No Lie with Brian Tyler Cohen - Gaetzgate

Episode Date: April 11, 2021

Joe Manchin has once again changed his position on the filibuster. Brian interviews legal analyst and prosecutor Glenn Kirschner about Matt Gaetz’s rapidly devolving scandal, including a glaring hole in his story and how a pardon might still factor in.Written by Brian Tyler CohenProduced by Sam GraberRecorded in Los Angeles, CAhttps://www.briantylercohen.com/podcast/See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Today we're going to talk about an update on Joe Manchin and his position on the filibuster, and I interview legal analyst and prosecutor Glenn Kirchner, where we discuss Matt Gates' rapidly devolving scandal, including a glaring hole in a story and how a pardon might still factor into all of this. I'm Brian Tyler Cohen, and you're listening to No Lie. So let's start off with Joe Manchin. Now, if you've been trying to keep up with where Manchin stands on the filibuster, good luck. He went from absolutely not touching the filibuster to, okay, maybe we'll reinstate the talking filibuster.

And now it seems like we're back to square one because we got this statement out of him. January 6th changed me and I was very clear with everybody. I never thought in my life. I never read in history books to where our form of government had been attacked at our seat of government, which is Washington, D.C., at our capital by our own people. Now, the British did it, but not Americans. So something told me, wait a minute, pause. hit the pause button. Something's wrong. You can't have this many people split to where they

want to go to war with each other. Okay, so Manchin is now saying that January 6 changed him and that you can't have this many people split that they want to go to war with each other. And so for that reason, he wants to keep the filibuster because it forces a bipartisan approach. In other words, Republicans just got rewarded for January 6th by allowing them to keep intact the only tool they have to prevent Democrats from fighting back against GOP efforts to actually rigged next election. Like, Republicans told their voters the election was stolen. Their voters believe them and used that as justification to attack the Capitol. Those Republicans who lied in the first place then pointed to that and said, wow, look at what's happening.

This fraud really was serious if all these people went and rioted. And they started passing bills across the country to limit Democrats' ability to vote using their own lie and the subsequent violence that was borne out of it as justification. Like, you want to talk about circular logic. And then to make matters worse, we have Joe Manchin also looking at the events of January 6th, an insurrection born out of a lie that the election was stolen, and him saying, wow, this is bad. You know what needs to happen? I need to make sure to protect the filibuster and therefore prevent H.R.1 from passing because it's not bipartisan. Like, of course it's not bipartisan.

It would mean that Republicans don't get to rig the game. Right now, they're scoring on a goal that is 27 feet wide, while Democrats' goal is 14 inches. They're not going to help you pass a bill to make sure those goals are the same size. And it's not just Mansion either. Kirsten Sinema, the other Democratic holdout when it comes to the filibuster, she even tweeted, quote, voting rights are fundamental to our democracy. That's why we co-sponsored the For the People Act, legislation protecting Americans voting rights and the integrity of our elections. The irony, of course, being that she's one of the only people standing the way of this actually passing. Like if you're one of, what, two people standing between reforming the filibuster, which is the very tool being used to prevent the Forther People Act from passing,

don't tweet platitudes about how important voting rights are because it's not only empty rhetoric but it's insulting to the rest of us who have half a brain and recognize that the only reason this bill isn't passing is because of the filibuster that she herself is protecting. And look, I usually try to take a really measured approach when it comes to Joe Manchin.

Cinema less so because, you know, look at Mark Kelly, Arizona's other Democratic senator who comes from the same state. He's not pulling this deep red state stick. I honestly don't know what she's doing. But as for Mansion, at the end of the day, I do still think it's an electoral miracle that a Democrat was elected in West Virginia

in this day and age. And so I tend to give him a lot of slack. And so I don't really expect him to vote for most things because I know that's the price for him to at least vote for some things, like the American Rescue Plan, for example, which passed by one vote. And so that's okay.

Do I agree with it personally? No, but do I understand? Yeah. But when we talk about the Philibald, It's always in the context of the For The People Act, and the passage of that bill is existential. This isn't like passing universal background checks or Medicare for All or something like that. It's not a matter of policy. It's a matter of democracy.

It's a matter of Democrats continuing to be able to participate in government. It's existential. It's that if we don't pass the For The People Act, Democrats will be gerrymandered and suppressed to the point where we can't win, where the game is rigged so far out of our favor that the outcome has already decided. So look, I'll be the last person to beat up on Joe Manchin on any issue of policy, even if I disagree with him. But this is different, because by continuing to protect the filibuster, he's not preserving the integrity of the Senate. He's enabling the Republicans to relegate him into the permanent minority. And does he mean well? Probably.

Probably. I'm sure there's people who think that's naive of me to say, but probably. But would Republicans do the same? Not a chance in hell. So the GOP will allow Manchin to neuter himself in the name of bipartisanship, knowing full well that the second they're back in the majority, they'd forget the definition of bipartisanship. It would cease to exist in their vocabulary. They would mow him down like the stampede that killed Simba's dad.

And that's the frustrating part because Joe Manchin has to know that. He might, like, yearn for the old days of the Senate, but they're gone. So we're playing two different games here. He's trying to fix something at the same time the other team is trying to break. it. And those things will never reconcile. And look, I know that I talk about the filibuster a lot, but honestly, passing HR1, the For the People Act, needs to be our first, second, and third priority. That's not to say that other agenda items aren't important because they are. And passing them is the mandate that Biden was elected to pass. And I'll bet my last dollar that the American

Rescue Plan saved people's lives. And I think the American Jobs Plan will be a boon to this country, unlike anything that I've ever seen in my lifetime, but if we want anything to pass after 2022, after Republicans redraw the maps, after these new voter suppression bills take effect, then we need federal protections for our elections. Otherwise, we've got a year and a half before we're looking at permanent minority rule. So we have a lot of fights, but fixing the foundation of our democracy is number one. So our job right now is this. We have to both stay on these Democratic holdouts and keep reminding people why eliminating the filibuster is important because it is the only thing standing in the way of passing the for the people act and that bill is our only and

last hope of shoring up our democracy we're not trying to tip the scales we're trying to rebalance them you can be in favor of preserving the filibuster or you can be in favor of preserving democracy but not both so before i introduce my guest i have a quick announcement and that is that i want to hear from you so i'm going to try something new next week. If you have any questions or comments for me, send me a voice note via email, and I may feature it on the next episode and answer your question. The email address is podcast at briantylercoen.com. And remember, it has to be a voice note, meaning you've got to send me an audio file, which you should be able to do right from your phone. I believe there's

an app called voice recorder on Android and voice memos on iPhones. So again, send those to podcast at bryantylercoen.com. So shoot me over your voice notes and listen in next week. Okay. Next up is my interview with Glenn Kershner. Today we've got Glenn Kershner, a legal analyst for NBC and MSNBC. He teaches criminal justice at George Washington University, and he's a federal prosecutor with 30 years of experience. Glenn, thanks for coming on. Hey, thanks for having me, Brian.

Now, I want to talk about the Matt Gates situation, and I do want to make this caveat for those watching and listening that so far, Gates' involvement is all alleged. And so if I speak about trafficking, please know that it's alleged. You know, I'll try to make that distinction, but I just wanted to issue that disclaimer up front. So with that said, Glenn, could you give us a rundown of Gates' situation as it stands right now? Sure. So one thing is not alleged about what's going on with Matt Gates because he and his lawyers confirmed about a week ago, as reported by the New York Times, that the Department of Justice has him as a subject in a child sex trafficking investigation.

That's an important word. And frankly, it's not a badge of merit. No, you're not a target of the investigation, but you're a target. target minus one. Here's how the Department of Justice defines subject, because when I would put witnesses in the grand jury, if they were a subject of the investigation, I was required to advise them as follows. Mr. Witness, you understand that you're a subject of the grand jury's investigation. What that means is that your conduct, your potential criminal conduct, falls within the scope of what the grand jury is investigating, and if appropriate, you could be indicted. Do you understand that. And with that understanding, are you still willing to testify even though you are a subject of the investigation? So look, Matt Gates is in some pretty deep trouble by all

indicators. Now, as you say, he hasn't been charged with a crime yet. But what do we know? We know that his criminal bestie, Joel Greenberg, right, county assessor for Seminole County, Florida has been indicted for a whole rack of federal crimes, including child sex trafficking. You know, about a week ago, Joel Greenberg woke up with 12 felony charges hanging over his head. That night he went to bed with 33 felony charges hanging over his head because the federal prosecutors in Florida issued a superseding indictment. Now we learned yesterday in a status hearing in Joel Greenberg's case that it looks like a plea deal is in the offing. And if that wasn't ominous enough, gentlemen by the name of, I think it's Fritz Scheller, who is the defense

that's for Joel Greenberg, and he was asked, do you think Matt Gates is in trouble? Do you think he should be concerned? He hemmed and he hawed for a while. But then he said, if I were Matt Gates, I would not feel comfortable right now. That's pretty ominous. I think we all know that if Joel Greenberg flips, we are likely to see Matt Gates indicted. Okay, so I guess that brings me to my next question. Would the only reason for federal prosecutors to allow a plea deal to be to get a bigger name like, oh, I don't know, a United States congressman? So as a career federal prosecutor, if I'm striking a plea deal with somebody, it has to be for an important reason, either because I think that,

defendant can help me work my way up the food chain to bigger fish, to bigger criminals. Or because that plea deal, I have consulted with the victims in the case and we've decided together that that's the right resolution for the victims. It's what the victims want to see happen in the case. So it's not just one reason that we would strike a plea deal. But let me tell you, if we wanted to basically do everything we can within the law to force cooperation, we are not going to let them plead to anything short of all 33 charges. Because if you're going to plead guilty, then I'm not going to give you a break. You have to plead straight up to the indictment, every indicted charge,

and then I'm going to go hard at you during the sentencing hearing. So a plea deal, I would say the vast majority of the time, signals cooperation. Okay. Well, building off of what you just said, if Greenberg was, was the principal perpetrator here, meaning that he facilitated the trafficking. In theory, he's higher in the food chain of this particular crime. So why allow him to cooperate to ostensibly get to Gates? Like, Greenberg might not be a name like Gates is,

but isn't he a bigger prize for prosecutors since he actually facilitated the alleged trafficking? Well, we don't know who is the bigger prize because the devil's in the details, and the details are before the grand jury. They're the evidentiary details. So we don't know who facilitated whom. What we do know is that if you're in a conspiracy together and you're both involved or multiple people are involved in child sex trafficking, from where I sit, that alone is enough to go hard after crimes like child sex trafficking.

But here's the other important principle. If Greenberg and Gates are in a conspiracy to commit sex trafficking, violations together, it almost becomes irrelevant who the bigger fish is because the law of conspiracy says every single conspirator is guilty of every crime of every other co-conspirator whether you personally participated in those crimes or not. So listen, when it comes to child sex trafficking, it is all worth going after regardless of how high up the food chain we end up going. Right. That's a really good point. Now, if If Gates is charged, I guess the difficult thing for me to imagine is a congressman getting

hauled away to jail. Like, we've sat idly by and watched as Republicans basically evaded accountability for four years, from Trump to his kids, Kelly Leffler and David Perdue for stock trades. Like, we could go on all day. Is there any way that Gates would be able to avoid jail time if he's implicated in this? Again, we have to wait to see what kind of charges he ultimately is indicted for if he is indicted, do they have mandatory minimums? And if so, is there an escape valve a way to get out from under the mandatory minimums? Because look, if they take down Gates, you know, the first

question is going to be, who can Gates give the federal prosecutors that are, that might be above him in the food chain? Because you know what? He is not alone in the, you know, in the bench of bad Republican actors right now. So I suspect Matt Gates probably has quite a bit of information he can provide the federal authorities. And I know, Brian, what you say about, we're so frustrated because of the lawlessness of the Trump administration has gone unaddressed. But I think the bill bar free ride is over. And with Merrick Garland in place, given how he came up through the Department of Justice, including my old U.S. Attorney's Office in D.C., the man is a quiet storm. And the man is going to do right by the American people, I'm sure of it. Well, that's good to hear. And I do.

want to speak about, you know, his role with regard to prosecuting those who were involved in the insurrection on January 6th. But I do want to stick with Gates for one quick sec. And that's to talk about one issue that I keep seeing pop up. And that's that Gates keeps deflecting by pointing to this alleged extortion attempt. But here's where I get lost. Even if he was the victim of an extortion attempt, that wouldn't absolve him of the alleged crime of trafficking, right? Like, it would just mean that separately there was one crime of trafficking and another crime of attempt extortion. So one doesn't make the other go away. So am I right to suggest that pointing to the extortion is just a way for him to muddy the waters? You're absolutely right.

And I don't even know that technically it was extortion. I mean, extortion basically for the layman is pay me money or I will do X. And X could be I could injure you. I could damage your reputation. I could damage your financial standing. So I don't even know. But but the the whole thing is a transparent diversionary tactic. You're exactly right. Even if somebody was extorting him, like, hey, I might just have to reveal that you're involved in child sex trafficking. Well, that doesn't absolve him of child sucks trafficking.

So this is all just a diversionary tactic. Okay. That's what I thought. I mean, something that seems to be missing in all of this pointing to the extortion attempt is the or else. I mean, it just seems, all we've seen thus far is that, you know, you have this person who Gates was pointing to issuing these threats, but there was never any or else. And so ultimately, it's just somebody basically offering him money to make an alleged crime, you know, to massage it or make it go away. It's basically selling PR. So I don't see where the, where the extortion comes in there. But, you know, not exactly surprised that we would see, see him kind of scramble to make, to muddy the waters here. Okay, so we've heard reporting that Gates asked Trump for a blanket pardon. Now, lawyers speaking on behalf of Gates have refuted that this happened at all.

But let's assume, just for hypothetical purposes, that this did happen and that Trump did issue it. So, A, is it possible that Trump issued it and that we don't know yet? And then B, when would we know that? Yeah, so it's important to understand that there is nothing in the law and there is nothing in court precedent that says, in order for a presidential pardon to be valid, it must be publicly disclosed. Hence, the pocket pardon. As prosecutors, we grant something called pocket immunity all the time. We only reveal it when we need to reveal it, like when a witness invokes his or her right against self-incrimination on the stand, and we have to deliver it. This is the same principle. He could have

issued any number of pardons, and I would bet a dollar, which is my betting limit, because I'm not a betting man. I would bet a dollar. All of his family members have pardons, and he has his own self-pardon, all of which will be susceptible to a court. But, you know, I don't know whether he may have given Gates one or not. I find Gates denials a little bit hollow when we saw Gates go on TV and said, Donald Trump should give everybody a pardon. He should give Congressman a pardon. He should give Joe Exotic a pardon. He should pardon the Thanksgiving turkey. And yet we are to believe that Gates never asked for a little pardon of his own. That's ridiculous. So let's assume he did. The question becomes, did Trump give him one? We won't know until Gates is charged. And if he

has one, he'll pull it out and offer it in a motion to dismiss the charges against him, because he'll say I have a presidential pardon. But it's really important that I happen to believe the reporting that he asked for a pardon because the Supreme Court has told us what it means, what a pardon means, when you are offered one, what a pardon means when you receive one. 1915 case of George Burdick versus the United States. George Burdick was a newspaper man in New York. He was the editor of the Tribune. President Woodrow Wilson issued him a pardon.

George Burdick said, I don't want one because I'm not guilty of anything. And the Supreme Court said they upheld George Burdick's right to refuse a pardon. And they said a pardon carries with it an imputation of guilt and accepting a pardon carries with it, a confession of guilt. So let's just extend the rationale. Going after a pardon, requesting a pardon, coveting a pardon, I would argue by extension, if I were in court, equals an admission of guilt, a direct addition of guilt. So I predict that if push comes to shove, a court would probably rule that it's admissible evidence as both consciousness of guilt and an admission of guilt, which are two separate things, but they're related. It's admissible on the

question of Matt Gates' guilt of the offenses. So this will all play out in the future when and if Matt Gates is charged. Okay. Well, that answers, I think, all of my questions. So I do want to change topics here. I have a quick question about the issue of abortion. Now, there are a raft of states that are trying to pass bills effectively outlawing abortion. I know that we have Roe v. Wade, but is the goal just to try and get Roe v. Wade in front of the Supreme Court again? And aside from precedent, is there really anything stopping the Supreme Court from just overturning Roe if enough of the justices want to? There is nothing from preventing a Supreme Court of revisiting its own precedent.

And I fear they may do that. It's pretty transparent with some of these draconian abortion laws that are being crammed through Republican legislatures and signed into law. these are nothing more than a vehicle to try to get these issues back before the Supreme Court. Some of them seem laughable, so you would expect courts will strike them down. But with the composition of this Supreme Court, you never know. And thank goodness Joe Biden has just announced the commission to maybe up the number of justices, which I think is exactly what is required in this day and age.

Of course, the Supreme Court historically has had as few as five justices, and it's had as many as 10 justices, I wish people would understand nine is not a magic number or a constitutional number. And by the way, we had eight by virtue of the Republicans' own doing. They held that seat open for an entire year. So you have the exact same people who are, you know, wailing about the sanctity of the number nine on the Supreme Court,

and yet it was them who made sure that we had eight justices on the bench for the better part of a year because they wanted to block Merrick Garland himself from taking that seat. Great argument. So with that said, I do want to move over to January 6th, is what I was alluding to earlier. Now, is there any downside for prosecutors to add the charge of sedition for those who participated in the insurrection at the Capitol? And beyond that, is there any likelihood that those charges actually stick, in your opinion? Yeah, so I retired

from the DC U.S. Attorney's Office. That's where all my friends and former colleagues are handling the insurrection cases, and they're doing remarkable work, both the FBI and the Assistant U.S. attorneys. Yeah, I think a lot of the charges will stick, but I think the prosecutors have to make some really difficult tactical choices about who to plead out to relatively low-level charges, who to go hard after because we think they're part of a conspiracy, and we want to work our way up to conspiracy. So, you know, and all of this, I have to say, is part and parcel of resources issue, because we have a finite number of prosecutors. And, you know, I think, think they're doing the best they can, but they are somewhat overwhelmed. But I think they're

going to make smart tactical calls about who to go hard after and who to maybe let go with relatively minor charges. Okay. Now, this is overly simplistic, but what's the likelihood of any indictments and or arrest for the Republican officials who are involved in the incitement of insurrection at the Capitol? So from a career prosecutor's perspective, I see criminal liability by on behalf of Donald Trump, Don Jr., Giuliani, Mo Brooks, because in very real terms, they incited the attack on the Capitol. There's no two ways about it. But for Don, this was a Donald Trump production start to finish, but for him organizing it, orchestrating it, telling all of his supporters come to DC on the 6th because it will be wild, lying to them, which is what provides

the criminal mens rea, the guilty mind, the criminal intent, lying to them about the fact that their vote had been stolen, their election had been rigged, and their president had been wrongfully taken away from them. And you can stop it all right now by attacking the Capitol, by going down there and stopping the steel. You've got both corrupt intent and you've got the act, which was him pointing virtually a loaded gun, which was his riled up mob of a base at the Capitol and pulling the trigger and we saw the deadly results. Absolutely Donald Trump has criminal liability. The only question is, do we have the political will to bring those charges? And if we don't, I contend we're slouching toward the end of our republic. Well, that's a, that's a warning that I hope is well

received. So, Glenn, with that said, where can my listeners and viewers find you? So I'm on YouTube. I have a channel. Just Justice Matters run my name, Glenn Kersner, and I put a video up every single day, as I think do you, doing a legal analysis of the issues of the day in terms that hopefully people can understand and they can use in their everyday lives. You can find me on Twitter at Glenn Kirshner, too. I'm over on Patreon with Team Justice, where we've been building a number of grassroots citizen initiatives that we're working. So I'm trying to kind of spread myself all over social media, even though I still am learning what this social media thing is all about. Well, you're doing a great service and I completely agree that you're putting it, you know,

the importance of putting this in terms that people can understand. So, so Glenn, thanks so much for taking the time. I appreciate it. Thanks for having me, Brian. Thanks again to Glenn Kersner. That's it for this episode. Talk to you next week. You've been listening to No Lie with Brian Tyler Cohen. Produced by Sam Graber, music by Wellsey, interviews captured and edited for YouTube and Facebook by Nicholas Nicotera and recorded in Los Angeles, California. If you enjoyed this episode, on your preferred podcast app, feel free to leave a five-star rating and a review, and check out briantylercoen.com for links to all of my other channels.