35 Judges Say Trump's DOJ Committed Fraud on the Court

Transcript

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

0:00:03 Matt: You can make it do a podcast for you. Have it put together a podcast of people talking about your subject. It will not be opening arguments, but it will be a podcast.

0:00:17 Matt: If you're already saying that the settlement itself was a fraud on the court, then even if it somehow stands, any future court can see that, that this whole thing was a collusion.

0:00:33 Thomas: Hello and welcome to Opening Arguments. This is episode 1267. I'm Thomas Dutt. Over there is real life attorney Matt Cameron. How you doing, Matt?

0:00:39 Matt: I'm just having played the scooper ball. That's the big news for today.

0:00:43 Thomas: I don't know what that means, but are you still getting bullied by a seagull? Matt has had a bullying problem, everybody.

0:00:46 Matt: No, that's true.

0:00:50 Thomas: A seagull has been eating his lunch.

0:00:53 Matt: Seagulls are just following me around, but it is Boston. They follow everybody around.

0:00:55 Thomas: Yeah. But poor Matt. Matt's so gentle and nice that like, I think the seagulls taking advantage, like the seagull does the like flinch thing with his wings and then Matt goes, uh, you know, like, wow.

0:01:06 Matt: Well, I mean, I'll tell you, after he grabbed my pizza and just went to town on it. He just like, he picked the, it was a large piece of pizza. This is pizza Regina for people who know Boston pizza. And, uh, he just strutted back over to me and looked at me like, where's, where's the rest?

0:01:18 Thomas: He's like, that's all you got. You like took your lunch money too like turn out your pockets no

0:01:21 Matt: He wasn't happy about the green peppers either. I could tell. Yeah.

0:01:28 Thomas: But other than that how are you doing

0:01:29 Matt: I'm all right. I mean, it's, it'S been a tough month.

0:01:31 Thomas: What was the scoop something you said what's

0:01:34 Matt: Yeah, the scooper bowl is, uh put on by the Jimmy fund for kids with cancer and it's our second year playing. It's an ice cream festival, just a bunch of free ice cream. I want you to get your ticket.

0:01:36 Thomas: That oh oh man that sounds fun

0:01:42 Matt: So good times in June. It was, it always is. So it's fun to rock out the seaport, but we've got a lot of news to talk about. We've got a good one here because there's some really interesting developments that I'm not seeing fully reported. So that's always a good time to talk on opening arguments.

0:01:56 Thomas: Yep I gotta love it look we're not doing it I know I already said it on wednesday but I just I love the attitude like fine we're Not Doing the Fund We're Not doing the slush fund where we pay a bunch of white supremacists and probably trump and trump's family well we won't do it you all are gonna be be idiots and buttholes about it. We're not doing it.

0:02:14 Matt: I think the fund is going to be just fine. And I also think that this is not even about the fund, but well, we'll get there.

0:02:21 Thomas: You think the fund's going to be just fine?

0:02:23 Matt: I think that the fund is going to exist in one way or another, as I'll explain. I've got A theory.

0:02:27 Thomas: No way. These people maybe can't be trusted. I just, wow, okay. You're going to have to convince me, Matt.

0:02:34 Matt: I got a case. I'll build it. We'll see how it goes. Yes. We also have to talk about Tina Peters and why her sentence was commuted out in Colorado, the election clerk. Yeah. And that's, of course, we have to follow up because we had our exclusive video, which is still up on our socials, of her lawyer going to try to collect that pardon.

0:02:48 Thomas: A lot less funny now, Matt! It's still funny, though. I still appreciate Lydia did a FOIA request, got the video of Tina Peters' idiot lawyer trying to print out the copy of Trump's pardon and take it to a state facility, which doesn't recognize that it's not how it works. And he's like, Hey, if I have this printed out piece of paper, he let my client out. And they're like, no, that's not our works, man. But apparently we got a Democrat who's just going to let her out or whatever. Just, just, yeah. Huh?

0:03:12 Matt: Happy to do the job, as we'll see. But the legal basis of this is actually a lot more interesting than just Jared Polis cutting her sentence in half. So I want to talk about that. I don't totally disagree with the legal basics, but obviously I disagree with this conclusion here. So plenty to talk about there. Quick story about what's going on in Delaney Hall, where you've been seeing all the protests in New York, New Jersey. I think it's really important to remember why those protests are happening and what's Going on in there. And then we got an interesting footnote. I'm really following all of these AI lawsuits, like different ways that AI is being sued. And this one's particularly relevant to us because it is an NPR host saying that they stole his voice.

0:03:52 Matt: And we can listen and see how we think about that. Make our own judgment.

0:03:57 Thomas: All right. Well, uh, lots to talk about. So we'll take a quick break, which you can vote at patreon.com slash law and lot awful movies is being worked on now that was a lot of fun oh man you know I I'm surprised our relationship survived that one actually you're gonna have to listen to find out huge huge I was just taught what kayfabe is matt and I are we doing we should do that are we doing that oh okay yeah no that's true that's that me too I don't really I just can't now so I genuinely just can't stand Matt's taste in movies I mean it's just just unbelievable. So yeah, you'll have to see, uh, patreon.com/seriouspod and avoid the ads. All right. We'll take a break and then we'll get to it.

0:04:18 Matt: No, I only do it for real. No professional wrestling here. I'm a wrestler. I can't fake it.

0:04:31 Matt: Usually we agree. Usually, we do fine. But you know, we got to disagree sometime and it's fun. It's fun to disagree. Merci beaucoup.

0:04:45 Thomas: All right, Matt. Uh, we want to start with the slush fund. That is no more, except you're saying it is more.

0:04:50 Matt: Yeah, let's get to our main story and we can get to the rest. But we, of course, talked about the slush fund a couple of weeks ago in the settlement of Trump v. IRS, Trump suing himself over the release of the tax returns by Charles Littlejohn many years ago.

0:05:03 Thomas: That's so nice. I'm suing myself over the state of California, not giving me enough money. Uh. I just settled with myself. Hey, California, can you give me $7 billion? Done.

0:05:11 Matt: There you go. This one weird trick, it really works. If you happen to run the government, it works great.

0:05:17 Thomas: Oh, I forgot that part. Damn it. Okay. Okay.

0:05:18 Matt: Yeah, you're going to actually have to be the governor or the president. We talked about this at length, of course, two weeks ago, but they reached a settlement which was completely unnecessary because the suit was filed late. The suit didn't have much of a basis. It was obviously something that if the DOJ had wanted to fight it, they could have easily won it. And they decided instead to sit down and do a closed door meeting and have Trump settle with himself. And there were two parts to that settlement. And the first part was, of course, the so-called slush fund of $1.776 billion. The other was the insane immunity deal that basically reaching back from the time of this element all the way back to the beginning of time that the Trumps are cleared for pretty much all tax fraud, all tax issues, all taxes, all the things that are going on in the world tax audits, and arguably lots of other kinds of prosecutions, if you really read it broadly.

0:06:02 Matt: It does make you wonder if maybe the whole point of this was to get to that, because I think they have to have known that the fund itself was going to be pretty controversial.

0:06:06 Thomas: And that's not suspicious at all, by the way.

0:06:11 Matt: I don't know. Yeah. Totally normal.

0:06:11 Thomas: And you can't arrest me or investigate me for anything that I wasn't going to do, but just in case.

0:06:18 Matt: Yeah, let's just throw that out there. Just blank it. Judge Williams, who is reviewing this case, had serious issues that we talked about at the time. She had actually ordered the parties to brief before the settlement was reached whether this was an actual lawsuit, because there didn't seem to be much of a controversy going on between the parties. She has no choice, as we talked about, but to close the case, essentially, because the parties came before her and said, we reached a private settlement. You don't need to sign off on it. We're good. She wrote a long order explaining why she had no choice instead of just doing a couple of sentences like you might expect. What got really weird from there was not too long ago, you had 39 federal judges file a motion under Rule 60 to point out that this appears to be a fraud on the court.

0:06:59 Matt: Rule 60 of the Federal Rules of Civil Procedure is pretty routine. You're just looking for grounds for relief, kind of a post-order. If something comes up, you find there's newly discovered evidence, you can prove fraud on the court, and you can prove there's some other reason that the judgment has been satisfied and you don't need this order anymore. Typically, of course, if you're going to to talk fraud on the court, it's going to be the other party that finds out that a fraud on the court has been committed. That is not what happened here because, of course, Trump is both of the parties.

0:07:25 Matt: What happened here was a bunch of federal judges got very upset about this and filed a motion under Rule 60. I've never heard of anything like this as far as I can tell looking around.

0:07:31 Thomas: The judges. Wow. Yeah.

0:07:32 Matt: Nobody's heard of something like this. Federal judges saying this is not how it's supposed to work.

0:07:37 Thomas: Pretty bad when the legal system itself is like, no, no.

0:07:42 Matt: Right. I mean, and honestly, it is very encouraging. Right? It is very Very encouraging to see the rule of law defended that way, because as the theme has been going here, DOJ is as bad as it can get, as bad as it's been in history, I'm sure it can get a lot worse. But as long as we have courts to stop them, they continue to stop them. This motion, even the caption, the title of it, I've never heard of anything like this, because it's a motion for relief from judgment or order, or in the alternative, leave to appear as amicus curiae.

0:07:44 Thomas: Can't believe I have to say this. Yes yeah hmm

0:08:07 Matt: So they're saying basically these 35, not 39, federal judges are saying that we're asking under Rule 60 that you reopen this thing and cancel the settlement because there's a fraud on the court. But in the alternative, can we say something? That's what they're saying.

0:08:07 Thomas: Oh I mean that feels yeah that feels a lot weaker either shut this whole thing down or would you uh take a light comment from us yeah

0:08:30 Matt: Yeah. Can we have a Zoom call maybe? Yeah. I think it's pretty powerful. And Williams, you can tell in her order, was looking for any reason. And I think she's put this back on. So, I mean, it's reopened. Technically, the settlement itself is void because it's now been reopened, but we'll see what that means. That's why it's stayed right now also.

0:08:45 Thomas: Oh interesting well I I would have to ask how would they have standing

0:08:50 Matt: Yeah, it's a great question. Because really, technically under Rule 66, it doesn't have to be one of the parties. Because it's just anybody who's aware of fraud on the court can come forward. And again, they know this is new territory. This has never happened before, but they're saying the purported quote unquote settlement that the parties have never placed before this court raises profound questions about the parties' candor and manipulation of the judicial system, which threatens to undermine confidence in the administration of justice.

0:09:11 Thomas: Yeah there's a sense in which like hey we're judges and the thing you're doing that means like there's no law anymore so like what are we gonna do yeah

0:09:20 Matt: We like our jobs and we want to keep doing them. And it outlines pretty much everything we talked about a couple of weeks ago about why this is nonsense and why voluntary dismissal, it just wasn't appropriate. It was all she could do at the time. But she has set this for briefing and argument, and it's going to have to come back before her in a couple of weeks, and she's going to be making a decision about what she thinks about this. That's one of the things that happened.

0:09:40 Thomas: Yeah can she kind of keep that going like as long you know just as long as possible I know judges they aren't usually radicals federal judges on our side I mean yeah in the in the way we would want but it's like I you could filibuster this thing I mean stuff takes a long time in the court

0:09:44 Matt: Yeah, keep it open, right? No, right, yeah, of course.

0:09:59 Matt: Yeah. Sure, sure. This is promising though, the questions that she's asking about collusion, about whether there's deception, and whether the court was a quote-unquote victim of fraud. Those are the three questions the parties have to answer. That's pretty serious stuff. On the other side of this, and I'll get to my ultimate conclusions about all this in a moment, but on the other case that involves this right now, it's called Andrew Floyd v. DOJ. And that's a collection of plaintiffs. We haven't talked about this yet. Andrew Floyd was a prosecutor who was one of the ones who was fired because he was investigating January 6th and trying to prosecute it. He was out front on part of that prosecution. And he's matched up with the city of New Haven, which says it was discriminated against for its protected speech, and the National Abortion Federation for obvious reasons. So these are basically First Amendment plaintiffs who are trying to raise claims that they were victims of government weaponization. So they're just bringing this up now preemptively. They're saying, we want a piece of this fund.

0:10:10 Thomas: Systems yeah

0:10:53 Matt: They're saying it's an equal protection problem because even though this judgment fund has not put out a single dollar, it's been pretty clear who's going to get the money. They're saying as long as you keep making these statements and talking about the Biden administration and Democrats, it's pretty clear that we're not going to get a shot at the judgment fund. So I think that's the strongest part of it, the equal protection claim, but it's not particularly a strong case.

0:11:12 Thomas: Yeah I don't know if this matters, but it still is like, yes, but nobody should get it. But I guess if that's the one way you can like complain about it.

0:11:19 Matt: And really shut it down, I think, potentially. And again, as I'm going to say, I Think this is all kind of a formality, looking into this a little more anyway, but It's a good argument. And the good news out of that was there was an injunction as of the 29th of May that kept the defendants of the entire government, basically, from taking any action about the creation or operation of the fund. That includes even putting money into the fund. They can't do anything with it at all. They can't look at claims, they can't do anything. And remember, this fund requires that the Attorney General appoint a total of five people, one of them in collaboration with the leaders of the Senate.

0:11:50 Thomas: Collaborators. That's a good word for it.

0:11:53 Matt: One of the people who's applied for this already is a pretty well-known insane manga guy. I'm sure the others would be too. We cannot trust anything about the way this is going to work, but I don't think it's ever going to happen. The thing that's addressed, though, in Williams's order also, is what is going on with the single-page Todd Blanche immunity order, because that was not really addressed in the settlement. It's a separate thing. The fund was set up under a separate DOJ order that also included IRS, but this was only issued by Todd Blanche under the Department of Justice. And again, DOJ are the government's lawyers, so they're signing off on behalf of the IRS, I guess, but the IRS really should have been involved in that. And as Williams points out, does this void that? Now, again, this immunity thing is pretty easy to challenge. If a future administration were to prosecute Trump or any of his organizations or his family, they would file a motion to dismiss based on this immunity. And then it would have to be hashed out then. I don't think it can really be challenged before then. I could be wrong, but that is a separate issue. And I have to wonder if maybe that was most of the point of sitting down and doing this settlement. They have to have known that the thing they were proposing, the anti-weaponization fund, in its current form at least, in this moment, in 2026, and honestly, it's very heartening to see it wasn't going to work. Even the Republicans, all Republicans, including Mitch McConnell, were pretty disgusted by this, apparently, reportedly. So we're still there. There still are some lines.

0:13:09 Thomas: Yeah I don't think I can get heartening in my vocabulary, but I hear you.

0:13:11 Matt: No, I know. I know, just trying.

0:13:12 Thomas: So what would happen? I'm curious, do you think it would be successful to challenge the immunity deal? And then on what grounds? Like what kind? I mean, I guess I don't know how often immunity deals are challenged or what, you know?

0:13:25 Matt: I could see some sort of a taxpayer suit saying, based on what we know just from the public record, Trump should have been audited, should be audited now. And he never will be. So you're somehow trampling on my rights. I think the most likely way that it would be tried would be if Trump is prosecuted or audited in the future by a future administration or any of his organizations.

0:13:41 Thomas: That's what I'm saying. Yeah, pretend that happens. He's audited, and then they try to do the immunity deal. I'm just curious, like, what would the grounds be for saying that's not valid?

0:13:51 Matt: And it's pretty extraneous to the suit. And I'm not sure that without IRS fully agreeing to that, it's Todd Blanch by himself signing off on this as the AG. It's pretty untested stuff. I mean, all of this is, but I could see it being pretty shaky, especially if you're already saying that the settlement itself was a fraud on the court, then she'll have to vacate the other part of it. Or even if it somehow stands, any future court can see that, that this whole thing was a collusion.

0:14:15 Thomas: Well, I guess we'll have to see.

0:14:17 Matt: Yeah, we keep watching. But my concern out of all of these, and why I said I don't think it matters that much, is that remember that the mechanism here, I was thinking about this some more, is the anti -weaponization fund is supposed to be drawn from the judgment fund, which is a sort of open pool of money that DOJ has, the government just has available, because otherwise Congress would have to appropriate every single settlement against the government every time there's a judgment against the government of any kind. So the judgment fund keeps it open-ended and makes sure that when there's a final court order, it requires somebody to be paid out, that they get paid out. And all this was doing was creating a subset of the judgment fund that was much easier to get, where you just had to apply and think that the government was weaponized against you. And this commission would review whether or not, and again, this didn't even require you to file a complaint, like an actual lawsuit complaint.

0:15:01 Matt: It just required you to apply for it and say, I would have a case, which is insane, because the point of the judgment fund is for final judgments. And DOJ made an argument, and it is kind of in the regulations, that it also involves anything in which there's a strong likelihood that they're going to have to pay out a judgment. They can get ahead of it, and they can make a deal with somebody. There's some argument about how valid that is, but that is in the regulatory language, that you don't have to necessarily have a final thing. So my take on this, after thinking about it, is there's really nothing stopping all the same January 6th defendants, many of whom are already trying to get civil damages right now. We've talked about some of these suits. There are at least two big ones happening right now, seeking a whole lot of money. And there is nothing to stop those plaintiffs and future plaintiffs from essentially doing the same thing by just filing an arguably successful lawsuit. Even a late lawsuit, as in the Trump case, even as in some of the January 6th defendants are filing it late and they're still letting them do it. As long as you have anything that looks like a lawsuit under the way that DOJ is interpreting this regulation, it seems to me that they're just going to pay it out. Out an application, you just have to get a lawyer and file a basic lawsuit. But I think that maybe we've been talking about this the wrong way, because the judgment fund exists either way, and it is very much at the discretion about who gets paid from the DOJ. That's who makes the decisions about the judgment fund. And they have this interpretation that it doesn't have to be a final order. So I just think that this is all just kind of smoke and mirrors. It feels like if in January 6th, people want payouts, I think they're going to get payouts. And they certainly do.

0:16:28 Thomas: I'm just curious why they wouldn't have just done that from the beginning, then.

0:16:31 Matt: It's mystifying. I have to think they know that we're not quite at the place yet and where everybody would just lay down and take this. I mean, certainly we showed that in the last couple of weeks. I don't know if it's a distraction or if they're just trying it just to try it, but certainly I think the point of it really was to get that immunity deal, I think more than anything. And maybe they were hoping that would just be the, we'd all focus on obviously the very unjust $1.8 billion fund. It's an appropriate thing to focus on, but I think there has been a lot less focus on the ultimate deal that Trump and his family, all of his organizations got out of this, which is worth more than money.

0:17:01 Thomas: Yeah! I don't know. I'm not sure if that totally makes sense. I feel like Trump is pretty straightforward and just wants the payout. And yeah, maybe they thought they could get away with it. Or maybe how would this process go then? Like, do you think it would somehow stay secret?

0:17:17 Matt: I did look into those. The judgment fund is subject to a special statute. It's not even just FOIA, but it has to be public, like everything it pays out, which is good. That's how it should be. But the settlement negotiations, the settlement deal presumably could be private, but we'd at least be able to see which people are getting which amounts of money. And that would be news that could be investigated at least. Yeah.

0:17:34 Thomas: Well, that's good at least. Yeah. So we'll have to see. I don't know. I'm not sure. I'm not sure what's going to happen there. That's that's interesting.

0:17:41 Matt: Todd Blanch, he said under oath that he considers the fund to be dead, but he didn't put anything in writing and he wasn't, he was just talking about that iteration of it, like this thing in the settlement. The concept is still very much alive, I think.

0:17:52 Thomas: All right. Well that's very interesting though. I'm curious what happens with the judges who are trying to intervene, I guess. All right. Well, we'll take a break and then we will talk about Tina Peters I'm already mad oh man um yeah so what's one insurrection among friends I don't know and

0:18:16 Matt: Yeah. So yeah, here's somebody who really thinks that the government was weaponized against them just because all she did, just to remind everybody, just the tiny little offense of completely knowingly lying to the government about a MAGA activist saying that he was a county employee, allowing him to attend a special session where they were building out the new election software. She again was an election clerk. So she was the former county clerk of Mesa County. She was obviously in the position to get people in because she was a hardcore election denier. She believed that Dominion was doing all the stuff that Rudy Giuliani and Sidney Powell were telling her that it was doing.

0:18:49 Thomas: She was like in charge of the election stuff and was like I think there's something fishy here

0:18:55 Matt: I'm overseeing, apparently, corruption and theft, so I got to get to the bottom of it.

0:18:59 Thomas: I guess if you're old she can be like computers

0:19:01 Matt: Yeah, who knows? But it's interesting reading the complaint. I went back and read the criminal case a little bit and also the appeals court, this Colorado appeals court case that actually put this in motion, what we're going to be talking about. The actual crime, though, was allowing access to this MAGA election denial guy, allowing him to make a complete copy of everything and mess around with it.

0:19:24 Matt: That's a massive abuse of power. And that's hacking. It is unlawful access to government systems. It's exactly the kind of thing that they're saying led to Joe Biden winning the election, right?

0:19:22 Thomas: Obviously that's a crime

0:19:35 Matt: Of people getting into systems and messing with them, right. And then that didn't happen except here. An interesting appeals case. Now, of course, the first thing that she was arguing, and this is a sentencing appeal, not a merits appeal. So she's saying I was sentenced for way too long. She got eight years and three months on the felony charges, six months on the misdemeanor charges. And that is a pretty long sentence we have

0:19:35 Thomas: Sure it was a lot but we've covered this. She was not repentant in any way. The judge gave a great lecture for a while about it. I think if she had been repentant, she probably would have gotten a lot less time, right?

0:19:57 Matt: In any way. Yep. And you'll never believe her current position now that she's gotten out. I will get there in a minute, but yeah, no, absolutely. No remorse is part of it. Now this is where it got messy though, because the judge, as you said, and here's, I'll just read you the relevant portion of that speech you mentioned, because that was a big part of the appeal. We'll talk about the other silly thing in a minute. But the judge said, you are no hero. You abused your position and you're a charlatan who used and is still using your prior position in office to peddle a snake oil that's been proven to be junk time and time again. In your world, it's all about you. And that certainly seems to be the case based on everything I've seen of her.

0:20:36 Thomas: Seems reasonable. Also, I like, do you pronounce it Charlton? You're a charlatan. Oh, I thought it was charlatans, but yeah, yeah. I like the idea that she's a charlton like heston you know

0:20:41 Matt: I actually thought this appeal was pretty interesting because again, it is a sentencing appeal and the argument she's making, I am very sympathetic to because this is something that I would make for my clients and something I want to see very strictly reviewed and enforced. And that is, she's saying, you gave me extra time because of my beliefs, because of the things I said. Now, of course, you can't separate her beliefs from her actions, because that's why she did it, because she believed these crazy things.

0:21:15 Thomas: Man would this work at all with anybody else okay black kid busted for drugs you gave me a longer sentence because my belief that drugs are good oh you're right

0:21:25 Matt: Well, that's a little different. Yeah, sure.

0:21:26 Thomas: You're let's let you out let's yeah I feel so bad about

0:21:31 Matt: There's a Supreme Court case called Dawson v. Delaware. You should be aware of the standard, at least from 52. It says basically that there's no reason you canít admit evidence of beliefs or associations at sentencing, because obviously they're often relevant. Just because they're First Amendment protected doesn't mean they can't be evidence against you. But the sentencing court goes too far if it considers speech or association not relevant to the sentancing. That's where this is sticky because obviously her beliefs are completely relevant to sentencing. And I think the judge is right to want to see remorse, to want that she understands that there was no election fraud. But she gave the judge a 40-minute speech. That is what happened before he said those things about why she was right. And that's not how it works. That's just not how it works at all. You should expect a pretty harsh sentence when you do that, when you show no remorse or no understanding of what you did.

0:22:14 Thomas: Yeah

0:22:15 Matt: The court was saying that belief in association evidence has to be bearing on dangerousness, lack of remorse, nature of the offense. But again, I don't really agree with this part, but I can see why she made the argument. I can see why the appeals court found the way it did, that this was a much harsher sentence than it should have been. There's an interesting citation here to the case of Lynn Stewart, which we might've talked about before, but from 2012, she was a defense attorney for the blind sheikh, Omar Rahman. And she had passed some information along to him against orders that she was working under, because it's a high security case, obviously. And she ended up with two years as an attorney for passing things along for abusing her position in that way.

0:22:51 Matt: She made some pretty mild statements afterward, to the effect of, you know, my clients are getting a lot more than two years, I can do this. She also said I would do it again, which is probably not the best thing to say after you've been sentenced. The Supreme Court denied cert on that. The Second Circuit had already found that you couldn't really say that influenced the sentencing. It didn't get that far. And they're using this as kind of the counterpoint. And they're saying that this is the case where she actually was prosecuted, where she was given a much stricter sentence than other people would have been because of her beliefs.

0:22:59 Thomas: The hell sorry I just want to make sure I understood I wasn't sure if you were done under the first part are you saying there's some sort of good argument here for Tina Peters, what is it

0:23:19 Matt: Not necessarily. I'm saying that it's a better argument than I expected because I wasn't that familiar with what the judge had said. The argument is that he's mixing. It's a little too mixed. It's not quite a fine enough line that he's drawn here between his disgust at what she did and his disgusted the beliefs that she has that were behind what she did. Jared Polis, when, after commuting the sentence, came out and said on CNN that we wouldn't sentence somebody to longer time because they believe in a flat earth, which I don't understand what that has to do with this. I don't think it's a good argument in this case,

0:23:52 Thomas: So what is the actual appropriate use of this I could see it being like hey you committed a robbery and you're a you know muslim and so I don't think I think you need more time to reform because it's going to take you longer as a muslim like okay is that the proper use of this because I guess that might make sense but otherwise any belief that has to do with the crime like your belief that crime is good I don't understand how that could possibly have any relevance or be like a proper thing to factor

0:24:20 Matt: I think it was kind of the implication that he was going to stop her from speaking by doing this, that he was going to make it harder for her to speak in the way that he could deliver these comments. But no, I completely agree.

0:24:34 Thomas: In sorry what was the line maybe I missed it what line was that what language in particular was like problematic

0:24:40 Matt: Yeah, let me find that. Here we go. Thus notwithstanding the fact that some of the trial court's considerations were tied to proper sentencing considerations, when the court's comments are viewed in their totality, it is apparent that the court opposed the lengthy sentence and did because Peters continued to espouse the views that led her to commit these crimes. The tenor of the court's comments makes clear that it felt the sentence length was necessary, at least in part, to prevent her from continuing to espouse views the court deemed damaging.

0:25:06 Matt: You did talk for a bit about how this is actually more dangerous than some of the violent crimes I see because you're stirring up so much unrest and making people question the integrity of the entire system. It is also within the range of, I mean, it's stupid, but it is within the range of what we call acceptable political beliefs, because in the same way that believing the earth is flat, you can believe that Joe Biden stole the 2020 election. There's no evidence for it. It is that idea that maybe he's saying, I'm going to keep you in there longer so you don't talk to people about this.

0:25:32 Matt: Then the tenor, I think, is kind of a cheat there, because there's no direct quote on that, but they're saying that was the tenor of the comment.

0:25:37 Thomas: Again I guess I'd be open to that if we had a good example but if they can't even you're saying they don't even in site -specific language they're just like ah the overall vibe of the thing was like you need to stop being a

0:25:46 Matt: Yeah. Because of the lecture about how it was damaging and everything else, and that she was going to cause more damage by doing it.

0:25:52 Thomas: Trumper as though judges don't do that a million times a day hey you're undermining the fabric of our society young black kid the things you do or the you know like they always do

0:25:55 Matt: Oh, of course. Of course. Yeah, but it is a little unusual to have a judge say that your words specifically are damaging, like the things you have said in public. That is a dangerous line, yeah, that her words

0:26:08 Thomas: That oh he said that words are

0:26:10 Matt: Are particularly damaging because of the position she was in, obviously, and because people want to believe their election clerk, and that she was refusing to believe any evidence against any of it, and she just kept coming with it. I get that. The other thing that I think was also, this is pretty questionable, I thought, from the appeals court, they were saying that the judge also predicated this on the idea of deterrence, that he was saying, I want to give you a longer sentence so you don't go do something like this again. And the appeals court makes the obvious point that she's no longer the Mesa County clerk. She will not have that position of power again because she has a felony conviction.

0:26:37 Thomas: I mean fair enough I just wish this was applied to anyone

0:26:45 Matt: Yeah, I know. This was a plain error review. This wasn't even raised. The sentencing length wasn't an objection. I don't agree with that. I think you can call this plain error to give her a longer sentence because she's in a public authority. Again, to be clear, I disagree with the appeals court. I do not think this is the right decision. I just thought it was a little more nuanced than I expected. It always is when you dig into a 77 -page opinion.

0:26:50 Thomas: Else plain error review

0:27:04 Matt: There is a version of this defendant that I would have a lot of sympathy for. You can absolutely see this happening.

0:27:03 Thomas: Sure yeah so I and I you know this opening arguments I like trying to understand that I'm not shutting it down just you know completely blindly I'm trying okay so let's say I guess first off I didn't even see I thought this was just the governor doing

0:27:23 Matt: He acted on this. I'll get to that in a minute.

0:27:24 Thomas: Something okay well I'll put that aside

0:27:27 Matt: The sentence was vacated and sent back, and it was facing resentencing, and he just stepped

0:27:30 Thomas: Okay okay so setting that aside for a second you can go more into it but is the thinking, let's say someone who believes in flat earth breaks into the globe factory and is like, you can't be making these globes. They're all wrong. They do some crimes, right? I guess in theory, if the judge is like well, that's, I don't know, breaking anything, whatever the thing is, and your words about flat earth too are, you know, like they're harmful, they're you know they're whatever and so if there's a sense that like you're getting more than just the breaking and entering I want to make sure you stop believing flat earth essentially I guess yeah I guess I do see that but is there a line though between that and you're in charge of

0:28:10 Matt: And stopped telling people.

0:28:18 Thomas: Elections and you'RE telling people the elections were messed up but I I guess I don't know. Yeah.

0:28:25 Matt: No, I agree. When you have that kind of power, when you have that kind of authority, you should expect the maximum sentence when you abuse it. I'm thinking as you're saying this, obviously the Globe Factory thing is funny, but obviously something that those with the other side of this could relate to would be something like the Prairieland case that we talked about.

0:28:41 Matt: If you showed up at a protest, someone who's at the protest with you, did something reckless potentially or not, who knows, you are now paying for it. And I can imagine a situation at sentencing because we talked about how they introduced against the Prairieland defendants all of the literature that was in somebody's house, right? And they talked about how they believed in anarchist ideals and were fighting the U.S. government. And I can imagine sentencing judge in Texas saying, you know, not only was this despicable that you tried to protest ICE, but we now see from the record that you don't believe that ICE should exist. I think that's a dangerous position and I'm going to make sure that you stay in there longer because you don't believe that this government agency that does so much good in our community should exist. You can see that happening.

0:29:16 Thomas: Yeah. I could see that being an appropriate use of this. I'm just not sure. Yeah, I'm not sure this is that.

0:29:19 Matt: No, this isn't that, but just to make sure we had an example out there that people could understand, like, you know, really would get to you. But I completely agree. When somebody's got that kind of power, great responsibility, you know how it goes. Like you just, you can't wave it off. And that's what Jared Polis has done. And I just think I have to focus on him for a minute. The Democratic governor of Colorado.

0:29:38 Thomas: Yeah so tell me about why that why or how that happened. So this so this happened and it was so her sentence was going to be like they were just going to have to redo that hearing and the judge was like great I get to give another speech. No I'm kidding. Oh really he would get to get another speech awesome.

0:29:46 Matt: Yeah. Same judge. So he gets back in front of him and yeah, she was trying to get a different judge and they sent him back to the same one. Yeah, that was in April, April 2nd. So it was going to be going through the process, going back to resentencing. And in the meantime, of course, we all know that Trump was putting all this pressure on Polis and talking about all the things he was going to do to Colorado to cut off their funding or whatever. And this is all because Trump himself, of force, had attempted to pardon or said he was pardoning the state offense and Paulus wouldn't recognize it. The system wouldn't recognize it.

0:30:13 Thomas: Okay yeah because it doesn't that's but that's yeah they're not gonna change how things work for you buddy

0:30:16 Matt: It's stupid, right? No. I will mention just because I need to mention it because I think it's funny. She did raise the pardon thing as her first issue in the appeal. And they spent way too many pages on it. It's not something that needs to be taken seriously. I think there's at least five different times where they say that her argument has no citation to any legal or historical authority.

0:30:37 Matt: I counted five different times where they use that phrase. And I think that's telling. We don't need to talk about that point anymore. I just thought it was funny that she even raised it.

0:30:36 Thomas: Oh my god yeah

0:30:44 Matt: She's trying to say the president, pardon me. So Polis gets on the bandwagon here and he starts talking about how this is protected speech.

0:30:44 Thomas: Sure

0:30:51 Clip: You noted in your letter explaining this and her statement that she also put out that she's taken responsibility for her crimes and made a commitment to follow the law going forward. When you look at her website, it says that she is the victim of a politically motivated

0:30:59 Thomas: Hasn't I will break the law again.com

0:31:07 Clip: Her Twitter account just reposted someone who urged the president to, quote, invade Colorado if you have to, do whatever needs to be done to free political prisoner. I understand what you're saying about free speech and what she's allowed to say, But does that sound like someone who respects the rule of law to you?

0:31:08 Matt: So

0:31:24 Clip: She has very strange beliefs. She'll probably continue to have them. We don't punish people in this country for having strange beliefs if you believe the earth's flat, you don't get and you shouldn't get in our nation or my state a harsher sentence and somebody believes that the earth is round. And that's what happened here because of her speech and what she believes, which I vehemently And I share the passion and the emotions that so many people feel who are outraged by the word she says.

0:31:51 Clip: But the place to resolve those differences is by debate, by discourse, by arguing with her, by disputing her, not for keeping her behind bars simply because of what she believes or says.

0:31:50 Thomas: Sure you do bud

0:32:01 Matt: His official position. He also has said that he thinks people will remember this decision fondly because it was a measure of reconciliation and healing. Yeah, he's not very popular in Colorado right now.

0:32:08 Thomas: Who is this freaking clown where did he come from

0:32:12 Matt: Yeah, I don't know. But I will say the Democratic Party of Colorado just censured him. They thought it was that bad. And he posted on his socials a picture of himself with black tape over his mouth to protest that because he's been silenced. The governor, poor dear. Yeah.

0:32:22 Thomas: Oh my God dude is that a serious post because dear

0:32:30 Matt: Not a serious person. One more thing on the way out on this one. We have to hear what Tina Peters herself has just told Steve Bannon. So I'm going to play a very quick clip of that. We can see the state of her remorse. And notice also the chyron on this one.

0:32:42 Thomas: God former political prisoner her.

0:32:45 Clip: I know that the Democrats are going to cheat and no one's really addressing the problem that the basic that I spent my time in prison as retribution for. And that was exposing the the election machines that allow the the votes to be flipped.

0:33:06 Thomas: Oh boy.

0:33:07 Matt: Some very strange beliefs.

0:33:10 Thomas: To round it out, if there was more, the proof that the sentencing had to do with the beliefs, I guess. I just don't, I don't feel like that was, maybe I'm wrong. Am I missing something? I don't really feel like it was all that much based on that. Like she, like if you just took everything away and were like, well, here's a person who committed these crimes. They are completely unrepentant and don't admit any wrong and would do it again. So what sentence should they get probably the max sentence? Like, what is a max sentence for if not that?

0:33:38 Matt: We're still trying to put Khalid Sheikh Mohammed to death for his part in 9/11. He, as far as I know, has not changed his beliefs. And I have to think that his continuing belief that what he did was right and was based in some kind of ideology. I mean, just give the most ultimate example of something that's just the most horrendous thing. It's a weird line. I agree. I don't think the court hit it right. And I disagree with all of this. Yeah.

0:34:05 Thomas: Matt, I know you also wanted to talk about the protests at Delaney Hall.

0:34:09 Matt: And why these are so important? Because, of course, we know that ICE protests everywhere are important. But Delaney Hall in New York, New Jersey, not too far from where I went to law school at Seton Hall, has been the subject of a lot of these protests. And you might remember that it was where a number of legislators were arrested last year on some bogus charges that I think are pretty much gone now.

0:34:27 Matt: They wanted the thing that every public official who's been showing up wants, which is access to this place because they're allowed to, they're supposed to have access whenever they ask for it to come and inspect it. Most especially, they have health inspectors and other building inspectors are supposed to come in and look at this. Now there's a suit which details a lot of the things that they're trying to inspect, which they have been denied access to. And I guess it's pretty bad because basic health and sanitation laws in New Jersey require that they be allowed to go to any building in New jersey to inspect this kind of stuff.

0:34:58 Matt: They cite public health conditions, overcrowding, lack of ventilation, lack of adequate medical care hygiene, unsanitary food and drink preparation, unchecked spread of communicable disease, and direct reports of unsanitary bathroom conditions and potentially inadequate tuberculosis infection control practices. Pretty bad combination of stuff. And it's not unexpected in ICE facilities, but it sounds like Delaney Hall is a real problem. And when the health inspectors came in on May 28th, the most recent time that they tried to go, they were refused access to anything but the food service areas. They couldn't see the medical unit, showers, toilets, ventilation, HVAC, anything. They could not inspect any of the stuff they're supposed to inspect. So this suit has been kicked off by New Jersey. It seems pretty promising. I think it'll get some good discovery out of it at least, but this is exactly what states need to do, make sure that they inspect these places to the hilt as much as they're able to do. And I really appreciate what New Jersey did in this suit.

0:35:47 Thomas: Yeah. I mean, it's in your state. They can't just have like a totally unsanitary disease, you know, written thing like that.

0:35:52 Matt: Black hole.

0:35:55 Thomas: That can't be right. But I mean. Is it just like supremacy clause kind of thing, you know?

0:36:00 Matt: No. I mean, at the end of the day, if you're, and these are contractors too, I think, but either way, it's a building in New Jersey and there's just no situation in which, I mean we can't just have a black site in Newark, New Jersey. I can't believe that we're there yet.

0:36:02 Thomas: Hmm. Good point. I would hope not, Matt. I don't know anymore.

0:36:14 Matt: The reason I'm excited about this is because they went straight to the courts, which is what you should do right now. Protests need to continue. We can't just rely on the courts. We need to keep the pressure on and show why we have to have people out there and what those conditions are. But this suit will help to bring that out. And I do think there's going to have to be an order for these people to go in. There's no argument that ICE has whatsoever that they shouldn't let health inspectors in.

0:36:34 Matt: That is the theme here. Colorado Appeals Court, I don't know what's going on over there, but federal courts are still doing pretty well for us here in the rule of law.

0:36:41 Thomas: All right. Right well we'll take a break and then we'll get to a footnote so Matt NPR guy thinks somebody stole his voice what's going

0:36:53 Matt: So we talked recently about Scarlett Johansson's suit, which was pretty reasonable if you heard those clips. Scarlett Janssen, of course, was the voice star of Her, a movie about a guy falling in love with an AI. Apparently OpenAI liked that voice so much that they decided just to use it after she flatly refused and turned away a lot of money not to use it.

0:37:12 Matt: It reminded me of a story I'd seen recently about David Green, former Morning Edition host on NPR. And this case was filed back in January. It doesn't have any resolution yet, but he's looking at claims of unfair competition, common law right of publicity, and unjust enrichment for the use of his voice. And so I've sent you the two videos we can compare here to see if we think that Google Notebook, which is who he's suing here, used his voice, we're going to play a quick clip of the Google Notebook voice he says is his, and then we can play his voice

0:37:11 Thomas: Oh boy all right

0:37:39 Clip: Research you sent about timberland and farmland investments. It looks like you're trying to decide if these alternative asset classes are right for your portfolio.

0:37:47 Thomas: All right let's see we got

0:37:50 Matt: And let's hear the man himself.

0:37:51 Clip: I am confident and optimistic, Susan, that this model can work and that we're going to do something really, really special here in Lancaster.

0:37:59 Thomas: That's interesting

0:38:01 Matt: So how similar do you think those are? Hmm.

0:38:03 Thomas: I'm gonna go back yeah let's get the direct

0:38:07 Clip: Let's take a look at this research you sent about Timberland and Farmland Investments. When it came to the future of LNP, they were thinking about a lot of options, including bankruptcy.

0:38:18 Thomas: Yeah I mean it's pretty similar it's a little harder you also I mean if I think if I was going to do a real comparison you really want to find some similar words or the same word, ideally. But yeah, there's something there. That's not crazy.

0:38:31 Matt: It's also kind of generic white guy NPR voice.

0:38:35 Thomas: Yeah, that's why it's like it's a little less distinct, I guess, than Scarlett Johansson or something. But it's, I don't know. I think it depends. I think if you did more research, or I'm sure he or his lawyers or whatever, if you had more direct side to side of certain words, I think you could probably build the case. I definitely, yeah, it's not crazy. I don't know. I'm not sure. What do you think?

0:38:54 Matt: Yeah, you're gonna have to get an expert, obviously, to really dig into it. But I think we're gonna be seeing more and more of this because, you know, I don't really know how they train these voice models, but it seems pretty conceivable. They could have just fed Morning Edition into an AI and said, generate a nice Google Notebook. Because, you know, I know if you've played with this, but in Google Notebooks, you can make it do a podcast for you. You can just have it put together a podcast of people talking about your subject. It will not be Opening Arguments, but It will be a podcast. I can promise. I tried it just to see, and it was pretty boring.

0:39:17 Thomas: Dear God. Yeah. Yeah, hmm.

0:39:22 Matt: It was like NPR late, basically. I still don't think that you could feed the entire two years that we've been talking on this show into an algorithm and get anything approaching the fun that we have, but who knows?

0:39:34 Thomas: Now, if you could, I would finally get some vacation time. That's all I'm saying.

0:39:39 Matt: Editing would be a lot easier.

0:39:39 Thomas: So, no, I wish you, yeah. Would that we could.

0:39:42 Matt: AI Matt might actually get the mic right sometimes.

0:39:43 Thomas: Yeah! Yeah, that's how we'll know. If they ever come up with a model where they're fussing with the mic and it goes loud and quiet and stuff, they'll be like, they ripped us off! They ripped us off well no which

0:39:56 Matt: There's really no evidence whatsoever. I mean, they never approached him about it. They did not look at Scarlett Johansson where they actually asked her if she could do it first.

0:40:03 Thomas: Is such a dumb I just couldn't help but laugh when you're talking about that because like Geez do you tech bros not understand consent oh wait they don't never mind it's like they don't understand consent

0:40:10 Matt: No, yeah. Not at all. Yeah, it's just an interesting sort of claim to say that, well, it just speaks for itself, literally. Then you hear this voice, you hear my voice, they ripped me off, I don't need to prove it. But maybe in discovery, they're going to prove him for the purpose of this complaint. He's just saying it's obvious, ipso facto.

0:40:25 Thomas: Oh he's saying he doesn't need to prove It, Oh, okay

0:40:31 Matt: And he also has a bunch of social media posts where people have noticed this and have been asking about it,

0:40:36 Thomas: Yeah well I mean at the complaint stage I guess that's that's enough but I have to imagine yeah if you're actually going to get damages or something there'd be a lot of experts

0:40:39 Matt: Yeah. And they did do a preliminary analysis from an independent forensic analysis that says that it's close enough. So they've got something to go on.

0:40:50 Thomas: Happening okay yeah Huh well yeah stop ripping people off AI

0:40:56 Matt: Yeah, all around. Just kind of keeping track of these AI suits and all the different ways that AI can be litigated because obviously a whole new world here. All right. Thanks.

0:41:40 Thomas: Very weird all right well that's our show thanks so much Matt uh thanks listeners and hey share the show uh with somebody if especially if you uh think that people ought to hear what we're talking about we really appreciate it have a good weekend everybody and we'll see you on Monday you all are gonna be idiots and buttholes about it we're not doing it

0:42:03 Matt: No, I only do it for real.

0:42:05 Thomas: That's all you got lot less funny now Matt