Listen now (53 mins) | Some Georgia RICO defendants want to be tried in federal court; Rudy Giuliani is struggling with the high cost of e-discovery; Hunter Biden's lawyer threatened to put his father on the stand.
Still the best theme music in the history of law podcasts on substack.
And Naomi Rao is on the DC circuit, not the 11th Circuit. The 11th circuit panel was Pryor, Grant and Brasher.
Horuchi lost his claim for Neagle immunity en banc. Idaho ending up dropping the prosecution because the federal process had dragged on for nine years, but the last word on it from the Ninth Circuit before the case was vacated as moot was no immunity.
For a *very reasonable fee* I would be willing to hold Mr. Barro up as a Congressman, should that be needed.
As mentioned under the “ this is RiCO” episode today I asked for a correction of a profile of Fanni Willis in a newspaper
In the Netherlands based on your podcast with Andrea Fleischman. They stated that Trump was guaranteed prison time if convicted in Georgia under the RICO statute. By way of update: not only did the paper change the wording (striking out the word “guaranteed”), I also got a nice email from the journalist that wrote the profile. So you’re making waves around the world!
18 confederates or 18 Confederates?
In the time since this podcast was posted, Willis has filed her application to have the removals ended. Not only did she cite the Hatch Act, which no authority had earlier mentioned (indeed, MSNBC's Lawrence O'Donnell admitted it hadn't occurred to him), but my point in commenting on an earlier post, that engaging in a conspiracy to subvert the election was not one of the official duties of the office of the President, was raised.
People are paying attention to what is being said here!
Ken, for why they may want to remove to federal court: beyond the complexity issues you brought up, does removing it to federal court also make the crime available for a future GOP President to pardon?
There’s been a lot of traffic the last few days abut how the Hatch Act and Meadows’ insistence that everything he did was core “political” behaviour are fatal to his case for removal to Federal court. I’d like to hear some discussion of that if it fits into your plans.
How does splitting the trial affect the non-kingpin defendants? For Sidney Powell or John Eastman, how do the prosecutors stress the seriousness of the conspiracy when they don't have the kingpins present? Do the prosecutors have to provide all the same evidence and highlight the overall seriousness, just without the other defendants not able to testify? Does the split trial make it easier for the non-kingpins to argue they weren't that involved in the big conspiracy?
Good explainer of removal.
I still think Meadows is likely to obtain removal. In 2011, Congress amended 28 U.S.C. § 1442(a) by replacing the phrase "capacity for" and with "capacity, for or relating to." There is a circuit split on whether this change broadened the scope of removal, and the Eleventh Circuit interprets the phrase “relating to” broadly, “requir[ing] only a causal ‘connection' or ‘association' between the act in question and the federal office,” a standard that is “quite low.” Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 1144 (11th Cir. 2017).
Georgia v. Heinze is a recent case which provides an illustrative example of how § 1442(a) removal is analyzed in the N.D. Ga. 1: 21-cv-04457-VMC (N.D. Ga. Oct. 25, 2022).
We asked for a primer on removal in the comments on one of last week's shows, and you provided it. Thanks for being so responsive!
I have now read the deposition of Donald Trump regarding the NY case and I am curious why the 'Worthless Clause' that Trump refers to (Page 68 / line 22) doesn't negate any reporting in the tax documents. I cannot see the underlying documents that are being referred to in the deposition so forgive me if this is common knowledge. It's all rather confusing. As a businesswoman who has been involved in multimillion dollar transactions I have never seen a 'worthless clause' and i am assuming that at the end of these documents the standard 'i swear that the foregoing statements are true' clause would be ahead of Donald Trump's signature. Am I missing something standard in these kinds of tax or real estate documents? Is Donald Trump correct that the 'worthless clause' means that he and his team could put whatever numbers they want in documents and turn those statements over to the bank and state.
And if so - can you please share the wording of the 'worthless clause' before we have to file our annual taxes? Best - shannon gaulding
Question for next podcast: please explain the Mark Meadows strategy he is attempting to use in the Georgia case. I’m having a dickens of a time understanding it.
I’m reading on Twitter tonight about how Mark Meadows took the stand in his hearing arguing for removal — isn’t this a terrible idea? How can removal be worth the cost of testifying at length about the conduct that got you in trouble?
KW/JB: So Judge Chutkan just set a March 4, 2024 trial date. Now comes Robert Katzberg (https://slate.com/news-and-politics/2023/08/trump-will-lose-march-dc-trial.html): "Trump's March Trial Date . . . Is Not Budging . . .": "I can report that there is nothing more sacred to a federal judge than his or her courtroom calendar. Absent unusual elements that do not exist in this case, the date selected by Judge Chutkan will be changed only if she says so."
The core argument is just that it will be up to Judge Chutkan's discretion, so "if she says so" is doing the real work, but Katzberg spends the back half of the article vividly imagining a future in which the trial actually happens six months from now. All in all, do you think a March 4 trial date is even remotely likely to stick? In my own professional experience (which, granted, is exclusively civil in nature), federal trials are delayed all the freaking time.
Thanks for the podcast!