All the Presidents' Lawyers

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Why didn’t Roger Stone get a full pardon from the president? Is the president’s commutation or pardon power reviewable? Nope. He gets to do whatever he wants, but Congress could decide it’s an impeachable offense. Could it be an obstruction of justice? That’s a harder question to answer and it would need to be tested in court, but it’s a pretty uphill battle — this is a power specifically given to the president in the Constitution. To sum it up, President Trump tried many things to intervene in Roger Stone’s case and ultimately ended up here, commuting his sentence, and maybe this commutation was a bad move and a norm-breaking move to some extent, but it’s explicitly within the president’s power. The Supreme Court issued its major opinions on whether Congress and New York’s attorney general can seek the president’s financial information and records from financial institutions. It doesn’t mean the public will find out about what’s in those records (for a few reasons) and also, Josh says that we should remember that this is not just about transparency: it’s also about a criminal investigation that can now continue. Either way, in both cases, the Supreme Court rejected the president’s argument that he is essentially above the law when it comes to subpoenas, but the court did what the court often does: remanded the cases to the lower courts and in the name of clarification, gave a multi-part test with sub-parts that will definitely be litigated a lot more in the future. Ken says it gives the appearance of a standard without actually giving a standard. More litigation to come. Plus: Judge Emmet Sullivan has requested that the full DC Circuit Court of Appeals rehear the Michael Flynn arguments — this is after a three-judge panel of the court decided 2-1 that Sullivan should dismiss the charges as the government requested. Also, why is Michael Cohen back in prison? Apparently, it’s because he would not sign an agreement that he would not speak to the media or work on his book. Is this routine? And Mary Trump is now released from the temporary restraining order on her tell-all book about the Trump family, but she’s not out of the legal woods yet.
We’ve reached the stage in the legal efforts by President Trump’s allies to contest the election results where the Supreme Court could opt to get involved, but they’re not getting involved. Congressman Mike Kelly sought an injunction from the Supreme Court to block Pennsylvania’s certification of its election results. Despite President Trump tweeting a photo of Amy Coney Barrett with lasers coming out of her eyes, the court declined to hear it, and none of the justices went on the record objecting to that decision. Ken White and Josh Barro talk through why this wasn’t a surprise, the reasons why the court probably won’t take up any of the other cases including the case from the Texas attorney general, and why this is really different from when the Supreme Court heard the election challenge in 2000.  Plus: Judge Emmet Sullivan has finally dismissed the Michael Flynn case, now that Flynn has accepted a pardon from President Trump, but Judge Sullivan had a lot to say about the pardon and many related issues on the record. Why did he do this? Other people had opinions about Flynn’s pardon too. Ken and Josh talk through a few of those, and it sounds like more pardons are coming. If you’re offered a pardon by a president but you’re pretty sure you haven’t broken any federal laws, should you accept it anyway?
Jean Carroll accused President Trump of raping her in the 1990s. The president crassly denied her allegation, and she sued him for defamation, saying that he defamed her by calling her a liar. The federal government has sought to intervene here, stepping into Trump’s shoes and becoming the defendant in the case, and now they are arguing that when the president said he didn’t rape Carroll and that she is “not [his] type,” he was acting in his official capacity as president. Is the Justice Department right about that? And with the Department of Justice stepping in for the president in the defamation suit, which effectively makes it impossible for the suit to proceed, doesn’t this elevate the president above the law — in this case, defamation law? What about another instance, where the Department of Justice is arguing that when President Trump tweeted an order to declassify all documents related to the Russia investigation and Hillary Clinton’s emails...that was *not* him acting in his official capacity? The Department of Justice is also suing Stephanie Wolkoff, the former aide to First Lady Melania Trump, saying her tell-all book violated a nondisclosure agreement and therefore her book proceeds should be forfeited to the government. DOJ argues: "such accounts purporting to disclose internal policy deliberations undermine the expectation of future Presidents and First Ladies that their confidential deliberations will be protected and preserved from the public glare. The President’s policy conversations are self-evidently core matters on which the President is entitled to receive confidential advice without fear that such internal deliberations will be leaked to the press." This seems like a major expansion of executive privilege, and by the way, FLOTUS is not a federal employee, so should the government be defending her interests in court?  Plus: Hunter Biden’s laptop and Rudy Giuliani, a remarkable First Amendment argument from Devin Nunes, and major Republican fundraiser Elliot Broidy pleads guilty and agrees to cooperate with investigators.
President Trump has COVID-19. He was hospitalized Friday, but he took a little joyride around Bethesda on Sunday and then on Monday, he checked himself out and returned to the White House. Why did the hospital let him leave, even if, as commander in chief, everyone at the military hospital ultimately takes orders from him? Could he be sued for recklessly exposing and possibly infecting others? What about White House employees, like Secret Service agents — could they make an OSHA complaint? Ken White says it would be an uphill battle trying to sue the president for the same reasons why it’s always hard to have a good chance when you sue the president. But, he says, because this is a new, bizarre situation and it could produce some new precedent. Then: is HIPAA the new RICO? HIPAA is supposed to protect you from healthcare professionals exposing your medical information without your permission, and a lot of people who have been citing it as it relates to the president’s condition is, well, kinda citing it wrong. President Trump’s doctors have been briefing the public on some aspects of his condition while declining (citing HIPAA) to discuss other aspects. Does the law only apply to adverse information?  The Second Circuit Court of Appeals upheld a trial court’s ruling that Manhattan District Attorney Cy Vance could proceed with a subpoena for President Trump’s tax records from his accountants. They basically said the president’s argument about why the subpoena was too broad made no sense. The Supreme Court is the next place the issue can go: will they hear it? And when will we know if they’ll hear it? Plus: Eric Trump’s deposition, John Bolton’s book money, Michael Cohen and Reality Winner, Michael Avenatti, Jacob Wohl and more.
Attorney General Bill Barr testified before the House Judiciary Committee this week and it went, well, basically how you might expect. There was some news: in justifying his intervention in Roger Stone’s sentence, Barr said it was “excessive” for a man of his age (67), and he didn’t think any US attorney in the department today would prosecute the case because it couldn’t be proved beyond a reasonable doubt, and the charges (witness tampering, false statements and obstruction) were “esoteric” and “made-up” crimes, not “meat and potatoes” crimes. Okay, but Roger Stone was tried and convicted by a jury. Ken White says this and other moments of Barr’s testimony were ridiculous, unconvincing, implausible, and not reflective of any past or future Justice Department policy. Michael Cohen is out of prison again. Judge Alvin Hellerstein ordered him released, saying the federal government had retaliated against him for his plan to write a tell-all book about the president. Is it surprising that this happened relatively quickly? Ken says it might be because judges — including the judge who ruled in Cohen’s favor — seem to be increasingly skeptical of the government. As the federal government has intervened in Portland, trying to stifle sometimes-violent protests, the government has been imposing conditions on people who are arrested and then released by federal authorities. In at least a dozen cases, these people have been given terms of pre-trial release that include a requirement not to attend any protests. If the feds can’t tell Michael Cohen he can only be out of prison if he doesn’t write a book, how can they tell people arrested in Portland that they can only be released if they don’t return to protests?
Michael Cohen is suing to be let out of prison, saying the government violated his First Amendment rights by sending him back to prison when he refused to agree to terms that would have blocked him from writing a tell-all book about President Trump while on furlough. Charles Harder apparently sent Cohen a cease-and-desist letter about the book, claiming Cohen signed a nondisclosure agreement (but he didn’t attach it) — but does it seem strange that Cohen had signed one of those agreements? And isn’t writing a tell-all book about his former client...more of a legal problem for Cohen? There are reasons why President Trump might not want to sue Cohen for the book though, and that’s a messy discovery in which he’d have to show that he was harmed by Cohen’s book. Ken and Josh answer some questions from listeners about what happens now that the Supreme Court has told lower courts they have more work to do on those lawsuits seeking the financial records of President Trump and the Trump Organization. Plus: is there a good argument that the president abused the pardon and commutation power in commuting the sentence of Roger Stone? And during a coronavirus briefing, President Trump said he wishes Ghislaine Maxwell “well.” What’s the right way for presidents to talk about federally charged defendants? There’s some speculation this was President Trump signaling a willingness to pardon Ghislaine Maxwell but Ken White doubts the president would be this subtle. Finally: can Michael Avenatti afford a good lawyer?
President Trump raged against prosecutors’ sentencing recommendation for Roger Stone. Then the Department of Justice reduced the recommendation and the four prosecutors who made the original recommendation have withdrawn (one quit the DOJ). Is there a limit on the president’s power now that Attorney General Barr seems to be stepping in to support the president protecting his allies and going after his enemies? There may be theoretical limits, but it seems there aren’t really any practical limits. Federal prosecutors have a lot of power in recommending sentences, but of course, that doesn’t mean the actual sentence will be anywhere close to the recommendation. A lot can happen. The original recommendation for Roger Stone (7-9 years) seemed high and notably reasonable, but it was always unlikely (and still is) that Long Suffering Federal Judge Amy Berman Jackson would give Stone that sentence. Ken says Trump and Barr’s interference in Stone’s sentencing is a gratuitous flex. And what about Michael Flynn? Even before Trump started weighing in, the Flynn sentencing had gone off the rails. Plus: the Vindmans are removed from the White House, DOJ sets up a way to review what info Rudy brings in, and Republicans get financial documents on Hunter Biden while Democrats still can’t get Trump’s tax returns.
Rudy Giuliani has lots to worry about this week. He has refused to comply with a subpoena in the impeachment inquiry and says that he doesn’t need a lawyer. But Ken begs to differ. Giuliani did have a lawyer write up a letter defying the subpoena, which Josh and Ken agree was the written equivalent of giving the middle finger.  Adding to Giuliani’s full plate, federal prosecutors are looking into whether he may have broken foreign lobbying laws. And Ken says investigators are almost definitely trying to flip Giuliani associates Lev Parnas and Igor Fruman. They were indicted last week on campaign finance charges. Despite warnings from the White House about executive privilege, several key figures are testifying in the congressional impeachment inquiry. Former EU ambassador Gordon Sondland will testify Thursday and clearly doesn’t want to go down with the Trump ship. Less clear is whether Trump’s dismissal of former Ukraine ambassador Marie Yovanovitch, while politically risky, is evidence of anything impeachable. And, former White House foreign policy advisor Fiona Hill spoke with impeachment investigators this week. Her lawyers argued in their own letter that executive privilege may not apply to her testimony because of possible government misconduct.
Josh Barro and Ken White discuss reports of a federal investigation into Congressman Matt Gaetz. What are the legal issues here? Was it smart for Gaetz to give a prime time interview about it on television? And why was this news apparently leaked? Plus: the Trump campaign set some donors up for recurring donations in a way that was dense and confusing. Is that fraud, and could some donors have a good case to sue the campaign? Recently, the DC Circuit Court of Appeals set a standard for pretrial detention for those arrested in connection with the Jan. 6 insurrection at the U.S. Capitol. How’s that working out? Due to a filing error, we know prosecutors might be close to a plea deal with at least one person. Was that accidental filing a major blunder?
For the past three years, All The Presidents’ Lawyers has focused a lot on defamation cases, and there’s an obvious reason for that: former President Trump has been (and still is) the target of defamation cases and he has also invoked or actually used defamation suits as strategy for years. Remember when Stormy Daniels sued former President Trump, saying he defamed her by calling her accusation that she threatened in a Las Vegas parking lot not to talk about her affair with him a “con job”? Her argument did not hold up in court. Trump’s statement was protected opinion and not a provable statement of fact, and Daniels was ordered to pay his legal fees. Defamation lawsuits are difficult to win by design: balancing free speech and the need for remedies for damaged reputations is a challenge. But as the years went on, stakes in defamation suits got a lot higher than they were with the “con job” tweet. Dominion Voting Systems has filed many lawsuits against parties, including Fox News, seeking billions of dollars in damages. They say these media companies and individuals aired wild claims about the voting machine company and these allegations seriously damaged its business interests. But even its defamation suits aren’t a slam dunk. Special guest RonNell Andersen Jones, an expert in First Amendment, media and defamation law talks with Josh Barro (Ken White is taking this week off the show) about the history of defamation law in the United States, current challenges and scholarship, if defamation suits are just the cost of doing business for media organizations, and more.
Josh Barro and Ken White talk about former President Trump’s efforts to keep Republican groups from using his image to fundraise. Were his cease-and-desist letters performative, or does he actually have a legal argument that his name and image can’t be invoked by party organizations? Plus: Congressman Swalwell sues the president and his associates, a judge in New York threw out a lawsuit from Trump against the New York Times, Fulton County brings in a state RICO expert, a former SDNY prosecutor is looking into Governor Cuomo, and the Capitol rioters are still unhappy with their interactions with the justice system.
Former President Trump spoke at CPAC this past weekend, and it got some people talking (apparently, some of Trump’s advisers included): if he were to run for office again, would it help him with some of his legal issues? Would it make prosecutors more reluctant to sue him? Plus: Fulton County DA will appear in front of a grand jury this week, Michael Cohen’s selling prison jumpsuits as podcast merch, why a Trump appointee is suing the Biden administration, a fancy way of charging someone for f***ing shit up, and more.
Former President Trump was acquitted over the weekend in his second impeachment trial. A record seven members of his own party voted to convict him but that wasn’t enough to bar Trump from seeking future office. How strong was the defense his lawyers presented? The end of the impeachment trial doesn’t signal the end of legal exposure for Trump either. The newly elected district attorney in Fulton County, Georgia, talked to the New York Times about investigating Trump’s efforts to interfere with the state’s vote count, and there are two civil lawsuits against Trump and others stemming from the riot. Josh Barro and Ken White discuss those, what Mitch McConnell had to say about Trump and the justice system after the end of impeachment, the possibility of state RICO charges, the “turducken of legal incompetence” and more.
Josh Barro and Ken White talk about President Trump’s lawyers’ first day of impeachment arguments, and more on the legal cases of those arrested during the riot. President Biden seeking the resignation of all Trump-appointed US Attorneys (except one), and his Department of Justice drops its suit against a former aide to Melania Trump. Plus: Palm Beach seems pretty okay with Trump living at Mar-a-Lago now, why Smartmatic’s defamation suit is looking pretty good, and more.
Last week, Josh Barro and Ken White talked about the very normal legal team defending President Trump in his impeachment trial. Well, one week later, the entire team is gone and a new set of lawyers has come in. So, who are they? Are they good lawyers? Ken and Josh analyze the arguments in the briefs from the House impeachment managers and the response from Trump’s lawyers. Then: the New York Times reported on how much money President Trump spent on legal efforts to contest the election, and it looks like he took the PR strategy more seriously than the legal strategy. It seems to havee worked as a fundraising strategy too. Plus: Kevin Clinesmith’s sentence, the Lincoln Project isn’t happy with Rudy Giuliani, Lin Wood’s in trouble in Georgia, listeners have follow-up questions for Ken on the capacity concerns of prosecuting all the Capitol rioters, and more.
One week since he took office, President Biden’s got a legal problem. Josh Barro and Ken White talk about the Texas judge who ordered a temporary stop to Biden’s executive order for a 100-day moratorium on deportations. It’s pretty similar to legal issues the Trump administration had with executive orders. Ken and Josh talk about Jeffrey Clark, the top official at the Department of Justice who allegedly tried to hatch a plan to get President Trump to fire the acting attorney general and advance claims of election fraud. It didn’t work, and now there’s an investigation. The Washington Post reported there’s an internal debate at the Department of Justice about whether to charge every person who participated in the insurrection at the Capitol or focus on the organizers or those who may have committed other crimes once inside the Capitol. Ken White says it’s a very tall order to do so, and he explains why. Plus: President Trump hires Butch Bowers to represent him in his upcoming impeachment trial, Dominion Voting Systems sues Rudy Giuliani for defamation, the Department of Justice made a pre-inauguration appeal to stand in for President Trump in E. Jean Carroll’s defamation suit against him, and more.
As President Trump was about to walk out of the White House for the last time, he made some final pardons. Ken White and Josh Barro talk about who got one in the final days of the Trump presidency, who didn’t (the Capitol rioters, Donald Trump Jr. and the other Trump children, Rudy Giuliani, Donald Trump himself), and whether that was bad legal advice. Would it have been wise for President Trump to give the self-pardon a shot? How many people, pardoned or not, are at risk for prosecution by state officials? Plus: who will represent Donald Trump in his upcoming impeachment trial, and is it really a thing that Rudy Giuliani can’t represent him for ethics reasons? Ken and Josh also talk about whether “but President Trump told me to do it” is a good defense, Mike Lindell, and the new name of this podcast.
It’s pardon season. Last week, President Trump pardoned Michael Flynn, his former national security adviser, for the false statements charge to which he pleaded guilty, and he’s been pardoned for certain activity he was never charged with. If this pardon was corruptly issued, is it valid? Yes. Even if the president gets in political or legal trouble for it, is it still valid? Still yes. The power to pardon is pretty close to a power a king would have, and there is no precedent for curbing the president’s power to pardon. There may be more pardons ahead: ABC News and the New York Times report the president is considering pre-emptive pardons for some of his family members: his three oldest children (Ivanka, Eric and Don Jr.), his son-in-law Jared Kushner and his demented uncle Rudy Giuliani. There’s also news that prosecutors are looking into whether there was a corrupt scheme to offer political donations in exchange for a pardon. Ken and Josh talk about what is known based on an unsealed but heavily redacted order from a federal judge. Plus: Bill Barr makes John Durham a special prosecutor. How does that change John Durham’s work with the investigation into the other special counsel investigation? And what if the Biden administration were to expand the Durham investigation into other areas of the Trump administration Department of Justice? And about that full page ad Lin Wood took out that calls for President Trump to impose “limited martial law” so he could throw out the results of the election: is that sedition? And why couldn’t President Trump file just “one, big, beautiful lawsuit” alleging voter fraud?
This week, there’s been some tension among President Trump’s lawyers. Sidney Powell appeared at press conferences with Rudy Giuliani and made wild claims about voter fraud and other random things. Now the campaign has cut her loose, saying Powell does not represent the campaign or the president in his personal capacity. What does it mean to say that Powell is just “practicing law on her own?” And is Rudy Giuliani a good lawyer? Ken White finally tells us. Josh Barro and Ken White talk through if Powell is in risky legal territory because of her wild and extremely untrue statements, and how any of this might affect the chances of her client, Michael Flynn. Then: what happened with the Trump campaign’s Pennsylvania lawsuit? How bad was Rudy’s appearance in court, and will the judge’s scathing opinion dismissing the suit leave a mark? Plus: where does the E. Jean Carroll lawsuit stand? And why is Michael Avenatti suing Fox News...for defamation?
This week Ken takes the reins of the show while Josh is away. Special guest Franita Tolson of USC’s Gould School of Law joins the conversation to delve into what’s left of the Trump campaign’s lawsuits contesting Joe Biden’s win. Republican election officials in Michigan refused to certify the votes in Democratic-heavy Wayne County...and then they reversed themselves after an outcry from voters. The Trump campaign has had a dismal track record so far in its legal fight, so is the media spending too much time covering these baseless lawsuits? Franita Tolson argues that if the media paid less attention, what might fill the void could be worse. Even Republicans like Mick Mulvaney concede Trump lawyer Rudy Giuliani did not have a stellar day in court yesterday in Pennsylvania. His poor performance came after Giuliani allegedly requested $20,000 per day to continue arguing on behalf of the president to overturn the results of the election. Giuliani isn’t an expert in election law, so is his performance just spectacle or is there some other master plan? Tolson says it may not matter that the legal claims are bogus: what matters to Trump’s base is that he continues to fight. And, of course, there’s the matter of fundraising for paying off Trump’s legal debt or a possible run in 2024.
Josh Barro and Ken White are back! A few interesting things have happened in the past two weeks — first of all, Joe Biden is the president-elect with narrow but clear leads in states that put him over 300 electoral votes. President Trump is displeased about this. He says he really won the election and he is engaging in a legal and PR strategy to contest those results. Most of the individual lawsuits, though, are not very plausible, and as Democrats keep pointing out, they don’t contest a number of votes that would actually change the election outcome. So what is President Trump’s objective here? Can his lawyers help him achieve those objectives? Is Attorney General Bill Barr and the DOJ assisting in a meaningful way? Plus: is Joe Biden entitled to cooperation with the transition, and should he sue the Government Services Administration to force them to treat him like the president-elect? And a really big question: can President Trump pardon his associates and even himself before he leaves office?
Last week, the Justice Department made their case for why they should step in and defend in the defamation lawsuit E. Jean Carroll filed against President Trump. A federal judge just ruled on their two main arguments: no, the president is not a government employee according to the law, therefore the DOJ cannot take over and represent him, and also no, the president was not acting in his official capacity as president when he denied Carroll’s allegation. Ken White and Josh Barro talk through the judge’s opinion and what might happen next with Carroll’s suit. Did the judge sort of do the government a solid here? Then, guess what: we still don’t have a ruling from Long-Suffering Federal Judge Emmet Sullivan on the government’s motion to dismiss the case against former Trump national security adviser Michael Flynn. Instead, we have a twist. Some of the documents the government filed in support of dropping the case against Flynn were altered. All The President’s Lawyers will take a break next week for the election and will return Wednesday, November 11.
The New York Times has continued its series based on nearly two decades of President Trump’s tax records. Late last week, the New York Times traced a $20 million payment that one of Trump’s companies received in 2016 from his joint hotel venture with Las Vegas casino magnate Phil Ruffin. Shortly before that payment, the hotel borrowed $30 million — and most of that loan was personally guaranteed by Ruffin. Shortly after that, Trump contributed an additional $10 million to his campaign, which, as you might remember was “self-funded” and also short on cash. There are three really big issues with what this appears to illustrate, says Brendan Fischer, who joins Josh Barro and Ken White on this episode. First: Trump never disclosed that $30 million loan. Second: if that loan was for campaign purposes, the Federal Election Commission considers personal guarantees of loans to be election contributions, so that would mean Phil Ruffin made a $30 million contribution to the Trump campaign...which is way, way, WAY more than the $2,800 contribution limit. Third: it appears the Trump-controlled company that accepted this payment took a tax deduction for the $21 million that it transferred to Trump, which could mean that taxpayers helped subsidize Trump’s campaign in 2016. Plus: Bill Barr says more indictments from the Durham investigation are unlikely before the election and President Trump is really not happy about that, Trump asks the Supreme Court for an emergency stay in the Vance case, strike one for the emoluments cases, and more.
Long-suffering federal judge Emmet Sullivan finally got to hold that hearing about whether he should grant the Justice Department’s request to dismiss the false statements charge to which former national security adviser Michael Flynn had already pleaded guilty. Both the government and Flynn argued for dismissal, so Sullivan appointed a retired judge to make the case no one was making any longer: that he should not dismiss the charge. So how did that go? Well, it was a little dramatic. Flynn’s lawyer clashed directly with the judge, accusing him of bias, and there were some other shocking moments too. Then: the New York Times obtained extensive tax information about Donald Trump and his businesses. The major findings — that the president paid little to no income tax at all for more than 15 years — are obviously politically embarrassing, but does this give us reason to suspect he has committed tax crimes, or that he should worry about being investigated for tax crimes? Plus: Eric Trump’s upcoming deposition, Brad Parscale detained, Mary Trump’s new lawsuit, and Jacob Wohl (again).
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Podcast Details

Created by
KCRW
Podcast Status
Active
Started
Jun 6th, 2018
Latest Episode
Apr 7th, 2021
Release Period
Weekly
Episodes
150
Avg. Episode Length
33 minutes
Explicit
No
Order
Episodic
Language
English

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