Serious Trouble
Serious Trouble
Penal Colada

Penal Colada

Trump wants to try the DC case in the media; Judge Aileen Cannon is pushing back on prosecutors; a suspended Harvard psychology professor is suing colleagues for defamation.

Dear listeners,

We are back with more Serious Trouble. Since our last episode, there have been significant developments in both of Donald Trump’s federal criminal cases.

In Washington DC, his attorneys are fighting with prosecutors over the terms of a protective order that would restrict how Trump could publicize information obtained in discovery. Such protective orders are common and judges often rubber-stamp the government’s requests for them, even though Ken thinks they shouldn’t. A broader gag order — restricting not just Trump’s use of discovery materials but his commentary about the case more broadly — is less likely and would be subject to more constitutional scrutiny. On the other hand, Trump and his lawyers are doing everything they can on TV to discredit their own position.

Ken says people should stop holding their breath waiting for Trump to be detained before trial over his posts about Mike Pence — these posts have not been true threats, in the legal sense, and he has a First Amendment right to talk about arguments made against him, especially when they are made by a putative political opponent. But you should expect Judge Tanya Chutkan to rule fairly quickly on the protective order matter, as she’s showing an inclination to move this case along expeditiously.

Ken’s been writing about bad coverage of the Trump cases, and we discussed that too: clickbait-y stories about potential sentences and whether or not Jack Smith’s charges in D.C. violate established law. You won’t be surprised to hear that Ken is annoyed — possibly, agitated — over people misleading the public on how federal sentences work and misrepresenting arguments about what federal criminal law should be as statements of what it is. (By the way, here’s Ken’s response to National Review’s continued misrepresentation of the Conspiracy to Defraud the United States statute that Trump is charged with violating.)

In Florida, Judge Aileen Cannon denied prosecutors’ request to make certain filings under seal about an attorney’s alleged conflict of interest, and wants to know exactly how and why prosecutors are using an out-of-district grand jury — the one sitting in Washington DC — to investigate matters related to the prosecution before her in Florida. Her order is surely annoying to prosecutors, but Ken doesn’t think she’s done anything improper yet. The government is indeed supposed to explain why it wants to put documents under seal, and there are indeed rules that restrict how grand juries can be used in conjunction with cases that have already gone to indictment. Of course, the government may also have good answers to her fair questions, and we’ll see how she handles those good answers if she gets them.

And in Boston, there’s an academic scandal with a litigation angle. Harvard Business School has suspended Professor Francesca Gino and begun procedures to revoke her tenure, after finding the prominent social psychologist had published several papers based on fabricated data. The allegations of fabrication were brought to Harvard by three psychology professors at other institutions who write a blog about research integrity called Data Colada. Harvard conducted its own investigation that substantiated the allegations, announced the finding, barred Gino from campus, and sought retractions of several of her papers. Now, Gino is suing both Harvard and the professors behind Data Colada, arguing that they falsely and without basis accused her of research dishonesty.

At my (and your) behest, Ken took a dive into Gino’s complaint. A lot of the questions here are fact-intensive and require familiarity with statistical methods, which could give a jury a real headache if this case ever goes to trial. But some of the questions are purely legal — is Gino even alleging defamation, or were the statements that Data Colada made about her merely opinions based on disclosed facts? Ken thinks Gino’s complaint is solid enough to survive a motion to dismiss, but that winning at trial could be awfully difficult.

Our discussion of the proceedings in Washington are free for all listeners. Paid subscribers get our discussion of the Florida case and Judge Cannon, and of the Data Colada saga. Not a paid subscriber? Smash the button below to get the whole episode.

By the way, do we have any Georgia prosecutors or criminal defense attorneys in our audience who might like to talk about Georgia criminal procedure? No reason. Just curious. If so, please email us:

Thank you for listening,


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