Advisory Opinions - Indictment Watch: The Cannon Conundrum

Episode Date: June 14, 2023

Should Judge Cannon recuse herself from the Trump case? What's the legal standard on willful retention of documents? Will the Finding Nemo Seagull defense serve Trump? What about gag orders? Sarah Isgur and David French keep you up to date on the trials and tribulations of Donald J. Trump. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. All right, it's another, I mean, it's not an emergency episode anymore, but let's call it this other strand of advisory opinions that is happening alongside the Trump indictment by the Department of Justice. I'm Sarah Isger. That's David French. And David, yesterday Donald Trump was arraigned. We didn't really learn anything new,

except there was an order from the judge that he cannot talk to witnesses about the case except through counsel. Many people asking whether and how that would ever be enforceable. Yeah, it's very difficult to enforce orders like that. Most of the time, you're relying on the honor system with orders like that.

But the problem is, those who disregard are running a risk because people who are reckless enough to disregard a court order are not always the most careful in how they disregard court orders. And so, yeah, it's the kind of thing where Donald Trump would be exactly the kind of person to disregard it and exactly the kind of person to disregard it in public. So yeah, but you're right. It is difficult to enforce. It's really not meant to be enforced exactly.

I would think of it more like a workaround to witness tampering. Witness tampering is very, very hard to prove. You'd have to go through every single element and you'd have to prove each one and the mental state and all of this stuff. Instead, by putting a court order like this in place, all you're going to have to do is prove that he violated the court order instead of having to prove witness tampering. So yeah, it's not meant to be sort of strictly enforced, if that makes sense. But as you said, I mean,

enforced, if that makes sense. But as you said, I mean, I also wonder how long this will stay in place. His lawyers pushed back even during the arraignment, we're told. I think they'll bring this up with Judge Cannon. And a district judge, of course, can override anything that the magistrate judge did very easily, in part because Donald Trump is going to be allowed to talk about this case and he's not going to know who's in the audience. And there's a lot of witnesses. I mean, everyone who works for him is basically a witness. His lawyers, all of his staff, his personal aide who traveled with him to the courthouse yesterday,

his co-defendant. It would apply to all of those people. So I won't be shocked if they revisit this when they're in front of Judge Cannon either. Yeah, that wouldn't shock me. But ordering people not to talk to witnesses is not an unusual thing. So this is kind of par for the course.

But yeah, when you have this kind of defendant, it's worth flagging, Sarah, because it might raise issues down the road. Yeah, fun times. All right, next up, I wonder whether we should talk about Judge Cannon. Yesterday, he was arraigned in front of a magistrate judge. Magistrate judges are Article I judges, not Article III judges. We're not going to go into a whole lot of detail on that except to say that Article I judges, like bankruptcy judges and magistrate judges, I think are, of course, totally unconstitutional. Make them Article III judges, or they're not judges at all, but basically they're considered sort of helper judges. And in order to be constitutional,

and again, I want to be clear that I personally don't think that they are, but in our current legal system, in order to be constitutional, basically the district judge has to be able to revisit everything, redo everything. An Article III judge is actually the one in charge and this magistrate judge, again, for our purposes today, is like a helper judge. So that's what he was in front of yesterday for the arraignment. And that means that Judge Cannon, though, is wholly in charge of anything that has been done by an Article I judge. David, there have been lots of things written about how Judge Eileen Cannon must recuse herself because of the appearance of impartiality. And let's put this into a few buckets. One, appearance of impartiality. She was appointed by Donald Trump. I haven't heard

a lot of serious people make this argument, but we'll tear that down really quickly anyway. So we'll do that briefly. Two, she has to recuse herself because of her previous rulings that have been outside of the mainstream in favoring Donald Trump. And three, same thing,

her previous rulings that have been outside the mainstream on issues similar to the ones that will be before her in this case, because they involved the classified documents at Mar-a-Lago. David, do you want to take each one of those? Do you think there's any chance she'll recuse herself? I assume the answer to that's no, but do you give any weight to chance she'll recuse herself? I assume the answer to that's no, but do you give any weight to the, she should recuse herself?

So the short answer to that is no, I do not give any weight to the should recuse by any, by any standard at all regarding surrounding judicial recusals. Look, the main argument against her really is, you know, the other buckets, not bucket one appointed by Trump. That is not the prime argument that I've seen. The appointed by Trump argument really isn't a credible argument. The argument really relates to the fact that she did, in fact, issue rulings in the documents matter, in the initial search warrant matter, that were wildly out of the mainstream. And she was reversed, right? She was reversed by the Court of Appeals, reversed very

quickly. But that is not grounds for judicial recusal in future related cases. District court judges make bad rulings all the time. They are reversed all the time. And it is then their responsibility to conduct their courtroom in accordance with the circuit court's directions. That's what a reverse and remand does. Now, I know this is not the exact same proceeding as the Mar-a-Lago search proceeding, But the fact that she was reversed by itself, even reversed for't see that happening. It's hard for me to imagine her doing that. It's possible. But as far as formal legal grounds for recusal, the idea that you must recuse when you were reversed in a related proceeding, that's not,

that is not formal legal grounds for recusal. I have been in many cases where district courts were reversed in the case and you go, guess what? You go right back down to that same district judge who was just reversed and it's their responsibility to conduct themselves according to the court of appeals directions. And again, I know that this is not the exact same proceeding. She was reversed in a related proceeding, but that's, I'm sorry, that is just not grounds for recusal. No, that makes it even better. I mean appellate court found that not only were you wrong, but we cannot count on you. Like you were so tied to this or you showed so much bias in that ruling that you can't be trusted with the case anymore. And the appellate court will remove the judge from hearing the case further. That just is incredibly rare. I can't think of the last time

I saw that happen, although it does. But it's going to actually generally be biased against a criminal defendant. It's not going to be biased for them. And it's going to be, again, something the judge has like really done through the course of litigation to show that they can't handle this case anymore. But it would have to be something outside of just being wrong on a ruling, like you said, David, because that happens all the time. And even if your legal reasoning is baddie, that happens all the time. When judges get removed for that reason, it's because things happen during trial.

The things the judge has said have piled up so much. Parties have moved for recusal repeatedly and the judge is now saying snide things about them on the record. It would be very, very unusual. We're not anywhere close to that. I also want to make the point, though, that I actually think if I'm Jack Smith in the prosecution, I'm not unhappy with pulling Judge Cannon. And I want to explain why. Because this is an unusual case. The Department of Justice did some hand-wringing before bringing it in the first place, I assure you.

They want and need this to be over as quickly as possible and as seamlessly as possible. And so here's the two ways that this can go. A, it can be dragged out forever. That's not gonna be entirely under the Department of Justice's control. It's gonna be a lot under Donald Trump's control. We'll get to some of the motions and things that they may be bringing in a second. But two, if you had a judge who really disliked Donald Trump,

you would be giving Donald Trump potentially a lot of grounds for appeal. Donald Trump doesn't like that evidentiary ruling. Donald Trump doesn't like that jury instruction. Donald Trump doesn't like that evidentiary ruling. Donald Trump doesn't like that jury instruction. Donald Trump doesn't think that you excluded the right jurors, gave him enough challenges for cause. And so even if you got a conviction, you would be stuck in appellate hell and there would be no finality and you would go up and down with new trials and all sorts of nonsense. I don't think we actually have any clue how Judge Cannon's gonna rule. For all we know,

that last Mar-a-Lago search warrant special master thing, she was just wrong and judges are wrong sometimes or she feels chastised and wants another shot. Like there's all sorts of things where that's not who she is. But let's assume for a second, it's exactly who she is. That's's assume for a second it's exactly who she is. That's good for the Department of Justice in this case

because if every tie goes to Donald Trump and they still get a conviction, there will be no grounds for appeal. And then it's done. And I think more than anything else, this Department of Justice would like finality and that's something that Judge Cannon potentially could give them.

Yeah, I think you raise a really good point. A shrewd prosecutor doesn't necessarily want like what would be the term, a hanging judge. You know, the one who's gonna put the defense under his thumb, his or her thumb, the whole trial. As you said, you just start piling up over time grounds for appeal. Every overruled objection is another thing, another, you know, bullet on the list. It's another bullet point on the list

of reasons for appeal. Now, look, that's not to say that the judge should put the prosecution under her thumb either. But, you know, this sort of notion that the district court judges, legal rulings always flowing towards the prosecution being good for the prosecution, I think it's important that you raise that, that it's not always the case that a judge who is going to grant a defendant some leeway and some benefit of the doubt on some of the rulings, it's one way to grant greater finality to the underlying judgment if it is a guilty verdict. So I think that's a great point, Sarah. All right. Next up, let's talk about some of these rulings. So for instance, you know, the Trump team, actually, let's start speedy trial act, how fast this could go. So under the speedy trial act, a federal criminal defendant gets no less than 30 days to prepare for trial. You cannot start within 30 days of the arraignment. You can't rush them. But they are also guaranteed to start a trial within 70 days. Asterisk. So while a criminal

defendant can't say like, I don't want my speedy trial, like sort of the public is also guaranteed that speedy trial. Nevertheless, the speedy trial 70 days is told, if you will, for motions. is told, if you will, for motions. So if the Trump team is happy to go to trial quickly, in theory, they could go to trial within 70 days. That's really soon, David. That would be trial before baby. I have more than 70 days left.

Nature does not guarantee a speedy trial. Yeah, yeah. It's a trial in due time. And lots of legal commentators I saw yesterday were like, there's no way. Donald Trump wants this to go on as long as possible. He's going to have endless motions. They want to drag this out in the hopes that he can become president and pardon himself

or the hopes that a different GOP candidate can become president and pardon him. I get all those legal arguments. I don't think they're as like slam dunky as they think they are for me. But I also want to make the political case, which is, first of all, Donald Trump doesn't see the world that you do. Hopefully that's clear to everyone. Well, that's a great, hopefully obvious observation. But two, politically, this is great for Donald Trump right now.

I understand long-term, I get all of that. But politically, Donald Trump is sucking up all the oxygen. That was like the OJ car chase yesterday. It was four hours of wall-to-wall coverage, network news broke in everywhere, cable news everywhere, and nothing happened. It was the empty podium of 2015. We don't know where Ron DeSantis was.

We don't know what Tim Scott was saying. It is sucking all the oxygen from the other candidates. And Donald Trump is the front runner. And so if you can be the front runner and stop the race where it is, basically, you're in very good shape. If he can keep this in the news, go to trial, all of that. Yeah, I think politically, that's pretty good for him right now. And I think Donald Trump cares a lot about the politics and the appearance and the carnival aspect of it. So A, I wouldn't be so quick to say that he's going to drag this out for a year and a half. I could be wrong. It also is going to

depend on who his legal team is, which we don't totally know yet. I'm not saying they're not going to have some motions, which I do want to get to in a second, but just overall legal strategy, I don't think that it's a slam dunk. We want this to be a two-year thing. Interesting. I think it's more likely than not that he wants to drag this past the election. Now, but, you know, there's going to be another, there will be an issue as the campaign ramps up. And what kind of motions will we see regarding, I have a presidential debate. I am supposed to be in Iowa. I am supposed to be in New Hampshire.

You know, how much is there going to be this kind of effort to say, look, I can't have a trial. We can't have a trial. I'm in the middle of a primary election. Now, the interesting thing is what if he loses the primary election? Then I think you'd probably see the trial. I'm in the middle of a primary election. Now, the interesting thing is what if he loses the primary election, then I think you'd probably see the trial. There'd be a lot less patience from the judge for delays. And you might see a trial between a primary and a general here if Trump loses the primary. But I think you're right, Sarah. As of this moment, this is working for him politically, or at least seems to. And I have sort of a couple of measures on this. One is obvious, it's the polling. I have seen some polling indicating that

his lead might be, you know, I've seen a poll or two saying his lead might be declining a little bit. I've seen other polls saying other things. But I sort of have a couple of barometers. The obvious one is the polling. The other one is, as we learned in the Fox Dominion case, right-wing media is very attuned to their audience. And so if you are seeing sort of in right-wing media, robust defenses of Trump, even from people who are saying, I don't like his conduct, but this is outrageous, from people who are saying, I don't like his conduct, but this is outrageous, then that's to me another indicator that as of now, at least the base, at least the core, the people who are watching Newsmax or Fox or, you know, OEN or whatever, or listening to Mark Levin

on the radio, that they are still with him and they're angrier about the indictment than they are angry at Trump. angrier about the indictment than they are angry at Trump. And so I think a leading edge indicator of slippage for Trump might be slippage in sort of this full-throated defense we're seeing, not exclusive, it's not the only message in right-wing media right now, but it's definitely the dominant message. And again, remember, this is a media that is very attuned to its audience and its audience is disproportionately Republican primary voters. So I'm with you that at, for now, for now, this is working for him. All right. So let's talk about some of those motions. You mentioned, hey, I'm in Iowa motion. Yeah. I've heard some discussion on various gag orders

that the prosecution could ask for. You know, we don't want Donald Trump personally disparaging the prosecutor, the special counsel and his team publicly. Good luck with that. David, you and I have talked about this before in other contexts around Donald Trump specifically, but any criminal defendant, but any criminal

defendant. But this criminal defendant is also a candidate, and the core of the First Amendment is going to protect, above all else, political speech. First of all, any criminal defendant is allowed to criticize the prosecutor, to question their motives. I understand that the stakes here are higher. I really do. And this is not to defend what Donald Trump has or will say about Jack Smith or anyone who works at the Department of Justice

or the cost, literally and metaphorically and figuratively, to Jack Smith and anyone who works at the Department of Justice who's caught in those crosshairs. I hope and think that I speak

from some experience on this. But you simply are not going to have a gag order on a criminal defendant to be able to criticize, even if that criminal defendant has a bigger megaphone than every other criminal defendant. That's not quote unquote his fault. So don't hold your breath for the gag order. David, you disagree? Yep, 100% agree. It would be really hard for me to see Trump, if a gag order is issued and Trump challenges a gag order, it would be hard for me to see Trump losing that challenge.

On appeal, for example, if you sought an appeal from the judges, gag order, challenging it directly, it'd be hard for me to see him losing that. He is a presidential candidate. This is arguably the number one political topic in the whole United States of America. It's historic. Yeah, gag order isn't going to work. And even if you did, by the way, put a gag order on Trump, like that's not going to work. And even if you did, by the way, put a gag order on Trump, like that's not going to help nearly as much as you think because it's not going to be a gag order

on everyone else talking about it. So there's also just an efficacy problem with any gag order. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

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on potential motions like revisiting attorney-client privilege, things that are in the indictment, suppression of evidence, jury selection, because frankly, I think we're going to get to those. So they exist out there. I think that the Trump team, while they may want a speedy trial, speedier than other people think, in my view, they're still going to try to, I believe, exclude some of this evidence. Number one is going to be attorney statements, I think. But let's get to that when we get to that. David, there's one last big, big topic, and that's there's 37 charges. One through 31 is the willful retention of national defense

information. This is a statutory crime stemming from the Espionage Act. Whee! The Espionage Act has a storied history. There's a lot of people out there saying that a president can't violate the Espionage Act. And tied into that, there's like a ball of tangled yarn arguments on one through 31.

There's the Espionage Act and the president can't violate the Espionage Act. There's the Presidential Records Act saying that the president can take whatever documents he wants and thumb his nose at everyone else. So, na-na-na-na-na. And then in that tangled yarn is this 2012 case from Amy Berman Jackson, a D.C. district judge, which is being lovingly called the Clinton sock drawer case. And I'll just give briefly the facts here. Bill Clinton, when he was president, was recording with an author potential memoir-y type day in the life of Bill Clinton stuff. And in the course of that, Judicial Watch at least believed that he

might have talked about more official things. And that he may have even talked about things that could be classified. And so they sued to have the National Archives go get those tapes from Bill Clinton. Now, there was a whole question of like, where are these tapes?

Do these tapes still exist? Who knows? But the important outcome of the case, if you will, is that Judge Jackson, and again, Judge Jackson, not Justice Jackson, Judge Jackson, and again, Judge Jackson, not Justice Jackson, she threw out the case, so ruled against Judicial Watch and for the National Archives slash Bill Clinton, who was not a party to this case, actually. And that becomes pretty relevant that Bill Clinton was not a party to this case. And she said that the Presidential Records Act contains no provision obligating or even permitting the archivist to assume control over records that the Presidential Records Act contains no provision obligating or even permitting the archivist to assume control over records that the president categorized and filed separately

as personal records. So basically, when you're president and you're packing up your boxes, the Presidential Records Act doesn't give anyone else the authority to help you pack the boxes or to make, you know, to go over your shoulder. You get to put, you know, this trinket in one box and say, look, it's my trinket. It's personal. And this other thing and the other box and say it's official. And basically we trust the president to do that. Okay. So that is all the ball of yarn tied up in the willful retention of documents, defenses that I've seen out there. However, I want to note, David, charges 32 through 37, the lying, false statements, obstruction.

Yes. I haven't heard any defenses of that. And I'm not trying to strawman this. I literally haven't heard any. So while we're going to talk about the legal weaknesses and defenses on the willful retention stuff, even if all of those got knocked out, I just want to make the point that you would still be left with charges 32 through 37, because once again, Donald Trump is his own worst enemy.

And that even if he hasn't done anything wrong, the man just loves a good obstruction charge. Look no further than the second part of the Mueller report. I talk a lot about the first part and that everyone gets the first part wrong or ignores the first part where Mueller said there was not evidence to bring charges against Donald Trump or his campaign related to interference in the 2016 election. Everyone just disagrees with me on that. I don't understand why, like it's actually written there. But part two of the Mueller report is also right there.

And it's like, yeah, this is very obstruction-y. We're not going to do anything about that, I don't think. I'm going to leave that up to Congress because frankly, they would have to impeach him for us to do anything about it anyway for a sitting president. But like, not great, Bob. This is like that, except that they did bring the charges because he's not the current president and no defenses that I've heard. Except, well, if he didn't break the law, how could he obstruct breaking the law? To which my answer is, yep, that's how obstruction works. Yeah, exactly. Yeah, exactly.

And I, you know, I think the technical term for the defenses I've seen on the Presidential Records Act, surrounding the Presidential Records Act, is the Finding Nemo Seagull Defense. Mine, mine, mine, mine, mine. And that's essentially what the argument is that he said on each box, mine, mine, mine, mine. And then he takes them and they are his. And that's sort of the essence of the defense. And the problem you have, I think there's some argument for it. I don't think it's, I don't think it's crazy. It may lose. Right. But, but there's some real stuff here. may lose. Right. But there's some real stuff here. It's non-crazy, but it has weaknesses. Yes. And one of the weaknesses is this is an Espionage Act case about information pertaining to the national defense. And this is where a lot of people get really upset at the Espionage Act,

because that's broad language, you know, the information pertaining to the national defense. And so one of the things that has a lot of people have said about, well, he declassified. Well, if he declassified, but that's not what the Espionage Act says. It's not classified information pertaining to the national defense. It's information pertaining to the national defense being removed from its proper place of custody. And then that's where it gets really squirrely because he would say, well, no, then this is the proper place of custody if it's mine. If it's mine, the proper place of custody is wherever I want to put it in my house. And so, you know, it is a non-frivolous argument, but it is the Espionage Act has language that's broad enough to where, you know, and again, this is one of the

critiques people mount against the Espionage Act. So I put it in the category of non-frivolous defense. The counts one for 31, one that's going to be worked out in court. But as you said, I have not seen any defenses mounted yet for the remaining counts. And I think part of the argument on that would be, oh, well,

they're not real charges. They're just, quote, process crimes. Well, guess what? Guess what? There are a lot of people who go to prison for these, quote, process crimes. And just in the sneering you see about process crimes, say on Twitter, is not, doesn't work in court. You don't get to say, look, I know he lied or caused his subordinates to lie in response to a grand jury subpoena, but that's just a process crime, Judge. That's not how that goes. It's a legal defense,

sort of as a political defense that Donald Trump isn't as bad a guy as you might think he is as a sort of public political defense, okay, but as a legal defense, the sneering about, you know, at the type of crime he's charged with is really immaterial. It just doesn't matter at all. And if you're looking at the substance, I've not yet seen what the Trump defense is going to be to the counts beyond the Espionage Act. So I want to steel man that ball of yarn in 1 through 31 a little bit, which is this.

He got to choose which papers to put in the boxes while he is president. And remember, he's acting as the executive. And one of the pushbacks I've heard to that is, well, yes, but there's another statute that basically says that agency documents are different. And for presidential records purposes, the agency owns these documents, not the president. Well, the agencies are under the executive branch. And if you want to get into some real legal weeds here, I actually am willing to buy into, or at least very much hear out arguments that like no the agency documents may belong to the agency over let's say the secretary of state but when you're talking about the president that oversees the agencies while he is acting as president uh he can override

anything the agency says just like he could declassify stuff. And so then he takes it to Mar-a-Lago. They are at that point, his personal papers under the Presidential Records Act. And so how can he, you know, the National Archivist then has no claim over them, according to this 2012 opinion.

I'm willing to follow you that far, actually. Here's your problem. He is now no longer president. Now the current president says, I want them back. The current president is saying that through the FBI and a subpoena. You as the former president have every ability to go to court to challenge that subpoena.

And say, nope. And use the mind defense. Use the seagull defense. Mine, mine, mine. What you don't get to do as the former president is not the seagull defense. I don't, the crab defense. Hide, hide, hide. defense? Hide, hide, hide. And that's where that defense falls apart a little bit, which is the willful retention he wasn't charged with is putting them in the boxes as president, flying them to

Mar-a-Lago as former president. We're talking about 1159 AM versus 1201 AM. All of that's fine. The willful retention charges come only after the FBI subpoena. Yeah. Yeah. And that's where this ball of yarn loses me a little because even if they're his, even if, uh,

the presidential records act allowed them, allowed him to classify them as personal. Um, and the agency documents and the national defense information stuff doesn't matter because the presidential records act gives that president the authority. And even if it didn't, maybe there's inherent authority in being president. I'll buy all of that. But there's a different president now.

And so all of that authority is then in someone else. And that had to be litigated. One last note on this, David, that I think is worth people understanding. This will not be a question for the jury. Right. This is a legal question. So Judge Cannon is going to decide all of these legal questions, frankly, that you and I are going to talk about on this podcast. The jury is then going to be given jury instructions telling them what the law is. Something to the effect of, if you find that the president believed these to be his documents, you must acquit him.

If you find that the president did not believe these to be his document, something to that effect, as in they're not gonna be given like, well, if they were his documents based on this 1917 statute, like, nope, nope. The jury instructions will be very simple in that sense. Juries decide matters of fact, credibility, things. Juries can look at why we want 12 reasonable people, the reasonable standard really holding this one up here,

is that end of the funnel, if you will, where a judge is no better at discerning truth than 12 citizens. But in terms of whether the 1917 Espionage Act is overridden by the unitary executive theory and constitutional separation of powers, yeah, that's going to be Judge Cannon's call. Right. And that is going to be a very interesting argument. And Judge Cannon is not going to be the last word on that. This is something that's going to be litigated up the chain in all likelihood. So this is going to be, in my view, barring unusual evidentiary issues, this is going to be the central, most interesting legal question in the case. But again, as you said just now, as you said in your newsletter, which we should put in show notes, which was great, no one has yet brought forward a defense that touches the remainder of the charges. Doesn't mean there's no defense. It's just that I haven't seen the defense yet. And we don't have any insight yet as to the defense.

sight yet as to the defense. And let's also be clear on what is not a defense. I didn't break the law, so how could I lie about this? Or how could I obstruct if I didn't break the law? Because what you'll see in so many of these 1001 cases is you weren't sure whether you were breaking the law, so you lie about it. You don't have to know you broke the law to lie, and you don't have to be 100% sure you didn't break the law to lie. And you don't have to be 100% sure you didn't break the law to lie. It's those people who are like, oh, this doesn't look good for me. So I'm going to lie about it. Because I'm not quite sure where it goes if I tell the truth. Yep. You know, that's, that's like your Martha Stewart type case. There's a lot of shady stuff, like sort of stuff around the line. And most people don't know. They may think they broke

the law. They may think it's debatable. They might think they could lose. And so the lie is designed to remove the threat or remove, you know, remove the prosecution from hanging over their heads. But the lie actually ends up triggering the prosecution more than the underlying allegations. And yeah, this is something that it just happens all the time. And one thing, you know, I'll note is, look, I have seen a lot of argument about process crimes during the Trump, during the Mueller investigation, sort of dismissing a lot of the Mueller charges that were brought related to lying and the process type arguments, just process crimes. I did not see that when Durham was trying process crimes.

People were like, yeah, go get them, you know, on the right. We're like, go get them, go get them. A lot of the process crime arguments are often driven or the denigration of process crimes is often driven by a lot of underlying sympathy for the defendant. That's not to say that there isn't a serious

and credible argument to be made about process crimes. And there are legal commentators I've read who've make those serious arguments about how the FBI kind of abuses 1001 to get the people in its crosshairs. That happens. That also happens. So there are defenses to 1001 cases. Obviously, the challenge that Donald Trump has is the defenses to his conduct there are not yet obvious. And not to say they won't emerge,

but as of right now, they're not yet obvious. I think that'll wrap up our podcast on this. David, I did want to tell you some exciting news. You may remember my tattoo that I'm working on. You don't have it yet, Sarah? It's just a couple of hours just like a couple of hours, just a couple of hours. So last night we had an amazing event for our dispatch members in Houston, my hometown. It was about half a mile from where my parents live. The brisket even got to come for

some of the events. It was incredible. I had the very, very best time. It's so nice to come home. And at the end of the event, Jonah Goldberg and Steve Hayes were there with me. And Jonah presented me with an envelope, David. And inside that envelope were temporary tattoos that say other cases presenting different allegations and different records may lead to different conclusions. You are kidding. That is phenomenal. I'm not kidding. I love that so much.

And I just want to mention that I do have multiples and I know we have Supreme Court clerks who listen to this podcast. And if you could pass on a message to Justice Jackson and let her know that if she wants twinsie tattoos, I am so here for that, that I will give her one of my temporary tattoos. They fit on the average forearm of a female. I think it would look awesome. And I just, you know, I think Justice Jackson's pretty great in any number of respects, but that line forever will be amazing to me. And so I just, I want to pay her respect and offer her said temporary tattoo. I will absolutely be sporting mine all the time now.

I love it. Well, we have some live podcasts coming up, Sarah. And the people will be disappointed if they're meeting you in person and you do not have your tattoo. David, it's so cool. I can't even tell you. I can't believe Jonah did this. That is so fantastic.

That is one of my favorite things. That is so fantastic. Also, I was my favorite things. That is so fantastic. Also, I was asked, so you're speaking at an event in Houston coming up. And I was asked about like, what are special treats that David likes that people don't know about? And I, for some reason, like, you know, you're like asking this in like a big group of people and a long line and your head goes to whatever the first thing you think of is. like a big group of people and a long line and your head goes to whatever the first thing you think of is. And I was thinking about our road trip up to...

Were we going to New Haven? I think, yeah, we flew into New York and we were driving to New Haven together. And we stopped at McDonald's, which I was super pumped about. Got my little dollar cheeseburger, awesome time. And you went over and got the orange Fanta crush or whatever disgusting beverage.

Yes. And I was like, David really likes orange crush soda. True, true facts. Okay. It's fantastic. Good, because that's literally, you're going to now go into every hotel room you ever stay at for an event

and it's going to be filled with orange soda because that one time you drank it in front of me. That's amazing. That's the best thing. Amazing. Oh, hey, David. It's going to be filled with orange soda because that one time you drank it in front of me. That's amazing. That's the best thing. Amazing. Oh, hey, David, before we go, one other thing. There's a third person in this podcast. Every single time, without fail, we can't do this podcast without him.

His name is Producer Adam. Yes. And we never give him any credit. We don't even acknowledge his existence. Um, and he suffers in silence. He truly does. Yeah. He's muted right now. He like can't even weigh in if he wanted to. And let's just be clear, right? Like we end up recording from places that don't have internet. There's like seven different recordings he has to piece together, not to mention all of our mistakes or, Hey, I didn't mean to say that. Like, can you take it out? All of that stuff Adam does. And he does it without complaint. Um, however, I did think there were limits and it turns out there aren't

because Adam last week during our emergency podcast, as I was, you know, grumbling and complaining about how I was in paradise and it was my vacation. Why did I have to do this emergency podcast? Adam failed to tell us that he was the best man in a wedding. Not that weekend. Not that day. That hour. So while again, I was complaining about being on vacation, Adam failed to tell us that he was going to be late to being the best man at his best friend's wedding, Ken Goshen, and now Daniela Goshen. We're so sorry. Yeah, we're really, really sorry for any stress we caused you.

But then we had this really interesting discussion with Adam as to whether, in fact, we did him a favor because guys don't necessarily always love all of the wedding festivities. But Adam would never say that out loud about his best friend's wedding. But it just raised an interesting question about how much do guys, groomsmen, best men love all the pageantry surrounding various weddings. But we're really sorry for the stress. Yeah. David, I want to be clear. No, maids of honor aren't like loving their life. The point is you are there to serve. You need to be there. You can't show up and walk out 30 seconds before the bride walks down the aisle and be like, ha ha. I did my job. No, no. There's all sorts of responsibilities that you

have and planning and execution. You're right. And so this idea that like, well, he made it in time for the vows, like that's not acceptable. So we're really sorry, Ken and Daniela. True. We didn't know. Yes, we're very sorry. We did not know we were causing you stress. We did not know we were causing Adam stress.

And we apologize. This is a family podcast. We support families here and the creation of families and new families and your new family. We want to support. So next time we'll make sure Adam is there for the bris. Our bad. I have one question. So on advisor opinions,

a month ago, you went crazy about some line from Ketanji Brown Jackson. What was that? Yeah, my tattoo. Different cases have different facts but have different results. So,

because I hear so much. After I heard that, I actually had that temporary tattoo made for you. It's a mirror image because it has to go on your body. I told Steve about this at lunch today. And he was like, so dude, what you've got to do is you've got to make it your tramp stamp. And I'd be like, so so weird it's my tattoo too

but we want to keep you people as subscribers and no one wants to see cameras here yeah so anyway this is for you uh there's some trial ones you can put it where probably on your arm um yeah so there you. There's some trial ones you can put on your arm. Oh, my God, yeah. So there you go. That's a really good link. Oh, my God, guys. Thanks.

Definitely. Thanks. Thanks. Thanks. Thanks. Thanks. Thanks. Thanks.

Thanks. Thanks. Thanks. Thanks. Thanks. Thanks. Thanks. Thanks.

Thanks. Thanks. Thanks. Thanks. Thanks. Thanks. Thanks. Thanks.

Thanks. Thanks. Thanks. Thanks.