Dear listeners,
We’re back with another week of Serious Trouble! And boy are some people in Serious Trouble this week.
Donald Trump “re-truthed” a post calling for a “citizens’ arrest” of Judge Arthur Engoron and New York Attorney General Letitia James. Normally, when people ask Ken whether a statement is illegal incitement, the answer is a quick “no,” because the statement fails to meet the standard of being intended and likely to cause imminent lawless action. This case is closer — it depends on how you define “imminent” — but even if the case is chargeable, as Ken notes, it is unusual for prosecutors to bring incitement charges in a case where no crime has actually been incited. Also in the New York AG case, Trump’s attorneys have sought a mistrial due to Engoron’s alleged bias. Engoron is sure to deny the motion, and Ken lays out why it’s unlikely to get a sympathetic hearing in the appellate courts.
Also in New York, Mayor Eric Adams looks to be in somewhat serious trouble. The FBI raided the home of his chief fundraiser and his own electronic devices were seized. As we discuss, it’s common for campaign finance investigations to reach a politician’s staff without anything sticking to the elected official himself, but the seizure of Adams’ electronic devices is an aggressive move that indicates he is at least a subject of the federal investigation, if not a target.
Hunter Biden wants to subpoena documents about his prosecution from Trump administration officials, going all the way up to the president himself, as part of an effort to make a defense of selective prosecution. There’s one big problem — he isn’t being prosecuted by the Trump administration. Ken sees this move as more about the future — if there is a future Trump administration, it is likely to bring more cases against Hunter Biden, and he’ll want to lay groundwork to allege selective prosecution in those cases.
In Georgia, District Attorney Fani Willis says Trump’s RICO prosecution is likely to stretch into 2025 — no surprise to you if you listen to this podcast — and some of the minor defendants have been making trouble. Missy Hampton’s lawyer leaked discovery materials to the media — a significant no-no that long-suffering judge Scott McAfee had to tell the parties not to do more of — and Harrison Floyd has been making a spectacle of himself on social media in a way that has Willis asking for his bail to be revoked. Mess.
In Michigan, a judge says whether candidates are disqualified from office under the 14th Amendment is a political question — previewing the way more courts may seek to avoid involvement in disputes over whether Trump belongs on presidential ballots.
And in Washington, something seems to be in the water at the Capitol building. Congressman Tim Burchett says former speaker Kevin McCarthy intentionally elbowed him in the kidney — which would be assault, but not the kind of assault that ever gets prosecuted — while McCarthy says it was an accident and if he’d done it on purpose, Burchett would have been on the ground. Senator Markwayne Mullin challenged a hearing witness to a physical fight — ordinarily a crime, but Mullin enjoys the protection of the Speech or Debate clause. And the House Ethics Committee says George Santos spent campaign funds on botox, OnlyFans, and a modest shopping spree at Hermès — not only illegal, but behavior he’s already under indictment for. Not smart.
We hope you enjoy the episode,
Josh
Incitement