Serious Trouble
Serious Trouble
Officers of the United States

Officers of the United States

A hot bench debates Trump's gag order; courts have varying rationales for keeping Trump on election ballots; Elon Musk's own mouth is a problem for his defamation claims

Dear listeners,

Unfortunately we taped this episode before Elon Musk urged Disney CEO Bob Iger to go fuck himself. If we had waited, we would have been able to discuss how Musk had reinforced one of Ken’s points about Twitter’s lawsuit against Media Matters for America over its report showing that Twitter served up ads for major brands next to neo-Nazi content. In discussing that lawsuit, Ken noted that even if Twitter could show MMFA had committed various defamation-like torts (dubious), there would be the problem of showing damages: Are advertisers fleeing Twitter because of MMFA’s report about ads appearing next to extremist content? Or are they fleeing because Musk himself has endorsed anti-Semitic conspiracy theories, or because Musk is telling them to go fuck themselves, or for some other reason?

That discussion is at the end of this episode. We also talked about restrictions on the speech of defendants — about an appeals court that looks likely to narrow (but not throw out) Judge Tanya Chutkan’s gag order against former president Donald Trump. Ken is excited because this case looks likely to produce some judicial clarity on the under-litigated question of how courts must balance the free speech rights of defendants with the prerogative of judges to oversee orderly trials. Meanwhile, long-suffering Georgia Judge Scott McAfee admonished RICO defendant Harrison Floyd to tone it down on social media and stop tagging witnesses in posts but declined to revoke his bail, as DA Fani Willis had asked him to do.

We talked about more legal action on the question of whether Trump is constitutionally disqualified from holding the presidency or appearing on presidential ballots due to the provisions of Section 3 of the 14th Amendment. Courts in Michigan, Minnesota and Colorado have all declined to take Trump off ballots, but for differing reasons — most surprisingly, a trial court in Colorado found Trump did engage in insurrection, but also found that Section 3 does not disqualify him because the president is not an “officer of the United States” within its meaning. It’s an odd ruling — one the Colorado Supreme Court will reconsider, with Trump also asking the state’s Supreme Court to reconsider the trial court’s finding that he engaged in insurrection at all.

Finally, Hunter Biden is daring House Republicans to invite him to testify in an open hearing. It’s a risky strategy — what if they say yes? — but it also advances Hunter’s argument that Republicans are using closed-door testimony so they can cherry-pick and distort the content of interviews. In his case, it seems like that ought to be less of a risk than with other witnesses, since he ought to invoke the Fifth Amendment in response to every question. But in any case, this is another example of Hunter’s aggressive, offense-on-defense approach to defending himself, with sometimes less-than-ideal collateral political consequences for his father.

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