Excellent discussion. I think that Scott Hall, the bail bondsman who pled guilty in the Georgia RICO case may be more important than you let on. In addition to the Coffee County voting machine charges (which is what Sidney Powell is charged with), he also is the one who had a 63 minute conversation with Jeffrey (no pants) Clark which which got Clark to claim he had a "whistleblower from Georgia" coming to DC-this makes his letter that wasn't sent tied much closer to the Georgia conspiracy. Also, Hall was involved in arranging for some of the people who pressured the election workers to get together and get access. I think that the misdemeanor charges were a sweeter deal for him than it appears on first blush, and he may have more key evidence in firming up these RICO charges. (Unless she's just really crazy, the Coffee County lady who came to DC as a "whistleblower" will plead pretty soon IMHO)

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Oct 11, 2023Liked by Ken White

This morning in the NYAG case, Habba and co-counsel requested a brief ex parte before Judge Engoron. When they came back from chambers:

First thing, Judge clarifies a Q: "We’re having a nonjury trial because this is a nonjury case. "

AG "clearly checked off nonjury and there was no motion for a jury," Justice Engoron says. And "it would not have helped to make a motion. No one forgot to check a box.”

Somebody was getting embarrassed by all the commentary claiming she’d forgotten to check a box!

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Oct 10, 2023Liked by Ken White

The smallest possible constructive criticism for Ken: "calumny" is pronounced with the stress on the first syllable, sort of like "calorie."

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Enjoyable discussion as always.

Re: Mar A Lago value - I did do the Zillow nerd thing AND read the 35 pager.

Best I can tell is that Trump and his chumps including Eric are picking the "I can value it any way I want" fight in to distract from addressing the elements of fraud involved in massively over valuing properties for the purpose of getting loans, and changing that valuation by a lot when going for insurance and tax reductions - using attested statements of Financial Condition which the Mazar's partner (Bender) disavowed.

As far as fun with Zillow - as Josh points out, there are restrictions on the property (I believe more than just the "must be a social club one) that change the value. Just now I pulled the Zillow "sold" page for the area... maxes out around $22 million in the area, just for interest.

The really fun part of that was that Zillow showed MarALago had been sold about a month ago to an entity owned by Don Jr for $244 million.

The sale info was quickly yanked and Don Jr denied it loudly.

I remember wondering at the time if that got the attention of the Judge monitoring Trump Org.

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I’d also suggest that this isn’t a conversation about what MAL is worth — it’s a conversation about how the Trump org values it.

Both the absurdly low number and the absurdly high ones came FROM THE TRMP ORG, attested to on government paperwork. The lowest number actually came from Trump SUING THE COUNTY to get a lower valuation.

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Maybe even better - the Trumps *want* the conversation to be about what MAL is worth, because the two-faced valuation from the Trump org itself is indefensible.

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The funniest thing in this episode was Josh & Ken attempting to curry favor with all the Italians they have offended by wishing each other a happy Genocider...er...Columbus Day.

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Waiting for the commemorative blankets to hit the Merch store

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Oct 16, 2023·edited Oct 18, 2023

If Trump's lawyers unsuccessfully argue against a gag order that will make Trump a better client, are they good lawyers or bad lawyers?

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This video is regarding the, apparently, widespread practice in NY Commerical Real estate of greatly exaggerating the Sq footage of properties. I previously mentioned, in response to some of the comments in a previous episode that the importance of the AG suing the Trump Org. is to prevent systematic risk in the entire real estate market. All of that property being used for collateral, that is 1/2 or 1/4 of the size claimed creates a huge risk to the financial system - that the taxpayers will no doubt have the pleasure of bailing out. https://www.youtube.com/watch?v=h8Rq5CJBWnk&ab_channel=LouisRossmann

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So back when I was a mortgage banker, the exposure I had to this had to do with office buildings. Square footage in office buildings is quoted with a "loss factor" -- that is, if you rent an office space that is actually 7,300 square feet, you might be charged for 10,000 square feet, applying a "loss factor" of 27% to account for the common areas of the building that aren't rented to anyone but must exist for the benefit of the tenants -- the lobby, elevator banks, common bathrooms, hallways, etc.

Furthermore, while loss factor is supposed to be an objective measure -- driven by the facts about the size of a building's lobby and such -- it somehow seems to be the case that landlords remeasure existing buildings and "find" more common space than was previously known to exist. "From 2002 to 2012, 17 out of 50 randomly chosen Midtown Class A and B office buildings reported a size increase greater than 5 percent, according to a study by Commercial Tenant Real Estate Representation," the Real Deal reported in 2014. That article also notes one case where Viacom obtained a "rent reduction" but ended up paying more rent anyway because their landlord discovered their building's common areas were bigger than they thought. https://therealdeal.com/magazine/new-york-february-2014/lies-in-size/

I have also read that loss factor is increasingly being used in retail leasing in New York, even though it used to be the case that retail rents were calculated based on a simple measure of the actual space being leased. This may be happening in a more loosey-goosey manner, since both the landlords and the tenants are unfamiliar with the practice, unlike office landlords and tenants who have been haggling over loss factors for a long time.

Still, this is an area where there are lies and then there are lies. If you have a practice where office space sizes are routinely overstated, and where there are rules about the exact manner in which you can overstate them, then that's workable, even if there's a little envelope-pushing about whether measurements are supposed to go, e.g., to the middle of the exterior wall or all the way out to the facade. But if that turns into simply claiming a retail space is twice as large as it really is, then that seems like fraud. And I have never heard of this practice being used for residential real estate, nor have I heard of an accepted measurement convention that results in claimed sizes that are 3x the actual size.

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I appreciate the experience and judgment that went into this reply. Thanks!

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I used to follow Rossmann's channel and his series on searching for a new space for his business in NYC in 2018/2019 was pretty entertaining.

Still, I think any reasonable person should be able to understand the difference between the well-accepted, if annoying, practice of adding ten or twenty percent "loss factor" on a commercial lease and fraudulently overstating the value/size of a property by 100% or more to secure a loan.

I stopped watching his videos a couple years ago when he morphed from a weird and interesting iconoclast into a full on crank.

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I think I know what you mean. I just bumped into his content because I do like his "right-to-repair" position, which I think he has put money behind, and some of his technical repair videos on video cards.

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Maybe you discussed this before and I just don't remember it, but: While I understand that the defense (in the documents case) is entitled to discovery, etc., it is not at all clear to me why the content of the classified documents would matter enough to delay the trial. I thought it was the fact of their classification (and the surrounding obstruction, etc.), rather than the contents of the classified material, that is at issue. If the main purpose of discovery (IANAL) is to give the defense all info, inculpatory and exculpatory, what possible difference would the classified material itself make?

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On a completely unrelated topic, I am interested in hearing comments concerning this from the Law Dork:

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Justice Alito's marathon arguments in defense of South Carolina's racial gerrymander

Also: The Eleventh Circuit rejected Florida's request that it be allowed to enforce its anti-drag law on appeal.


OCT 12


The U.S. Supreme Court heard arguments on Wednesday in a case over South Carolina’s congressional map.

More accurately, those of us in the courtroom listened to Justice Sam Alito’s nearly non-stop attempt over more than two hours to tell all of us why the justices should reverse a three-judge district court that ruled that the map includes an unconstitutional racial gerrymander. He was joined in making his case by John Gore — the former Trump administration lawyer who’s now at Jones Day and was representing the South Carolina lawmakers defending their map.

I wrote about the arguments for Slate:

Specifically, Alito doesn’t like the “clear error” standard for reviewing the factual findings of the district court here:

As [Justice Ketanji Brown] Jackson explained, under the clear error standard, “A finding [from the district court] that is plausible in light of the full record, even if another is equally or more so, must govern.”

Ultimately, that won’t really matter if Alito has his way. Alito was driven on Wednesday, seeking to undermine—and change—how deferential the “clear error” standard is in gerrymandering cases. Pushing back on the questions that had been posed to Gore by several of his colleagues, especially the three Democratic appointees, Alito stopped to tell everyone that the clear error standard “is not an impossible standard” for South Carolina to meet.

“It doesn’t mean that we simply rubber-stamp findings by a district court, particularly in a case like this, where we are the only court that is going to be reviewing those findings,” he said, a reference to the fact that three-judge district court rulings are heard directly on appeal by the Supreme Court. Further still, Alito argued that it matters here that the decision below “relies very heavily, if not entirely, on expert reports.” From there, Alito segued into a question about a specific issue regarding the analysis of one of the plaintiffs’ experts and a question that South Carolina raised in its final brief at the Supreme Court about “an alleged flaw” in that expert’s analysis.

It wasn’t just that Alito doesn’t like the standard — because the district court’s ruling should certainly be upheld under that standard — it’s also that he was incredibly aggressive in opposing the challengers to the map.

I counted and, as I wrote at Slate, Alito “pos[ed] no fewer than 37 questions to the NAACP Legal Defense and Education Fund’s Leah Aden—including a marathon 19-question session taking up 11 pages of the transcript during his final chance to question her. … In comparison to Alito’s 37 questions, the rest of the court—all eight justices combined—asked a total of 28 questions.”

What can I say? It was a bit weird!

If Alito wants to be a district court judge, he’s more than welcome to retire from the Supreme Court and start sitting on district court cases. When it comes to the Supreme Court’s current standard of review, though, the sort of questions Alito was asking are questions that the justices generally aren’t asking—and shouldn’t be asking—in such a case.

As Aden put it at one point, “Are we retrying expert testimony on appeal?”

For Alito and Justice Brett Kavanaugh in particular, it appeared that, for the most part, their answer is yes.

Ultimately, the case will come down to whether the other conservatives go along with Alito and, if they do, how they upend such a basic rule about clear error review to gut yet another aspect of voting rights protections.

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Another Hamburger Mary’s drag win

On Wednesday, the U.S. Court of Appeals for the Eleventh Circuit rejected Florida’s request to enforce its anti-drag law during the state’s appeal of a loss in the district court.

Back in June, the district court ruled in the challenge brought by Hamburger Mary’s of Orlando that the law (S.B. 1438) is likely unconstitutional, including due to its overbreadth. That ruling led the district court to a conclusion that the law is likely unconstitutional on its face — meaning it cannot be constitutionally enforced. As such, the court issued a preliminary injunction that barred any enforcement of the law.

In addition to its appeal of the ruling, Florida Secretary of the Department of Business and Professional Regulation Melanie Griffin asked the appeals court for a partial stay of the injunction during the appeal. As the official responsible for enforcing the law, she argued that the state should be allowed to enforce the law against anyone but the Orlando restaurant that brought the lawsuit.

On a 2-1 vote, the Eleventh Circuit denied Griffin’s request. Judges Adalberto Jordan and Robin Rosenbaum, both Obama appointees, voted against the state’s request. Judge Andrew Brasher, a Trump appointee, would have granted it.

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Sorry, I only meant to post the portion regarding the Florida case re SB 1438.

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Josh and Ken...are you going to make us wait until next week to hear about SBF's woes? Can't wait to hear your take on the trial.

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Speaking of defamation cases, Justice Thomas still on his crusade to protect the rich and powerful from any criticism by their lessers.


A great reminder of the excellent book, "Actual Malice" by Samantha Barbas, a history of the Sullivan v NYT case.


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A question re: Section 230 and Elon Musk-- is Elon actually protected by 230 for his statements on Twitter, and vice versa, is Twitter protected by 230 for Elon's statements? 230 states that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" but it's Elon's service, he owns it, and the Ninth Circuit held that "Publication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content."

(The same question also applies to Donald Trump and Truth Social.)

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Twitter is not protected from Elon’s statements under Section 230 because Elon is the head of Twitter. It’s like Twitter said it.

Elon is protected by Section 230 for retweeting other people’s stuff.

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I wondered this too. I also wonder whether the 'public figure' test for defamation cuts both ways-- it seems like it should. If you're a public figure, you have to deal with the fact that more people will talk shit about you. But if you know you are a public figure with an oversized audience when making public statements, that also means your statements will have a disproportionately larger impact than Joe the Plumber's. Musk's dickery has a far greater chance to completely ruin an innocent guy's life, same with Trump talking about law clerks.

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Oct 10, 2023·edited Oct 10, 2023

Ehh... Two things -

First, no one covers land valuation well. Nice job addressing the issues without getting too nerdy.

Second, it not that you can't value the property as a residential... but i'm not sure a profession would. In a professional appraisal the value would be derived from two approaches. In this case I'd bet income and sales comparison. However, the highest and best use of the property can (and often does) skew the sales comparison approach. If I research golf club sales and determine the sales value of an operating club to not be the highest and best use, then I change gears to the next reasonable land option - residential. Especially so as a golf resort is (I assume) spot zoned and the rezoning process would be both available and possibly encouraged by the municipality. Then I add a hypothetical to the effect of " no idiot is going to buy this as a golf club it's going to be purchased as a redevelopment and valued accordingly" (but better words), reconcile the two values and go get a coffee somewhere nice.

keep in mind assessors will not use the hypothetical to rezone. Assessment is as is.

But again, no one covers real estate valuation well. Especially valuation of odd properties.

Love the show!

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Oct 10, 2023·edited Oct 10, 2023

What would it take for the zoning applicable to Mar-A-Lago to be changed to make it either "developable" or eligible for the construction of a single family home ? If either or both of these zoning outcomes were achievable, even with considerable time, effort and expense, would an appraiser be justified in incorporating these outcomes, qualified explicitly by appropriate probabilities, into their appraisal?

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It's not a zoning issue. Trump signed and agreement with Palm Beach in 1993, to never use Mar-A-Logo for anything other than a golf club. As part of this deal, he deeded development rights to the National Trust for Historic Preservation.

Trump's residence at Mar-A-Lago is in violation of this deal, but Palm Beach has been unable to enforce this.

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Thus, it would require complex and uphill negotiations to unwind this deal. Enticing a Trust whose purpose is to keep historical properties unchanged, to give up its hard earned rights and to persuade a city which has foregone taxes & other benefits for years, and allowed a specific use to reverse those things. It strikes me that the only way to accomplish that would involve, besides negotiating skill and promises about the future uses of the property, cash outlays that would approach the difference between the current market value and the prospective value - i.e. a LOT of money.

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Exactly so.

The costs required to unwind this deal, if it were even possible, would almost certainly involve huge payments to both Palm Beach County and The National Trust as well as massive legal fees and other outlays. These costs would cover most if not all of the value delta between what the property is worth now and what it might be worth under its theoretical, highest value use.

In other words, the property is worth what it's worth now as a private golf club and not a penny more.

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To be clear, it's not a golf club. It's only about 20 acres and there's no golf course. Trump does have a golf club nearby in West Palm Beach.

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So it’s a Waffle House?


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