Thanks, Johs and Kne!

More topically: there's another wrinkle to the Trump gag order, which is the same wrinkle that appears in things like the incitement theory of J6: Trump generally does his harassment stochastically, and 1st amendment law as it has developed just isn't built to account for that. Trump says "I don't like this law clerk" and that's enough of a signal to send a wave of harassment in her direction because his supporters, generally, are pro-harassment. He doesn't ever explicitly say "please go harass this person". Even in the most egregious moments where he's advocated for illegal acts, it's generally couched in a way that avoids explicit instruction. "Gen Milley should be executed," not "someone should go kill Gen Milley." "Suspected shoplifters will be shot on sight," not "if you think someone is shoplifting, shoot them." About the closest he's ever come was back in the 2016 campaign when he was encouraging his audience to beat up protesters, and IIRC he managed to skate on that one.

All of this is to say: Trump is a particularly bad test case for a gag order, not because he is unusually prone to mouthing off, but because the rules we have don't account for the way in which he generally causes harm with speech.

Expand full comment
Oct 20Liked by Ken White

I think it’s clear now that Ken gravely underestimated the pressure that potential testimony from Alex Jones had in landing plea deals for Cheese & Crackers.

Expand full comment
Oct 20Liked by Ken White

Aren't we all a little sad that there won't be a cheese and crackers trial?

Expand full comment

Did ANYBODY have “Sidney Powell is the smart one” on their bingo card?

Expand full comment

Pulling the emergency podcast alarm on the Sydney Powell news!

Expand full comment

My guess about what Willis is up to with Alex Jones: They have his phone.

Remember? His lawyers sent his entire phone out by accident? Willis has messages between Jones and #TeamCrackerBarrel. All she needs to do is ask him about them. She doesn't even need him to answer, he can take the Fifth all he wants, it's not incriminating him that she's after.

Expand full comment

I love that they titled the last episode about DT's "First" gag order, knowing damn well that it would not be the last, only to be proven absolutely correct in less than a week.

They are now fully tapping into their secret power to direct current affairs by their podcast releases. I expect some juicy upcoming episode titles that tempt the Gods even further:

1) Donald Trump's First Lawyer To Turn State's Evidence

2) Donald Trump's First Sanction Order

3) Donald Trump's First Conviction

4) Donald Trump's First Property to be Liquidated

Expand full comment

Regarding SBF’s ADHD medications, one strong possibility is just that he is finding that not being a billionaire and being located in the United States means that SBF has just been facing the same stimulant shortage as everyone else:


Which is to say: it might really have very little to do with SBF personally, or even the fact that he’s in government custody.

Expand full comment

I have a request for a topic that has been bugging me. It's about the attorney conflicts in the Trump documents case. At least two of the defense attorneys, Stanley Woodward and John Irving, currently represent Trump's co-defendants and used to represent people who are now government witnesses. The government has filed motions about the conflicts. The motions I've read and the coverage I've seen of them focus on whether the defendants, including Walt Nauta, fully understand and have waived these conflicts.

Here's what I don't understand: Under the ABA model rules of professional conduct, it's not enough for Nauta (or any other current co-defendant) to waive a conflict. The former client also has to waive the conflict, and the news coverage I've read suggests that that hasn't happened. Without a waiver from the former client, the lawyer is disqualified--not just from the trial, but from the representation. But nobody seems to be talking about this, and I don't think the government has argued it at all.

I feel like I must be missing something obvious. Is there a strategic reason the government hasn't raised this? Is there no Florida equivalent of Rule 1.9? (Or maybe Florida law isn't controlling--I'm a little fuzzy on rules of professional conduct in federal court.) Am I misunderstanding the rule? I'd love to hear your thoughts on this.

For reference, ABA model rule 1.9(a): "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing."

Expand full comment
Oct 18·edited Oct 18

My husband’s uncle- a notorious divorce attorney known as the “Mad Dog” in New Orleans- was called to the carpet by a judge after the Mad Dog told the judge’s clerk “not to be an asshole” when he tried to get some information about a case. The judge wasn’t having it and hauled him in for a hearing. When the Mad Dog asked the judge whether he was going to penalize him with a sanction, he sarcastically asked whether the judge was going to “find him in contempt of clerk.” The Mad Dog had to pay a couple grand in sanctions.

Expand full comment

So glad "Cheese n' Crackers" is still a thing lol

Expand full comment

Can we get a few words on the next pod about “crimes of moral turpitude“? All the lawyers pleading out in the Georgia case are getting language on the record that Georgia doesn’t consider their crimes to be crimes of moral turpitude. I assume this has something to do with hanging onto their law licenses, but I’m just guessing. Thanks!

Expand full comment

My theory about Santos - backed up by a long article that I've unfortunately lost, that went into details about all his associates who got into political fundraising before he did - is that all his smart fraud was just aping what he saw all the other campaign grifters doing. So, yeah, I bet a lot of people successfully pretend to lend campaigns money and then get "paid back" from donations, and one of them was unguarded enough to tip Santos off to the scam. So then Santos decided he had to get in on that action, but was too dumb to realize that you also have to take precautions to not get caught - including but not limited to losing the election.

Expand full comment

I think Ken’s analysis as always is generally on point. Though I’m not sure at the dig that SBF isn’t on “more Adderall than any other child of 2 Stanford professors” was about. Are you disputing he has severe ADHD? Are you suggesting that all Stanford professors children are on stimulants inappropriately or are diagnosed with a chronic mental health condition more than the general populace? Regardless, the snark comes across poorly. I doubt the same type of comment would be made if it was a medication for controlling blood sugar or high blood pressure.

Expand full comment

Josh and Ken,

Thanks for another excellent show!

A couple of notes from a terired guy who's a news junkie.

1)Roger Parloff in his dispatch for Lawfare quotes the hearing thus:

"Judge Chutkan now wants to know how exactly a gag order might work. Specifically, she asks Gaston, what are the kinds of remedies the government would seek? A modification of the conditions of release? Financial penalty? Home imprisonment? An earlier trial?"

Actually moving the trial to an earlier date is probably not her actual plan, but Judge Chutkan floated that in front of John Lauro, Trump's lawyer who'd been asking to postpone the trial. (She was asking the prosecutor, but he's just stopped talking) It's not like she hasn't been considering what sanctions might actually be effective.

2) On Alex Jones being subpoenaed. After his indictment some pictures came to light, from the vast array of people who've been going through Jan 6 footage to find the offenders. Chesebro was on the Capitol grounds, looking as dorky as one might imagine the most introverted 1988 Harvard Law grad would look while wearing a MAGA hat. Specifically he was in the area where Alex Jones had led a large contingent of prospective rioters. Chesebro can be seen using his phone. Fani Willis may be able to establish a connection between Jones & Chesebro, or maybe the gang at the Willard Hotel. Getting Jones on the stand to explain the 7 minute phone call with Chesebro's number (even if Jones pleads the 5th to 3 or 4 pointed questions) puts the Cheese right in the

midst of the action of obstructing the count, not just being an attorney floating hypothetical arguments at the request of some clients.

Expand full comment

RE: Menendez Indictment

I’ve been harboring a theory ever since the first round of the Robert Menendez indictments were announced. I have largely kept silent about them because I don’t want to come off as being anti-feminist or misogynist or a “slut shamer” or whatever descriptor one might use against me… but I wonder if SDNY could be investigating whether or not this scandal was a successful “honeypot” operation conducted by his now-wife Nadine and her “close friend” Wael Hana? I know it sounds super conspiratorial and very Lifetime TV, but I looked over a timeline and that’s why it struck me:

October 2017 – Menendez’s first indictment/trial concludes with hung jury.

February 2018 – Nadine and Menendez start dating right after they meet.

• Soon thereafter, she introduces him to her longtime close friend, Wael Hana

• According to the indictment: HANA and NADINE MENENDEZ, a/k/a “Nadine Arslanian,” the defendant, were friends for many years before she began dating ROBERT MENENDEZ, the defendant.

• See pg 6 of indictment: “In or about early 2018, NADINE MENENDEZ, a/k/a “Nadine Arslanian,” the defendant, informed WAEL HANA, a/k/a “Will Hana,” the defendant, that she was dating ROBERT MENENDEZ, the defendant. In the following months and years, HANA and NADINE MENENDEZ worked to introduce Egyptian intelligence and military officials to MENENDEZ for the purpose of establishing and solidifying a corrupt agreement in which HANA, with assistance from FRED DAIBES and JOSE URIBE, the defendants, provided hundreds of thousands of dollars of bribes to MENENDEZ and NADINE MENENDEZ, in exchange for MENENDEZ’s acts and breaches of duty to benefit the Government of Egypt, HANA, and others, including with respect to foreign military sales and foreign military financing.”

October 2019 – Nadine and Menendez get engaged

And the rest is history.

Could it be that it was not a coincidence that she and Menendez “randomly” met and that she just “happened” to mention to her "longtime friend" Wael Hana that she was dating the Chairman of the Senate Foreign Relations Committee? Nadine and Wael apparently had thousands of text messages exchanged between the two of them.

Now… I'd like to add that this does not ABSOLVE Menendez AT ALL of the crimes he’s been accused of, especially these superseding indictments about being an unregistered foreign agent. Maybe I just have a cynical approach to romance, but the whole think sounds fishy to me, and I haven’t really seen or heard anyone talking about this -- until Ken slyly made a reference to her in the episode -- when it seems fairly evident.

Is this just to icky to be discussed out in the open?

Expand full comment