Surprising evidence will be admitted in E. Jean Carroll's defamation lawsuit against Donald Trump; a surprising offense may be Trump's first indictment; Trump may have to sit for another deposition.
Obviously I love this podcast (and ATPL before it) for it's crystal clarity about complex legal issues and for Josh and Ken's hard-headed realism about the prospects for a given legal outcome, instead of the confused wishcasting you get from so many other outlets.
But I'm also here for the jokes. And it is insanely funny to me that the culmination of the podcast's long-running gag of being perfectly poorly timed with major legal developments is Ken going on his first vacation ON THE WEEK DONALD TRUMP MIGHT GET ARRESTED. Just the funniest damn thing.
(Thanks for all the work you all put into this, Josh, Ken, and Sara. It's truly a treat. So much so that we don't resent Ken for his vacation at all.)
Mar 15, 2023·edited Mar 15, 2023Liked by Josh Barro
Obviously this is an instance of political fallout happening, but the main way I see a failed Bragg prosecution interfering with the other, more substantive investigations is that it would give cover for a pardon from a hypothetical President DeSantis that oops's any attempt to prosecute over the coup attempt(s) or the stolen documents. In other words, it could act as a Steele dossier / Carter Page warrant to the other investigations' "Russia if you're listening" substantive inquiry.
Ken, in listening to the E Jean Carroll propensity evidence segment, I wondered if the type of evidence mattered at all in a ruling of this kind. The testimony of the other assault victims is trial evidence from non-parties, but the Access Hollywood tape is a set of recorded statements by the defendant himself. Does that make a difference? Does the AH tape come under some kind of “statement of party opponent” category that makes it more admissible? I know that is a hearsay exception but can statements by the former Prez avoid a propensity evidence challenge because, well, he said them? Thanks for such a great show!
But Ken, couldn't you post pics of your vacation, and all the fun? No commentary, no politics or law, just fun! I'll be checking over at Post.news and Mastodon. Have a great time.
Let's hope this doesn't turn into a Matt Levine thing where whenever Ken plans a vacation all hell immediately breaks loose in his field of commentary. Actually, if I'm being honest, let's *mostly* hope this.
Once again, Ken and Josh have validated their awesome superpower of actually causing news events to happen.
This power has been statistically validated all the way back the ATPL days and the most recent example is a doozy - they air the show and then Trump gets indicted. (For some reason the spell check on my iPhone tried to put 'floozy' in that sentence instead. Maybe it's becoming sentient.)
Correlation, smorrelation, the boys got the power. If only Trump's attornies had been listening to this week's show, they wouldn't have been caught off guard with the announcement as has been widely reported. I'm sure they could even bill the listening time.
And if only Trump would listen too, he would know to keep his trap shut like Ken says all defendants should. Okay, maybe that's expecting too much.
Ken and Josh - Please keep using your powers for good!
I would really appreciate it if you would, at some point, in some forum, at your pleasure, give us a simple example of evidence that would be properly excluded by a federal judge, under rule 403 of the Rules of Evidence, based on the presumption it would "confuse the issues"? Thank you.
Hey Ken/Josh, since this week will be painfully slow and boring and bereft of any newsworthy legal discussion, can you guys fill the gap with a discussion on how Disney absolutely bamboozled DeSantis et al on the Reedy Creek board?
Would you please comment on the exchange of letters between Jim Jordan and other top House Republicans on one side and Alvin Bragg on the other, re a Congressional investigation of the Manhattan DA's investigation of Donald Trump. Specifically, I understand and am sympathetic to Bragg's arguments in his reply to the first letter. And I'm curious about the question Jennifer Rubin asks and answers: "Would there ever be a time to bring a local prosecutor into testify under oath to Congress? Certainly, but not on a pending matter and not on an issue of state law." https://www.washingtonpost.com/opinions/2023/03/27/jim-jordan-bragg-abuse/
It seems to me, on a non-legal, intuitive level, that Rubin goes too far when she concludes, "It doesn’t matter if Jordan and his cohorts actually believe Bragg is abusing his office. It doesn’t matter if Bragg actually were using poor judgment in exercise of his prosecutorial discretion. It is not Congress’s job to “fix” these things."
I mean, wouldn't it be within Congress's purview to enshrine in statute the Office of Legal Counsel's opinion that sitting Presidents are not subject to federal indictment, for example? If so, could Congress use the Supremacy Clause of the Constitution to include protection from state and local prosecutors? Yes, Trump is not a sitting president, but the question is about Congress investigating state and local law enforcement investigations. If Congress were to consider such legislation, surely they would find it helpful to establish a record of the extent to which investigations by state and local prosecutors have interfered with the work of sitting Presidents.
And what if some Federalist Society cabal of local and state prosecutors decide they’re automatically going to conduct endless investigations of all Democratic Presidents, as soon as the Presidents leave office, thus creating a new personal and financial cost for serving as POTUS? Sort of a state and local equivalent of the Benghazi committees’ treatment of Hillary Clinton, but for ex-Presidents. Must Congress stand aside and do nothing? At the very least, Congress has the power to increase the appropriation for ex-Presidents, which could help cover some legal costs. Maybe Congress could order the Department of Justice to defend ex-Presidents against certain classes of frivolous charges? Or maybe the end result isn't a law that provides _special_ protection to ex-Presidents, but the prospect of such investigative barrages against ex-Presidents could lead Congress to pass a federal anti-SLAPP law that would apply to everyone. In all these cases, it seems that it would serve a legitimate legislative purpose for Congress to investigate some (completed, I suppose) local or state law enforcement investigation and establish a record of what has happened, yes?
What can you tell us about precedent for Congress investigating local and/or state prosecutorial decisions, and if so, what has been deemed the legitimate legislative purpose behind the investigations? Here are a couple possibilities that come to mind: Is federal civil rights legislation, like the 2022 Emmett Till Antilynching Act, built on findings that state and local prosecutions of murderers were inadequate? Or conversely, is other federal legislation built on Congressional findings that state and local prosecutors routinely prosecuted people like Freedom Riders for legal activities like refusing to obey segregation orders on interstate transportation?
It sounds pretty clear to me that Josh still enjoys asking Ken to read out your contact email.
Obviously I love this podcast (and ATPL before it) for it's crystal clarity about complex legal issues and for Josh and Ken's hard-headed realism about the prospects for a given legal outcome, instead of the confused wishcasting you get from so many other outlets.
But I'm also here for the jokes. And it is insanely funny to me that the culmination of the podcast's long-running gag of being perfectly poorly timed with major legal developments is Ken going on his first vacation ON THE WEEK DONALD TRUMP MIGHT GET ARRESTED. Just the funniest damn thing.
(Thanks for all the work you all put into this, Josh, Ken, and Sara. It's truly a treat. So much so that we don't resent Ken for his vacation at all.)
Obviously this is an instance of political fallout happening, but the main way I see a failed Bragg prosecution interfering with the other, more substantive investigations is that it would give cover for a pardon from a hypothetical President DeSantis that oops's any attempt to prosecute over the coup attempt(s) or the stolen documents. In other words, it could act as a Steele dossier / Carter Page warrant to the other investigations' "Russia if you're listening" substantive inquiry.
Ken, in listening to the E Jean Carroll propensity evidence segment, I wondered if the type of evidence mattered at all in a ruling of this kind. The testimony of the other assault victims is trial evidence from non-parties, but the Access Hollywood tape is a set of recorded statements by the defendant himself. Does that make a difference? Does the AH tape come under some kind of “statement of party opponent” category that makes it more admissible? I know that is a hearsay exception but can statements by the former Prez avoid a propensity evidence challenge because, well, he said them? Thanks for such a great show!
But Ken, couldn't you post pics of your vacation, and all the fun? No commentary, no politics or law, just fun! I'll be checking over at Post.news and Mastodon. Have a great time.
Is this like a Munsingwear vacation? Or...
Vacation? Can we not get at least a hot take from Ken, pool side, tropical cocktail in hand, on whatever weird legal stuff happens this week?
Isn’t what John Edwards did and got indicted for the same thing that Trump did with Stormy Daniels
Let's hope this doesn't turn into a Matt Levine thing where whenever Ken plans a vacation all hell immediately breaks loose in his field of commentary. Actually, if I'm being honest, let's *mostly* hope this.
Looking forward to listening.
Once again, Ken and Josh have validated their awesome superpower of actually causing news events to happen.
This power has been statistically validated all the way back the ATPL days and the most recent example is a doozy - they air the show and then Trump gets indicted. (For some reason the spell check on my iPhone tried to put 'floozy' in that sentence instead. Maybe it's becoming sentient.)
Correlation, smorrelation, the boys got the power. If only Trump's attornies had been listening to this week's show, they wouldn't have been caught off guard with the announcement as has been widely reported. I'm sure they could even bill the listening time.
And if only Trump would listen too, he would know to keep his trap shut like Ken says all defendants should. Okay, maybe that's expecting too much.
Ken and Josh - Please keep using your powers for good!
I would really appreciate it if you would, at some point, in some forum, at your pleasure, give us a simple example of evidence that would be properly excluded by a federal judge, under rule 403 of the Rules of Evidence, based on the presumption it would "confuse the issues"? Thank you.
Hey Ken/Josh, since this week will be painfully slow and boring and bereft of any newsworthy legal discussion, can you guys fill the gap with a discussion on how Disney absolutely bamboozled DeSantis et al on the Reedy Creek board?
I'm just here to ask Ken when he's going to lawsplain Perpetuities.
Would you please comment on the exchange of letters between Jim Jordan and other top House Republicans on one side and Alvin Bragg on the other, re a Congressional investigation of the Manhattan DA's investigation of Donald Trump. Specifically, I understand and am sympathetic to Bragg's arguments in his reply to the first letter. And I'm curious about the question Jennifer Rubin asks and answers: "Would there ever be a time to bring a local prosecutor into testify under oath to Congress? Certainly, but not on a pending matter and not on an issue of state law." https://www.washingtonpost.com/opinions/2023/03/27/jim-jordan-bragg-abuse/
It seems to me, on a non-legal, intuitive level, that Rubin goes too far when she concludes, "It doesn’t matter if Jordan and his cohorts actually believe Bragg is abusing his office. It doesn’t matter if Bragg actually were using poor judgment in exercise of his prosecutorial discretion. It is not Congress’s job to “fix” these things."
I mean, wouldn't it be within Congress's purview to enshrine in statute the Office of Legal Counsel's opinion that sitting Presidents are not subject to federal indictment, for example? If so, could Congress use the Supremacy Clause of the Constitution to include protection from state and local prosecutors? Yes, Trump is not a sitting president, but the question is about Congress investigating state and local law enforcement investigations. If Congress were to consider such legislation, surely they would find it helpful to establish a record of the extent to which investigations by state and local prosecutors have interfered with the work of sitting Presidents.
And what if some Federalist Society cabal of local and state prosecutors decide they’re automatically going to conduct endless investigations of all Democratic Presidents, as soon as the Presidents leave office, thus creating a new personal and financial cost for serving as POTUS? Sort of a state and local equivalent of the Benghazi committees’ treatment of Hillary Clinton, but for ex-Presidents. Must Congress stand aside and do nothing? At the very least, Congress has the power to increase the appropriation for ex-Presidents, which could help cover some legal costs. Maybe Congress could order the Department of Justice to defend ex-Presidents against certain classes of frivolous charges? Or maybe the end result isn't a law that provides _special_ protection to ex-Presidents, but the prospect of such investigative barrages against ex-Presidents could lead Congress to pass a federal anti-SLAPP law that would apply to everyone. In all these cases, it seems that it would serve a legitimate legislative purpose for Congress to investigate some (completed, I suppose) local or state law enforcement investigation and establish a record of what has happened, yes?
What can you tell us about precedent for Congress investigating local and/or state prosecutorial decisions, and if so, what has been deemed the legitimate legislative purpose behind the investigations? Here are a couple possibilities that come to mind: Is federal civil rights legislation, like the 2022 Emmett Till Antilynching Act, built on findings that state and local prosecutions of murderers were inadequate? Or conversely, is other federal legislation built on Congressional findings that state and local prosecutors routinely prosecuted people like Freedom Riders for legal activities like refusing to obey segregation orders on interstate transportation?
Thanks!