UNBIASED - June 3, 2024: Trump Verdict Follow Up, Hunter Biden's Trial Begins, X Allows 'Adult Content,' Fauci Testifies About Pandemic Origins, and More.

Episode Date: June 3, 2024

1. Follow Up: What Supreme Court Precedent Tells Us About Judge Merchan's Jury Instructions (0:42)2. Follow Up: What Your 6th Amendment Right to Notice Says About Indictments & How It Could Affect Trump (7:33)3. Jury Trial Begins in Hunter Biden's Firearm Trial (11:30) (Update: Since recording, the jury has been seated.)4. Quick Hitters: Russia Warns U.S. About Weapons in Ukraine, Maldives Ban Israeli Passport Holders, Sen. Menendez to Seek Re-Election as Independent Despite Corruption Trial, X Allows 'Adult Content,' Dr. Fauci Testifies About Pandemic Origins and More (14:03)Watch this episode on YouTube.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

Kick off an exciting football season with BetMGM, an official sportsbook partner of the National Football League. Yard after yard, down after down, the sportsbook born in Vegas gives you the chance to take action to the end zone and celebrate every highlight reel play. And as an official sportsbook partner of the NFL, BetMGM is the best place to fuel your football fandom on every game day. With a variety of exciting features,

BetMGM offers you plenty of seamless ways to jump straight onto the gridiron and to embrace peak sports action. Ready for another season of gridiron glory? What are you waiting for? Get off the bench, into the huddle, and head for the end zone all season long. Visit BetMGM.com for terms and conditions. Must be 19 years of age or older. Ontario only. Please gamble responsibly. Gambling problem? For free assistance,

call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Monday, June 3rd, and this is your daily news rundown. Mondays are always a little slow in the news, so we're actually going to start this episode with a follow-up to Friday's episode. We'll then talk about Hunter Biden's trial starting, and we'll finish with some quick hitters. If you love the unbiased approach that this episode provides and you feel more informed after listening, please go ahead and leave my show a review on whatever platform you listen, share the show with your friends, and if you're watching on YouTube, please just go ahead and hit that thumbs up button

and subscribe to the channel if you're not already. All of those things really help me out, so thank you in advance. Without further ado, let's get into today's stories. As I said, I want to start this episode by clarifying two legal issues specifically that I talked about in Friday's episode. One of the issues because I think I could have made myself just a little clearer, and the second issue because I had a few follow-up questions. If you haven't yet listened to Friday's episode and you want to get caught up for purposes of this discussion, I would recommend just taking 10 minutes and listen to the answers to questions one and 14 on Friday's podcast. That'll at least catch you up to speed enough for purposes of today's episode.

Now, without rehashing all of question and answer one, it was all about jury instructions, right? So one of the number one questions or concerns that I received after the verdict was that the verdict was not unanimous and that the judge gave improper jury instructions. So that was one of the most important things I wanted to clear up. And in that discussion, I talk about how the issue of whether jury instructions were proper or not is not so cut and dry, despite some people saying that it is. In fact, rarely anything in the law is ever cut and dry. There's always an argument to be made on either side of an issue. It just depends how creative you want to get. The judge in Trump's case had instructed

the jury that they had to be unanimous as to the elements of the charges, but not the unlawful means used to carry out the charges. In other words, the jury had to find unanimously that Trump created or caused to be created false business records with the intent to conspire to promote himself to public office by unlawful means. But the jury didn't have to agree as to what unlawful means were used, just that the means were unlawful. And after the fact, tons of people were saying that the verdict was not unanimous and that the instructions were improper. So I spent a good amount of the discussion on Friday talking about how the

Supreme Court has differentiated between the meaning of the words means and the meaning of the word elements. Elements have to be proven unanimously and beyond a reasonable doubt, whereas the means used to carry out the crime doesn't necessarily have to be unanimous. Now, the predicate charge in Trump's trial, or the charge within the charge of falsifying business records, was a violation of New York election law 17152, which says that it's illegal to conspire to promote someone to or prevent someone from taking public office by unlawful means. The elements in that predicate crime are as follows. One, to conspire. Two, to promote someone to or prevent someone from taking public office. And three, by unlawful means. The judge instructed the jury that they had to find unanimously that

each of those three elements were proven beyond a reasonable doubt, in addition to the elements of falsifying business records. However, the judge said you don't need to unanimously agree as to the unlawful means used to carry out the violation of the election law. In other words, some jurors could find that the unlawful mean was a further falsification of business records. Others could find it was a violation of federal campaign finance law. Others could find it was a violation of state tax laws. But so long as the jurors unanimously agreed that some unlawful means were used, the agreement or disagreement as to which means was irrelevant. Now, this logic seems to be consistent, at least in part, with the Supreme Court case called Richardson, which I explained in great detail on Friday. However, there's one component of Richardson I feel I

should talk a little bit more about that speaks to the other side of the argument, or the other argument, that the jury instructions may have been improper. I briefly mentioned it on Friday, but I wanted to add a little bit more color to the conversation because I've always said my number one goal is to inform you as much as possible to the best of my ability. So the other component of that conversation that I want to add is this. The Richardson court said that elements have to be unanimous, means do not. We know this at this point. Now the question for the court in Richardson was specifically whether the word violations is an element or a mean, because violations was the word used in the criminal conspiracy statute at issue in Richardson.

And in finding that a violation is an element and not a mean and therefore required unanimity, the court said, quote, The words violates and violations are words that have a legal ring. A violation is not simply an act or conduct. It is an act or conduct that is contrary to law. The circumstance is significant because the criminal law ordinarily entrusts a jury with determining whether alleged conduct violates the law. And as noted above, a federal criminal jury must act unanimously when doing so, end quote. So as you can maybe see, this presents an issue with New York's election law that Trump has been convicted of violating. New York's election law uses a phrase, unlawful means, a phrase that seems to

be a combination of both an element and a means under Richardson, because I can see the argument which the government will make on appeal, assuming this issue is appealed, which is that unlawful means are exactly that, means, which means that the jury's verdict as to which means were used to carry out the crime doesn't have to be unanimous, consistent with Richardson. However, I can also see Trump's argument, which will presumably be that unlawful means, by its very definition, is a violation of the law. Because means in and of itself is an action or conduct, but unlawful means is a violation of law, which the Richardson Court said must be unanimous. So it's really going to come down to how a court interprets the phrase unlawful means.

Is it merely a means, as the phrase implies, or is it a violation of law, as the phrase also implies? If it's merely a means and somehow different than the violation of Richardson, it may not require unanimity. But if unlawful means is deemed to be a violation of law, then a court may find that the judge should have instructed the jury to rule unanimously as to which means were used to carry out the crime. So in Friday's episode, I focused more on the argument that unlawful means could very well just be means and therefore not require unanimity. And I did briefly address the other argument where it could be, you know, it's a different kind of means than was in Richardson. But today I wanted to shed a little more light on the other side of that argument.

And as I've said from the beginning, this is not a cut and dry issue. Whoever is telling you that is wrong. And that's the main point that I want to get across here. Not which argument has better chances of success or whether the jury instructions were right and wrong, but that this is a complex legal issue that will ultimately be up to the courts to figure out on appeal. Now, the second issue I wanted to clear up has to do with the Sixth Amendment, specifically Trump's Sixth Amendment right to notice of the charges against him. In Friday's episode, I answered the question

of what's Trump's best argument on appeal. And I had said that if I were to put myself in the shoes of his attorneys, I would say that one of his best arguments may be that the state violated his sixth amendment right because they didn't specify the predicate crime, that being the New York election law, as well as the underlying means used to carry out that crime until closing arguments. And I had a few people write to me saying that that's a false argument because the state did specify the predicate crime and underlying means in a November 2023 filing. While that's true, it doesn't necessarily rectify the violation if a violation exists.

And I'm not here saying a violation definitely exists. I just, as I said, think that's one of his best arguments. There are two very old Supreme Court cases, one called Cruisank, the other called Rosen, that specified that the Sixth Amendment right to know the nature and cause of the charges against you applies at the indictment stage. In both Cruisank and Rosen, the indictments were struck down because they didn't specify the charges with a degree of certainty. The court in Kruschenk wrote this. It said, quote, in criminal cases prosecuted under the laws of the United States,

the accused has the constitutional right to be informed of the nature and cause of the accusation. In United States v. Mills, this was construed to mean that the indictment must set forth the offense with clearness and all necessary certainty to apprise the accused of the crime with which he stands charged. And in United States v. Cook, every ingredient of which the offense is composed must be accurately and clearly alleged. It is an elementary principle of criminal pleading that where the definition of an offense, whether it be a common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offense

in the same generic terms as in the definition, but it must state the species. It must descend to particulars. In some states, it is a crime for two or more persons to conspire to cheat and defraud another out of his property. But it has been held that an indictment for such an offense must contain allegations setting forth the means proposed to be used to accomplish the purpose. End quote. And I do just want to mention before we take this one step further that in this citation, it says that this applies to laws prosecuted under the United States. Yes, Trump's case is a state case, but since this 1800s case, it has been determined that the Sixth Amendment right applies to state charges as well. So I did just want to clear that up. But if we apply the Supreme Court's holding

in Cruisank to Trump's case, Trump may have been entitled to more specificity in the indictment itself. It's not enough to rectify that lack of specificity later on. So Trump's indictment only stated that Trump, quote, made or caused a false business record with the intent to defraud and intent to commit anotherud and intent to commit another crime and aid and conceal the commission thereof, end quote. But the indictment doesn't specify what the other crime was until more than a year after he was indicted. In fact, the indictment didn't specify what the other crime was or what the underlying means were to commit that other crime. So that's not to say that this indictment will definitely

be struck down. But when someone asks the question of what's Trump's best argument on appeal, that's why my answer rests in part on the Sixth Amendment. And that Sixth Amendment right applies at the indictment stage. Again, I can't stress it enough that all of these issues are not cut and dry. We don't have all the answers. That's what appeals are for. That's what courts are for. So just keep that in mind. But let's move on to some news from today. Jury selection in Hunter Biden's trial began today. And just as a reminder, this trial specifically deals with his gun charges. The tax charges are not at issue in this trial. The specific charges he faces are two counts of knowingly

making a false statement with respect to a fact material to the lawfulness of the sale of a gun, and this stems from his signing off on the fact that he was not an unlawful user of and addicted to a controlled substance at the time of purchase, and then that third count is possessing a firearm while using a narcotic. Now, one thing to note here is that this indictment was handed down after a pretrial agreement fell through. So last year in July, almost a year ago now, following an investigation, Hunter Biden reached this agreement with prosecutors on both his tax charges and his firearm charges. And under that agreement, he would plead guilty to two misdemeanor counts of failing to pay taxes. And in exchange, prosecutors would only recommend

probation as his sentence. As for the gun charges, what he agreed to was called a pre-trial diversion. And essentially with a pre-trial diversion, the defendant has to abide by certain terms and obligations under the agreement for the period of the agreement, in this case, two years. And after those two years, if he satisfies the terms of the agreement, the firearm charges would be completely dropped. But if he didn't satisfy the terms of that agreement, he could still be prosecuted. However, once these agreements were presented to the judge overseeing this case, the judge was like, look, these agreements need some work. I have some concerns. Specifically, the judge had concerns

about consolidating a plea deal with a pretrial diversion agreement. She was concerned about whether she was even able to enforce the pretrial diversion agreement herself. She was concerned about the general scope of the agreements, all of these things. And if you want more detail, I did cover this entire sort of debacle or fiasco, whatever you want to call it, in my July 28th, 2023 episode. So go listen to that. But basically, the judge said, go back to the drawing board, resolve these concerns that I have, and come back to me. And at some point, when both sides went back to the drawing board, the deal fell apart.

And that's why Hunter Biden was then indicted a few months later. And here we are starting trial. And again, this trial only deals with the firearm charges, not the tax charges. So jury selection started this morning. It will continue into tomorrow. Once that jury is selected, that's when actual arguments will start. Now let's finish this episode with some quick hitters. The Kremlin of Russia is expressing its dissatisfaction with the United States providing

weapons to Ukraine. A Russia state news agency reported Russia deputy foreign minister saying, quote, I would like to warn American leaders against miscalculations that could have fatal consequences. For unknown reasons, they underestimate the seriousness of the rebuff they may receive. End quote. That statement comes after the Biden administration just last week gave Ukraine permission to use United States provided weapons to strike military targets in Russian territory. In some other sort of international news, the Maldives government announced that it will ban Israeli passport holders from entering the country and establish a subcommittee to oversee this process. The ban

is a result of the ongoing war between Israel and Gaza. And in case you didn't know, because I didn't know before today, 98.7% of the Maldives practices Islam because it's actually a requirement of citizenship there. Back at home, Senator Bob Menendez of New Jersey, who was indicted on charges of corruption and bribery earlier this year, is expected to file for re-election as an independent. In March, Menendez said he wouldn't be running in the New Jersey's Democratic Senate primary, but left open the possibility of running in November if he was exonerated. His corruption trial is currently ongoing, it's in its fourth week, but the deadline to file as an independent is tomorrow, so naturally his decision to file is being done in the event that he is ultimately acquitted. Today, X announced a policy change

allowing for the posting of adult content, including pornography, on its platform. Users will now be able to view, post, and offer subscriptions for said content. And I should note that the subscriptions are currently on X for regular content as well. So it's not that X is allowing special subscriptions specifically for adult content. It's just that the subscription model on X will now extend to adult content as well. And finally, Dr. Fauci testified today about the origins of the COVID pandemic. This marks Fauci's second appearance in front of the House, testifying first behind

closed doors in January, and then for the second time today in public and on camera. Fauci faced questions about the credibility of the National Institutes of Health, the origins of the pandemic, the six feet apart social distancing protocol, and allegations of hiding public records. If you're interested in listening to today's hearing, I do have a YouTube link for you in the sources section, which you can of course always find in each episode description. That is what I have for you today. As always, thank you so much for being here. Have a great night and I will talk to you tomorrow.