The President's Daily Brief - Bonus: New Podcast - The Complexities of the 2024 Election | America on Trial with Josh Hammer

Episode Date: January 29, 2024

Today, we wanted to bring your attention to a brand new podcast! "America On Trial" covers the 2024 Presidential election through the only lens that truly matters: the legal proceedings of Donald J. Trump and Hunter Biden. The daily podcast examines breaking news and analyzes the biggest questions in American history: What are the limits of Presidential power? Can the former President of the United States get a fair trial? Can Trump serve if he takes a plea? Can he be disqualified from the ballot? Can President Biden pardon his son? Could President Trump pardon himself? These questions will undoubtedly go all the way to the Supreme Court and ultimately decide the next President of the United States. Attorney Josh Hammer covers all the action every morning, helping you stay one step ahead of the media spin on decisions that will impact our nation for years to come. America on Trial, available everywhere you listen to podcasts! Download and subscribe here - https://podfollow.com/america-on-trial Learn more about your ad choices. Visit megaphone.fm/adchoices

Hey, Mike Baker here, and I've got something special for all of you most excellent listeners of the president's daily brief. Today, we're introducing a fascinating new podcast called America on Trial. It's hosted by my pal. I don't know if people still say Powell. Okay, hosted by my friend, the attorney Josh Hammer. America on trial delves into the heart of the 2024 presidential election, but with a twist, it's not just about the politics. It's about the pivotal legal battles surrounding Donald Trump and Hunter Biden.

And that is a twist. This daily podcast brings to light the unfolding drama and its repercussions on American democracy. Each episode tackles the key questions. What are the limits of presidential power? Can a former president receive an unbiased trial? The possibilities of Trump serving after a plea, the potential disqualification from the ballot, and the complexities of presidential pardons. There's a lot to unpack.

Now, guiding us through this legal maze is Josh Hammer, a great attorney known for his sharp analysis and ability to cut through the media spin, not to mention his keen fashion sense. His expertise will keep you ahead in understanding decisions that will likely impact our country for years. So I invite you to join us on this journey with America on trial. For future episodes, search America on trial or click the link in the show notes to subscribe. The preamble of the United States Constitution reads, Quote, we the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity,

do ordain and establish this constitution for the United States of America. Those first three words, we the people. What do they mean? We the people is an assertion of sovereignty. It is an assertion of Republican self-governance. That it is we the people who decide the outcomes of elections in this country, who decide the fate of this great experiment in order to liberty, who take the actions and engage in the deliberative processes necessary

to steer the trajectory of this great experiment. That notion of we the people, sovereignty, has never been more challenged than it is now in this most consequential of election years with this upcoming presidential election between the incumbent dottering Dultz from Delaware, Joseph R. Biden, and the former and perhaps future president, Donald Trump. Is it actually we the people who decide the outcomes of elections, or is it unelected bureaucrats or for that matter, unelected judges.

Can the foreign president be prosecuted for acts that he took while he was a sitting president? How about the prosecutions of Hunter Biden on gun and tax charges as the case now may be? Hi, I'm Josh Hammer. I'm the senior editor at large for Newsweek, a syndicated

columnist, and I am an attorney by training. I still speak at law schools all across the country and publish occasional constitutional law scholarship and I am going to be your host for the brand new daily podcast, America on trial. We're not going to avoid any of these thorny issues. We're going to dive head in every day. We are going to get you all the information that you need, all of the legal news of the day,

particularly as it pertains to this consequential and monumental 2024 election. We will get you through the day and you will have all the information that you need to feel confident that you can navigate this very thorny and at times quite confusing array of various cases, trials, prosecutions, legal rulings. This is the show for people who really want to understand what is happening out there when it comes to the 2024 presidential elections and all of the murky legal aspects thereof. Subscribe now and leave us that five-star review. Tune in every single day for America on trial with Josh Hammer. So, with you With that, let's get to our first episode.

So we're going to start by going around the horn. We will start each episode by giving you a quick overlay of what is happening in all of the various legal elements pertaining to the 2024 election, in particular and occasionally other non-election related cases as well. The big news down in Georgia when it comes to the Fannie Willis sprawling RICO, January 6th related prosecution was on Friday, the Georgia State Senate voted to create a special committee to investigate Fulton County District Attorney Fonney Wilson. The vote of the Georgia State Senate was 30 to 19. The committee that they created has been tasked with making recommendations.

Based on Georgia state law and spending, they are alleging that Fonnie Wilson has misspent tax dollars in her sprawling criminal probe of former President Trump and the many other defendants there in this very broad and wide-ranging fishing expedition of. of a RICO case. The Republicans and some of their Democrats as well in Georgia are claiming the committee is necessary to determine whether Fannie Wilson misused tax money. So there is also the somewhat hilarious, but also somewhat dark romantic element here as well.

Fannie Willis has been in the news of late. She has bought plane tickets with the man Nathan Wade. They have traveled together. They appear to have an illicit relationship. of Nathan Wade is the special prosecutor who Fannie Willis tapped to oversee the prosecution of Donald Trump. Presumably this new Georgia State Senate created committee is going to investigate all of that and more. Some other really dark news out of Georgia was Julie Kelly who pointed out on Twitter towards the end of last week that there was a preliminary hearing for Jeff Clark, the former Trump administration attorney and another defendant there in Georgia in Fonnie Wallace's case.

and shocking video that Julie Kelly brought to the surface here last Thursday, the district attorney's office there, Fannie Wilson's office, admitted that in the course of preparing for this indictment and these prosecutions, they received multiple letters from Biden White House counsel. That reeks of some sort of sprawling nefarious coordination between the state and federal prosecutorial apparatus. It's really nasty stuff. Looking forward to seeing what the Georgia State.

committee can get into there down in georgia in other news the new york times towards the end of last week reported that alvin bragg remember him he was the first of the indictments to get out there last spring with this document case the most facially frivolous of the four criminal prosecutions facing former president donald trump there the new york times has a long article that alvin brag is actually beginning to approach witnesses when it comes to trial including michael cohen who can forget Michael Cohen. So Alvin Bragg appears to be getting closer to a potential trial start date there. It was, it remains unclear whether Alvin Bragg is going to delay the commencement of that trial to give federal special counsel Jack Smith prerogative when it comes to his own case in

Washington, D.C., but that case is currently being held up as well. So big, big article in the Times last week that Alvin Bragg is starting to prep witnesses and get closer there to. trial as well. Speaking of Washington, D.C., we are still waiting on a ruling there from the U.S. Court of Appeals for the D.C. Circuit when it comes to Donald Trump's assertion of unqualified presidential immunity for his actions taken as U.S. president, which, if accepted by the D.C. Court of appeals, would essentially throw out Jack Smith's case there in D.C., at least pending U.S. Supreme Court review, which obviously would happen in a case

of this profile. He is asserting Donald Trump that his commander in chief prerogative, that his power under the vesting clause of Article 2, Section 1 clause won the Constitution that he is vest solely, or was vested solely with the, quote, executive power of the executive branch. Therefore, he cannot be prosecuted for actions that he took as president. I personally find this argument fairly convincing, actually. There's all sorts of OLC, Office of Legal Counsel, D.O.J., memos on this going back to the Clinton administration and the Nixon administration. We'll do a deep

dive on this in a future episode. I do not expect this argument to take root in the three-judge panel at the D.C. Court of Appeals. I do not expect Donald Trump to win, but personally, I actually happen to find it quite convincing. Speaking of what we mentioned earlier, and Colorado and Maine and their attempts to deny Donald Trump legal access to the ballot based on the insurrection clause of 3 of the 14th Amendment, just one of the many, many sprawling, sprawling elements of the legal lawfare related to the 2024 presidential election. We are still waiting for an update out of the state of Maine. So the Secretary of State there, Shennebello's deemed Donald Trump was unfit from the ballot by citing the insurrection clause of Section 3 of the 14th Amendment.

A state judge in Maine sent the case back to the Secretary of State and told her that this should not take effect while we all await for the U.S. Supreme Court to weigh in on this, on the very logical and common sense grounds, that we should want the U.S. Supreme Court to make a unilateral ruling that applies across the board to all states there. At that point, Shannon Bello's Secretary of State issued an appeal trying to expedite review to the highest court there in Maine. We are waiting to hear from that, so that currently is in limbo as well.

just a lot of limbo in general when it comes to a lot of these cases. That's why this podcast, of course, is so necessary to you. And then also we are awaiting an upcoming ruling fairly soon when it comes to one of the lesser-discussed bits of 2024-related lawfare. That would be New York Attorney General Tish James's civil lawsuit when it comes against Donald Trump and the Trump Organization, alleging civil fraud. They are alleging $370 million. in damages. This is a transparently and facially personal lawsuit. Recall that Tish James ran for New York Attorney General, much like Alvin Bragg ran for Attorney General there in New York County, New York,

in Manhattan. They ran on a get-Trump platform. This is the civil lawsuit overseen by a vehemently anti-Trump judge in Judge in Goron, where they are alleging that the Trump organization has misrepresented its financial holdings to apply for loans at lower interest rates and things of that nature there. I continue to be utterly baffled that this case might actually result in a harmful ruling against Trump, the horribly anti-Trump judge notwithstanding there, but the Washington Post has an article towards the end of last week, or I guess it was over the weekend actually, saying that we could expect a ruling from Judge and Goran there in this case very, very soon. So with Around the Horn now out of the way,

we're going to go into today's deep dive. This is the part of the show where we are going to take a news item when it comes to the 2024 election-related lawfare and all of the lawsuits and trials and all of that. And we're just going to go a little deeper than around the horn segment. So our deep dive today pertains to the order that came out Friday afternoon about E. Jean Carroll, $83 million in defamation. Remember E. Jean Carroll? She came out in 2019 while Donald Trump was president to allege that Donald Trump sexually assaulted her in a Bergdorf-Goodman

in a store there on Fifth Avenue in New York City decades ago, to which Donald Trump responded as any man who thinks that he has been falsely accused of such horrific actions as any man in that situation would respond. He responded with denials and attacks on E. Jean Carroll. And she promptly filed two lawsuits. One of those lawsuits came out last year, where the civil lawsuit found Trump liable for sexual abuse and defamation, and the result was a jury verdict of $5 million.

in damages. Now, this second lawsuit from E. Jean Carroll resulted in $83.3 million in damages. My God, this came out on Friday afternoon, $65 million in punitive damages, $18.3 million in compensatory damages. So put aside just for a moment here how absurd of a figure E. Jean Carroll actually is. She has spoken in the past about how she has all sorts of fantasies of rape. She owns a pet that she named after her genitalia. She named her pet vagina. This is someone who is clearly very mentally unstable. But again, hold all that aside and focus just for a time being here, focus for the time being here on the actual damages. So 83.3 million. million dollars in damages was the award on Friday.

18.3 of those in compensatory, 65 impunitive. Compensatory damages would be the main form of damages in any kind of civil lawsuit. That is restitution. That is the level of damages in the eyes of the judge and or jury that it would take to restore the victim to restore the person who was harmed by the underlying action to the state at which he or she was prior. to the action. Incredibly, incredibly discretionary, to put it mildly,

there is a lot of wiggle room. It's not entirely obvious how in a high-profile defamation case of this magnitude, the jury would purport to arrive at calculating $18.3 million in compensatory. But the $65 million in punitive damages figure, that is what, as a lawyer, that just jumps off the page to me. So this is a federal court. This is under federal law. This is under relevant U.S. Supreme Court precedent when it comes to the U.S. Constitution

and things of that nature. And as the case may be, there is actually a long line of Supreme Court cases, especially over the past 20, 30 years, that limits. That limits the extent to which juries, especially this is when it comes to federal court, when it comes to the U.S. Constitution, to which juries can award excessive punitive damages. So there are many cases on this, probably the one case that that stands out to me would be a case from 1996 called the BMW of North America versus Gore. This was a ruling where excessive punitive damages were held to violate substantive due process,

to violate the due process clause of the 14th Amendment, which taken on its own terms only prohibits the violation of due process, but under longstanding U.S. Supreme Court precedent, it also prohibits or also protects substantive due process. It also protects certain substantive rights. Conservatives have lambasted this doctrine for a very long time, but it remains good law. So the three-factor test from BMW of North America versus Gore,

when you are trying to assess whether excessive punitive damages violate the 14th Amendment, the due process clause of the Constitution, you look first to see whether the degree of reprehensibility of the defendant's conduct was sufficient to the charge. Then you look at the ratio. You look at the ratio of punitive damages to the compensatory damages awarded. And finally, you engage in a comparison of the punitive damages award and the civil or criminal penalties that could be imposed for, comparable conduct. So that ratio to me above all is what stands out there. 65 million in punitive to 18.3 in compensatory and over 3 to 1 ratio.

There is another case from 2008 called Exxon Shipping Company versus Baker, where the U.S. Supreme Court vacated a monster $2.5 billion punitive damages award because they found that it exceeded any kind of reasonable ratio. At the time, they said that there must be a one-to-one ratio of punitive to compensatory damages. Now, admittedly, Exxon Shipping versus Baker was not a case under the 14th Amendment. It was a maritime law case. It was a case under the federal common law of maritime law and shipping. But the point stands that there is a long line of cases there.

Another case from 2007, Philip Morris, USA versus. Williams. In the Williams case, the court said that you may not award punitive damages for conduct against people who are not a party to the suit. All sorts of various one-off cases like that over the years have come in. The upshot is that the federal judiciary does not view punitive damages particularly favorably. And again, looking here at this three-factor test from the BMW of North America versus Gore case, and the three-factor test is basically the representability of of the action, the ratio of punitive to compensatory damages, and then the comparability of how much the punitive damages compares to other civil or criminal penalties.

I mean, look, let's focus on the first two factors there. The reprehensibility of the action. I mean, what exactly was so reprehensible? Seriously, about Donald Trump lashing out about someone who has accused him of sexual assault from 20, 30 years ago. I mean, what man would not act out? in that fashion after he has been accused of such conduct. I mean, I'm old enough to remember in September 2018

when Brett Kavanaugh during that hearing that went viral around the world with Christine Blasie Ford and all of that, when he came out there and he sounded defiant, he accused Senate Democrats properly in my judgment of seeking revenge for the Clintons. You know, some people at the time said this is not judicial conduct. This is not the kind of conduct that we should seek out in a Supreme Court justice,

to which I responds, what man in that situation would not act like that? So same thing for Donald Trump. So I refuse to count it as the possibility that what he did here to E. Jean Carroll, again, who is a total sicko, who has fantasies of rape and has a pet named vagina. I refuse to contemplate the possibility

that what he said was particularly reprehensible based on what she alleged and frankly just who she is. And then the ratio, again, an over three to one ratio from punitive to compensatory there. Punitive damages are not normal in general when it comes to a lawsuit like this. They are there simply to try to set an example out of a particular defendant. It reeks a reeks a bias there. I think that Trump has a very, very strong case there on appeal,

which he obviously will be doing there in federal court in New York State. He will be appealing this clearly to the U.S. Court appeals for the Second Circuit, which is the federal appellate court there in New York State. And if I were making a prediction, I would expect, depends on the panel, obviously, at the Second Circuit. But I like where he stands when it comes to this appeal, just based on that three-factor test there from the 1996 Supreme Court case, BMW versus Gore.

So this has been our first episode of America on trial with Josh Hammer. We'll be back with this show every single day. Go ahead and subscribe to this brand new podcast. leave us that five-star review and leave us a comment as well. We wanted to hear your feedback there, but we are really, really excited to get this ball rolling as it gets closer to the 2024 presidential election. So for now, I'm Josh Hammer. We'll be right back with you tomorrow. All pay off your home, travel for life, drive a Ferrari. In celebration of the world premiere of the Monopoly Big Board Buck slot machine by Aristocrat Gaming, Yamava Resort and Casino at San Manuel

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