Some people have been sending me, or commenting with, alternate takes on what happened with the Hunter Biden plea deal.
I’m not certain I am right on my take, which I view as only the most likely scenario. That’s in part because I believe my experience leads me to wield Occam’s Razor differently — I don’t think some of the scenarios proposed can be called the “simplest,” based on my experience with the system. But I could be wrong.
In judging other people’s takes, I respectfully invite you to consider (1) does the author have training and experience with the procedures at issue, (2) does the author insist that their interpretation is the only plausible one, (3) is the tone hysterical, and (4) does the conclusion align 100% with the priors of the author.
All I could think of when Josh asked about SBF’s parents having and being willing to assert control over him was the story Ken posted on Twitter some time ago about the two professors and their half-feral child with whom he was acquainted in college/law school. “Expressions of clinical fascination” at the child’s shitty behavior will never not make me laugh.
Me and my buddy were talking - does it seem like the Republican investigations into the FBI may be trying to lay the groundwork for an Exclusionary Rule/Fruit of the Poisonous Tree dismissal? As the interviews they used to apply for the warrant comes from the same FBI unit that was investigating the campaign finance/Russia collusion debacle. Knowing the Steele Dossier was rather bullshitish but still going forward. So if they can say that was a result of FBI overreach then they get Manafort that way, then he takes them to Mar-a-Lago. Any step broken in that process could break the investigatory chain.
I do understand there were different fact and evidence chains, but if it’s the same people doing the investigations (if I understand correctly) then when do they pass it off? As a matter of law? Because if they can argue the original “collusion” investigation was flawed and can draw a line to this one with same investigators, that may muddy the water a little bit. So if they’re original investigation is shown to be tainted (I’m not arguing it was but what if?) then when do the same investigators get a reset/reboot to a clean investigation?
I don’t think this will be particularly successful, mind, but I don’t think it’s insignificant either. It’ll especially play well politically.
But they have to do something to attack the fact collection IMO as the facts are pretty damning to him. My experience with attorneys as a LEO was they always attack the stop as a first move.
His only other argument as I see it is that there is no real codified “return documents with X amount of time” once requested by the National Archives. As a matter of criminal statute. They are supposed to notify NARA about any documents in a “timely manner to secure transfer” to NARA but with no definition of “timely.” So Trump may try and argue he was getting around to it in his definition of “timely.” Setting a definition ex post facto wouldn’t fly Constitutionally either.
Just spitballing here. Seeing what has a patina of respectability as a viable defense. Most likely I’m pissing in the wind though. There’s a reason I was a LEO and not a defense attorney. It’s not my general bent. I could also be off on some of my assumptions, as I understand it’s the same people investigating the documents case AND the “collusion” issue, which may not be the case. I couldn’t find anything specific one way or the other but have this idea somehow they are the same people
That’s not how the exclusionary rule works. First, it only works when the government violates YOUR rights — for instance, a bad search of YOUR house that yields evidence they use to get a warrant for something else. Second, it doesn’t work if the chain from the violation and the later action are too attenuated. Third, it’s not just about “flawed,” you need a specific violation of a specific right.
That’s right. Shit I knew that. Flawed is not the same as illegal or unconstitutional. A violation of agency policy or protocol doesn’t meet that standard. Although they may try the “foundation of the warrant request originally was done in bad faith as they knew the intel was bullshit”. But if I’m reading you correctly because of the separation here it doesn’t attach? I know this case has completely different evidence streams but I didn’t know if there would be any spillover
Thanks for answering. We were trying to come up with any kind of defense we amateurs could. All my experience legally in court is in self defense matters/use of force and in immigration issues so this is novel to me
Quick Correction: Greek heroes generally didn't learn to stop taunting the gods. Instead, they wound up A) Dead or B) Blind, disgraced, exiled in the wilderness etc.
Pretty much the only way to survive an encounter with the gods was to have the favor of one of them - so Josh and Ken, maybe pick a name and start praying?
But seriously, with the number of screwups in high profile cases I have to wonder: is this kind of thing common throughout the legal system? If I go sit in on a random courtroom for a day am I likely to see lawyers/judges/clerks making glaring mistakes? Or are these cases just outliers?
an interesting case of a judge not accepting a plea agreement was in the nuclear restricted data case with Jonathan and Diana Toebbe. In the original agreement, Diana Toebbe was going to get 3 years but the judge rejected it and Toebbe eventually got 21 years.
The discussion on the superseding section of the podcast had me a little puzzled. Listening to Ken use a word like “cosmetic” made me wonder if all of the coverage last night and this morning was overblown. (Obviously not for De Olivera. I can only hope he isn’t married because his wife is going to kill him!) Are the additional charges just “salt in the wound” or is it a next level BFD?
What news coverage isn't overblown these days? Whether it's indictments, heat waves, whatever, and from both sides of the spectrum. With respect to De Olivera, I wonder if they've added him because Nauta has refused to cooperate and they're hoping De Olivera will...
I keep saying that I hope De Olivera isn’t married. His wife is going to lill him! To your point, as long as the Trump Super Pac is paying for his lawyer, I don’t see much prospect for flipping.
I'm not so sure about that--it's not so much the money as the prospect of doing time and becoming a convicted felon. Sane people tend to worry about those things even more than money. :-)
It occurs to me that if Trump continually ignores his attorneys’ advice to quit talking, having those attorneys resign could turn into another delay tactic. How far along do proceedings have to be before the judge has to give permission for counsel to withdraw?
Now I don't mean to suggest, that we like Sam the best. We can't keep track of each house-bound robber. I remember you well, our polycule-wohl, but that's all, I don't think of you that often~
I am so glad to have heard this Explainer on the Hunter Biden case before listening to other analysis. It’s been very revealing to see how many legal commentators fail to explain what was actually wrong with the defense team’s arguments. Thanks, Josh and Ken, I so appreciate your work!
"Hunter Biden didn’t get indicted on Wednesday even though he wanted to be ..." I thought they already filed an Information against him. Hunter is trying to avoid a preliminary hearing where the names of all his clients will be disclosed.
Well, if there was any way for Trump to be indicted Friday, releasing this podcast would push it over the edge.
Big mood on Ken's start to the episode....... Move to Hawaii! you get another 3 hours!
That tone of voice was... quite expressive. 😀
Some people have been sending me, or commenting with, alternate takes on what happened with the Hunter Biden plea deal.
I’m not certain I am right on my take, which I view as only the most likely scenario. That’s in part because I believe my experience leads me to wield Occam’s Razor differently — I don’t think some of the scenarios proposed can be called the “simplest,” based on my experience with the system. But I could be wrong.
In judging other people’s takes, I respectfully invite you to consider (1) does the author have training and experience with the procedures at issue, (2) does the author insist that their interpretation is the only plausible one, (3) is the tone hysterical, and (4) does the conclusion align 100% with the priors of the author.
"We're sending it out in the middle of the night so we don't have to record a third version"
L.O.L.
Man plans and God (and Jack Smith) laughs
We'll see about that.
Bob
All I could think of when Josh asked about SBF’s parents having and being willing to assert control over him was the story Ken posted on Twitter some time ago about the two professors and their half-feral child with whom he was acquainted in college/law school. “Expressions of clinical fascination” at the child’s shitty behavior will never not make me laugh.
Hi guys
Me and my buddy were talking - does it seem like the Republican investigations into the FBI may be trying to lay the groundwork for an Exclusionary Rule/Fruit of the Poisonous Tree dismissal? As the interviews they used to apply for the warrant comes from the same FBI unit that was investigating the campaign finance/Russia collusion debacle. Knowing the Steele Dossier was rather bullshitish but still going forward. So if they can say that was a result of FBI overreach then they get Manafort that way, then he takes them to Mar-a-Lago. Any step broken in that process could break the investigatory chain.
I do understand there were different fact and evidence chains, but if it’s the same people doing the investigations (if I understand correctly) then when do they pass it off? As a matter of law? Because if they can argue the original “collusion” investigation was flawed and can draw a line to this one with same investigators, that may muddy the water a little bit. So if they’re original investigation is shown to be tainted (I’m not arguing it was but what if?) then when do the same investigators get a reset/reboot to a clean investigation?
I don’t think this will be particularly successful, mind, but I don’t think it’s insignificant either. It’ll especially play well politically.
But they have to do something to attack the fact collection IMO as the facts are pretty damning to him. My experience with attorneys as a LEO was they always attack the stop as a first move.
His only other argument as I see it is that there is no real codified “return documents with X amount of time” once requested by the National Archives. As a matter of criminal statute. They are supposed to notify NARA about any documents in a “timely manner to secure transfer” to NARA but with no definition of “timely.” So Trump may try and argue he was getting around to it in his definition of “timely.” Setting a definition ex post facto wouldn’t fly Constitutionally either.
Just spitballing here. Seeing what has a patina of respectability as a viable defense. Most likely I’m pissing in the wind though. There’s a reason I was a LEO and not a defense attorney. It’s not my general bent. I could also be off on some of my assumptions, as I understand it’s the same people investigating the documents case AND the “collusion” issue, which may not be the case. I couldn’t find anything specific one way or the other but have this idea somehow they are the same people
Thanks for any humoring you may or may not do
That’s not how the exclusionary rule works. First, it only works when the government violates YOUR rights — for instance, a bad search of YOUR house that yields evidence they use to get a warrant for something else. Second, it doesn’t work if the chain from the violation and the later action are too attenuated. Third, it’s not just about “flawed,” you need a specific violation of a specific right.
That’s right. Shit I knew that. Flawed is not the same as illegal or unconstitutional. A violation of agency policy or protocol doesn’t meet that standard. Although they may try the “foundation of the warrant request originally was done in bad faith as they knew the intel was bullshit”. But if I’m reading you correctly because of the separation here it doesn’t attach? I know this case has completely different evidence streams but I didn’t know if there would be any spillover
Thanks for answering. We were trying to come up with any kind of defense we amateurs could. All my experience legally in court is in self defense matters/use of force and in immigration issues so this is novel to me
Quick Correction: Greek heroes generally didn't learn to stop taunting the gods. Instead, they wound up A) Dead or B) Blind, disgraced, exiled in the wilderness etc.
Pretty much the only way to survive an encounter with the gods was to have the favor of one of them - so Josh and Ken, maybe pick a name and start praying?
Thank you for recording an epsiode... so that Mr. Trump caught more charges once you finished; you're doing G-d's work.
Really irks me that we didn't have you guys to cover Billy Carter's sins back in the day.
So Ken, is anyone a good lawyer?
But seriously, with the number of screwups in high profile cases I have to wonder: is this kind of thing common throughout the legal system? If I go sit in on a random courtroom for a day am I likely to see lawyers/judges/clerks making glaring mistakes? Or are these cases just outliers?
an interesting case of a judge not accepting a plea agreement was in the nuclear restricted data case with Jonathan and Diana Toebbe. In the original agreement, Diana Toebbe was going to get 3 years but the judge rejected it and Toebbe eventually got 21 years.
The discussion on the superseding section of the podcast had me a little puzzled. Listening to Ken use a word like “cosmetic” made me wonder if all of the coverage last night and this morning was overblown. (Obviously not for De Olivera. I can only hope he isn’t married because his wife is going to kill him!) Are the additional charges just “salt in the wound” or is it a next level BFD?
What news coverage isn't overblown these days? Whether it's indictments, heat waves, whatever, and from both sides of the spectrum. With respect to De Olivera, I wonder if they've added him because Nauta has refused to cooperate and they're hoping De Olivera will...
I keep saying that I hope De Olivera isn’t married. His wife is going to lill him! To your point, as long as the Trump Super Pac is paying for his lawyer, I don’t see much prospect for flipping.
I'm not so sure about that--it's not so much the money as the prospect of doing time and becoming a convicted felon. Sane people tend to worry about those things even more than money. :-)
More power to him if he can afford top-flight lawyer.
It occurs to me that if Trump continually ignores his attorneys’ advice to quit talking, having those attorneys resign could turn into another delay tactic. How far along do proceedings have to be before the judge has to give permission for counsel to withdraw?
Now I don't mean to suggest, that we like Sam the best. We can't keep track of each house-bound robber. I remember you well, our polycule-wohl, but that's all, I don't think of you that often~
I am so glad to have heard this Explainer on the Hunter Biden case before listening to other analysis. It’s been very revealing to see how many legal commentators fail to explain what was actually wrong with the defense team’s arguments. Thanks, Josh and Ken, I so appreciate your work!
"Hunter Biden didn’t get indicted on Wednesday even though he wanted to be ..." I thought they already filed an Information against him. Hunter is trying to avoid a preliminary hearing where the names of all his clients will be disclosed.