May 17, 2023Liked by Ken White

An episode on the Durham report would be interesting

Expand full comment

If next week’s episode isn’t titled “Rudy for the Defense”, I will seriously consider canceling my subscription

Expand full comment

Just crying out for a sound clip of the Notre Dame crowd chanting "Ru-dy! Ru-dy! Ru-dy!"

Expand full comment

Well, Rudy is certainly going to do this defense the same way he's been doing law and politics for the last few years...badly and colorfully.*

*I personally believe this is a statement of fact, but it is, in actuality, only my opinion. ;)

Expand full comment
May 20, 2023·edited May 20, 2023

Today was sure great fun in Rudy-land...

stiffing his attorney til he dumped him as a client;

claiming the inquiry into resources is persecution of "Trump's attorney" - which I believe at this point, he is neither;

refusing to talk about his settlement with his ex (Noelle may have some insight into that that his ex might be interested in as well);

whining about persecution, free of the irony that that's what he did to the election workers;

discovering that a pat on the back isn't being shot...

He seems to be mizzling and grizzling towards a default judgment?

Expand full comment

I cannot imagine a court/jury finding a media outlet liable for defamation for stating that "Notwithstanding the jury verdict that he was liable for the sexual abuse and defamation of E. Jean Carroll, Donald Trump continues to insist that he never met the woman and that the jury's verdict was wrong."

I can imagine a court/jury finding a media outlet liable for defamation for allowing the former President (or one of his defenders) to assert that he never met Ms. Carroll and that she was lying about the sexual assault, without mentioning that the jury found to the contrary.

This is, in my opinion, NOT an abridgement of the First Amendment. As Ken said, we rely upon court cases to resolve issues. The verdict is the TRUTH (hence, the word "verdict"), whether or not an omnipotent & omniscient being would agree with it.

Expand full comment
May 23, 2023·edited May 23, 2023

With regards to you last point: the problem some of us non-lawyers are having a tough time wrapping our minds around is that the legal standard in this case seems to literally be to determine if the claim is more probable than not that it's true. That's a weird thing to assign TRUTH in all-capital-letters to.

I don't think there are many areas of life in which "Yes, definitely" and "Probably" are considered interchangeable.

Expand full comment

Here is a sports analogy for you (which I understand is gendered, but it is the best that I can do). Imagine a pitch in baseball that is thrown on the outside corner that is called a strike by the umpire. It is possible that the pitch was, in fact, off of the outside corner and would have been called a "ball" by an electronic strike zone. Nevertheless, the pitch is a "strike" for all purposes in the rest of the at-bat, inning and game.

It is the same thing with a jury verdict. Unless overturned on appeal, the "verdict" of the jury becomes the TRUTH (the word verdict comes from two words "veritas" (truth) and "dictum" (saying)). It does not matter whether an omnipotent, omniscient being would have reached an opposite decision.

Courts are "dispute resolution" facilities. Finality is a key feature of the process. Once a jury has passed on a question, the litigants in that case will be bound by that verdict.

Expand full comment

OK, but what about a non-party to the litigation? I think the most confounding part of this is the question of whether CNN, or any other person that might comment on the matter, could be recklessly disregarding the truth if they look away from the jury verdict.

Expand full comment

A non-party is not bound by the verdict, but the verdict certainly would play a meaningful part in assessing the non-party's potential liability for defamation, if the non-party elected to make public comment on whether Donald Trump sexually assaulted E. Jean Carroll.

1. The safest course is to say nothing, and not to allow guests to comment on the topic. This is what a very conservative (small "c") defamation attorney would tell the third party ("TPN").

2. It also would likely be safe for TPN to broadcast a piece that provided a reasoned analysis of "why the jury got it wrong." It could include things like, (a) attacks on the evidentiary rulings of Judge Kaplan, (b) assessments of the unlikelihood that E. Jean Carroll (and the two witnesses to whom she made contemporaneous complaint) could not recall the day, date, week, month or year of the assault, or (c) Carroll's jokes and comments about Trump and The Apprentice in the years that followed.

3. It also would likely be safe for TPN to allow a figure to come on and make a broadside attack on the verdict, so long as TPN provided context along the lines of "To be sure, the jury heard all of the evidence in the case and it took less than 3 hours for them to find that Trump sexually assaulted E. Jean Carroll." This would bear some risk.

4. The real risk would be if TPN brought on a guest whom they knew would contend that the assault never happened, ask that guest to discuss the verdict, and provided no context. The guest certainly would be exposed to a defamation claim. TPN likely would be exposed, as well. If the guest gratuitously inserted the assertion that Trump did not sexually assault Carroll into an unrelated question, that would mitigate the risk. (Example: "Q: Congressman X, please tell us what is going on with the debt limit negotiations. A: The whole thing is nothing but a hoax, just like E. Jean Carroll claiming that Donald Trump sexually assaulted her.") Even there, it would be prudent for TPN to immediately append the "to be sure, the jury found him liable" mantra.

Expand full comment

(First - not really a gendered example. Lots of women play softball/watch baseball.)

I think the analogy is roughly fitting. Take a more extreme example -- if one is watching a game and sees the ref/umpire *obviously* get it wrong, well, for the purposes of the rules of the game, it doesn't matter. The ump/ref has the final say, and he has to - finality is indeed part of the process.

Now, it might have obviously been a ball to 99% of the viewers at home, but he says it's a strike, and so it's a strike, in the "technically correct is the best kind of correct" sense. But in no other, and I wager one might risk life and limb (or at least getting a beer poured over your head) if you insist to everyone else watching the game "No, that was definitely a strike, because the ump said so."

The analogy breaks down a bit for me when we move to Real Life instead of a game, as the stakes get much higher, and we start throwing around TRUTH in capital letters in a way that you aren't going to see much in baseball games. I understand we need finality to resolve a given dispute between two parties. I don't understand why we need it so badly for everyone inviting comment on that dispute.

It sounds like even though, in virtually every aspect of life, no one confuses "probably" with "definitely", from a legal point of view, the implications of a jury's verdict (like an ump's) doesn't differentiate between them. And woe betides the party who ignores that fact, because that finding can go beyond simply resolving that given dispute.

Thanks for your thoughts on this -- it's clear to me that your and Ken's take is obviously legally correct, but I hope you can appreciate that to a non-lawyer, some of these implications seem weird.

Expand full comment

Ken and Josh,

I find it disconcerting that someone who just received a guilty verdict from a jury for defamation along with a major dollar judgment, can then start spouting further defamation about the litigant, who then has little redress in gaining a further monetary judgment.

If that is so, it is obvious why Trump wouldn't give a damn and just keep on spouting on.

Expand full comment

Josh seemed like he was in a combative mood this recording; been a while since we've seen him offer this much pushback. Not complaining!

Expand full comment

I'm complaining. He went on and on, never giving Ken a chance to talk.

Expand full comment

So I was curious about this: Did Josh speak more than Ken? Did he speak more often than normal?

Answers: He did not speak more than Ken, but he did speak more often than usual.

I went over the transcripts to get some numbers. Here, by word count, is what I came back with. I'm probably a bit off on this but won't be too far off. Of note is the episode Tucker Said It, where Josh actually spoke more than Ken. So overall, while I agree Josh spoke more than usual, I don't think he spoke more than would be expected nor was Ken shortchanged. However, I do think Josh interrupted Ken a surprising amount, and that was a little frustrating as Ken seemed unable to get into a groove.


Ken: 3582

Josh: 3525

At Least George Was Working

Ken: 3123

Josh: 2077

A Detailed Explanation of the Rule Against Perpetuities

Ken: 4534

Josh: 2941

Sara: 11

Scott (listener): 101

Mitch (Guest): 458

Tucker Said It

Ken: 3417

Josh: 3642

David Nimmer: 309

Expand full comment

They begin discussing CNN's liability for its town hall at 3:40. Josh starts in at 5:16 with that irrelevant phrase, "preponderance of the evidence" and babbles on for 44 seconds. He mentions that phrase again at 6:27. He mentions it for the third time at 7:07 and drones on this time for 90 seconds. Somewhere in between, Ken tells him that the jury verdict precludes Trump from arguing the issue in Carroll's next defamation suit, but has no application to CNN. Josh doesn't get it. Ken utters a lot of words, too, but his are more interesting.

Expand full comment

If you’d like to cancel your subscription, I’ll be happy to give you a pro-rated refund.

Expand full comment

Since you're not charging by the word yet, I'll stay. I really do like the show.

Expand full comment

Oh, maybe they should charge for the podcast by the word!

Expand full comment

Gracious, I'd lose a lot of money that way.

Expand full comment

So, Josh, is the jury verdict based on a preponderance of evidence? I didn't quite get that. :)

It strikes me after this discussion that Carroll's best move might be to go for some form of restraining order rather than relitigating. That puts it on the courts to actually enforce it. If nothing else, that kind of literal slow-motion train crash might be fun to watch.

"Unpedigreed dogs." ROTFLMAO.

My biggest question about the Giuliani lawsuit came from somebody still on Twitter: Does being fellated by a third party negate attorney-client privilege?

Expand full comment

Yes. In civil cases, the burden of proof for the plaintiff is preponderance of the evidence, which means "more likely than not."

Expand full comment
May 19, 2023·edited May 20, 2023

I kept waiting for Josh to get tired of repeating, "the jury said." This isn't a medieval trial by fire, to be decided by God. Ken finally said that it's a settled factual issue in future lawsuits between Trump and Carroll, and that should have been the end of the discussion.

Expand full comment

I don't understand something about the (I know, remote) possibility of CNN being sued. When Tucker Carlson and Fox were sued, Tucker was saying bullshit a. night after night and b. as an employee of Fox and on their behalf.

Trump said this thing on a TownHall that was Live. When Ken and Josh talked about that tonight, it sounded like they were saying "Well, obviously, CNN should have predicted that he would say exactly what he did." In retrospect, sure it's easy to say that. Really anytime Trump says something insane, it seems obvious in retrospect that he would say it. But it seems weird for any responsibility for any lie of Trump's to shift to CNN on the basis of "obviously if you ask him this question, he will answer it slanderously."

That seems so odd that I feel like I must have misunderstood. Where am I confused?

Expand full comment

While I generally find Josh's contrarian takes annoying (e.g., the 'doesn't this obviously exceptional case with Mike Lindell show that arbitration is actually a great thing for the little guy?' bit from last episode) I have to say that I felt his pain here. It just seems odd that a jury finding that Trump *probably* was guilty of sexual abuse means that the law takes it as "proving" that he committed sexual abuse, to at least some extent that must be recognized by not just Trump, but third parties, at risk of legal problems. At least, I believe that was the language Ken used. Maybe it's the mathematician in me, but that just seems really weird.

I mean, what if they had found the opposite -- that Trump had probably not committed sexual abuse? Would Jean Carroll be forbidden from saying that he did, or would CNN interviewing her about it, knowing what she would claim, put them at legal risk in some way? That seems extremely unlikely, but I don't know the legal difference, other than obviously she brought the suit against him initially.

I know that in a criminal trial, it's not guilty vs innocent, it's guilty vs not-guilty, but I thought that was because of the higher burden of proof. If this is literally "probably did it vs probably not" and it counts as a determination of fact to some degree, it seems it'd be more symmetric. I'm sure I'm missing some subtlety in exactly what "preponderance of the evidence" means, though, and it's more like "probably did it vs probably didn't *or* we just have no idea"

Expand full comment

This episode seems to have generated more than usual reactions of, “the law says what?” And, “why is the law ambiguous on this?”

I wonder if we have trod into territory that should be familiar to Trump observers: the reaction of a normal person would be different. Most people would at least shut up while they licked their wounds. most people wouldn’t ask for or be given the platform to be quite so loud in response to the verdict.and wouldn’t have been able to easily access such a platform either.

Expand full comment

I loved the flourish that the dogs eating your children wouldn't have a pedigree.

Expand full comment

I don’t blame you for delaying the Giuliani suit. It’s noteworthy but disgusting.

Expand full comment
May 17, 2023·edited May 17, 2023

If a network ended each of it's shows with an insult against a particular person, could that person have legal recourse? i.e. at the top of every hour they broadcast "Bob Jones of Nowhereville Indiana is a dumbass." It wouldn't be defamation as it doesn't involve a statement of fact. Could Bob sue for harassment? Would it change the legality if Bob was a public figure? If there was some news story about Bob?

Just curious if there are other types of lawsuits that could arise from publicly attacking a person while not technically defaming them, since we mostly seem to hear about defamation suits on these big cases.

Expand full comment

Lousy example. I know Bob, it's absolutely a statement of fact. I'm honestly a little surprised it hasn't happened yet.

Expand full comment

oooh or a podcast! (no, not advocating for it, just feeling mischievious). I do love this podcast, it's a great learning opportunity and a good tool towards understanding the wildebeast charge that is legal news these days.

Expand full comment

I usually love this show and hurriedly listen to it. I play it when it first airs and then, disappointed that I don’t have a new episode to listen to, listen to it twice. This week’s episode stuck in my craw. At first it just seemed like Josh was pushing back against Ken unnecessarily. Then it dawned on me: Josh was yet another person who did not believe a woman when she says she was raped. This show and Josh know better and perform better.

Expand full comment

Some fodder today for the podcast: "Standing silent" and not entering a plea. How much of a thing is this? Is there an element of legal strategy or is it more about (for want of a better term) PR?


Expand full comment

I'm not a criminal law expert, but "standing silent" has been around for a long, long time as an option. Rarely used today, but can arguably be helpful in preserving all potential strategies going forward.

Expand full comment

Oh hey can you guys talk a whole lot about Devin Nunes and his cow while discussing the new Truth Social lawsuit against the WaPo?

Expand full comment

ditto. haven't looked into a-biss for a while!

Expand full comment

Since E Jean Carroll was only awarded $20,000 in punitive damages. If she sues again, for trumps continued defamation. Could she ask a court to increase the punitive damages from the previous case, as it has clearly not had any preventative effect?

Expand full comment