just more of a misunderstanding probably of what's happening.

0:54:11 Matt: This one, I have to say, I do understand that they could easily be primaried by people saying, Ruben Gallego voted to support undocumented people who've done these horrible theft offenses. He voted for the killer of Lake and Riley to stay here. And you know, come on.

0:54:22 Thomas: Yeah, yeah. Well, we had Obama who was tough on, who's a deporter in chief and in an effort to gain bipartisan or Republican support. We had Biden who maintained a lot of the harshest policies in many ways. And what did it get us? What is it getting us?

0:54:26 Matt: Yeah. Yep. Nope.

0:54:35 Thomas: Why is it ever getting us. There's a different way we need to do that. Look, I'm so sorry to hijack the show. This is not, we need To stop doing the same things over and over. It doesn't work. Here's the other thing is people don't care about actual policy votes and actual laws. Like that's not even what's winning or losing elections. It's all about rhetoric.

0:54:55 Matt: You're not getting credit. It's not happening.

0:54:56 Thomas: Yeah, we're not, there's no credit for voting for in the confirmation hearings for Trump appointees. There is not going to be any credit for voting for this. It will still apply. There will still always apply. So what we have to do is stop being so responsive all the time and just proactively say our thing and why their thing is a lie all the Time in unison as Democrats. It's the only chance. I don't even know if it'll work, but it's the Only Chance. And it has the added benefit of not voting for and supporting and probably passing bad things that make things worse. Infuriating. Wow, that is really frustrating, Matt.

0:55:24 Matt: They've already headed off the initial filibuster and 33 members of the Democratic caucus have joined Republicans to support this to support the debate. Now, Chuck Schumer is saying it was just because we want to get this in. We want amendments. You know, we don't want it to pass as it is. But the fact that they're not just stopping this at the gates and saying this is beyond what we can accept. Don't bring this to us. That's bad. It's very bad.

0:55:45 Thomas: Especially, especially because we are two years away from any other meaningful election. No one will remember any of this. No one. We'll remember anyofthis, Matt."

0:55:54 Matt: It was January 9th.

0:55:55 Thomas: We won't remember it in three weeks. Come on.

0:55:57 Matt: Yes, this is not the time to roll over. There is no good time to rollover. But January 9, come on, get it together.

0:56:02 Thomas: Horrible.

0:56:06 Ad: [Ad break 4 — ad music]

0:56:06 Thomas: Can you cheer us up with anything quick and funny about Giuliani?

0:56:09 Matt: I sure can.

0:56:09 Thomas: Because we're out of time, but we can't end on that note.

0:56:12 Matt: Let's give two minutes to Rudy Giuliani. He deserves a footnote and nothing more. Some funny things have been happening since we last talked about the litigation involving Ruby Freeman and Shea Moss and their attempts to enforce the judgment in which all of Rudy's possessions and money have to go to them at this point. Procedural history, but there are two different contempt hearings at this point, one about his failure to turn over his property and one about the defamation that he continues to spew against these two poor people who did nothing wrong. And he's continuing to say, even though this is the entire reason we're here, that they were passing around thumb drives with illegal election data, like they were crack or whatever.

0:56:45 Thomas: USB stick. What do you say? USB ports. That's what I was going to say. I knew it was something even dumber than, yeah, ports.

0:56:50 Matt: Yeah, yeah, yeah. That's right. That some USP points. That's Right. So Rudy Giuliani really didn't want to come to the hearing because I think he knew that there's a good possibility that the judge might try to put him in jail for a day or two on contempt because he has been so completely contemptuous. He actually, there was a two -day hearing, which I would love to get the audio for at some point this week, in which he at one point testified that he's just involved in so many different lawsuits that he can't remember what he's supposed to be doing. Yep, exactly. Which is pretty good. Yeah.

0:57:12 Thomas: Can't keep track? Yeah. I mean, in fairness, that's the most plausible thing I've heard of coming out of his rotten mouth in a long time.

0:57:20 Matt: Yeah, I actually believe that. But he also has lawyers to keep track of it and tell him what to do. So maybe listen to them. So Joe Camerota, who we've talked about, his Staten Island divorce attorney, who's now representing him in New York for a document that at some point we've got to go through.

0:57:30 Thomas: Oh yeah. Oh, so good. Cause you have a guy here who like the language in his, but we're going to read that for something. I've been dying to, I have it up on my computer cause it's so funny.

0:57:43 Matt: That's so good. On January 2nd, his attorney sent a very poorly written two -sentence letter in to Judge Lyman in New New York.

0:57:51 Thomas: That's hard to do. How do you write poorly in two sentences, Matt? You would think I saw

0:57:53 Matt: It's incredible. Incredible. I'll read the very bad sentence. I respectfully request that defendant Rudy Giuliani be permitted to appear via Zoom or telephonic communications tomorrow. As defendant Rudy Giuliani is having medical issues with his left knee and breathing problems due to, can you possibly guess why he's having breathing problems?

0:58:09 Thomas: This, unfortunately. Otherwise I don't think I would ever guess it but it's it's yeah it's perfect yeah

0:58:13 Matt: Noun verb and 9 -11, as Joe Biden said. One of Joe Biden's better lines, the Rudy Giuliano sentence. Because he was at the World Trade Center on September 11th, 2001, he's Having Breathing Problems. That was one of the ways he tried to do this. Now, Beryl Howell in DC was not as accommodating of this. She called his bluff in an order and she said, okay, sure, I hear you, but you didn't give me any documentation of this whatsoever.

0:58:37 Matt: So get a doctor's note. She said she issued a minute order, paperless order on his motion to appear virtually. This is for the contempt hearing that is scheduled for the day that this episode is coming out, January 10th, big day, January 20th, a lot going on. To assess the seriousness and veracity of the medical conditions without support from any medical weather documentation. To excuse his presence, she wants by today at 2 p .m. a sworn declaration under penalty of perjury from Mr. Giuliani that except for travel required for court proceedings, he has been unable to travel and not traveled from his residence in Florida in the past 30 days, and he remains unable and will not travel in the next 30 days. Now, it's especially important about the residence from Florida thing because in New York, the whole issue is, does he live in Florida?

0:58:36 Thomas: To get a doctor's note basically yeah right

0:59:16 Matt: Because he's trying to claim that's his homestead and he can't give up the Florida house. So she calls his bluff and he responds with a bitter sworn statement in which he concedes and he says, okay fine basically right

0:59:24 Thomas: Well if you need a doctor to know okay so I don't I haven't gone yet but I call I asked chat gpt and chat gpt said that I probably have this there's no real doctor if you're gonna be an asshole about it there's no actual

0:59:34 Matt: So he backtracks in a very funny way and we're going to link to this document this this document is well worth reading in itself honestly this could be a fun bonus content but he says okay hold on I didn't I did not represent that I do not or cannot travel but the travel carries medical and security risks I received death threats period so he's concerned about his life but more to the point he says he has not been traveling he's traveled twice and that he does actually have plans to attend the inauguration. He concedes that. So too sick to make it to DC for a court hearing on the 16th, but not too sick that he can't attend an inauguration outdoors on January 20th in bitter winter in DC. He refers to the inaugeration of President Trump as a once -in -a -lifetime event, factually incorrect.

0:59:43 Thomas: Doctor

1:00:22 Matt: This is the second chance. I don't know if he was at the first one, but I don' t care.

1:00:25 Thomas: Yeah there might even be a third

1:00:27 Matt: Let' s not say that out loud. And he points in the inauguration by Zoom, which is a very strange thing to say, because you can watch it on TV like the rest of us are going to have to.

1:00:34 Thomas: Matt yeah yeah I like it yeah he has to go because there's not a zoom option to participate for that but there is a zoom action for all this court stuff he doesn't want to

1:00:43 Matt: So let's bring it home with the bitter end here. Paragraph six. I had hoped the court would understand and accommodate my needs. However, it appears I was mistaken. Very disappointed. Because it is difficult to cancel my two evening broadcasting commitments, because of course he's got to be on TV, and last minute travel arrangements are uncertain, I have decided to withdraw my motion to appear virtually and to be physically present for tomorrow's hearing. Hearing.

1:00:49 Thomas: Do I'm disappointed in you court but I'm

1:01:07 Matt: You made me do it. Yep.

1:01:09 Thomas: Gonna be a dick about it that is wow this guy

1:01:09 Matt: So judges should always call these people's bluffs. That is the way to do it because she wanted him to provide this extensive information about what he's done for the last 30 days, what he's doing for the next 30 days to prove that he's not traveling. And of course he can't say anything else.

1:01:14 Thomas: So good yeah oh well

1:01:23 Matt: So yeah, circus continues.

1:01:23 Thomas: That is a much better note what a steaming pile that guy is. He just, I can't, when is that guy going to just fall apart? It seemingly has been for a while before our eyes, but yeah. Now I hope he lives for another 30 years because I just, this is just endlessly funny now, like all the bullshit he does and his lawyer being so incompetent. That's just such good content for us. All right. Well, that's our show. Wow. A lot to pack in there. We have the things we're keeping an eye on and we will, of course, but probably do some sort of

1:01:28 Matt: It just keeps giving. Well, he's dealing in front of us. Yeah.

1:01:59 Thomas: And, Matt, just as we drew it up, we've got news just after we stopped recording.

1:02:04 Matt: In both of the Trump stories, not just one, we have an order from the

1:02:05 Thomas: Both of them. Okay, maybe we didn't draw it up that way, but, uh, yep.

1:02:10 Matt: Supreme Court, and I think it's pretty much what I thought, that they are willing to go along with making the president a king, but they're not willing to stop the sentencing on this case.

1:02:17 Thomas: Yeah, I saw the flash headline from the New York Times, and there's a particular part that bothered me. Maybe I'll read the order first. Pretty short. Order impending case. The application for stay presented to Justice Sotomayor and by her referred to the court is denied for inter alia the following reasons. First, the alleged evidentiary violations at President -elect Trump's state court trial can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the president -elect's responsibilities is relatively insubstantial. I would say it's invisible. There's none of it.

1:02:49 Matt: Yeah, there's no burden.

1:02:50 Thomas: But yeah, relatively inssubstantional in light of the trial court's stated intent to impose a sentence of, quote, unconditional discharge, as we talked about, also known as nothing. After a brief virtual hearing. Here's the kicker, Matt. Here's last part. Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.

1:03:12 Matt: That's four people.

1:03:13 Thomas: That's a five to four decision, everyone.

1:03:16 Matt: It's pretty bad.

1:03:16 Thomas: Five to four. Just barely. That means all the women on the court plus Chief Justice Roberts. Yeah.

1:03:22 Matt: It's weird to think that there are four people who think that that would have been worth staying, that something this inconsequential as finishing up this sentencing. Don't like it.

1:03:30 Thomas: It might as well read, Justice Thomas Alito and Gorsucha and Kavanaagh recognize that there are no rules. Really, might as Well be the last sentence. They recognize there are no rules or consequences for anything that anyone does, for any Supreme Court justice anyway. Justice Thomas, still, we're still finding out about more and more ethical violations that nothing will happen about. So those four realize that they can do whatever they want and there's no consequences to that.

1:03:55 Matt: And Alito should have recused himself as soon as that came out, that he had spoken with the defendant the day that they filed that, that no matter what he says they talked about.

1:04:03 Thomas: Let me get to the sentence that drove me nuts in the New York Times story they wrote up about this. The show of independence from five of the justices in connection with the New York case, less than two weeks before the inauguration, capped the former and future president's frenzied campaign to stave off the embarrassing spectacle of the sentencing.

1:04:22 Thomas: The show of independence. There wasn't a show of independence from five of the justices. I mean, that's one way to put it, I suppose. But another way to put it is we know that six of the justices do not show independence at all. And miraculously, two of those six decided to not rule in this incredibly ridiculous way. And they didn't do that. That's not a show of independence. It's like if I'm the coach and I put my kid as the starter and then my kid is like, hey, could you also like take out one of the opposing kids for me. Cause you like, just like kick one of them so I can have an easier time. And I'm like, nah, I guess I won't go that far. Wow. What a show of independence. What is show of independence from coach Thomas?

1:05:08 Matt: This should be 9 -0. This should not be 5 -4. This should be the court standing up and saying, you have to be sentenced. You were convicted. That's how this works.

1:05:16 Thomas: Oh boy. All right. Well, that's that one, but at least, Hey, at least it went the right way. So that tells us what, what we're going to have the sentencing hearing tomorrow as we were recording.

1:05:25 Matt: Tomorrow, and just check out Gavel Gavel sometime in the next few weeks. We should be coming up on a pretty good episode, I think.

1:05:30 Thomas: Yeah. Check it out all the time, by the way, but yes that was kind of the anticipated update what's the maybe less anticipated one oh my god

1:05:32 Matt: Well, yeah, all the time. Yes, for sure. Wait, just an unexpected little surprise for us, right? Well, the less anticipated update is that mom and dad got home at the 11th Circuit and they saw what Eileen Gannon's been up to and they said no.

1:05:50 Thomas: She's it she ran out of the back door with inappropriate judicial orders flying around as she's carrying him running up jumping out the back

1:06:00 Matt: So they denied the injunction, which is, of course, what she should have expected. Again, she had no jurisdiction, but she should've waited to see what the 11st Circuit was going to do since they had the case. But she, in her order, imposed a three -day stay after the time that they issued their order. So that's sort of built in. So there's going to be three more days before the report can be released. This will, as far as we know, still just be the first part of the report as to the election interference, but it does clear the way for everything. The 11th Circuit also invited them to go ahead and appeal if they don't like the three-day stay, which they've already done. They filed that appeal already, DOJ. So who knows? But that at least is another small victory for the rule of law. We will get this report. I wonder about that three -days stay if she was thinking that there's some chance that somehow this would drag on for another few days and somehow, you know, like the 17th. Right. Yeah.

1:06:42 Thomas: Yeah that is very weird did she try to time it out with the inauguration or something yeah

1:06:49 Matt: That there'd be more litigation. And now again, this does give them the chance. That's what the three -day stay is about to appeal to the Supreme Court. The 11th Circuit will see if the Supreme court passes another test about the rule of law and their independence.

1:06:57 Thomas: Well they are so independent yeah

1:06:59 Matt: But I can't think they're going to block this report. That is, even for what we're looking at in the Supreme Corps right now, that would be really extreme. And I think I, I believe I already called it on this episode that it was, I was leaning against them staying the sentencing. I was pretty sure they're gonna let this happen. So I'm feeling pretty good about that.

1:07:15 Thomas: Yeah I I mean, we're trying to predict what the two least crazy justices will go for and the two least crazy Justices. I can't believe I'm saying this. Amy Coney Barrett and the Chief Justice himself. I think they recognize that there's not really any upside to this. Like they're a little more calculating. The other four, I think are just zealots for the most part, but I can't explain Gorsuch because I don't understand how you would justify this textualist, but Robert certainly has has always been the kind of guy who will get away with as much as he wants to. But when he recognizes, like, there's no upside to this. And more appropriately, I guess there's not really any downside to letting it go. Oh, no, he gets the nothing that is the sentence he's going to get. So, yeah. So Chief Justice sees that as a calculating, more rational evil person. There's no reason to not just, like. Display a little bit of legitimacy or independence as in the New York Times.

1:07:32 Matt: That no right right no he has to take an hour out of his day to show up on zoom that's what we're talking about

1:08:12 Thomas: That article is precisely why he's doing it. There's no reason not to get these kudos from idiots who should know better at the New York Times no

1:08:18 Matt: They do have their limits and that's why you haven't heard me say things like they're completely in the pocket for donald trump because there's no motivation for them to go that far there just isn't like unless they're actually actively getting paid off and who knows maybe we'll find out that some of them are that could be

1:08:32 Thomas: What we found out is they're actually mega like Alito Thomas they're Kavanaugh are actually people who receive their their information from the right -wing media sphere which is not something that I don't think most people would have thought that three four years

1:08:41 Matt: Exactly that's right right it's a little hard to believe

1:08:47 Thomas: Ago they've always been conservative obviously they've always been far right but like the fact that their Their information diet is so obviously garbage, is relatively new. But yeah, you say they, again, it's just two. Four of them did want to do this and two of the hard right court decided not to. So what a miracle. What a Festivus miracle that we got crazy. All right.

1:09:10 Thomas: Well, yep, there's the update. That's pretty much exactly how we drew it up. But yeah. Thanks for jumping on at the late, late hour, Matt, for that update. Only the best for our listeners and patrons.

1:09:09 Matt: There's the update important stuff

1:09:21 Thomas: All right, well, thanks so much for listening. Thanks, Matt. We'll see you on Monday.

1:09:42 Matt: Well that, well, let me put it a different way. I'm sorry. Trump's charges. I didn't hear anything.

1:09:44 Thomas: Whoa, I just heard that bell ringing thing again. What is that? All right, I put it in the bloopers of last time, so just, I don't know if you got that far, but it was a very clear ringing noise coming from your end, and then me saying, what is that ringing noise? And he's saying, nothing, doesn't exist.

1:09:53 Matt: No, I didn't. Yeah, I didn't hear that.