It Sure Looks Like Mayor of Istanbul Eric Adams Is Going to Get Away With It

Transcript

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

0:00:00 Clip: You must never, ever give up or give in. You must keep the faith and keep your eyes on the prize. That is your calling. That is you mission. That is moral obligation. That is mandate. Get out there and do it. Get in the way. Change happens because people care. The people have the power to make this life free and beautiful. To make this live a wonderful adventure.

0:00:38 Clip: I still believe with all my heart, America can be a place where no child is left hungry, no community is left behind, and no one gets told they don't belong. Country is always worth it.

0:00:57 Thomas: Hello, and welcome to Opening Arguments. This is episode 1138. I'm your host, Thomas Smith. And joining me, as always, is real-life attorney, Matt Cameron. How are you doing, Matt? Eric Adams nonsense. Why? We better get someone else on the line.

0:01:08 Matt: Today with...

0:01:14 Thomas: Liz Skeen, are you there? Oh, hooray.

0:01:16 Liz: Yes, yes. Happy to be here. Happy to join you both. Like the particular set of content. I don't know if you heard my dog just purr, but he also is happy to join us. Yeah, it's unfortunate that we're going to break through some stuff that is going to leave, unfortunately.

0:01:28 Thomas: So we've got some bad Eric Adams news. Oh, Oh, well, it wouldn't be an Eric Adams episode without you. So I'm so glad you're here. Take the sting out a little bit. Yeah, we're going to break it down. I've still been obsessed with the lawsuit I'm covering over on Gavel Gavel. So I'm a real I'm just a listener on this one. I love it. I haven't heard exactly what happened and we're gonna cover it so that me and all the listeners can be caught up. Right, well, we'll take our usual break, which you can avoid at patreon.com/law. Avoid the ads, get the bonus goodies, all that good stuff, and then we'll get right to it.

0:01:33 Liz: I mean,

0:01:34 Matt: Great.

0:02:04 Thomas: So is he in jail yet or what? Is he in prison? What's the latest?

0:02:11 Liz: You know, he pled guilty and he took a suspended sentence. No, that's

0:02:15 Thomas: Where did we last leave off? What did, what's the last thing we covered on this?

0:02:19 Liz: Where we last left off, if I'm correct, is kind of seeing the volley of letters between Emile Beauvais, Danielle Sassoon, and then Skoden, of resignations, and a judge that said, well, everyone's got to come to court and we're going to have to talk about what's going on here.

0:02:40 Matt: And just to remind everybody, all of this back and forth with these letters and resignations regular and the thing that we now call the Thursday Night Massacre was all because of the motion to dismiss that we were looking at in Eric Adams' case. So let's just back up very quickly and just remind everybody that Eric Adams is in fact the mayor of New York still somehow.

0:02:56 Thomas: Mayor of New York and Turkey. Mayor, yeah.

0:02:59 Matt: And it is still bull, yeah. Now facing major federal charges for, among other things, the system for the matching donations to get about $10 million of taxpayer money that was actually being funneled through Turkey to do those matching donations, pressuring the fire department to finish permits in the Turkish consulate too quickly, and just generally taking a bunch of stuff from Turkey to

0:03:20 Thomas: And none of the good turkey stuff, like Thanksgiving. Bad turkey stuff.

0:03:24 Matt: So that's where it has been. And this motion to dismiss was being brought by the Trump administration pretty much explicitly. And we could tell this and you'd go back and listen to our episode about this. A few weeks ago, Liz joined us to talk about the flurry of letters that went back and forth, some of the most dramatic and frankly, scandalous stuff that's ever come out of DOJ in our lifetime, certainly.

0:03:42 Liz: Think so. Absolutely.

0:03:44 Matt: Bove's letter revealed that they were intent on dismissing this no matter what. And former U.S. attorney for SDNY, Danielle Sassoon's letter, revealed that she was aware that this was a quid pro quo directly and that Adams was going to have his prosecution dismissed so that he could follow Trump's immigration policy, specifically possibly contravening New York law in participating with ICE actions. I miss anything?

0:04:06 Thomas: Was really dumb. It's all dumb. You missed that. I don't know.

0:04:09 Liz: I mean, yeah, it was really dumb. You know, Emile Beauvais's actual writing itself was not good. After a flurry of issues with getting any prosecutor to file a motion to dismiss the actual indictment, Emille Beauvais did, which is really just unheard of to have a deputy attorney general be making an appearance on the SDNY docket. But we'll see more of him today.

0:04:34 Thomas: My memory was we we left that it seemed like absurd, all this stuff happening. And we thought, OK, the judge, no way the judge is just going to be like, hey, this is all cool. Dismissed. Seemed like the judge was going to give it at least a once over. So what's going on? Where did that that leave it then?

0:04:51 Matt: To remind everybody, this is under Federal Rule 48A, which allows on the leave of court for the government to dismiss indictments. So that's what it's coming down to here. There is some action that the court still has to take. The court doesn't just fully accept the way they would with the null process that we've talked about before, where where that's just a straight dismissal with the government without the court's participation. And one of the reasons, as we're going to discuss, that the is to look out for impropriety. That's something we certainly know is a factor here, just from everything that Danielle Sassoon directly told us, and even what Beauvais was admitting. So a hearing held on February 18th on this motion to dismiss and which, as Liz mentioned, Emil Bova didn't actually just sign it. He showed up. I believe he was the only person at council table for the government at this hearing. It's very dramatic.

0:05:28 Thomas: They have like the bride side and the groom side. It's all by himself. There's nobody there to give him away.

0:05:34 Matt: He did have a newly confirmed deputy attorney general, Todd Blanche, his old law partner, back in the saddle with him. So he was in the courtroom too, but he wasn't at council as I understand it. So all too familiar.

0:05:43 Thomas: The all -star losing team back together.

0:05:49 Liz: But like actually though, right? Yeah. I

0:05:50 Thomas: That'd

0:05:52 Matt: Talking about the possibility that Judge Ho could call in. Danielle Sassoon, and actually put Emil Bove under oath, and the people who'd resigned recently, he could bring them all in and talk about what happened, and we could actually do that. But that isn't what happened. We had a pretty short motion to dismiss hearing on February 18th, in which Adams testified and swore under oath that he had not been pressured or threatened to do anything in exchange for this plea, at which Emil Bave argued that we need to dismiss this case so we can get back to running the city. Ask a number of questions to Bovey, but he wasn't under oath, and it wasn't the kind interrogation that you might want to get to the points that were raised in Sassoon's letter.

0:06:26 Thomas: Oh, let's ask the guy who stands to benefit by saying no if he was offered anything. Like, okay. I not very convincing, I guess.

0:06:35 Matt: I would want to see everybody involved under oath and giving a complete factual recitation of exactly what happened at that meeting and subsequent communications, because I trust what Sassoon is saying, that this is a pretty direct offer.

0:06:46 Liz: Think that's right. I mean, I guess what I would just say is, you know, Beauvais yeah, is not under oath. He is sort of presumptively under oath because he's an officer of the court and he's speaking, right. So does have a duty of candor. He is supposed to be speaking truthfully. What one will from that. Hearing itself is kind of interesting. I mean, there sort of actual practical, I I can even see for the dismissal of this indictment. I'm sort of struggling even to phrase it as I'm saying this is do talk a lot about the revocation of Eric Adams' security clearance in connection with him being indicted and that is somehow preventing him from doing whatever work he needs with a security clearance. But the also note that the executive could unilaterally issue him a security as they kind of go back and forth, though, he somehow presented from doing his job and Beauvais really emphasizes that Alex Spiro on behalf of Adams emphasizes that it's sort of a null point because there's a functional workaround.

0:07:50 Thomas: So was the judge hearing any of it or was the Judge pushing back?

0:07:53 Liz: Isn't pushing back a lot, honestly. The judge is pretty circumspect. Is not, I would say, cutting the parties to size. He's asking a lot of broad and open -ended questions. He asking, you know, I just want to understand your position better. I just, you

0:08:17 Matt: And Boves, actually, from what I read, was that this could not be dismissed even if the judge found that it were a bad faith motion, even if they found that the things were true that Sassoon was saying. It's quite an argument, but I guess it's an argument he has to make. Yeah.

0:08:31 Thomas: Why would that be?

0:08:33 Matt: We'll get into it with the arguments around what we're going to talk about next, which is the fact that Paul Quammen well -known conservative lawyer. He was a Solicitor General under George W. Bush. He was actually, which I think is very relevant to the story, he was on the short list for Trump's Supreme Court nominees. And I think he might still want to be on that list based on what I'm reading here. So on February 21st, a days after the hearing, Ho entered a order minute on the docket in he appointed Paul Clement, through its inherent authority to do this, to present arguments on the government's motion to dismiss. And the idea being, of course, that the is not going to argue against the motion to the government is pushing for the motion dismissed. You have to bring in somebody to essentially state what the other side of this has to be. And he asked Clement to brief several things here. The legal standard is, obviously, for a 48 -day motion to dismiss, whether and to what extent the court can consider materials other than the motion, including, of course, things like the Sassoon and Bove letters, under what circumstances, if any, additional procedural steps or further inquiry would be appropriate before resolving a motion, which we think is important here, under which circumstances, what practical consequences would follow. Including whether dismissal would nevertheless be appropriate or necessary for under any other rules or legal principles. So, you know, at the end of the day, you are talking about if the judge were would to deny grant this. The judge is essentially forcing the government to go forward in a prosecution that it said

0:09:44 Matt: That it has a problem with. We've talked about the issues there. But at the end of the day, though, the still judge does need to review the circumstances and to see why this is happening and why the motion is actually being filed. And that's one of the purposes of 48A. So we were hopeful. I mean, obviously, Clement is a conservative lawyer, but yeah,

0:09:45 Thomas: Doesn't wanna. Yeah, sorry. How did they arrive on that guy? How did the judge. Who picked him?

0:10:03 Liz: I think the judge just picked him.

0:10:05 Thomas: We know why or how?

0:10:06 Liz: Only speculate. I think is Paul Clement, he's the former Solicitor General. He's argued many Supreme Court cases. He is a prominent conservative. I think that the judge was sort of picking a prominent give himself maybe some cover for whatever decision he wanted to make. I'm not sure. It's a little bit of an unusual choice in some respects, but he's still considered very good lawyer. I guess it gives the judge, he can't be accused of, I would say, hiring some sort of, you know, liberal Harvard law professor or something like that. It's like this person's a prominent conservative, but he's not per se or known to be a MAGA conservative, you And so it's kind of, uh, I think he's able to try to get sort some coverage for whatever opinion this person were to issue.

0:10:54 Matt: Yeah. Came out with his brief last week. And I'll give you the short version, which So the government, remember, is asking to dismiss the case without prejudice. And one of the reasons we know that they wanted to do that is because they wanted Eric Adams on a leash so that they could bring back the case if they needed to after the election or any other time, if he didn't do the things they wanted. We'll get into the details here, but he looks at this whole thing and he says, well, actually, the best solution would be to just dismiss everything with prejudice so

0:11:19 Thomas: With prejudice. So he just gets away with it. He just gets way with everything.

0:11:20 Liz: So fully dismiss.

0:11:25 Thomas: What a great solution.

0:11:27 Liz: I was sort of taken aback. I mean, I think I think Matt and I might have different views on this, but I was taken abac initially and I was like, oh, now Eric Adams just gets away with everything. But I almost I don't know. I think this is the most in, not as though Eric Adams on a leash is good either.

0:11:50 Liz: Right. It's like Emile Beauvais. And I think that's kind of why we find ourselves landing on dismissal with prejudice, but we'll get into this.

0:12:12 Matt: We should. Because it'd be interesting. We haven't really talked the details yet, and this is a good time to do that. Sure. We in agreement here. I'm still going back and forth about how much I think this actually should have been a different recommendation. But let's take a look at Clement's brief. I'll

0:12:25 Liz: Comes in there and as expected, what is he provides a little background on rule 48A and actually it says, right? And rule 48a, to just just put this out here, I think as we're just very a very short rule. It says, the government may, with leave of court, dismiss an indictment, information, or complaint. Government may not dismiss the prosecution during trial without defendant's consent. So the key phrase here is with leave of court, and that's what we're fighting over. Paul Clement comes in, and what he does is he kind of starts with sort of a history of the rule. He talks about when it was added to the federal rules of criminal procedure. Talks about the sort of null prosecution procedure that existed before where there was no leave of there's not a lot of case law on Rule 48A dismissals. There's really only one Supreme Court case. The main idea behind Rule 48a, he emphasizes, and this is not in the text of the rule, but it is in the of its creation, the drafting history, legislative history. And it comes up in connection with the one Supreme sort of the with leave of court aspect, is supposed to protect be the defendant. That's sort of an interesting thing, and I've really been wrapping my head around this, because how often is it that the with -leave -of -court is supposed protect the defendants against some circumstance in which the government is acting maliciously against the defendant in dismissing a prosecution? Those circumstances are just incredibly rare. I have been a criminal defense attorney and represented over a thousand people. Sorry. Um, I've never found myself in circumstances where the government has dismissed a case against my client and that has not been in my client's interest. Okay.

0:14:09 Liz: The idea of this is maybe in circumstances were the government, and this is speculated in Rinaldi where the is sort of engaged in potentially dismissing a prosecution. In order to bring another prosecution to continue to harass a potential defendant, that's the sort of really narrow idea, at in the legislative history and in the case law, supporting the sort with leave of court permission bit of Rule 48A. It's really narrow. We're ourselves in many circumstances. As Paul Clement writes, really going to be using it in those terms.

0:14:46 Matt: And the other purpose, which Paul Clement, I don't think, discusses enough, is not to protect the defendant, but more to protect public interest, because the other main purpose that something might be dismissed for bad reasons, besides coming back to harass the defendant would be corruption, which is pretty much what this is, would be that if you make some kind of a deal between the defense and the prosecution, and the judge should take a look at that and see where that came from, and if that's an improper deal. So that's... My issue with Clement's brief here is that the word impropriety appears in it like twice, and he doesn't really mention that reason. And Rinaldi talks about it, the Supreme Court case he mentioned. It's pretty much, as you said, the only Supreme Court you know, they did say you have to look at the time that they sought leave to dismiss the indictment, what the situation was. And there is a public interest component here that you can't have considerations. I think they say they're clearly contrary to manifest public interest. So I think it's pretty hard to argue that if everything that Daniel Sassoon is saying, it is not in the public interest to dismiss this case. There is a good case and he did take taxpayer money and you're doing it for corrupt reasons.

0:15:47 Matt: So, yeah, right.

0:15:47 Thomas: This strikes me as it should be the textbook reason why this should exist to prevent this kind of corruption. I mean, it couldn't be more clear.

0:15:55 Liz: That's right. And I think, and agree, Matt, and you know, I was looking back at Rinaldi, but Rinalti has this great section in it. And again, it's the one Supreme Court case that's Rule on 48A. And they say in it, the words leave of court were inserted in Rule 48a without explanation. While they obviously vest some discretion in the court, the circumstances in which that may be properly exercised have not been delineated by this court. Principal object of leave of court requirement is apparently to protect a defendant against prosecutorial harassment, e .g. charging, dismissing and recharging when the government moves to dismiss an indictment over the defendant's objection. So, you know, it's that that first purpose that that emphasizes. But they begin the Supreme Court by begins saying. Words were inserted without explanation. We haven't even fully delineated what the meaning is. And so there's there is a lot of interpretation here for reasons why leave of court is required. I

0:16:54 Thomas: If the the one Supreme Court case mentions this component, it seems unfair to not even talk about it.

0:17:00 Matt: I agree. Read the relevant part here is when they're talking about the standard, because they're looking at a previous appeals court case from the Fifth Circuit. Deciding that's pretty much the right approach. The salient issue, however, is not whether the to maintain the federal prosecution was made in bad faith, but whether the government's later efforts to terminate the prosecution were similarly tainted with impropriety. So, you know, that could be obviously the impropriity that we're talking about up front, about just trying to harass somebody. But impropriete to me could also be... corruption or bad faith deals. I think that has to be considered. And Clement really just doesn't get into it.

0:17:32 Liz: Just want to push back a little bit on, on what Matt said, because I discretion only has to do with the defendant being, you know, potentially being subject to repeated prosecutions. Then it's sort of blank as to the sort of other impropriety reference. Issue is whether or not it's made in bad faith or whether or the government's later efforts to terminate the prosecution were tainted with impropriete. That version of impropriet in my view is kind of this narrow view of a government repeatedly begin, bringing these prosecutions. The point being is though there is room for interpretation to have a conversation about like improprietary, also be a circumstance in which the government is explicitly engaging in a quid pro quo deal that over the course of letters and by DOJ. And yeah, Matt's right that Clement doesn't really get into this, but I think that the case law is, is a little bereft of this. It's just, it's really a blank area. And I think one of the reasons I'm a little sympathetic to what Clement does is they're just, there, don't know what Clement says. Like if Clement says something like, no, this allows a searching inquiry and it allows you to dismiss the prosecution potentially, that might be the case. And say, you know, Ho says, I'm not dismissing this prosecution. Then DOJ just ghosts the prosecution.

0:18:59 Liz: And it actually shows that the court's order is totally hollow.

0:19:06 Thomas: The court, like, a, pick we need the best of the best. And then they go to some Bruce Willis who hasn't done a case in a long time, you know. He's like, ah, I'm out of the game. And they're like, no, they need you. It's the most corrupt piece of crap ever. And he's like. All right. They can't do that. Darn it.

0:19:20 Matt: It's up to the executive.

0:19:21 Thomas: Next, you're going to tell me they can't send Bruce Willist to outer space to drill on an asteroid. Come on.

0:19:26 Liz: Actually just rewatched that. It's so funny you mentioned that.

0:19:28 Thomas: It is so bad.

0:19:29 Liz: I was like, it's

0:19:29 Thomas: It was such a bad movie, but so bad good.

0:19:31 Liz: Such a bad movie. I know. I just think that this just illustrates that things democracy, basically, the Department of Justice and prosecutions, ideas fairness and ideas of I think kept fabric of this country together as a society that is under the rule of law and not ruled by law, that all of these things break if you press them too hard.

0:19:52 Thomas: Well, if the voters say, wait, we like corruption or they, you didn't see the corruption because the price of eggs that I'm pretending was the reason, but actually it was all the anti -trans stuff. The voters decide to put the corrupt people back in, that breaks a lot of the checks and balances that we thought we might have otherwise had.

0:20:10 Liz: And the judiciary just can't save us. And this is why I don't mind, as I say, Clement's ultimate decision to say, you the discretion to dismiss this with prejudice. If he said no, like you retain the discretion to do a searching inquiry in this, like does it matter when even if the judge did, even the judge said you can't dismiss the prosecution and DOJ just ghosted it. And so basically this judge's sort of searching inquiry just showed how hollow the judiciary was.

0:20:38 Thomas: Well, sure. But I have to imagine a lot of listeners are thinking, what's the statute of limitations on this? Isn't it better to at least preserve the possibility of being able to charge this once there's some other government, once we get Biden back in there? Yeah,

0:20:53 Liz: Mean, that's a good question. The statute of limitations on a lot of federal cases is normally around like five years. So it should be I think almost every fraud statute is five years that Eric Adams indictment itself charged conduct that was older than five years in certain instances. So I think that they had a sort of theory of an ongoing conspiracy. And so that tolls. I mean I think don't know. I'm just, I'm really frustrated here because I I see no good options. Like this hope that we keep this open for five years for a new administration.

0:21:26 Thomas: I think that's better than with prejudice, because like if the I see the point you're making that like I'm wrong, but I see If they bring the charges back, that's going to be like a pretty easy case, you to point to like, well, I didn't do the thing that Trump wanted me to do. And now he's bringing the prosecution back. You feel like that would be pretty, I don't know, strong for Adams to actually be able to say, hey, this is a bullshit prosecution. Much do you think he will even be on a leash?

0:21:58 Liz: I don't with ICE in some instances. And Mayor Adams was potentially going to be letting ICE go to Rikers, go through potentially, I don't know, city records and city files in ways that violated New York's own laws. And I think that - we would have find ourselves sort of in a New York city constitutional crisis with that happening, right. With Adams permitting things that violated New York's own laws and with the Trump administration, having him on a leash saying, well, you have to be doing this because otherwise we could bring your, your prosecution back.

0:22:41 Thomas: OK. This is my question to the lawyers. If they just bring this back after this entire spectacle and all this has happened that goes down in the record. And let's say Adams doesn't do something they want. And then they're like, bring the charges back. Don't you think Adams will have a pretty easy case that like, hey, this is just some bullshit to try to punish me for not doing what they want? Guess what I'm saying is I don't think the threat is. Much. And so so for me, it's like the good of maybe in five years being able to bring that or four years beingable to prosecute this. Seems like a better tradeoff than giving him just immunity for all the crimes he did just just because it might be this kind that he's on. It might be being under Trump's thumb. I don't know. I guess that's kind of where I'm coming from as of right now.

0:23:26 Matt: Here. There's just no clear, clean way to get out of this. But think I I'm more on your side so far, Thomas, because I think that it's not great precedent to have the judge dismiss a case knowing that it was corrupt and knowing at least that there's a taint of corruption around it, I think, without even getting the evidence to find out what what we could have known. And I think that it's worth mentioning the closest analog to this is the Michael Flynn case a few years ago, in which you might remember that Michael Flynn was indicted for lying to the FBI about his contacts with Russia shortly after the election. And Judge Emmett Sullivan in that case was considering a motion to dismiss that looked very corrupt in itself. It really looked like they basically... I mean, it was corrupt. It was pretty obvious they were doing Flynn a favor and that they were moving to dismiss for no better reason. This was after he pled guilty also, which is a... Much harder time to try to dismiss something when he stood up and said in a row that he did it. Again, they have the right to try, but Emmett Sullivan actually held on to that and the point that the DC Circuit had to come back and say, hey, you need to issue a decision on this. He held it for 10 days or something and they said, we need a quick decision. He was kind of turning it over. He ended up writing a 43 -page decision because what happened was the government realized that they didn't want to have to bother with all of this and they just granted him clemency and they essentially pardoned. And so he had to dismiss it because at that point, it's moot, but he still wrote a 43 page decision. And he stated very clearly, which is what Ho should do in this case, the history of the Constitution, its structure, and the Supreme Court's interpretation of pardon power make clear that President Trump's decision to pardon Mr. Flynn is a political decision and not a legal one. And I think we can say the same thing about this motion to dismiss. Because the law recognizes the president's political power, the appropriate course is to dismiss this case. However, the pardon does not, standing alone, render Mr.

0:25:00 Matt: I think it's a pretty close analog because you know that's a bad deal or a good deal, I guess, for Flynn that the government made with him for bad reasons. And the judge called them out, but he couldn't do anything but dismiss at the point at which there's a pardon. But he was holding it for a good reason. I think he was going to deny it. It seemed like he was pretty close to. And so I think so it's worth looking at just as a comparison.

0:25:20 Thomas: Yeah, so at the very least, it would be nice to get a particularly grumpy email to go along with this decision, you know?

0:25:27 Matt: Yeah, a memo stapled to it that explains how he has real concerns about what he's read in the New York Times and what are in these publicly available letters. Wouldn't want to have it dismissed without acknowledging that, and I hope he does at least somehow acknowledge it.

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0:27:06 Thomas: Where does that leave us now? So he came up with his briefs report argued this and then what's since then.

0:27:11 Liz: Clement files, his grief, a bunch of other Miki file, their briefs. Interestingly, Um. I had no idea such a clinic existed, but they finally found their shining moment in the separation of powers law clinic from, uh,

0:27:24 Matt: Must be busy these days.

0:27:25 Liz: Catholic University Law School filed. I was just like, this must be their most shining moment. I mean, I just can't even imagine like any... We finally found our issue, guys. Filed their brief. It's not surprising to figure out which side they're filing under. There's a state democracy organization that files their brief, which is a impassioned sort of plea for deep judicial scrutiny of this at a minimum. Files his own brief and the government files an additional brief. And kind of where we are is with a bunch of kind of dueling amici briefs and, you know, Paul Clement's leading brief advising the court on what the court should be doing. I

0:28:08 Matt: Judge Ho issued an order saying he didn't need more hearing and that he was going to be deciding on this, and we possibly could have a decision as of the day of this airing or maybe a couple days after.

0:28:16 Liz: Of the reasons I'm looking at this and I'm sort of very morose and maybe I'm too easily accepting this outcome, but in some respects, know, I is that... not sure if I've ever brought this up on the podcast, but I have a friend who was prosecuted for corruption under the first Trump administration, someone who I went to college with, my friend P .G. Sittenfeld. He was prosecute, and I believe it to be a politically motivated prosecution. He was a state official out of Ohio. Started under the Trump administration. It continued under the Biden administration. And I think one of the frustrations that he felt during time, by the way, is that indictments didn't get dismissed. Right. And that's why we're sort of bereft of case law in this in this by the way, is that when a federal government indicts someone like that's it. Like the case is going to trial or you're taking a guilty plea. And, you my friend PG's perspective, he felt that there were all these mitigating reasons why his case shouldn't have been indicted. The Biden administration inherits the indictment. They're not going to dismiss it because that's sort of how you operated. You You know, were really only supposed to move forward and indict someone if you so firmly believed as a prosecutor in someone's guilt. And that was sort of what the presumption was. In PG's case, the went forward under the administration. Biden He was convicted. And actually, it was later overturned by the Sixth Circuit. So he was released from jail.

0:29:45 Liz: It was an incredible outcome. Yeah. I think about this because up until this moment, it has always seemed and I always assumed, and this is the case, like you have these indictments and that's it. You can't just go and willy nilly dismiss these indictment. Can't emphasize enough that administration coming in there, filing a sort of completely incoherent memo with the court as to why they want to dismiss the indictment that in and of itself suggests quid pro quo. Us in this position where, yes, I think the judge has bad options. It's I better for the judge to dismiss it with prejudice because I think that that is sort of the most elegant solution to this terrible, terrible problem. I I the judge could do a more searching inquiry and so on, but I can't emphasize how all of this stuff had seemed up until now. And once you pressed on it, that court doesn't have the power to continue a prosecution. They can't appoint a private prosecutor. And I don't think we would want them to do so. Like that would be even worse, to be honest. If you could imagine Trump appointees appointing private prosecutors for any number of things, that could be terrible. But in just such a terrible place here.

0:30:54 Matt: I keep coming back to that public interest standard, though. It's very high about if it's manifestly against the public interest. And I guess I just want to see something on paper recorded to say that this dismissal is not in the public interested and that this is actually is corrupt.

0:31:07 Thomas: What about making them do the action of ghosting? Does that hurt things?

0:31:10 Matt: Right. Right, make them do it to us as we keep saying. Yeah. Show who they are and that they really never intended to do this. Don't know. I think that's pretty reasonable, too. I see where you're coming from, Liz, though. I really do. I mean, this does at least spare us and get it done. And as a matter of defendants' rights as well. That we should always make sure that we're doing the best possible thing for the defendant. And when there's any kind of question, if the government wants it dismissed, it should be dismissed. I mean, that's generally speaking in most cases. If it were any of my cases, that is how I'd feel, certainly. I'm sure yours. But this is just such a different situation, and it's so public, and so important. This is one of the most important federal prosecutions in the last few years, maybe in our lifetimes.

0:31:48 Matt: I don't know. But again, Liz is absolutely right. There's no good way out of this. So I'm not going to say there is.

0:31:55 Liz: Thing that you said, Thomas, I but like agree with you, Matt and Thomas. But I think think The Best Judge Ho could have done here, which he doesn't appear to have entirely done, is sort of sent a grumpy email. He could have tried to hold a bit more of a hearing. Maybe he could have called some of the relevant actors. Ultimately probably found himself in the same place. And as I say, I think probably dismissed with prejudice, but I think he could have made a bit more noise about it. And maybe that's just sort of what we need to do, right? It's, you know, finds himself constrained because of separation of powers, because he can't really force the federal government to engage in a prosecution. He just makes it as difficult as possible for them to do the judicial maneuvering they need to to dismiss it. And ultimately it does get dismissed, but he makes it difficult. I think that that might just be, at least in this realm, the best that we see happen.

0:32:44 Thomas: A crap mess. That sucks. Yeah, I feel like get people on the record, you least I make some noise along the way. I think I totally agree. I get that, you political point or whatever to put aside the fact that I think corruption should be a political thing. I think if any if any judge wants to go out of their way to try to highlight some corruption, even if it's from someone. I mean, this is a Democrat, by the way. Well, OK, the more corruption happened in the Trump side of this. But feel like not if just for that, also, this ist something that threatens like the concept of justice in itself. And I feel it's it's it seems appropriate to me for a judge to like. Worry about that and maybe take some steps to like make some noise about it at least.

0:33:33 Matt: I hope the decision has that.

0:33:34 Thomas: Maybe, maybe I'm being too idealistic.

0:33:36 Matt: I'm with you. Because the Sullivan decision did that, I think, very effectively in Flynn case. We should read into the record a little bit of the Clement brief just so you can get his position. I keep going back and forth even as we're recording this about how I feel about this, but let me just give you his justification here, which I think is pretty solid. Be sure, an argument can be made and has been made, he cites the different docket entries, that the court can go further and effectively try to force the executive to maintain a prosecution it wishes to drop. But there are both practical and doctrinal problems with that extraordinary course. As a practical matter, even if the court were to deny the motion to dismiss, there is little the court could do to force the prosecutors to proceed with dispatch or stop them from dragging their feet and running out the speedy trial clock. While a speedy trail dismissal can be with or without prejudice, such delay at no fault of the defendant would likely produce a with prejudice dismissal, but only after an unnecessary confrontation between the branches. The problem is particularly acute in cases like this, where the executive wants to drop the entire prosecution, not just specific defendants, and in circumstances again like this where the dismissal decision comes from the highest levels of the Justice Department rather than reflecting an idiosyncratic decision by a line prosecutor. Yeah, I mean, I hear that. I do. And I see what he's saying, that the alternative is they run it out and then the defendant gets to dismiss it because his speedy trial rights have been violated. Then that's also not great.

0:34:51 Thomas: Everyone we're has agreed. No good solution. We're all. Yeah, it's not going to be whatever we do. It's not gonna be a great solution. So we can't be like, OK, let's try this. And now there's one knock on that. So now there is going to knock on whatever solution is. But I I saw just the bare headlines on this, that this Clement guy had done this, I thought. What the shit, this guy sucks. What does he do? This is terrible. But after hearing you guys talk about it a little bit, I don't know, maybe, maybe he wasn't making such a bad decision. Like maybe he had his reasons and he's like, not, what, do you about Paul Clement and his efforts here? Does it feel genuine? Does

0:35:31 Matt: I thought the brief was very thoughtful. I mean, it is carefully reasoned. Is 34 pages and you through all of his reasoning. So it's certainly not just a cocktail napkin kind of decision that he's making here, their recommendation. I think that's worth something. Its reasoning. This is not the typical kind of thing that we've been seeing from DOJ lawyers, where it's, as Liz said, with the motion to dismiss itself, it's nonsense just based on nothing. At least there's something here, and it is a defensible position. And that's why it's so hard for me to, I know. I wish I could be more conclusory about this.

0:36:02 Liz: Listen, I think he writes a thoughtful brief. Case law is kind of thin. But he goes through what's available. Discussed, the case law is kind of thin because this is just not something that happens. You don't just ask the court to dismiss indictments. One other bit I'd want to read from it that I really like where you know, at the same time courts should apply what amounts to a rule of parsimony and inquire no further than necessary into prosecutorial deliberations. All, the sense of nature of those deliberations have been recognized by both the judiciary and are jealously guarded by the executive. I don't agree with that entirely, but he goes on to support that to say, you The government's own recent filings reflect a belief that this prosecution was initiated in bad faith. Other information that has become public casts doubt on that claim and suggests the decision to dismiss the indictment was undertaken in bad is almost certainly beyond judicial ken to just definitively resolve that intramural dispute amongst executive branch prosecutors. It is also unnecessary. Under either view, there is little justification for the preserving possibility of re -indictment by dismissing without prejudice. While the salient issue for the court concerns the decision to terminate, not initiate the prosecuting, citing Rinaldi, if political considerations improperly influence the initial decision to seek the defendant's indictment, then the dismissal with prejudice will definitively eliminate that taint. You can kind of see that he threads the needle of there could be these sorts of faith considerations, but this is beyond the judicial can to resolve. Once again, I think he is right in the sense that the judge is just not it in a way that is going to give us the outcome that I want, right? Which is, yes, this is corrupt and go initiate the prosecution. But he acknowledge these things and he says, you know, information that becomes public casts doubt on that claim and suggests that it's taken in bad faith.

0:38:13 Thomas: Not as though he's MAGA, because MAGA doesn't ever introduce a counterpoint to like, but, you know, they just pretend is not what it is. So I do appreciate at least somewhat grappling with that.

0:38:17 Liz: Acknowledge that. Do you think the sort of theme, and this touches on, I listened to last Friday's episode, and the theme that we have, which is what's going to happen with kind of the judiciary moving forward, is we've got this judiciary that oftentimes has sort of cut out their own power, right? Said something is a political question. Or I not a place to evaluate whether letter stating that foreign policy is impacted. That's enough for us, right? And you see this judiciary that oftentimes cuts out. They create rules of standing. They other rules. They creates rules saying, we can't really make this inquiry. How could we know? How could the judge determine whether this was proper improper? And I think we're going to see a lot of circumstances where, and up into the Supreme Court, where a lot what the role is that the judiciary is going to be playing and whether they're going to asking searching questions or whether they are going to say this is beyond our can. We policy. We cannot judge whether a letter is sufficient. That seems fine. And that's what we're seeing here.

0:39:33 Matt: Yeah, that was my concern with the part you read was when he's saying that there's enough public information for the court to resolve the government's motion. We should use the sort of rule of parsimony, do the simplest thing and not get in the way of whatever the prosecution wants to do. But what if there was an allegation out there that somebody had seen or was aware that Eric Adams had sent a wire transfer to Emil Bove and had actually paid him off, $500 ,000 or something, right? Shouldn't they subpoena that wire transfer? I know this is a little different, but you have people that can provide more explanation. Both of the Sassoon and the Beauvais letters hint at a whole other thing, and Spiro certainly would know something else about all this too. And yeah, I guess that's the thing I keep coming back to.

0:40:10 Thomas: So the problem we've had since 2017, which is, well, the remedy is impeachment. Every single time. Well, the remedy is impeachment. Okay. Well that's you my, might as well say the remedy. Is magical beans that you buy from the guy on your way to the market. And then you plant those magical beans and then you grow a beanstalk. And that's where the impeachment is. Cause it's the same effing thing. And so a bunch of our system is based on a magical thing. That's not real. There is no such thing as impeachment anymore. It doesn't exist. At least conviction. There's no such, it just does not exist.

0:40:43 Thomas: They And only make sense in a world where impeachment exists. And then we still are using them. And I don't really blame people because like, I don' know what else you do. Do you invent a new system like ad hoc? Like, well, since impeachment doesn't exist, maybe this Judge Ho has to like be, you corruption police. But that agree that doesn' t really make sense. You might be able to make an argument that, OK, maybe the judge's role can be to put some people on the record, get you some of the facts. And then that gives the public a little more information in terms of either not reelecting Trump or in an idealistic way that our systems should work. People get really mad. The representatives are like, wow, these people sure are mad. I'm going to put country party before party. And I'm That all just doesn't exist. So like half the system or more is still using logic that applies to an imaginary thing. And so we just keep running into the same wall and I don't know what to do about it.

0:41:38 Matt: This weekend, there have been two deportations, arguably in violation of court orders, in which courts have ordered that the Trump administration not remove somebody. And in one case, they failed to turn the plane around the way the judge had ordered. In the other one, I think they actually removed them after the order. And this is exactly what we're afraid of, right? This is exactly the thing. And I knew it was going to start with immigration, where they've just openly violated – not something like the – USAID funding or some of these other more broader orders where they can come back and say, well, I'm not sure what you meant, or it's hard to account for every dollar to explain to them.

0:41:52 Thomas: Unreal. Yeah. Turn the plane around is pretty.

0:42:08 Matt: Right. It's a pretty easy order. Now, to be fair, maybe we'll talk about this a little later on Friday, but the judge didn't actually put that in his written order.

0:42:09 Thomas: They're like, oh, we turned it 360 degrees. Damn it. Ah, sorry. Ah.

0:42:18 Matt: Full circle.

0:42:19 Thomas: Be more specific next time.

0:42:20 Matt: Now we're in San Salvador. Yeah. Yeah, the headlines about that one, honestly, being a full violation of court order aren't totally correct. It's a little more gray than that, but I still think they completely disrespected the court. That's what we're afraid of. And I guess that's why I'm really focused on that right now, even if it is kind of the equivalent of let's impeach him. At least we can have it in the historical record. There isn't this immediate precedent within the first month of the Trump administration of them getting away with filing a motion to dismiss on purely political grounds, because they're going to keep doing that. They're going keep doing a lot of this stuff. They'll probably keep doing it, whether the judges tell them that it's corrupt or not. But at least, I don't know. That's what I want these days is the historical

0:42:57 Thomas: Yeah. Yeah. Maybe let's elect a different president. Hey Liz, Liz, the new mayor. I've decided.

0:43:03 Liz: I So should be voting for Eric Adams for mayor. No one should Be voting for Andrew Cuomo for mayor, and in a rare Liz Skeen plug, you all should be Voting for my friend Zoran Mamdani, who is running for mayor Who is the coolest candidate of crew and is actually in the polls Sometimes even above Eric Adams, but unfortunately substantially below Cuomo.

0:43:18 Matt: He rolls. Yeah.

0:43:29 Liz: Know.

0:43:28 Thomas: What? What's with the Cuomo thing? Are people really going to do this? What is wrong with New Yorkers?

0:43:30 Liz: I don't know. Cuomo I, ends up, I don't know. I'm like, I'm in New York for nearly four decades. And if Cuomo gets reelected, I, don't even know. Just, I thought we got rid of him.

0:43:42 Thomas: Unreal. Yeah. It's a demotion, I guess. Yeah,

0:43:49 Matt: We conclude just with quick predictions. Is there any chance that Ho will do anything other than what Clement recommends here? It doesn't seem like it. I mean, it's a pretty direct recommendation.

0:43:56 Liz: Doesn't seem like it.

0:43:58 Matt: It's well -based. What we should expect to happen sometime this week. Follow up if it doesn't.

0:43:57 Thomas: It'd be rough. Yeah fair enough.

0:44:03 Matt: But yeah, it seems like that's where we're at.

0:44:05 Thomas: Yeah and of us legal experts are on the same page. It sounds that would be rough. That'd be a tough sell to go to do something extracurricular. You bring someone on to like argue, you And then you're like, well, I don't like that. So I'm going to do my own thing as the judge. That's a tough sale. So, I feel like that makes sense to me that that's going to happen. But I'm still not happy about it. I don' love it. But, I do love having you on Liz Skeen. Thank you so much, as always, for coming on.

0:44:31 Liz: Such a pleasure to be on. I wish that anyone could just see my faces throughout the show, which are just faces of just despair and anger and frustration. Always a pleasure. It's a pleasure for me to be here. I hopefully, hopefully next time under better circumstances.

0:44:45 Thomas: Yeah, yeah. And Matt, of course, thanks for the breakdown. And we'll see everyone. Well, I'll see you everyone on Wednesday.

0:44:52 Matt: I'll see you Friday later

0:44:53 Thomas: Next time.

0:44:54 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.

0:45:11 Thomas: What the shit, this guy sucks. What does he do? This is terrible. But