Serious Trouble
Serious Trouble


Robert Menendez gets indicted again, again; Donald Trump posts a $92 million bond in the E. Jean Carroll case; Michael Avenatti is still in prison

Dear listeners,

It’s a hat trick for Sen. Robert Menendez: his superseding indictment has been superseded once again, this time with charges that he and his wife obstructed justice, including by directing their lawyers to lie to the government about a Mercedes C-300 convertible she received as a bribe. Ken says this sort of thing — lying so your lawyer will lie for you — is not a good idea. Criminal defendants are usually bad at telling convincing lies, he says, especially because the people they lie to (the government) have usually already read all the incriminating text messages that contradict the lies. But just because it’s a bad idea doesn’t mean it doesn't happen — a lot.

Ken notes that indicting people for inducing their lawyers to lie is unusual — it requires delving into lawyer-client communications and showing why those communications aren’t privileged; and besides, it’s often true (as it seems to be here) that the government can prove other things more simply in order to get just as much jail time. That prosecutors went ahead and charged this suggests they are especially annoyed with Menendez and his antics, and are willing to put themselves through some trouble to show it.

Donald Trump, meanwhile, has posted a bond of nearly $92 million in the second case E. Jean Carroll won against him. The bond is good news for Carroll — it means she’ll get paid, sooner or later, and without the need to chase Trump through the courts hunting for his assets. But Trump still faces a looming deadline to post a much larger bond in the New York Attorney General’s case, and if he is unable to (or chooses not to) we’ll still see what it looks like to pursue him with debtor’s exams and liens and the like. And in the Manhattan DA’s criminal case, Trump says he should enjoy the protection of presidential immunity, even though the alleged offenses at issue occurred before he was president. His request is likely to be unavailing, in part because Judge Juan Merchan’s deadline for motions in limine had already passed last month.

Michael Avenatti, meanwhile, has lost an appeal of one of his many federal criminal convictions — the one for stealing Stormy Daniels’s book advance. Avenatti says there was a flawed jury instruction about his duties to Daniels as a California attorney, but appellate judges said it doesn’t even matter whether the instruction was valid or not — he was so obviously guilty that any error in the instruction was “harmless.” Ken ordinarily hates this doctrine, but his emotional reaction here is different from usual. And Ken has some ideas about new paperwork Avenatti can file to keep himself busy while spending another decade or so in prison.

We hope you enjoy the episode.


Click here for a transcript of this episode.

Serious Trouble
Serious Trouble
An irreverent podcast about the law from Josh Barro and Ken White.
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Josh Barro
Ken White