Serious Trouble
Serious Trouble
Estop! or My SEAL Will Shoot
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Estop! or My SEAL Will Shoot

An appellate hearing goes poorly for Donald Trump; Roger Stone's ideating about killing his political enemies probably wasn't a crime; Fani Willis may be in serious trouble
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Transcript

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Dear listeners,

It’s a big week for Donald Trump being literally, physically in court — he attended Tuesday’s appellate hearing over his claim that presidential immunity shields him from Jack Smith’s prosecution related to January 6, and on Thursday he is expected to be in Arthur Engoron’s courtroom for closing arguments in the New York Attorney General’s civil case, though he won’t be personally giving a closing statement like he asked to.

Ken and I talked about how those arguments went — the judges had some interest in procedural issues, like whether they should even be hearing an appeal before the case is decided, and whether Trump is judicially estopped from saying he can’t be tried since Alan Dershowitz argued during his second impeachment that he was susceptible to trial and that was a reason for the Senate not to convict. But the judges also gave signs they might get to the meat of the question, and that they were unimpressed by the argument that, even if a president ordered SEAL Team Six to assassinate a political opponent, he couldn’t be criminally tried unless he were first impeached and convicted by Congress.

Trump has also tried to import his immunity arguments to a pending civil case brought by E. Jean Carroll, but Judge Lewis Kaplan said in that case that he was raising the argument too late.

There’s apparently a tape from 2020 of Roger Stone telling a then-NYPD cop that it was time to have Reps. Eric Swalwell and Jerry Nadler killed, after the two congressmen sought to investigate then-President Trump’s pardon of Stone. While you should not go around suggesting that people kill other people, Ken tells me what Stone did here is pretty clearly not a crime: It’s not incitement, it’s not conspiracy, it’s not attempt, and it probably can’t be proved to be solicitation either, given how hard it would be to show that Stone really meant it and wasn’t just venting. Sorry.

Sen. Bob Menendez took to the Senate floor to make a lot of statements about how he’s getting railroaded, and Ken has a friendly reminder that “the Senate floor” is on the list of places where you should shut the fuck up if you are a criminal defendant.

Finally, District Attorney Fani Willis. Wow. Defendant Mike Roman has filed a motion seeking dismissal of the case and alleging that she has had an affair with Nathan Wade, the outside attorney she hired to run the RICO case. We’ve gotten some letters from listeners who presuppose that a motion containing allegations about the DA’s personal life must be some sort of dirty trick, but Ken — who, at his day job, handles a lot of conflict-of-interest cases against public employees — says there are context clues suggesting we should take this quite seriously as a matter that could derail both the RICO case and Fani Willis’s career. So far, Wade has billed hundreds of thousands of dollars for his services well before the case has even gotten close to trial, and Roman alleges he has spent this money on luxury vacations with Willis, which, if true, would create a serious a conflict of interest. (Note also that Wade’s apparent lack of qualifications for this job had previously puzzled friend-of-the-show Andrew Fleischman.) Dismissal isn’t a likely remedy even if the allegations turn out to be solid, but the court could well remove Willis and her office from the case, effectively launching it into legal purgatory and severely hampering any efforts to obtain convictions.

As Ken says, don’t make prosecutors your heroes.

We hope you enjoy the episode.

Josh

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