Former President Trump has sued the National Archives and the chairman of the January 6 investigating committee, Congressman Bennie Thompson, to try to prevent the disclosure of White House papers, records and communications up to and during the riot. He’s asserting executive privilege. What does that mean again? Where does the idea of executive privilege come from, and how are the interests weighed in a situation like this? And then...does a former president have a strong executive privilege claim? That’s a not-very-well-explored question. Trump is also instructing former advisers, including Steve Bannon, not to comply with subpoenas from the committee. Bannon hasn’t been complying and so the committee voted to make a criminal referral to the Justice Department for contempt of Congress. Does that mean the Sergeant at Arms has a job to do? (Not just yet.) Plus: President Trump is deposed for more than four hours, New York’s new anti-SLAPP law and the Summer Zervos lawsuit, Lev Parnas’s ongoing trial, and Congressman Fortenberry is indicted.

LRC Presents: All the President's Lawyers

Testing the boundaries of executive privilege

This is a special episode of All the Presidents’ Lawyers with Carissa Byrne Hessick, professor of law at the University of North Carolina. As we’ve discussed previously on the show, some federal judges have been wondering (sometimes aloud, in their courtrooms) whether the Capitol Riot defendants are getting off too easy. More than six hundred people have been charged so far — a few with felonies and most with misdemeanor charges. Of those charged, about one hundred people have accepted a plea bargain. There are a lot of reasons why plea bargains are part of the American justice system, but is plea bargaining good? With how overwhelmed D.C. courts are, how are prosecutors thinking about getting defendants to just plead guilty? And what’s the political messaging behind these cases? Carissa Byrne Hessick says plea bargaining is a bad deal and she’s here to talk about it.

Is a plea bargain a good deal?

Former President Donald Trump has sued Twitter trying to get back on the platform. His suit says Twitter violated his First Amendment rights and that they broke a new Florida law that purports to prohibit social media companies from being banned in a manner inconsistent with the companies’ internal policies. The thing is, the First Amendment applies to the government restricting free speech and Trump’s theory is that Twitter is a state actor. When would a private entity be considered a state actor? Is there a case to be made that Dominion Voting Systems is a state actor? One group of people thinks so, and they’ve filed a new class action lawsuit against Dominion Voting Systems that says the cease and desist letters the company sent them after the 2020 elections are RICO. Ken, is it RICO?! Plus: a detailed report on whether Trump is really at risk of state charges in Georgia, Matt Gaetz’s legal team, Dan Scavino evades a subpoena from a congressional committee.

What is a state actor?

What is ‘Trump Derangement Syndrome’? It’s a condition that afflicts conservatives and liberals alike – and lawyers in particular. This week, Ken White and special guest David Lat discuss the attorneys that, uh, have gone astray defending Donald Trump. Ken White and special guest David Lat discuss Jeffrey Clark, who tried to oust fellow Jeffrey (Rosen) as acting attorney general and get Georgia to change its election results. John Eastman, a respected attorney and former clerk to Supreme Court Justice Clarence Thomas, is now under fire for a memo he wrote outlining six steps for handing the presidency back to Donald Trump. Perhaps two of the most public examples of what David calls TDS are that of Rudy Giuliani, once the U.S. Attorney for the Southern District of New York and “America’s mayor,” and Sidney Powell, a top law school graduate and respected appellate attorney, who is now most known for representing Michael Flynn, legal challenges of the 2020 election, and being sued for defamation by Dominion Voting Systems.

Trump Derangement Syndrome with David Lat

John Durham, the former US attorney who was appointed special counsel to investigate the origins of the investigation into the 2016 Trump campaign and its alleged connections to Russia, has turned an indictment. A grand jury has indicted Michael Sussmann, an attorney at election law firm Perkins Coie, for making false statements to federal officials. Good lawyers and listeners of this podcast know that’s 1001 violation. But what’s unusual about this one? Ken and Josh talk through the interesting points of this indictment. Then: John Eastman, a lawyer for the Trump campaign, produced an internal memo arguing that former Vice President Mike Pence had the legal and constitutional authority to set aside the results of the election and declare Donald Trump the lawful president of the United States. Uh, was that illegal? Was it ethical? Bad lawyering? Plus: it’s sort-of news that Allen Weisselberg’s attorney said he “expects” more indictments, why Donald Trump is suing his niece Mary, and campaign finance indictments are rare but not as rare as two presidential pardons.

An unusual indictment, an unusual memo

There’s been a lack of thumb-headed henchmen news on the show for a bit… so this week, Ken and Josh check in on one. Igor Fruman, a sometime associate of Rudy Giuliani, has pleaded guilty to one count of soliciting foreign campaign contributions. In his indictment, it was alleged that Fruman, along with Lev Parnas and others, illegally funnelled millions of dollars from Russia to U.S. political candidates in an attempt to obtain licenses to operate marijuana businesses. What’s Fruman facing with this guilty plea, and what’s ahead for Lev Parnas, whose trial is set to begin in a few weeks? Yep, it’s time to talk about the company “Fraud Guarantee” again. Popular January 6 lawyer John Pierce is back after mysteriously disappearing for a week, and he won’t tell anybody where he went. He’s representing nearly 20 Capitol riot defendants, even though he’s never tried a criminal case before. Josh and Ken answer a question from a listener about whether there’s an ineffective assistance of counsel claim to worry about here. Plus: you can pay Rudy to make a Cameo that goes against his clients, apparently, and the telecomm/social media companies appear to be listening to Congress...so far.

Fate of the Henchman

Trump Organization employee Matthew Calamari Jr. testified last week before the New York grand jury that’s looking into the financial practices of the Trump Organization. It’s the same grand jury that indicted then-Trump Organization CFO Allen Weisselberg a few months ago. What should we make of the details that have been reported about this subpoena? And there’s also one big problem: both Matthew Calamari Jr. and his father, Matthew Calamari Sr., work at the Trump Organization, and they have the same attorney. Is it possible they have adverse interests? And how would the judge handle that situation? Also: Donald Trump Jr. faces a legal setback in the defamation case brought against him by Don Blankenship. Donald Trump Jr. called Blankenship a “felon” while Blankenship was running for office but Blankenship isn’t a felon. He was acquitted of felony charges and was convicted of a misdemeanor. Blankenship sued Trump Jr. and Trump Jr.’s lawyers sought to have the case dismissed, but U.S. District Judge John Copenhaver Jr. rejected that last week and allowed the case to move forward. Was it a tough call for the judge? Did the lawyers make good arguments? And what makes somebody felonious? And why is “felonious” such a good adjective? Plus: more on the requests from the House select committee for communications records of lawmakers related to the January 6 insurrection, and the very recognizable horn-and-fur-wearing “QAnon Shaman” a.k.a. Jacob Chansley has pleaded guilty to a single felony count of obstructing an official proceeding before Congress. As part of his plea, he acknowledged he may face between 41 and 51 months in jail. Is that set in stone? Does it reflect that the government believes there's more to be worried about with him?

Juniors

What happens when you’re facing federal charges connected to the Jan. 6 insurrection and your lawyer….goes missing? And their associate, who has been showing up in court, is not a licensed attorney and is facing felony indictments? Yikes. That’s the case for clients of John Pierce, one of the more ideological advocates. What happens when an attorney is incapacitated and unable to represent his or her clients? And what could happen to those clients? Then: the January 6 select committee is starting to make requests for information, some of which are going to telecommunications companies. At this point, these are requests, not subpoenas. House Minority leader Kevin McCarthy is telling communications companies not to comply with those requests, saying they are unlawful and if the companies comply, “a Republican majority will not forget.” Ken says this is approaching the line of obstruction of justice by in effect threatening future legislation against those who cooperate with a congressional committee. Another thing Ken says isn’t a good idea: doing anything that will inspire a federal judge to write a 100-page ruling that’s not in your favor. In this case, it’s sanctions for Sidney Powell and Lin Wood from federal judge Linda Parker. Plus: a possibility $5 million fine for Jacob Wohl and Jack Burkman, another civil suit for former President Trump and more.

What happens when your lawyer is MIA

It’s a big week for Michael Avenatti. A mistrial! Judge Selna ruled that the government had withheld financial evidence they should’ve made available to Avenatti as he defended himself in the case where he was being tried for embezzling funds from his clients. He’s going to be tried again in October. Is it a major factor that each side has seen the other’s hand? Does this make the case much more expensive, and is that to Avenatti’s advantage? And is Michael Avenatti a good lawyer now??? In other Southern California legal proceedings … Florida Rep. Matt Gaetz got married on Santa Catalina Island. How romantic! Ken reviews the spousal privilege for us because, as you might remember, Gaetz is also part of a sex trafficking investigation. Also: thumb-headed henchman Igor Fruman (remember him?) is expected to change his plea to guilty in the criminal case where he’s accused of advancing Ukrainian business interests in the U.S, including soliciting campaign contributions. Should Rudy be more freaked out ...or less freaked out? Finally: Ken and Josh discuss charges for Infowars host Owen Shroyer and the sentencing of Proud Boy leader Enrique Tarrio, and follow up on a “criminal complaint” about Jeffrey Clark.

Mistrial!

Former acting Attorney General Jeffrey Rosen testified about what happened between him, Donald Trump, and former acting head of DOJ Civil Division Jeffrey Clark in a closed session with the DOJ Inspector General and the Senate Judiciary Committee. TL:DR and also it was a closed session, so here’s what we know; Clark tried to pressure former president Trump to remove Rosen and install Clark as acting AG while Trump was trying to get the 2020 election results thrown out. Does this meeting mean Clark could face legal consequences? What about political consequences? We discuss. Next: A motion to dismiss Dominion’s lawsuits falls flat, and a judge allows the company to pursue a deceptive trade practices suit against MyPillow CEO Mike Lindell, among others. What does that mean for Dominion’s chances of winning damages, and how does a defamation suit work when the defendants believe what they’re saying is true? Finally: an update on Michael Avenatti. He’s trying to get at least a couple motions for a mistrial and he might be behaving too much like a civil lawyer in a criminal trial.

Jeffrey Rosen and Jeffrey Clark

This week, we’re bringing on special guest Ryan J. Reilly, senior justice reporter at HuffPost, while Ken enjoys a deserved vacation. We’ve followed and referenced Ryan’s reporting on prosecutions related to the Capitol riot for the past seven months and it’s time to check in. First: what does it look like for hundreds of cases to move through one federal court district in D.C.? How is the system handling the volume? And is there any method to which cases have been charged so far? Ryan explains how the insurrection has impacted the work of the Department of Justice and the FBI, both in Washington D.C. and spread out across the country. With so many ideological defendants, it’s likely more of these cases will go to trial, further impacting the system. Citizens have been sifting through the mounds of publicly available photos and videos from the riots and sending tips to federal investigators. Ryan talks about who these “sedition hunters” are, why they’re getting involved, and why sometimes they’re a few steps ahead of investigators. Is their help welcome? How likely are they to potentially misidentify a suspect? Is facial recognition software taking the weight off of beleaguered prosecutors?

Seven months and 600+ people charged

The Biden administration said this week that the House Ways and Means Committee can have access to former President Trump’s tax returns. The committee says it wants the returns as part of an ongoing investigation into how the IRS audits presidents – and that Trump’s returns serve a valid legislative purpose. Trump said he’d personally sue to prevent the returns from being turned over (and he did so after we recorded this episode). Are we in for another long battle? Also: federal judges think out loud, too. A number of the Jan. 6 cases are in front of Chief Judge Beryl Howell of the D.C. District. This week, she asked prosecutors whether the government was being overall too lenient on defendants. Ken White explains why this isn’t all that uncommon in the courtroom, and whether this actually matters as far as sentencing goes. Then: after he was appointed chair of the Jan. 6 committee, Congressman Bennie Thompson withdrew from his Jan. 6-related civil lawsuit against Donald Trump, Rudy Giuliani, the Proud Boys and others. Was there a legal reason for this? Also: some former federal prosecutors think police officer testimony before the January 6 committee will make it more feasible to criminally charge Donald Trump. Are they right? Finally: the Avenatti saga continues. What’s the standard for convicting somebody of wire fraud? Is it “down to the dollar,” as Avenatti wants to make the jury believe? Does that strategy make him a good lawyer? We discuss.

Tax returns return

Michael Avenatti is one week into representing himself in federal court in Southern California, where he is accused of stealing funds from his client. Is he doing a good job lawyering for himself? And is a juror in the trial secretly posing as Josh Barro for this week’s podcast? You won’t know until you listen! P.S. As mentioned in the show, we’ve been enjoying and relying on Meghann Cuniff’s excellent and detailed reporting on the Avenatti trial. Follow her here. Then: the DOJ has indicated that they will refuse to step in to defend Congressman Mo Brooks in a civil lawsuit brought against him over the insurrection. Why is this different from other situations related to January 6 where the DOJ has stepped in? Also: one person arrested in the insurrection made a selective prosecution argument — why is he being prosecuted now when so many people who were arrested on federal property in Portland last summer were not? Plus: when you’re under federal indictment and also rich enough to post a $250 million bond, how do the feds ensure you stay in the country and show up in court?

DOJ threads the needle

This week, Michael Avenatti told a federal district judge in California that he would like to represent himself in his second of three criminal trials, in which he is charged with stealing millions from his clients’ settlements. There are a lot of reasons why hiring a lawyer is a very good idea and a very smart idea. Is it possible, though, that Michael Avenatti could be making a good decision, even though his experience in criminal law is, uh, as a defendant? Also: like former President Trump, the Biden administration has beef with social media companies. Ken and Josh examine whether Section 230 of the Communications Decency Act could be revised to hold platforms accountable for misinformation around vaccines.  Then: Tom Barrack, who chaired President Trump’s inaugural committee, is the latest prominent Trump-tied figure to be indicted. He’s facing charges related to alleged lobbying of the Trump administration on behalf of the United Arab Emirates.

A pro se pro?

Allen Weisselberg is no longer in executive positions with the Trump Organization and its subsidiaries. Does this signal anything about the relationship between the former CFO and the company? Weisselberg’s defense is going to be very, very expensive. How expensive? Ken says there’s a good chance a full defense in a case like this could even be $1.7 million — the amount in off-the-books compensation Weisselberg is alleged to have received. So who’s paying those legal bills, and what happens if a wealthy defendant such as Weisselberg can’t afford them? Then: the sanctions hearing for Kraken lawyers Sidney Powell and Lin Wood with a federal district judge in Michigan did not...go well. Ken and Josh discuss what makes an affidavit too stupid to file, and whether you should be sharing your sanctions hearing on Telegram. (You should not.) Also, Michael Avenatti received his first sentence: 30 months for trying to extort Nike. This may be the end of his legal career (it is) but it’s not the end of his legal troubles. He still faces two more cases for allegedly stealing money from both Stormy Daniels and a paralyzed tort lawsuit plaintiff. And finally: Can Fox News air just about anything as long as they run a chiron or disclaimer with it?

An expensive defense

There are so many lawyers, so many lawsuits and so much legal news surrounding President Trump that we decided to call our own lawyer to catch you up. 

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LRC Presents: All the President's Lawyers

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