UNBIASED - LAW: Week in Review: September 5, 2022

Episode Date: September 12, 2022

(0:25) Intro(1:21) Judge Orders Biden Administration Officials to Turn Over Emails to Social Media Companies Regarding Speech Censorship(12:00) Request for Special Master Granted, What is a Special Master, Special Master Proposals Submitted to Judge (20:51) Steve Bannon Indicted on Six New Charges Related to We Build The Wall Fundraising Fraud(25:47) South Carolina Judge Rules Electric Chair and Firing Squad Unconstitutional Methods of ExecutionAll links to sources for this episode can be found on www.jordanismylawyer.com. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Please gamble responsibly. Gambling problem? For free assistance, call the Connex Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. You are listening to the Jordan is My Law podcast. This is your host Jordan and I give

you the legal analysis you've been waiting for. Here's the deal. I don't care about your political views, but I do ask that you listen to the facts, have an open mind and think for yourselves. Deal? Oh, and one last thing. I'm not actually a lawyer. Welcome back to the Jordan is my lawyer podcast. It is Monday. So you already know what that means. We're recapping the past week of current affairs in an unbiased fact-based manner. So you can form your own opinions without any outside noise. Just a quick reminder that if you want to share your thoughts on any of these topics that we talk about, you can now comment on each episode on my website, jordanismylawyer.com. The comment section can be found at the bottom of each episode description webpage, so definitely take advantage of that. It's fun to be able to interact with you guys outside of, you know, just talking to you,

like actually being able to comment back and forth with you guys and see your responses to some of the questions that I posed throughout the episodes. So with that, let's get into today's stories. On Tuesday, a federal judge ruled that White House Press Secretary Karine Jean-Pierre and Dr. Anthony Fauci must turn over any emails that they sent to social media companies about misinformation or the censorship of social media content. state of Louisiana filed a lawsuit against the Biden administration, alleging that the administration had worked with social media companies to suppress free speech. In citing to case law, the lawsuit says in part, social media has become in many ways the modern public sphere. Social media platforms provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. Today's digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated

control of so much speech in the hands of a few private parties. The concentration of power in End quote. The complaint then lists multiple ways in which they allege social media companies have censored or suppressed speech. These methods of suppression include, but are not limited to, terminating accounts, suspending accounts, imposing warnings on accounts, shadow banning speakers, demonetizing content, and adjusting algorithms. Plaintiff's complaint then lists some examples of when these platforms have censored speech, which include the Hunter Biden laptop scandal, speech about COVID being created in a lab in Wuhan, China, speech about the efficacy of mask mandates and COVID lockdowns, and speech about election integrity and the security of voting by mail. Now we're going to talk a little bit about each category. I'll call them categories. We're going to talk about each

of the four categories of speech that these states states allege have been suppressed in one way or the or another. So in regard to the Hunter Biden laptop scandal, the complaint says, quote, Perhaps most notoriously, social media platforms aggressively censored on October 14, 2020, a New York Post expose about the contents on the laptop of then-candidate Biden's son, Hunter Biden, which had been abandoned in a Delaware repair shop and contained compromising photos and email communications about corrupt foreign business deals, end quote. The complaint continues and says, quote, as the New York Post reported at the time, both Twitter and Facebook took extraordinary censorship measures against the post over its expose about Hunter Biden's emails. The post's primary Twitter account was locked as of 2.20 p.m. Wednesday, which was the day of the posting of the expose, because its articles and messages obtained from Biden's laptop broke Twitter's rules against, quote, distribution of hacked material, according to an email the post received from Twitter. Even though the complaint says there were zero claims that Hunter Biden's computer had been hacked, Twitter also blocked users from sharing the link to the Post article

indicating that Hunter Biden introduced Joe Biden to the Ukrainian businessman calling the link potentially harmful. Then the complaint discusses how the media at the time ignored the story or quote fact-checked it as false at the time, but then or quote fact checked it as false at the time. But then earlier this year, it came out and said the Hunter Biden laptop story was in fact truthful and rested on reliable sourcing and information. So that is what the complaint says in regard to Hunter Biden, or I guess the Hunter Biden laptop scandal. After that example, the complaint discusses another instance of what the plaintiff considered to be censored speech, and that is the lab leak theory of COVID-19's origins. So according to the complaint, social media platforms

censored speech advocating for the theory that the COVID virus did not originate naturally in bats, or other animals for that matter, but instead leaked from a biotech lab in Wuhan, China. Then the complaint says Dr. Fauci orchestrated a campaign to discredit the lab leak hypothesis in early 2020 and was exchanging emails with Mark Zuckerberg, the CEO of Facebook, regarding public messaging and the dissemination of COVID information on social media. The plaintiffs, that being the state of Missouri and the state of Louisiana, think that Dr. Fauci coordinated directly with Facebook and other social media firms regarding the suppression of disfavored speakers and content of speech on social media.

And then the complaint says by 2021, the circumstantial evidence favored the lab leak theory and Fauci and other Biden administration officials were forced to admit the theory's inherent plausibility. And that is in a nutshell, what the complaint says about the Wuhan theory and, and that theory being censored on social media. And then as the plaintiff's third example regarding censorship of speech, which was the efficacy of mask mandates and COVID lockdowns, the complaint cites to Twitter's policy as of December 2021, which noted that Twitter will censor, meaning it will label or remove speech, that claims that face masks do not work to reduce transmission or to protect against COVID. The complaint also calls out YouTube and Facebook

for suppressing certain politicians' videos and shared peer-reviewed studies. Plaintiff's position is that despite social media suppressing such speech, there was no convincing evidence that supported the efficacy of mask mandates or the efficacy of lockdowns. And it cites two different articles, studies, and opinions by various medical professionals that affirms its narrative. So just keep in mind, and just as a reminder, this is the state's complaint. So the complaint is going to be written in favor of its own narrative, right? So when I say, you know, there's no convincing evidence that supported the efficacy of mask mandates or lockdowns, just know that that is according to the states and not me.

First of all, that's not me saying that, um, you guys know, I don't share my personal views on this stuff or opinions or beliefs. This is just the state saying that in support of its allegations against the Biden administration. So then as the state's fourth example of speech censorship, it goes into speech about election integrity and the security of voting by mail. And the states assert that social media platforms began censoring this core political speech by then-President Trump and the Trump campaign, raising concerns about the security of voting by mail. The complaint says, quote, this censorship is ironic because for many years before 2020, it was a common left-wing talking point to claim that fraud occurred in voting by mail, end quote. Furthermore,

the election fraud has been a real thing since before President Trump talked about it, but yet was only censored once Trump talked about it. So again, this is all according to the complaint, not me. In support of that contention, the complaint cites to a New York Times article from 2012, a Washington Post article from 2012, a 2016 article from Slate, and the 2008 Supreme Court holding in Crawford v. Marion County Election Board, as well as the 2017 Department of Justice's own manual on federal prosecution of election offenses. So basically what they're trying to say here is, look, voting by mail and election fraud has been talked about for years. Here are some articles since before former President Trump took office and was running in 2020 that shows that election fraud has been a real thing and has been talked about, but coincidentally, it wasn't censored speech until former President Trump started talking about it. So that is their theory on that. So basically, what Missouri and Louisiana are saying in their lawsuit is that these four categories of speech that we just talked about, despite being truthful, according to them, have been continually suppressed by social

media platforms in collaboration with the Biden administration. According to Missouri and Louisiana, the common theme to all of these examples of censorship is that each involved censoring truthful or reliable information that contradicted left-wing political narratives. The complaint goes on to say that what led to the censorship was not the fact that the speech was supposedly false, but that the message was politically inconvenient for democratic officials and government-preferred narratives. Notably, although the complaint does list those four different categories of speech that we just went over. The bulk of the complaint

focuses on COVID-related suppression. So if you want to read the complaint yourself, you're more than welcome. It's linked on my website as my sources typically are jordanismylawyer.com. You can find it on this episode's description page. But the latest update in this case is that the judge ordered Dr. Fauci and the White House press secretary to turn over any external email communications with social media platforms within the next 21 days. you know, it would compromise their internal communications. But the judge ultimately said this is external communications. You know, this isn't communications within the White House or within the administration. So ultimately, you have to turn them over. So we will see what happens with that and what is found. If anything, only time will tell. And that takes us to our second story, which is about the federal judge granting Trump's request for a special master. On Monday, federal judge Eileen Cannon, a federal judge that was nominated by former President Trump,

granted Trump's request to have a special master vet the material taken from his home during the FBI search last month. Now, I've gotten a few questions regarding what a special master is, so let's talk about it very briefly. And to put the most simply, a special master is just a third party attorney that is unrelated to the litigation who is appointed by the court to oversee a certain part of the case. In this case, the special master will oversee the Justice Department's review of the evidence taken from Mar-a-Lago and basically filter out any privileged material that may have been seized in the search. That goes for attorney-client privileged material, material that stems from his executive privilege as a former president, so any privileged material.

Now, that request has just recently been granted, and it basically stops the DOJ from reviewing the materials until the special master completes his own independent review. Now, why would Trump want a special master? The reality is that, objectively speaking, this request I wouldn't call crazy from a legal standpoint. He just wants to be sure that the FBI didn't take anything that they shouldn't have. And I have heard some people throw around the theory that he's just doing this to stall and he's doing this to waste time. It's possible. But either way, whether he's doing it to stall, ultimately, whatever happens is going to happen. But my point being, even if he's doing that to stall, I wouldn't necessarily call this

request a crazy request or anything super abnormal. One of the reasons though that the judge gave in granting Trump's request was that the former president is at a greater risk of reputational harm than regular Americans. And this is causing a bit of controversy in the legal world because some legal scholars have argued that this logic appears to create a new category of citizenship under the law, which can have negative implications because all citizens are to be treated equal. Another argument that has been made is that this decision opens up the opportunity to defense lawyers around the country to argue in their own cases that their clients should now have a right to a special master,

a situation that could very well back up the criminal justice system even more than it already is. So the DOJ has already filed its notice of appeal. It will be appealing this decision. They filed that notice of appeal on September 8th, and they're basically arguing that the judge's decision to grant the request is putting the United States national security at risk. In addition to filing its notice of appeal, the DOJ also filed a motion for a partial stay pending appeal, which essentially asked the court to put a hold on the order it entered granting Trump's request, and allow it to continue reviewing the documents taken from Mar-a-Lago. The motion to stay reads in part, quote, although the government respectfully

disagrees with the court's injunction as to a much broader set of seized materials already in possession of the investigative team, it is not at this time seeking a stay as to the vast majority of those materials. Instead, this motion is limited to the order's directives with respect to the seized classified records because those aspects of the order will cause the most immediate and serious harms to the government and the public, end quote. So basically what they're pleading for in their motion is to let them continue their review of the classified documents, those that contain national defense information. But, you know, as far as the other documents and materials and records are taken, they're fine with putting a hold on those,

but that they want to keep reviewing the classified records specifically. Then the motion goes into three reasons why the order should be stayed as to the classified records which are the following and just by the way i'm just reading you relevant parts of the motion you can always read the whole thing on my website i have that linked for you there um but as far as the reasons why the doj is saying that you know they need to still be allowed to review the classified documents first is that the government is likely to succeed in its appeal of the order as it applies to classified records. So their first reason is just saying, hey, look, we're going to, we're going to win our appeal. So just stay the order. Their second reason to stay the order is

that the government and public will suffer irreparable harm because the criminal investigation of matters involving risks to national security is being enjoined by the court. And their third reason is that the partial stay sought by the DOJ would not disturb the special master's review. So they're just saying, look, we just want to be able to continue to review the confidential or the classified documents. The special master can go ahead and do his review. He can review all of the boxes that were taken, all of the materials that were taken, but our department has already sifted through and determined what was classified and what was not. And we just want to be able to review those classified documents. But as far as all the

other material, you know, special master is welcome to look over those. So again, to read this motion for yourself, you can find it on my website, but those are the government's arguments in a nutshell. Now the, both of the parties, so the government and former president Trump's attorneys had to submit their proposed individuals to take that special master position by yesterday. And they did. Um, I just saw it today. They did did i'm just going to pull it up really quick they did submit their proposals and here we have okay so these are the government's proposed candidates their first so each party gets two proposed candidates so the first of the government's

proposed candidates is the honorable barbara s jones she is a retired judge of the United States District Court for the Southern District of New York. She's a partner in Bracewell LLP and special master, or she served as a special master in the matter of search warrants executed on April 28th, 2021, and in the matter of search warrants executed on April 9th, 2018, whatever that means. So basically in this document, which again, you can find on my website, it'll give both of the proposed candidates for each party and it'll do like a little snippet about them. So then the second government proposed candidate is the Honorable Thomas B. Griffith. He's also a retired circuit court judge of the United States Court of Appeals for the District of Columbia Circuit. He was special counsel for

Hunton Andrews Kurth LLP and lecturer on law at Harvard Law School. So he's a Harvard Law School professor. And then the two plaintiffs proposed candidates. The first is the Honorable Raymond J. What is that? Raymond J. Deary. He is a former chief judge of the United States District Court for the Eastern District of New York, served on the Foreign Intelligence Surveillance Court, and formerly the United States Attorney for the Eastern District of New York. And then the plaintiff's second proposed candidate is Paul Huck Jr. He's the founder of the Huck Law Firm, former Jones Day partner. Jones Day is a huge law firm.

Former general counsel to the governor and former deputy attorney general for the state of Florida. So those are the four proposed candidates for both parties. And not sure when a decision will be made on that but that is what it is it was submitted to the court yesterday so before we jump to the next topic or the next story i'm curious to hear what you guys think about one about trump's request for a special master and your thoughts on that, but also about the DOJ's arguments as far as wanting to proceed with their review and, you know, not necessarily contesting

the pause on the review for all the other documents, but just wanting to move forward on the review of the classified documents. So I'm just curious to know, like generally, what were some of the things that you thought about when listening to this and comment on my website so we can kind of have some discussion about it? Because I think this, you know, there's a lot to talk about here. There's a lot to unpack here. And maybe once you see the actual motions on my website, maybe you have some other thoughts

that pop into your head. But with that, let's move on to some other news that is related indirectly, I guess, to former President Trump, not directly related, just someone that he used to know. So the next story is that Steve Bannon was indicted for fundraising fraud. Former President Trump advisor Steve Bannon was indicted on Thursday, September 8th in New York on charges including two counts of money laundering in the second degree, two counts of conspiracy in the fourth degree, one count of scheme to defraud in the first degree, and one count of conspiracy in the fifth degree. According to a press release from New York Attorney General Letitia James and Manhattan District Attorney Alvin Bragg, Steve Bannon and his not-for-profit corporation We Build the Wall were indicted for a year-long

fundraising scheme in which Bannon and his corporation allegedly defrauded thousands of donors across the country out of more than $15 million and laundered the proceeds to further advance and conceal the fraud. Now that is, like I said, that is the statement from the Manhattan district attorney and New York attorney general. Um, but according to court documents and statements made on the record in court from January 11th, 2019 through December 31st, 2019. So basically the year of 2019, we build Wall, through Mr. Bannon and other individuals, represented that all of the money donated to We Build the Wall would be directed toward the organization's stated purpose of building a wall on the border of the United States and Mexico using private

funds. Mr. Bannon and others specifically represented that none of the donations would be used to pay the salary of We Build the Wall's president, who stated on multiple occasions that he was taking no salary from We Build the Wall. In reality, We Build the Wall paid its president more than $250,000 in 2019, despite the Wall also attempted to obscure those payments by laundering them through third-party entities, including another not-for-profit corporation controlled by Mr. Bannon. Mr. Bannon facilitated more than $100,000 in salary payments to We Build the Wall's president by directing the company transfer money to Bannon's other organization and then paying the president from that intermediary

organization. Now, just a little bit of procedural history for you. So in August 2020, Bannon and three other individuals were indicted by the United States Attorney's Office for the Southern District of New York for crimes related to the We Build the Walls fundraising scheme. Then on January 20th, 2021, so like six months later-ish, Bannon received a presidential pardon from former President Trump. And then in July of this year, a federal grand jury found Bannon guilty

on two counts of contempt of Congress for refusing to comply with a subpoena for documents and testimony issued by the January 6th committee. He phases up to two years on those charges and is set to be sentenced next month on October 21st. But those charges are completely different than these charges that we're seeing now in relation to the We Build the Wall fundraising scheme. So not only is he being sentenced next month for his refusal to comply with the subpoena for the January 6th committee,

or from the January 6th committee, I guess I should say, but he is also facing these new charges as well. So two days before Bannon turned himself in just this past week, he gave a statement saying in part, quote, just days after being swatted three different times by deranged thugs from New York City inspired by the Biden administration to assassinate me by the police, the Soros-backed DA has now decided to pursue phony charges against me 60 days before the midterm election.

This is nothing more than a partisan political weaponization of the criminal justice system. I am proud to be a leading voice on protecting our borders and building a wall to keep our country safe from drugs and violent criminals. They are coming after all of us, not only President Trump and myself. I'm never going to stop fighting. In fact, I have not yet begun to fight. They will have to kill me first. End quote. Needless to say, Bannon pled not guilty to all of these new charges. So he'll be sentenced next month for the two charges related to the January 6th subpoena. And then at some point in the future, if he's found guilty on these additional charges, he'll be sentenced

for those as well. It's not looking good for him. So let me know your thoughts on this story, because as always, I'm curious to hear what you guys think. Now let's move on to some less politically focused news and talk about the death penalty. on tuesday september 6th a south carolina judge ruled the firing squad and the electric chair unconstitutional the judge's reason was that both of these methods of execution violate the state's constitutional ban on cruel and unusual punishment. Basically, what that ban on cruel and unusual punishment means on both the federal level and the state level is that the punishment has to be proportionate to the crime committed. I'll take that for what it's worth. As with anything in the law, you know, there's not really any set guidelines there. It just is what it is, and

it's got to be argued one way or the other, basically. But that is the standard for cruel and unusual punishment, that the punishment has to fit the crime. Now, some would argue that if someone brutally murders another person, then arguably being put to death by way of the electric chair or firing squad is proportional to the crime. But others would argue the contrary. So let me know what you guys think about that, because I, it's funny when I post about this on TikTok, a lot of people say eye for an eye, you know, like they did this, so why should we spare them? But a lot of other people say the opposite. So it's interesting how people are divided that way. Now let's go through the

history of the various methods of execution in South Carolina to understand what this ruling means for South Carolina going forward. So prior to June 1995, all executions were done via the electric chair. Then after June 1995, the lethal injection became the default method of executions for inmates sentenced after that date. But inmates still had the option. So here's how that worked. Inmates had to choose between the electric chair and the lethal injection within 14 days of their execution day and put their decision in writing. But if the inmate didn't make that choice at least 14 days before and in writing, it was considered to be a waiver of their right to choose. And the method in which they would be executed under those circumstances was determined by their sentencing

date. So inmates that were sentenced to death prior to June 8th, 1995, were executed by way of the electric chair if they didn't choose. An inmate sentenced to death after June 8th, 1995, were executed by way of the lethal injection if they didn't choose. Then in 2021, it changed again because the state was having a difficult time obtaining the drugs that it needed for the lethal injection. And I've talked about this on my TikTok and my YouTube channel before, but basically in a nutshell, the U.S. used to get the drugs for the lethal injection from Europe, and Europe stopped selling to the United States once it became known that the drugs were being used for executions because the death penalty had been banned in Europe since I believe the 1980s. When Europe stopped selling to the United States, the states then had to get their drugs from local compounding pharmacies within their

state. But it became increasingly more and more difficult to get the drugs. And when the facilities did get their hands on the drugs, the drugs would often lack potency or be cross-contaminated. And this would lead to botched executions. So it's safe to say the lethal injection hasn't necessarily been easy to carry out. And because of this, South Carolina actually hasn't carried out an execution since 2011. So over 10 years ago. In 2021, in an effort to get executions going again, South Carolina went back to using the electric chair as its default method of execution because they were like, okay, it's obvious the lethal injection's not working for us. We can't get what we need. We're going to

go back to the electric chair. And then in March of this year, the South Carolina Department of Corrections announced that they were ready to start using the firing squad. South Carolina is actually one of four states that have the firing squad as a method of execution, but more than 12 years ago in June of 2010. So as of March 2022, inmates in South Carolina could choose between the electric chair and the firing squad with the electric chair being the primary method of execution. But when this happened, four inmates filed suit, challenging these two execution methods. And their argument was that not only did these two methods of execution violate the state constitutional ban on cruel and unusual punishment, but also that the state of South Carolina hadn't done enough to get the lethal injection drugs and they should have tried harder. The judge agreed with the inmate's position, and in a 39-page ruling, the circuit court judge Jocelyn Newman wrote in part, quote, In 2021, South Carolina turned back the clock and became the only state in the country in which a

person may be forced into the electric chair if he refuses to elect how he will die. In doing so, the General Assembly ignored advances in scientific research and evolving standards of humanity and decency, end quote. Now, it's important to note that the state of South Carolina will most likely appeal this ruling and it'll go up to the higher level of court. But for now, while this ruling is still in place, it pretty much prohibits South Carolina from carrying out executions by way of the firing squad or the electric chair. And obviously, given the fact that the state is having a hard time getting the drugs for the lethal injection, it's likely that South Carolina won't be carrying out any executions for a while. Not like that's anything

new for the state because like I said, their last execution was in 2011. So it's been a long time. And you know, people always ask like, why do inmates sit on death row for so long? This is one of the reasons. It's just, there's so many issues that happen and there's so many like court cases and processes and things that can go wrong. And just so much happens that it ends up being decades by the time an inmate is actually executed from when he's sentenced to death. So we will see how this plays out at the next level. But for the time being, yeah, South Carolina just can't really do anything as far as executing right now. So that is that.

That concludes this episode. If you guys want to access any of the sources for this episode, they are always available on jordanismylawyer.com. And if you haven't already, please leave me a five-star review. Well, leave me a review. Five stars are preferred, but obviously that's only if you love this podcast and you enjoy my unbiased nature um and that that's all i have for you today so with that don't forget to listen to the new true crime episode dropping tomorrow morning or if you're listening to this on

tuesday or later then it's already live so don't forget to listen to that and I will talk to you guys soon.