Gentlemen, I'm sorry to tell you that you have whiffed it on stochastic terrorism, once again-- starting with your choice to include it in this episode to begin with, a gratuitous decision from what I can tell because there was no obvious connection to the topic of discussion. Maybe it's just Josh's hobbyhorse?
The issue of using the concept of stochastic terrorism to curb First Amendment freedoms was mentioned (as in the last episode), but no examples were given of people trying to do this (also as in the last episode). I'm sure such people exist, but if so, shouldn't it have been easy to cite at least one significant case?
The potential of Trump fans to invoke stochastic terrorism as justification to blame Biden and Democrats, generally, for the assassination attempt on Trump was also raised. In the past they've seized on concepts such as wokeness, social justice, DEI, triggering, canceling, and so on, and turned the concept on its head in order to attack...well, anyone who attempts to use those terms seriously to describe a real problem. I wouldn't be surprised in the slightest to see them do the same thing with stochastic terrorism, but 1) that doesn't invalidate the concept itself, and 2) again, you didn't point to any instance of someone doing such a thing.
You may say that the concept is real (though you fell short of calling it legitimate, so far as I recall), but you delegitimize it by expressing fears of its misuse without providing evidence of such a thing happening. If you've got a boatload of examples out back that just didn't come up during this episode, I'll stand corrected, but still bewildered as to why it came up again.
Yes, anyone could use the term "stochastic terrorism" to describe speech they dislike. They can also use "Marxism," "fascism," or "bigotry," not to mention "libel." That doesn't mean the term is used correctly. And Ken had just finished describing how "terrorism" is more of a concept than a legally actionable charge. "Stochastic" means "random," basically, so the term was chosen to point to an action that achieves a terrorism-type effect by means of provoking a random actor to commit violence" (the mechanism being falsely accusing the target of a heinous act that would provoke a random reasonable person to violence).
So while this is, I suppose, tangential to the attempted assassination of Trump...why did it even need to come up, except to further discount its legitimacy?
> once again-- starting with your choice to include it in this episode to begin with, a gratuitous decision from what I can tell because there was no obvious connection to the topic of discussion.
They explicitly say it is because there have been listener comments on the subject.
> You may say that the concept is real (though you fell short of calling it legitimate, so far as I recall)
Ken's take is it's better used to describe Rwanda than political discourse in the United States.
> you delegitimize it by expressing fears of its misuse without providing evidence of such a thing happening
I recall they referenced the general political conversation, which you seem aware of because you describe the phrase as being used to describe speech that people don't like.
"They explicitly say it is because there have been listener comments on the subject."
There are listener comments on every subject, and this is not a listener call-in show.
"Ken's take is it's better used to describe Rwanda than political discourse in the United States."
Not sure he actually did that, but if he did, I have no idea how it pertains to anything I said.
"I recall they referenced the general political conversation, which you seem aware of because you describe the phrase as being used to describe speech that people don't like."
Once again-- if, in the general political conversation, the term has been used (correctly or incorrectly), then they should've pointed to at least one example of that in order to justify deviating from the actual topic of discussion to say nothing new about it.
> There are listener comments on every subject, and this is not a listener call-in show.
I am not sure I understand. Josh and Ken don't or are not allowed to respond to listener comments?
> Not sure he actually did that, but if he did, I have no idea how it pertains to anything I said.
The transcript is easy to search. You said you don't recall them calling stochastic terrorism legitimate. Ken said it is legitimate but hyperbolic when used in American politics. Seems pertinent.
> Once again-- if, in the general political conversation, the term has been used (correctly or incorrectly), then they should've pointed to at least one example
Because you doubt that the term has been used or think that they are misrepresenting its use?
> in order to justify deviating from the actual topic of discussion to say nothing new about it.
Josh gave Ken the opportunity to clarify his opinion in the matter. It was on the topic of responding to listener feedback.
The continual incompetence of prosecutors continues to astound me. Between the Trump Georgia, Young Thug, and Alec Baldwin prosecutions, it's been a shit show all the way around.
I'm not surprised by the malice and lack of ethics, mind you, just the incompetence.
I have been doing a lot of reading on wrongful convictions lately (most recently the outstanding “Blind Injustice” by former prosecutor, now Innocence Project director with a state program) and the bottom line is that prosecutors don’t have to be very good at their jobs and have no pressure to improve … they are essentially like teams of men’s college varsity basketball players who get to play nearly all their games against local girls elementary school teams week in, week out, and they believe that their number of wins is a measure of something.
There is no learning culture in a prosecutor’s office, and no critical self-examination, and no consequences for error in the slightest — indeed, there are great rewards for convicting the wrong (but notorious) person, and it will be 20 years before — in 1 in 1000 cases — the gross errors and incompetence are undeniable. Plea bargains allow prosecutors to coerce confessions from innocents through terror bargaining, and that’s not good for the convicted, society, and it’s sure not good for developing prosecutors as ministers of justice.
For prosecutors to improve, wrongful convictions would have to start being consequential and career limiting, the way “wrong limb” surgeries are treated in hospitals (where they cut off the wrong limb, or remove the healthy kidney instead of the diseased one, etc.). And prosecutors’ offices would have to start losing their license to prosecute when they engage in conduct known to lead to wrongful convictions.
I don't know how much it matters, apart from mythmaking, but...
I think it's probably unlikely that Trump's ear was hit by a bullet. The angle from the shooter to Trump would recite a bullet that hit his ear to keep going to his skull.
It seems more likely that something hit by the bullet (e.g., the glass screen of a teleprompter 4-6' feet away) shattered and he was hit by that debris. That would explain how his ear was hit without his skull being hit.
That means that he was not within inches of being killed, or that only God's miracle saved him. It would mean that the shooter missed by a few feet.
Again, does this matter? Not for political or legal analysis of the situation, I wouldn't think. But it clearly is shaping the last phase of Republican myth-making.
We have lots of pictures of the former President immediately after the shooting. Some of those photos clearly show the teleprompters. They're both undamaged.
Seems far more likely that you're wrong about the trajectory of the bullet in relation to the position, pitch, roll, and yaw of Trump's head than that he was hit by glass from a teleprompter that was then replaced or repaired in a matter of seconds, without anyone there realizing it.
I do know how many teleprompters there were... at least how many were within a few feet of him. There were two. Neither was hit. You can be confident in this, too, if you watch the videos of the event.
I kinda' think maybe you haven't.
I think you saw a diagram (or many many of them) showing the shooter basically off to Trump's right. You imagined a straight line from the shooter to the side of Trump's head and figured a bullet would have to go (is this in bad taste?) "in one ear and out the other."
That works, if we assume Trump was looking forward, at roughly a 90 degree angle from the shooter. But if we look at the videos we can see that, at the moment he's injured, he's looking over his right shoulder. Or, based on those diagrams you've been studying, kinda' over towards where the shooter was. So if Trump is looking directly at a shooter, where would a bullet would go if it hit the outside of his ear? Not into his skull, right?
Of course, Trump wasn't looking "exactly" at the shooter. He was looking at some immigration chart in the same general direction (to the left of the shooter? the right? below the shooter? I can't tell, can you?)
So was his head oriented closely enough towards the shooter that the two pieces of torn skin on that ear could have been a bullet?
Here's the God's honest truth.
I Don't Know.
I'm looking at a 2D video of his head with the shooter far, far out of frame. Is his chin too high for a bullet to have grazed him like that? Too low? Too far towards his right shoulder? Was he standing too straight? Leaning too far forward?
Sheesh, I got no earthly idea!
But there's just not anything to suggest that it's outside of the realm of possibility. So the statement "The angle from the shooter to Trump would recite a bullet that hit his ear to keep going into his skull" is brimming with unsupportable confidence.
If not shot in the ear then what is your theory of where the blood in the picture came from? Was he carrying catsup and applied it to his face for the shot? I’d love for that to be true and to catch little donnie in yet another lie however I am bound by Occum’s Razor. I don’t like the guy but it seems more likely he was shot than that he was not shot based on available evidence. Besides given the number of rallies #45 has given in relation to any other President it seems absolutely inevitable we would attract a shooter. Smarter Presidents avoid holding so many public events because they didn’t want to get shot. Perhaps the guy that tanked Trump steaks, vodka, college, …. Etc. is just not as smart as people pretend he is. Im disappointed he was shot but not surprised even slightly, given the Biggly number of assassination opportunities Trump has provided over the last few years. This is the guy who still claims he paid a porn star (established) for nothing because he thinks everyone thinks that is plausible? Maybe he is past his prime and wasn’t all that and a bag of chips at any point previously. Is he now the physically oldest candidate for the office ever? I think he is but I could be wrong.
Yes, Trump is older than any previous major party nominee for the presidency of the United States.
The very fact of Biden's decline in the last 4 years should make everyone quite wary of electing and even OLDER candidate, and should make everyone look more closely at Vance, Vance's values and Vance's policy preferences.
1) Yes, Biden is not nominated this year. *Trump* is nominated.
2) Trump is even older than Biden was four years ago.
3) Biden's decline should have people thinking about importance of ANY old candidates VP pick. In this case, Trump's VP pick.
4) Vance is *Trump's* VP pick. Everyone should be putting Vance under the microscope. He is the most important VP candidate ever...well, other than Truman...because the chances of him needing to ascend of the presidency is so high.
1) Trump WAS hit and damaged by something. No question. Real blood. Real wound.
2) It shouldn't matter whether he was hit by a bullet or instead hit by something debris or shrapnel or whatever. It's a question of *how* *close* to death he came, and that really shouldn't—in my view—matter.
3) The FBI director has said a) that it's not clear what Trump was hit by, b) Trump has not authorized any treating medical professionals to speak with the FBI and c) they have accounted for all the bullets that they think the shooter fired. He HAS not said explicitly that the FBI does not think that Trump was hit by a bullet, but that seems to be the inescapable conclusion. Hit and hurt by something, but not a bullet itself.
4) Trump (and others) keep bragging on how close to being killed he was. Trump said 1/4". Others have said "inches." That requires his being barely grazed by a bullet, not something that a bullet damaged and threw up at Trump. Does this matter? Well, it's myth making. Some are saying that the closeness of his brush with death proves that God saved him, and therefore God chose him. I think that logic there is suspect every step of the way, but the fact that people believe that leads me to worry about what THEY will do if Trump loses the election.
5) This is INCREDIBLY unlikely and not worth considering seriously, but it possible....: Did the shooter actually try to HIT Trump, or did he just try to shoot near Trump. Was he trying to kill Trump, or was he trying to glorify Trump? We don't know his motive—and it seems like we never will. But if a bullet REALLY came THAT close to killing Trump, I would have to rule out a false flag operation/crazy reverse-jujitsu trickery. If no bullet actually came with in 10' of Trump? Well, the mind is then overwhelmed with crazy possibilities—including that the shooter was just a really bad shot who missed his target badly. (I mean, it's not like he was using a sniper rifle.)
6) So, where does this leave us? What do *I* think? I think that the shooter WAS aiming for Trump and missed. I think that Trump WAS surprised at being hit—and not because he was in on a crazy plan. I think that Trump was NOT hit by a BULLET, and he knows it. I think that he is knowingly and actively lying about it. I think that even HAD he been hit by a bullet, he was NOT 1/4" from being killed. I think that that it matter that Trump so routinely lies about everything, that is one of the many ways that he disrespects his own supporters and the concept of democracy. But only one of many.
Two things, both off-topic of legal troubles but relevant to Ken and his interests, so I though I'd risk posting here:
1) I am always very appreciative of Ken's openness in bringing up his bouts with depression (as brought up recently on Bluesky). The ability to know one's own faults and limitations, let alone reveal them to the world, is a remarkably rare quality, perhaps even more so for a litigator.
I think I can speak for just about everyone subscribed to this show that we appreciate his candidness on the show and elsewhere, and hope that he knows whatever his other commitments may be, taking care of yourself should always be top priority,
2) I see lots of discussions about Kamala Harris playing up that she's a "cop" based on her time as a prosecuting attorney. I know it's a poorly kept secret that DA offices and police treat each other as though they are working for the same "team", which can have negative consequences on prosecuting police misconduct and any number of other issues.
Setting aside the political pros and cons of her characterization as a cop, do you think referring to prosecutors as cops is a morally neutral position or accurate reflection of how the justice system should be, or is it revealing the lack of independence that we otherwise pretend exists between those two organizations?
Correction: Josh said that the Appointment's Clause allows the president to appoint officers without Senate confirmation if Congress says so. In reality it says that the Head of a Department can appointment an "inferior officer" if Congress says so without being directly appointed by the president or confirmed by the Senate .
This is important because this is why I think Judge Cannon would potentially approve of David Wise's appointment.
Congress has passed a law specifically saying the Attorney General can appoint attorneys within the DOJ who can bring cases in any jurisdiction. (28 USC 515(a)). However that same law says that attorneys outside the DOJ can only be appointed "under law," and so as Congress has supposedly not passed any law allowing the AG to appoint special prosecutors outside the DOJ then under the Appointments Clause as an inferior officer Smith can't be appointed by the AG.
Wise on the other hand was appointed within the DOJ and so likely falls within 28 USC 515(a).
Lately I see only references to the FL and NY residences for Guiliani, but I also remember that one of the non-salacious details in the Noelle Dunphy suit referenced 5 residences. Have you seen anything that reconciles that? (EG, the other 3 are tents in the Arizona wilderness or some such example?)
I believe Ken made the point in this episode that attempting to kill a candidate for President (or former President) isn't a federal crime. That's perhaps true as to a specific attempted murder statute (and it's moot in this specific case), but the events of last weekend certainly seem to violate 18 USC 1752(a)(4), in that the assassin "knowingly engage[d] in an[] act of physical violence against [a] person" in an area restricted due to the temporary visit of "the President or any other person protected by the Secret Service" (which includes both former Presidents and certain major party presidential candidates).
Ironically, that's the same statute that was the foundation of many of the January 6 misdemeanor prosecutions, where the indictments asserted that the Capitol was a restricted area due to the temporary visit of the Vice President (a person protected by the USSS). But it's elevated to a felony where the defendant used or carried a deadly weapon or firearm (as was obviously the case here).
I guess the would-be-assassin (had he survived) might have been able to argue that he wasn't actually in the restricted grounds when he fired the gun, but I can't imagine that would be any more successful than if you took pot shots at the White House from Lafayette Park. (Analogous to the "intent follows the bullet" rule.)
If the Eleventh Circuit overturns the Cannon dismissal and Trump appeals to SCOTUS, does the prosecution proceed or is it halted like with the Jan 6 case?
I was reading somewhere there was a conflict of jurisdiction between PA gun laws and the federal laws that somehow coalesced into a situation where the secret service was aware of him setting up on the roof but they couldn't do anything about it because PA state law and then the State enforcement wasn't able to intervene because of the state gun laws allowing him to have and do what he was doing.
All this amounted to he did nothing illegal until he pulled the trigger hence why he was basically watched the entire time by the snipers until he pulled the trigger.
All of that seems horse crap but also weirdly possible because the vantage point he got setup on was so obvious you could see people with mobile phones seeing him setup from the ground. Wild.
Seems like their better options are to delay the speech or ask for forgiveness after detaining him rather than say, "welp, nothing we can do about that sniper".
It does raise an interesting(ish) question about open carry outside their security perimeter.
Gentlemen, I'm sorry to tell you that you have whiffed it on stochastic terrorism, once again-- starting with your choice to include it in this episode to begin with, a gratuitous decision from what I can tell because there was no obvious connection to the topic of discussion. Maybe it's just Josh's hobbyhorse?
The issue of using the concept of stochastic terrorism to curb First Amendment freedoms was mentioned (as in the last episode), but no examples were given of people trying to do this (also as in the last episode). I'm sure such people exist, but if so, shouldn't it have been easy to cite at least one significant case?
The potential of Trump fans to invoke stochastic terrorism as justification to blame Biden and Democrats, generally, for the assassination attempt on Trump was also raised. In the past they've seized on concepts such as wokeness, social justice, DEI, triggering, canceling, and so on, and turned the concept on its head in order to attack...well, anyone who attempts to use those terms seriously to describe a real problem. I wouldn't be surprised in the slightest to see them do the same thing with stochastic terrorism, but 1) that doesn't invalidate the concept itself, and 2) again, you didn't point to any instance of someone doing such a thing.
You may say that the concept is real (though you fell short of calling it legitimate, so far as I recall), but you delegitimize it by expressing fears of its misuse without providing evidence of such a thing happening. If you've got a boatload of examples out back that just didn't come up during this episode, I'll stand corrected, but still bewildered as to why it came up again.
Yes, anyone could use the term "stochastic terrorism" to describe speech they dislike. They can also use "Marxism," "fascism," or "bigotry," not to mention "libel." That doesn't mean the term is used correctly. And Ken had just finished describing how "terrorism" is more of a concept than a legally actionable charge. "Stochastic" means "random," basically, so the term was chosen to point to an action that achieves a terrorism-type effect by means of provoking a random actor to commit violence" (the mechanism being falsely accusing the target of a heinous act that would provoke a random reasonable person to violence).
So while this is, I suppose, tangential to the attempted assassination of Trump...why did it even need to come up, except to further discount its legitimacy?
> once again-- starting with your choice to include it in this episode to begin with, a gratuitous decision from what I can tell because there was no obvious connection to the topic of discussion.
They explicitly say it is because there have been listener comments on the subject.
> You may say that the concept is real (though you fell short of calling it legitimate, so far as I recall)
Ken's take is it's better used to describe Rwanda than political discourse in the United States.
> you delegitimize it by expressing fears of its misuse without providing evidence of such a thing happening
I recall they referenced the general political conversation, which you seem aware of because you describe the phrase as being used to describe speech that people don't like.
"They explicitly say it is because there have been listener comments on the subject."
There are listener comments on every subject, and this is not a listener call-in show.
"Ken's take is it's better used to describe Rwanda than political discourse in the United States."
Not sure he actually did that, but if he did, I have no idea how it pertains to anything I said.
"I recall they referenced the general political conversation, which you seem aware of because you describe the phrase as being used to describe speech that people don't like."
Once again-- if, in the general political conversation, the term has been used (correctly or incorrectly), then they should've pointed to at least one example of that in order to justify deviating from the actual topic of discussion to say nothing new about it.
> There are listener comments on every subject, and this is not a listener call-in show.
I am not sure I understand. Josh and Ken don't or are not allowed to respond to listener comments?
> Not sure he actually did that, but if he did, I have no idea how it pertains to anything I said.
The transcript is easy to search. You said you don't recall them calling stochastic terrorism legitimate. Ken said it is legitimate but hyperbolic when used in American politics. Seems pertinent.
> Once again-- if, in the general political conversation, the term has been used (correctly or incorrectly), then they should've pointed to at least one example
Because you doubt that the term has been used or think that they are misrepresenting its use?
> in order to justify deviating from the actual topic of discussion to say nothing new about it.
Josh gave Ken the opportunity to clarify his opinion in the matter. It was on the topic of responding to listener feedback.
"Because you doubt that the term has been used or think that they are misrepresenting its use?"
Because if you want to tell me
that the house is infested with fleas
At least one flea would I like to see
if only so that we agree
on what does or does not count as "flea"
Okay I think that’s enough of this tiresome argument, thanks.
The continual incompetence of prosecutors continues to astound me. Between the Trump Georgia, Young Thug, and Alec Baldwin prosecutions, it's been a shit show all the way around.
I'm not surprised by the malice and lack of ethics, mind you, just the incompetence.
I have been doing a lot of reading on wrongful convictions lately (most recently the outstanding “Blind Injustice” by former prosecutor, now Innocence Project director with a state program) and the bottom line is that prosecutors don’t have to be very good at their jobs and have no pressure to improve … they are essentially like teams of men’s college varsity basketball players who get to play nearly all their games against local girls elementary school teams week in, week out, and they believe that their number of wins is a measure of something.
There is no learning culture in a prosecutor’s office, and no critical self-examination, and no consequences for error in the slightest — indeed, there are great rewards for convicting the wrong (but notorious) person, and it will be 20 years before — in 1 in 1000 cases — the gross errors and incompetence are undeniable. Plea bargains allow prosecutors to coerce confessions from innocents through terror bargaining, and that’s not good for the convicted, society, and it’s sure not good for developing prosecutors as ministers of justice.
For prosecutors to improve, wrongful convictions would have to start being consequential and career limiting, the way “wrong limb” surgeries are treated in hospitals (where they cut off the wrong limb, or remove the healthy kidney instead of the diseased one, etc.). And prosecutors’ offices would have to start losing their license to prosecute when they engage in conduct known to lead to wrongful convictions.
I don't know how much it matters, apart from mythmaking, but...
I think it's probably unlikely that Trump's ear was hit by a bullet. The angle from the shooter to Trump would recite a bullet that hit his ear to keep going to his skull.
It seems more likely that something hit by the bullet (e.g., the glass screen of a teleprompter 4-6' feet away) shattered and he was hit by that debris. That would explain how his ear was hit without his skull being hit.
That means that he was not within inches of being killed, or that only God's miracle saved him. It would mean that the shooter missed by a few feet.
Again, does this matter? Not for political or legal analysis of the situation, I wouldn't think. But it clearly is shaping the last phase of Republican myth-making.
We have lots of pictures of the former President immediately after the shooting. Some of those photos clearly show the teleprompters. They're both undamaged.
Seems far more likely that you're wrong about the trajectory of the bullet in relation to the position, pitch, roll, and yaw of Trump's head than that he was hit by glass from a teleprompter that was then replaced or repaired in a matter of seconds, without anyone there realizing it.
The comments to our podcast are not a forum for conspiracy theories. You may take this elsewhere.
I do know how many teleprompters there were... at least how many were within a few feet of him. There were two. Neither was hit. You can be confident in this, too, if you watch the videos of the event.
I kinda' think maybe you haven't.
I think you saw a diagram (or many many of them) showing the shooter basically off to Trump's right. You imagined a straight line from the shooter to the side of Trump's head and figured a bullet would have to go (is this in bad taste?) "in one ear and out the other."
That works, if we assume Trump was looking forward, at roughly a 90 degree angle from the shooter. But if we look at the videos we can see that, at the moment he's injured, he's looking over his right shoulder. Or, based on those diagrams you've been studying, kinda' over towards where the shooter was. So if Trump is looking directly at a shooter, where would a bullet would go if it hit the outside of his ear? Not into his skull, right?
Of course, Trump wasn't looking "exactly" at the shooter. He was looking at some immigration chart in the same general direction (to the left of the shooter? the right? below the shooter? I can't tell, can you?)
So was his head oriented closely enough towards the shooter that the two pieces of torn skin on that ear could have been a bullet?
Here's the God's honest truth.
I Don't Know.
I'm looking at a 2D video of his head with the shooter far, far out of frame. Is his chin too high for a bullet to have grazed him like that? Too low? Too far towards his right shoulder? Was he standing too straight? Leaning too far forward?
Sheesh, I got no earthly idea!
But there's just not anything to suggest that it's outside of the realm of possibility. So the statement "The angle from the shooter to Trump would recite a bullet that hit his ear to keep going into his skull" is brimming with unsupportable confidence.
If not shot in the ear then what is your theory of where the blood in the picture came from? Was he carrying catsup and applied it to his face for the shot? I’d love for that to be true and to catch little donnie in yet another lie however I am bound by Occum’s Razor. I don’t like the guy but it seems more likely he was shot than that he was not shot based on available evidence. Besides given the number of rallies #45 has given in relation to any other President it seems absolutely inevitable we would attract a shooter. Smarter Presidents avoid holding so many public events because they didn’t want to get shot. Perhaps the guy that tanked Trump steaks, vodka, college, …. Etc. is just not as smart as people pretend he is. Im disappointed he was shot but not surprised even slightly, given the Biggly number of assassination opportunities Trump has provided over the last few years. This is the guy who still claims he paid a porn star (established) for nothing because he thinks everyone thinks that is plausible? Maybe he is past his prime and wasn’t all that and a bag of chips at any point previously. Is he now the physically oldest candidate for the office ever? I think he is but I could be wrong.
Yes, Trump is older than any previous major party nominee for the presidency of the United States.
The very fact of Biden's decline in the last 4 years should make everyone quite wary of electing and even OLDER candidate, and should make everyone look more closely at Vance, Vance's values and Vance's policy preferences.
Biden is not nominated. What are you talking about way way out there in the bleachers?
1) Yes, Biden is not nominated this year. *Trump* is nominated.
2) Trump is even older than Biden was four years ago.
3) Biden's decline should have people thinking about importance of ANY old candidates VP pick. In this case, Trump's VP pick.
4) Vance is *Trump's* VP pick. Everyone should be putting Vance under the microscope. He is the most important VP candidate ever...well, other than Truman...because the chances of him needing to ascend of the presidency is so high.
5) How am I out in the bleachers?
1) Trump WAS hit and damaged by something. No question. Real blood. Real wound.
2) It shouldn't matter whether he was hit by a bullet or instead hit by something debris or shrapnel or whatever. It's a question of *how* *close* to death he came, and that really shouldn't—in my view—matter.
3) The FBI director has said a) that it's not clear what Trump was hit by, b) Trump has not authorized any treating medical professionals to speak with the FBI and c) they have accounted for all the bullets that they think the shooter fired. He HAS not said explicitly that the FBI does not think that Trump was hit by a bullet, but that seems to be the inescapable conclusion. Hit and hurt by something, but not a bullet itself.
4) Trump (and others) keep bragging on how close to being killed he was. Trump said 1/4". Others have said "inches." That requires his being barely grazed by a bullet, not something that a bullet damaged and threw up at Trump. Does this matter? Well, it's myth making. Some are saying that the closeness of his brush with death proves that God saved him, and therefore God chose him. I think that logic there is suspect every step of the way, but the fact that people believe that leads me to worry about what THEY will do if Trump loses the election.
5) This is INCREDIBLY unlikely and not worth considering seriously, but it possible....: Did the shooter actually try to HIT Trump, or did he just try to shoot near Trump. Was he trying to kill Trump, or was he trying to glorify Trump? We don't know his motive—and it seems like we never will. But if a bullet REALLY came THAT close to killing Trump, I would have to rule out a false flag operation/crazy reverse-jujitsu trickery. If no bullet actually came with in 10' of Trump? Well, the mind is then overwhelmed with crazy possibilities—including that the shooter was just a really bad shot who missed his target badly. (I mean, it's not like he was using a sniper rifle.)
6) So, where does this leave us? What do *I* think? I think that the shooter WAS aiming for Trump and missed. I think that Trump WAS surprised at being hit—and not because he was in on a crazy plan. I think that Trump was NOT hit by a BULLET, and he knows it. I think that he is knowingly and actively lying about it. I think that even HAD he been hit by a bullet, he was NOT 1/4" from being killed. I think that that it matter that Trump so routinely lies about everything, that is one of the many ways that he disrespects his own supporters and the concept of democracy. But only one of many.
Oh good lord, get a grip.
Two things, both off-topic of legal troubles but relevant to Ken and his interests, so I though I'd risk posting here:
1) I am always very appreciative of Ken's openness in bringing up his bouts with depression (as brought up recently on Bluesky). The ability to know one's own faults and limitations, let alone reveal them to the world, is a remarkably rare quality, perhaps even more so for a litigator.
I think I can speak for just about everyone subscribed to this show that we appreciate his candidness on the show and elsewhere, and hope that he knows whatever his other commitments may be, taking care of yourself should always be top priority,
2) I see lots of discussions about Kamala Harris playing up that she's a "cop" based on her time as a prosecuting attorney. I know it's a poorly kept secret that DA offices and police treat each other as though they are working for the same "team", which can have negative consequences on prosecuting police misconduct and any number of other issues.
Setting aside the political pros and cons of her characterization as a cop, do you think referring to prosecutors as cops is a morally neutral position or accurate reflection of how the justice system should be, or is it revealing the lack of independence that we otherwise pretend exists between those two organizations?
Correction: Josh said that the Appointment's Clause allows the president to appoint officers without Senate confirmation if Congress says so. In reality it says that the Head of a Department can appointment an "inferior officer" if Congress says so without being directly appointed by the president or confirmed by the Senate .
This is important because this is why I think Judge Cannon would potentially approve of David Wise's appointment.
Congress has passed a law specifically saying the Attorney General can appoint attorneys within the DOJ who can bring cases in any jurisdiction. (28 USC 515(a)). However that same law says that attorneys outside the DOJ can only be appointed "under law," and so as Congress has supposedly not passed any law allowing the AG to appoint special prosecutors outside the DOJ then under the Appointments Clause as an inferior officer Smith can't be appointed by the AG.
Wise on the other hand was appointed within the DOJ and so likely falls within 28 USC 515(a).
Lately I see only references to the FL and NY residences for Guiliani, but I also remember that one of the non-salacious details in the Noelle Dunphy suit referenced 5 residences. Have you seen anything that reconciles that? (EG, the other 3 are tents in the Arizona wilderness or some such example?)
Welp, another FL judge in the tank for the Orange Stain
https://www.nytimes.com/2024/07/21/business/media/trump-libel-suit-pulitzer-board.html
I believe Ken made the point in this episode that attempting to kill a candidate for President (or former President) isn't a federal crime. That's perhaps true as to a specific attempted murder statute (and it's moot in this specific case), but the events of last weekend certainly seem to violate 18 USC 1752(a)(4), in that the assassin "knowingly engage[d] in an[] act of physical violence against [a] person" in an area restricted due to the temporary visit of "the President or any other person protected by the Secret Service" (which includes both former Presidents and certain major party presidential candidates).
Ironically, that's the same statute that was the foundation of many of the January 6 misdemeanor prosecutions, where the indictments asserted that the Capitol was a restricted area due to the temporary visit of the Vice President (a person protected by the USSS). But it's elevated to a felony where the defendant used or carried a deadly weapon or firearm (as was obviously the case here).
I guess the would-be-assassin (had he survived) might have been able to argue that he wasn't actually in the restricted grounds when he fired the gun, but I can't imagine that would be any more successful than if you took pot shots at the White House from Lafayette Park. (Analogous to the "intent follows the bullet" rule.)
If the Eleventh Circuit overturns the Cannon dismissal and Trump appeals to SCOTUS, does the prosecution proceed or is it halted like with the Jan 6 case?
I was reading somewhere there was a conflict of jurisdiction between PA gun laws and the federal laws that somehow coalesced into a situation where the secret service was aware of him setting up on the roof but they couldn't do anything about it because PA state law and then the State enforcement wasn't able to intervene because of the state gun laws allowing him to have and do what he was doing.
All this amounted to he did nothing illegal until he pulled the trigger hence why he was basically watched the entire time by the snipers until he pulled the trigger.
All of that seems horse crap but also weirdly possible because the vantage point he got setup on was so obvious you could see people with mobile phones seeing him setup from the ground. Wild.
Fascinating. Citation please?
Seems like their better options are to delay the speech or ask for forgiveness after detaining him rather than say, "welp, nothing we can do about that sniper".
It does raise an interesting(ish) question about open carry outside their security perimeter.