Serious Trouble
Serious Trouble
SPECIAL EXTRA EPISODE: 'They're Not Here to Hurt Me'
SPECIAL EXTRA EPISODE: 'They're Not Here to Hurt Me'
Josh and Ken provide a brief update on an unscheduled hearing with new allegations against former president Trump.

Dear listeners,

Surprise! This is an extra, unscheduled episode of Serious Trouble, about some breaking news in investigations related to the January 6 riot — a federal search of attorney John Eastman’s electronic devices, and a unexpectedly scheduled hearing with testimony from Cassidy Hutchinson, a former aide to Trump’s White House chief of staff, Mark Meadows. (We said we’d do at least 40 episodes a year, but that’s a floor, not a ceiling!)

This episode is a follow-up to a full-length episode we released on Monday, discussing other January 6-related developments, including a search of the home of Jeffrey Clark, a Justice Department official whom Trump nearly named Acting Attorney General, as part of a hare-brained scheme to replace Georgia’s Biden-voting elector slate with one that would support Trump. In that episode, we talked about some sick burns, and more importantly, we talked about how Ken has upgraded his view of the likelihood that Trump might be personally indicted as a result of these investigations — it’s still more likely than not Trump won’t be indicted, Ken thinks, but the odds have moved out of “unlikely” territory into the “plausible” realm.

Did you not get Monday’s episode? That’s because you’re not a premium subscriber ...yet. While today’s mini-episode is free, you can get Monday’s full-length episode by hitting the “subscribe” button below. (If you are a premium subscriber and didn’t get Monday’s episode in your podcast feed, email and we’ll help you out.)

But as for today’s don’t-call-it-an-emergency-podcast: We focused on the most notable claim Hutchinson made — that Trump urged the removal of magnetometers (“mags” or metal detectors) for attendees at his January 6 rally at the Ellipse, near the White House, that preceded the Capitol riot. She said Trump understood the Ellipse wasn’t filling because many potential attendees were armed and did not wish to be screened — which didn’t faze Trump, who intended to urge those attendees to march on the Capitol, because “they’re not here to hurt me.”

Ken says this evidence that Trump knew and was unfazed by the fact that the protesters were armed might actually help clear the very high bar you’d need to exceed if you wanted to prove in court that Trump’s speech constituted illegal incitement: that is, you’d have to prove his statements were intended and likely to cause imminent, lawless action. But we also discuss some prudential reasons why you might not want to charge incitement: Prosecutors have other available charges, like obstruction of an official proceeding, that don’t require prosecutors to contend a political speech by a sitting president was a crime rather than protected First Amendment activity.

We also talk about what’s hearsay and what isn’t, since a major complaint from Republicans has been that today’s hearing is all about hearsay. Well, congressional hearings have no hearsay rule. Even in a criminal trial, Hutchinson’s testimony about what Trump said in her presence wouldn’t be hearsay, so long as Trump was the defendant — a defendant’s statements are definitionally not hearsay. But another story Hutchinson recounted, about what another White House official told her happened in the presidential limo when Trump was told he couldn’t go to the Capitol after all and he got very upset? That would be hearsay — you’d need testimony from the people who were actually present for the incident if you wanted to get it into evidence.

We hope you enjoy the episode. We make these episodes with your support, and your input too. So in addition to encouraging you to become a full subscriber, we encourage you to tell us what you think, in the comments section below, or by emailing us, or (we suppose) by yelling at us on Twitter.

Finally, here’s a transcript of the episode.

Josh and Ken

Serious Trouble

Serious Trouble

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

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Appears in episode

Josh Barro
Ken White