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.
I was always fond of the theme music of Ken's (defunct?) first amendment podcast, "Make No Law", mostly because it was illegal under an unenforceable Massachusetts law that criminalizes adapting the Star Spangled Banner into other musical compositions. Perfect for a 1A podcast (even if Ken claims he didn't do this on purpose)!
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.
Thanks, missed that. Looks like the en banc reversed because the trial judge resolved disputed factual issues at the motion to dismiss stage — not saying he wasn’t immune but saying needed to resolve disputed facts after a proper hearing.
If he'll come down here (GA), I'll be glad to work for his election. I have the odious Andrew Clyde, the guy that puts AR-15's on his campaign signs (he sells them too).
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!
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!
Came here to ask this - what is the opinion on her citing the Hatch Act in this context? It seemed clever to me, especially given how meh her initial filings were. If you’re doing political stuff it can’t be under color of law or authority or you violate the Act. So she seems to be making them choose their poison
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?
In my view, definitely not, because the constitution defines the President’s pardon power as for “crimes against the United States.” even removed these are Georgia criminal violations.
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?
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).
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.
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.
What is the time window for Trump (or any of the other defendants) to file for removal? I'm wondering because there seem to be two competing sets of interests they might have, and I don't recall you discussing their interplay in the podcast. One is the reasons you considered for wanting to move the trial from state court to federal court. But, as today's evidentiary hearing on Meadows' motion is showing, and as Ken mentioned, the defendant's very act of filing for removal can trigger a sort of mini-trial that brings up all sorts of facts that shine a less-than-flattering light on the defendant. The sort of things that someone running for office (or otherwise trying to get on with their life) might not want on the front page.
Maybe Trump is primarily concerned about delaying a final judgment, not any revelations along the way, so the prospect of a federal evidentiary hearing doesn't concern him. But if he wanted to wait to file for removal, for whatever reason, how long can he wait to do so? Is there some clear milestone in the state proceedings, e.g., selection of jurors, that shuts the door to removal? And are there any advantages to the defendant in waiting to move for removal, other than avoiding the mini-spectacle of an evidentiary hearing?
Still the best theme music in the history of law podcasts on substack.
Yeah, it's pretty damn good. It's quickly become etched into my mind like the NPR morning edition intro music.
I think that every time I start a new episode.
I was always fond of the theme music of Ken's (defunct?) first amendment podcast, "Make No Law", mostly because it was illegal under an unenforceable Massachusetts law that criminalizes adapting the Star Spangled Banner into other musical compositions. Perfect for a 1A podcast (even if Ken claims he didn't do this on purpose)!
It makes me feel calm.
And Naomi Rao is on the DC circuit, not the 11th Circuit. The 11th circuit panel was Pryor, Grant and Brasher.
Yes, we’ll correct next week
Maybe there will be a new Trump indictment tomorrow and you can correct it Friday.
From your keyboard to some powerful deity's own newsfeed.
THIS comment cracked me up.
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.
Thanks, missed that. Looks like the en banc reversed because the trial judge resolved disputed factual issues at the motion to dismiss stage — not saying he wasn’t immune but saying needed to resolve disputed facts after a proper hearing.
For a *very reasonable fee* I would be willing to hold Mr. Barro up as a Congressman, should that be needed.
If he'll come down here (GA), I'll be glad to work for his election. I have the odious Andrew Clyde, the guy that puts AR-15's on his campaign signs (he sells them too).
Oh great. We have a county commissioner who had a big firearms store. Luckily no firearms on any of his yard signs.
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?
Por qué no los dos?
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!
Bob
Came here to ask this - what is the opinion on her citing the Hatch Act in this context? It seemed clever to me, especially given how meh her initial filings were. If you’re doing political stuff it can’t be under color of law or authority or you violate the Act. So she seems to be making them choose their poison
Yes, that was the point I was trying to make a couple of days ago
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?
In my view, definitely not, because the constitution defines the President’s pardon power as for “crimes against the United States.” even removed these are Georgia criminal violations.
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.
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!
What is the time window for Trump (or any of the other defendants) to file for removal? I'm wondering because there seem to be two competing sets of interests they might have, and I don't recall you discussing their interplay in the podcast. One is the reasons you considered for wanting to move the trial from state court to federal court. But, as today's evidentiary hearing on Meadows' motion is showing, and as Ken mentioned, the defendant's very act of filing for removal can trigger a sort of mini-trial that brings up all sorts of facts that shine a less-than-flattering light on the defendant. The sort of things that someone running for office (or otherwise trying to get on with their life) might not want on the front page.
Maybe Trump is primarily concerned about delaying a final judgment, not any revelations along the way, so the prospect of a federal evidentiary hearing doesn't concern him. But if he wanted to wait to file for removal, for whatever reason, how long can he wait to do so? Is there some clear milestone in the state proceedings, e.g., selection of jurors, that shuts the door to removal? And are there any advantages to the defendant in waiting to move for removal, other than avoiding the mini-spectacle of an evidentiary hearing?