Dear listeners,
This week, SpaceX is suing the California Coastal Commission. The commission — a body of 12 Californians who don’t believe there’s any issue in the state they shouldn’t stick their noses in — is objecting to a plan to increase the frequency of SpaceX launches from Vandenberg Space Force Base. In denying the request for more launches, the commissioners did raise some concerns that actually relate to the Pacific coastline, but they also mouthed off about how they dislike SpaceX CEO Elon Musk’s general political activities.
Musk says denying him a government permit because of his political activity is a violation of his First Amendment rights, and as Ken says, he will have a good point if his launches actually get limited. While the Commission purports to control what SpaceX can do, it probably can’t — it can advise the federal government not to allow more launches, and it could sue the federal government, but it hasn’t done so yet. As such, Ken thinks Musk’s case will get tossed on standing — the federal government (which has a deep and constructive relationship with SpaceX) will very likely allow the launches despite the commission’s carping, and Musk won’t have suffered any injury requiring remedy. But it would nonetheless behoove the coastal commissioners to stay in their lane next time.
In Washington DC, Judge Tanya Chutkan is considering how the Supreme Court decision in Fischer affects the criminal charge against Donald Trump for obstructing an official proceeding. While federal prosecutors used this charge against hundreds of January 6 rioters on the theory that they were seeking to obstruct the count of votes, the Supreme Court said the offense — which was created under the post-Enron, securities-focused Sarbanes-Oxley act — can only apply to a narrower type of obstruction, having to do with attacking the availability or integrity of documentary evidence. That said, a key part of Trump’s efforts to overturn the election was an attack on the integrity of documentary evidence: He sought to create fake electoral certifications that declared him the winner of states he actually lost. As Ken says, prosecutors have a strong case that the charge should stand but are on shakier ground when they argue that Trump’s actions on January 6 (such as the Ellipse speech) were part of the illegal obstruction.
Chutkan also considered a motion from Trump to delay the release of an appendix to Jack Smith’s long memo on the evidence he wishes to present in the case (she denied the motion after we recorded), and she granted part of a Trump motion for discovery — he can get certain documents that might address what he knew about government assessments of election integrity, but he will not be able to force DOD and CIA and a variety of other agencies to do an immense document search.
Mark Robinson, who is still the Republican nominee for governor of North Carolina, is suing CNN, saying they defamed him by reporting that he had a long, gross, weird and offensive history of posting on a porn-focused message board called Nude Africa under the username “minisoldr”. Robinson isn’t minisoldr, he insists — despite a quite convincing evidentiary case from CNN to the contrary. The problem for Robinson is that he’s a public figure — he doesn’t only need to show that CNN’s report was false, he needs to show that they published the report with actual malice, meaning they knew it was false or they acted with reckless disregard for the truth. Robinson’s complaint does not even really allege actual malice, so CNN is likely to be able to get this tossed on a motion to dismiss. But filing a lawsuit does serve Robinson’s political purpose of bolstering his insistence that the report was false, and North Carolina doesn’t have an anti-SLAPP law, so it’s a relatively favorable place to do performative litigation.
Ruby Freeman and Shaye Moss, the Georgia election workers who were defamed by Rudy Giuliani, continue to seek to collect the $146 million judgment they won against him. Now they’re fighting over specific assets — Giuliani says his 1980 Mercedes SL convertible is an irreplaceable collectible since Lauren Bacall once owned it, and therefore they shouldn’t be allowed to sell the car until his appeals are exhausted. He says he gave World Series rings to his son as a gift years ago, so they’re not his assets to sell. Most amusingly, Freeman and Moss would like to try to enforce a claim Giuliani has previously made in public — that Donald Trump owes him $2 million in legal fees. Giuliani says it would be too embarrassing to try to sue Trump right in the middle of the election campaign, but there’s no particular reason the court should care about that.
And in Georgia, the Fulton County DA’s office continues to manufacture entertainment for us, most recently because DA Fani Willis responded to an insulting email from some random person in Germany who wrote in to say that Adriane Love — the line prosecutor leading the RICO prosecution of rapper Young Thug and his associates — is bad at her job and should lose her case. Willis replied with fulsome praise for Love, even recounting that a friend of hers recently took an Uber in Memphis and the Uber driver talked about how great the Fulton DA is at RICO prosecutions (okay Tom Friedman). Unfortunately, in a total boomer move, Willis replied-all to that random email, to a group of recipients that included Judge Paige Reese Whitaker but not the defense team. As such, Willis’s reply was an ex parte communication — some real bush-league shit that drew performative outrage from defense attorneys and a please-don’t-burden-me-with-this-nonsense lecture from Whitaker.
We hope you enjoy the episode,
Josh
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