Dear listeners,
It’s a new year and we’re back with more Serious Trouble.
This week, Ken and I discuss the ongoing appeal in the DC Circuit Court of Appeals, where Donald Trump argues he is presidentially immune from trial over his actions that led up to the January 6 riot. This appeal has paused the clock on the criminal case, but probably not for much longer — the appeals court is moving the appeal very fast, and it’s unclear the Supreme Court will have any interest in reviewing their decision. The case may be back in Judge Tanya Chutkan’s hands by the beginning of February.
We also talk about a Rolling Stone story about Trump’s intentions to turn this trial into a freak show, full of arguments about the Deep State and how Nancy Pelosi really did January 6. It’s fine to want things, but Judge Chutkan is unlikely to let him do very much of what’s on this wish list — especially bringing cameras into the federal courtroom, which simply isn’t done. Still, in an echo of what’s happened in Arthur Engoron’s courtroom, Trump will be able to make motions that get denied and then complain about that fact in the media.
Sam Bankman-Fried won’t be tried on a set of criminal charges that were left out of his first trial. The dropped charges relate to ancillary acts to the core FTX fraud — things like making illegal campaign contributions and bribing foreign officials — and they weren’t charged in the first case because of legal matters that needed to be cleared up relating to the terms of SBF’s extradition from The Bahamas. Prosecutors have decided a second trial isn’t necessary — because they already introduced evidence about these uncharged acts at the first trial, Judge Lewis Kaplan can already consider the alleged acts when sentencing SBF, even though these specific charges against him haven’t been proven in court. Ken finds this rather unfair, in the abstract, but it’s hard for me to cry too much for Sam, who has been convicted of a multi-billion dollar fraud, after all.
Michael Cohen is not entitled to relief (beyond having already been let out of prison) for his claims that he was sent back to jail from house arrest, mid-COVID, because he annoyed the Trump Administration with his public comments about then-president Trump. It turns out, it’s very hard to sue the federal government for any kind of violation of your civil rights. Oh, and he’s probably not going to get sprung early from his still-ongoing supervised release, not after he used AI to come up with a list of fake cases to support his petition and then tried to blame his lawyer for not checking his work.
And University of Wisconsin-La Crosse chancellor Joe Gow has been fired for his side job: running an OnlyFans website with his wife. Gow says this firing violates his First Amendment rights, but as Ken explains, those rights are limited when you’re a government employee whose extracurricular speech could significantly impair your ability to do your job, which seems to be plausibly the case here. Plus, porn is not considered speech on a matter of public concern, so it gets less protection from the courts than some other speech might in this context. Ken and I discuss how this specific porn might be more connected to social concerns than usual — it seems to include messaging that promotes vegan diets? — but that old saw, qualified immunity, will make it hard for Gow to get any relief on a “but I was promoting veganism!” basis.
We hope you enjoy the episode,
Josh
Click here for a transcript of this episode.
Episode links and references:
Trump’s appeal on the subject of presidential immunity, the DOJ answer, and Trump’s reply to DOJ
Rolling Stone: “Inside the Trump Plot To Turn His Jan. 6 Trial Into A ‘MAGA Freak Show’”
SDNY letter informing Judge Lewis Kaplan of the government’s intention to drop further charges against Sam Bankman-Fried
2nd Circuit decision denying Michael Cohen the ability to sue for further relief related to his detainment in 2020
The First Amendment Rights of Vegans