All the Presidents' Lawyers

The phone call to Georgia

On Saturday, President Trump called Georgia Secretary of State Brad Raffensperger and urged him to revise Georgia’s presidential election result so he would be the winner. He told Raffensperger he only needed to find about 12,000 votes. The call went on for an hour with President Trump reciting conspiracy theories while Raffensperger and his lawyer Ryan Germany explained with remarkable patience that the problem with the president’s arguments is that they are wrong and made up. Did ...

The Show To End 2020

The Trump administration has been a remarkable time for lawyers. Often, not remarkable in a good way. Ken and Josh talk about a completely nuts meeting at the White House on Friday night in which Sidney Powell, Rudy Giuliani and Michael Flynn were urging President Trump to do some crazy things, and other advisers were urging the president not to do those crazy things. Wait, didn’t they say Sidney Powell was “practicing law on her own”? And what’s this about her being a special coun...

Bye Barr

Attorney General Bill Barr is leaving the administration a few days before Christmas. Is he being fired for doing the job he was supposed to do? And who is Jeffrey Rosen, who will serve as acting attorney general after Barr leaves? Hunter Biden has been under investigation by the US Attorney’s office in Delaware since 2018. It started as a money laundering investigation and in the course of that investigation, they developed questions about whether Hunter Biden was paying the taxes...

Knocking at the Supreme Court’s door

We’ve reached the stage in the legal efforts by President Trump’s allies to contest the election results where the Supreme Court could opt to get involved, but they’re not getting involved. Congressman Mike Kelly sought an injunction from the Supreme Court to block Pennsylvania’s certification of its election results. Despite President Trump tweeting a photo of Amy Coney Barrett with lasers coming out of her eyes, the court declined to hear it, and none of the justices went on the ...

Pardon season

It’s pardon season. Last week, President Trump pardoned Michael Flynn, his former national security adviser, for the false statements charge to which he pleaded guilty, and he’s been pardoned for certain activity he was never charged with. If this pardon was corruptly issued, is it valid? Yes. Even if the president gets in political or legal trouble for it, is it still valid? Still yes. The power to pardon is pretty close to a power a king would have, and there is no precedent for c...

Practicing law on her own

This week, there’s been some tension among President Trump’s lawyers. Sidney Powell appeared at press conferences with Rudy Giuliani and made wild claims about voter fraud and other random things. Now the campaign has cut her loose, saying Powell does not represent the campaign or the president in his personal capacity. What does it mean to say that Powell is just “practicing law on her own?” And is Rudy Giuliani a good lawyer? Ken White finally tells us. Josh Barro and Ken White t...

Is overturning the election results even the goal anymore?

This week Ken takes the reins of the show while Josh is away. Special guest Franita Tolson of USC’s Gould School of Law joins the conversation to delve into what’s left of the Trump campaign’s lawsuits contesting Joe Biden’s win. Republican election officials in Michigan refused to certify the votes in Democratic-heavy Wayne County...and then they reversed themselves after an outcry from voters. The Trump campaign has had a dismal track record so far in its legal fight, so is the ...

Is overturning the election results even the goal anymore?

President Trump’s legal remedies to overturn the election continue to fail, but does it even matter?

The president and the president-elect

Josh Barro and Ken White are back! A few interesting things have happened in the past two weeks — first of all, Joe Biden is the president-elect with narrow but clear leads in states that put him over 300 electoral votes. President Trump is displeased about this. He says he really won the election and he is engaging in a legal and PR strategy to contest those results. Most of the individual lawsuits, though, are not very plausible, and as Democrats keep pointing out, they don’t cont...

Bad cases make bad law

Last week, the Justice Department made their case for why they should step in and defend in the defamation lawsuit E. Jean Carroll filed against President Trump. A federal judge just ruled on their two main arguments: no, the president is not a government employee according to the law, therefore the DOJ cannot take over and represent him, and also no, the president was not acting in his official capacity as president when he denied Carroll’s allegation. Ken White and Josh Barro tal...

What is an official act?

Jean Carroll accused President Trump of raping her in the 1990s. The president crassly denied her allegation, and she sued him for defamation, saying that he defamed her by calling her a liar. The federal government has sought to intervene here, stepping into Trump’s shoes and becoming the defendant in the case, and now they are arguing that when the president said he didn’t rape Carroll and that she is “not [his] type,” he was acting in his official capacity as president. Is the Ju...

A loan, a payment, a trail

The New York Times has continued its series based on nearly two decades of President Trump’s tax records. Late last week, the New York Times traced a $20 million payment that one of Trump’s companies received in 2016 from his joint hotel venture with Las Vegas casino magnate Phil Ruffin. Shortly before that payment, the hotel borrowed $30 million — and most of that loan was personally guaranteed by Ruffin. Shortly after that, Trump contributed an additional $10 million to his campai...

Does the president have immunity if he is sued for being contagious?

President Trump has COVID-19. He was hospitalized Friday, but he took a little joyride around Bethesda on Sunday and then on Monday, he checked himself out and returned to the White House. Why did the hospital let him leave, even if, as commander in chief, everyone at the military hospital ultimately takes orders from him? Could he be sued for recklessly exposing and possibly infecting others? What about White House employees, like Secret Service agents — could they make an OSHA com...

Tuesday’s other sh*t show

Long-suffering federal judge Emmet Sullivan finally got to hold that hearing about whether he should grant the Justice Department’s request to dismiss the false statements charge to which former national security adviser Michael Flynn had already pleaded guilty. Both the government and Flynn argued for dismissal, so Sullivan appointed a retired judge to make the case no one was making any longer: that he should not dismiss the charge. So how did that go? Well, it was a little dramat...

Fraud Guarantee

Manhattan District Attorney Cy Vance continues to push for financial records from President Trump’s businesses, and he’s filed a brief with the court of appeals ahead of oral arguments that says the records could “establish New York crimes such as Scheme to Defraud , Falsification of Business Records, Insurance Fraud, and Criminal Tax Fraud, among others.” Should we expect that the grand jury is looking into exactly those things? Not necessarily. It’s more speculative than specific...

‘A corrupt and politically motivated favor’

Long-suffering federal judge Emmet Sullivan is still presiding over the Michael Flynn case, which isn’t yet dismissed. The DC Circuit declined to force him to promptly dismiss the case and is allowing him to hear arguments about whether he should do so, and retired judge John Gleeson has filed his friend of the court brief arguing that Judge Sullivan should deny the Justice Department’s motion — unopposed by the defendant — to dismiss the false statements charge to which he had alre...

Was President Trump on the job when he called E. Jean Carroll a liar?

The Justice Department has filed a motion to take over the defense of E. Jean Carroll’s defamation lawsuit against President Trump. Carroll, a longtime advice columnist, alleged the president raped her at a department store in 1995 or 1996. The president said her claim was false and that she was “not [his] type.” She sued him for defamation on the grounds that he was falsely accusing her of being a liar. The case has been kicking around in a New York state court, which had recently ...

Did Antifa and BLM do the RICO?

Chad Wolf, the acting head of the Department of Homeland Security, appeared Monday on Tucker Carlson Tonight, and Carlson asked why the heads of Antifa and Black Lives Matter hadn’t been charged under, for example, the Racketeer Influenced and Corrupt Organizations Act for what Carlson alleged was their responsibility for riots in Kenosha, Wisconsin, and elsewhere. Wolf replied that the Department of Justice was looking into it. Ken tells us again (for, like, the millionth time) why...

Bannon arrested at sea

We’re a few days into the Republican National Convention, and there have already been a number of apparent Hatch Act violations. The Hatch Act isn’t a criminal law — does it actually prevent government employees from engaging in campaign activity while on the job, or is it really just a norm? And isn’t there something kind of weird about barring people who work in politics from doing things that are...political? Steve Bannon was arrested on a boat last week — he and his associates ...

Colloquially collusion

The Senate Intelligence Committee has released its report on Russian interference in the 2016 election. The president says the report is a hoax though his aides also say it confirms what they’ve said all along: that there was no collusion between the Trump campaign and the Russian government to influence the election outcome. As a reminder, “collusion” has no particular legal meaning, but Ken and Josh talk about one key allegation in the report, which is the timing for the release o...

Hot en banc action

On Tuesday, the DC Circuit Court of Appeals held its en banc hearing to reconsider whether Judge Emmet Sullivan should be forced to dismiss the charges against former national security adviser Michael Flynn, who already pleaded guilty and was awaiting sentencing. The hearing was long: four hours, which was a stretch even for a legal nerds, Ken White says. How did it go for Flynn? Also from the DC Circuit in the last week: the court ruled 7-2 that the House of Representatives does h...

The value [of this podcast] is unascertainable.

First, a correction to last week’s show: Ken and Josh talked about Attorney General Bill Barr’s House committee testimony in which he said federal prosecutors had brought charges he didn’t think any current US attorney would bring and that this prosecution was for “some esoteric, made-up crime,” not a “meat and potatoes crime.” Well, we mixed up which prosecution Barr was referring to. Barr was first asked about Roger Stone, but he was referring there to the Michael Flynn prosecutio...

Meat and potatoes

Attorney General Bill Barr testified before the House Judiciary Committee this week and it went, well, basically how you might expect. There was some news: in justifying his intervention in Roger Stone’s sentence, Barr said it was “excessive” for a man of his age (67), and he didn’t think any US attorney in the department today would prosecute the case because it couldn’t be proved beyond a reasonable doubt, and the charges (witness tampering, false statements and obstruction) were ...

Why was Michael Cohen sent back to prison?

Michael Cohen is suing to be let out of prison, saying the government violated his First Amendment rights by sending him back to prison when he refused to agree to terms that would have blocked him from writing a tell-all book about President Trump while on furlough. Charles Harder apparently sent Cohen a cease-and-desist letter about the book, claiming Cohen signed a nondisclosure agreement (but he didn’t attach it) — but does it seem strange that Cohen had signed one of those agre...

The greatest hits

Why didn’t Roger Stone get a full pardon from the president? Is the president’s commutation or pardon power reviewable? Nope. He gets to do whatever he wants, but Congress could decide it’s an impeachable offense. Could it be an obstruction of justice? That’s a harder question to answer and it would need to be tested in court, but it’s a pretty uphill battle — this is a power specifically given to the president in the Constitution. To sum it up, President Trump tried many things to ...

When the horse is out of the barn

Trump vs. the tell-alls

Mary Trump, President Trump’s niece, has a tell-all book about the president that’s supposed to be published later this summer. The president doesn’t want it to be published and he says Mary Trump signed a non-disclosure agreement as part of a settlement over the estate of Fred Trump (the president’s father and Mary Trump’s grandfather). So, President Trump’s brother Robert has been suing to stop the book’s publication and a trial judge in New York granted a temporary restraining or...

Flynnterrupted

Well, it wasn’t quite a Friday Night Massacre but Friday night was pretty weird. Attorney General Bill Barr released a statement late Friday saying Geoffrey Berman, the US attorney for the Southern District of New York, was stepping down. But a couple of hours later, Berman released his own statement, saying he wasn’t quitting and he was surprised to see the attorney general claim he was quitting. Then, on Saturday, Bill Barr announced that the president had dismissed Berman and Ber...

Bolton’s book

The US government is suing former national security adviser John Bolton. Details about Bolton’s tell-all White House memoir started to come out right after we taped this episode, but let’s focus on the big issues here: the president is using the US Department of Justice to stop a former government official from talking about him. The suit says John Bolton breached both his obligation not to disclose classified information and his obligations under a non-disclosure agreement he signe...

What should Judge Sullivan do?

Where were we? Right: Michael Flynn. Listeners will recall the president’s former national security adviser pleaded guilty to making false statements to FBI investigators, but following his guilty plea and literally years of maneuvering on the way toward sentencing, the Justice Department has decided he wants to dismiss the charge against Flynn, which is fairly unusual. Judge Emmet Sullivan decided that he wanted to hear some arguments before he decided whether to allow that dismiss...

I am your podcast of law and order

This week we were going to talk to you about President Trump’s executive order directed at Twitter and other social media companies. But then news overtook us. Ken White speaks with national security law expert Steve Vladeck about President Trump’s threat to use the military to quell unrest and looting in cities following the police killing of George Floyd. Can the president send in the army if he thinks governors aren’t responding forcefully enough? What’s the Insurrection Act anyw...

Should Joe Scarborough sue President Trump?

The Michael Flynn saga continues, and it’s still very unusual. So remember: Flynn pleaded guilty to a charge of lying to federal investigators, then the government reversed course and moved to drop the charges, and then Judge Emmet Sullivan hit the brakes, asked for amicus briefs on the issue and appointed an outside counsel to argue against dropping the charges. Flynn appealed, basically saying if the government wants to drop the charges, it gets to. He filed a writ of mandamus, as...

This is highly unusual

So Long-Suffering Federal Judge Emmet Sullivan didn’t just simply approve the Department of Justice’s motion to drop the charges against Michael Flynn. Remember: Flynn, the president’s former national security adviser, already pleaded guilty to making false statements to federal investigators and repeatedly affirmed his guilt to the court. Before he makes a decision, Judge Sullivan appointed a retired federal judge to make the argument that the charges should not be dismissed since...

Dropping the charges against Michael Flynn

Just after last week’s episode, the Department of Justice moved to drop the false statements charge against former national security adviser Michael Flynn, a charge he already pleaded guilty to in 2017. The Justice Department says the case should never have been brought, that whatever misstatements he made about his dealings with Russian ambassador Sergey Kislyak were not material to an ongoing investigation, and as such he should not have been charged for making them. Did they, in ...

Tales of two Michaels

So, it looks like Michael Cohen won’t be getting out of prison because of the coronavirus epidemic. Is this because of the tell-all book he’s apparently writing, or is Cohen caught up in a Bureau of Prison policy change, like many other federal inmates? Well, and about that book: President Trump’s attorney Charles Harder sent Cohen a cease-and-desist letter, reminding him of a non-disclosure agreement he says Cohen signed. But an NDA probably can’t prevent the book from being publis...

Performative lawsuits

Let’s talk about Sean Hannity. Hannity hired Trump libel lawyer Charles Harder to send a threatening letter to the New York Times. Hannity is upset that some writers indicated he was responsible for the death of man who watched Fox News, didn’t think much of coronavirus risks, went on a cruise and later died of Covid-19. The New York Times sent a terse “no” in response, and Ken says that it meets Harder’s letter on the same battlefield: public relations. But it’s not going to be che...

Home confinement and stay-at-home orders

Michael Avenatti’s out. Michael Cohen’s getting out. Rick Gates too. Federal judges can sentence you to a term, but it’s up to the Bureau of Prisons to decide all the other details: where you serve, level of security, home confinement and many other factors. If you’re serving a sentence in home confinement, what are the restrictions? And is it kind of like the stay-at-home orders that most Americans are under right now? In some ways, it is. Are Michael Cohen, Michael Avenatti, Rick ...

Is the authority total?

This week President Trump responded to a question about his intention to re-open the economy as soon as possible by saying his authority as president is “total.” Is he right? A day later, he started to walk back that statement, saying that he would basically authorize the states to reopen again, which he sort of has the power to do. So, okay. Not total authority. But he does have other ways to influence and pressure governors to do what he wants. Then: Josh and Ken discuss a Kansas...

Norms

Inspectors general are supposed to be independent actors with oversight power within the executive branch. What happens when presidents fire them? This week, President Trump did just that for Michael Atkinson, the intelligence community inspector general who forwarded information about the Ukraine whistleblower’s report to Congress, and for Glenn Fine, the inspector general who was tapped to oversee distribution of coronavirus relief funds. Can he just do that? Is there any penalty ...

If President Trump gives bad advice, can you sue him?

President Trump has been making implicit threats to governors with relief funds amid the coronavirus crisis. Are there any legal restrictions on his ability to play favorites? Could any state or anyone sue because the president sent personal protective equipment to states whose governors said nicer things about him? Ken says the president has a lot of immunity in this area, even when he’s talking about unscientific treatments for Covid-19. Is Fox News also immune? What’s the differe...

No time for a deposition, I’ve got a pandemic to deal with

A few days ago, a story in POLITICO reported that the Department of Justice made a request for new emergency powers related to the pandemic. A lot of people responded with alarm that the government was indicating a suspension of habeas corpus, or essentially saying it will detain people without trials indefinitely during crises, but could there be another explanation for this? Are they simply trying to lay out the rules that apply to judges in a chaotic situation? Civil litigation ...

Coronavirus and the courts

From the state courts all the way up to the highest court in the land, things are changing in response to the coronavirus pandemic. The Supreme Court will delay oral arguments in Trump v. Mazars, the case where the court will consider whether congressional committees have the authority to subpoena the president’s accounting firm for his financial information. Is it possible there won’t be a decision before the November election? Ken talks about his experience as courts have begun t...

Hunter Biden, Don McGahn, Michael Flynn but first: coronavirus

Senate Republicans are trying to kick up dirt around Hunter Biden. Senator Ron Johnson is looking into Burisma and he wants to subpoena records from Andrii Telizhenkoo, a consultant to Burisma at the firm Blue Star Strategies. Democrats objected to this and called it a fishing expedition meant to hard President Trump’s political opponent. If Hunter Biden is subpoenaed, could he disobey? Could he delay? And if there are no specific allegations of criminal activity, could he assert h...

Remember Don McGahn?

Former White House Counsel Don McGahn sat for extensive interviews with Robert Mueller’s investigators, back when it was the White House strategy to be pretty cooperative. Well now, House Democrats would like to talk with him and they subpoenaed him for testimony. The White House told McGahn not to, so he did not. But, in the last week, a federal judge weighed in and said the court would not intervene in this fight between the two branches of government. This is a victory for the ex...

Stone sentenced

Roger Stone received a 40-month sentence last week from Judge Amy Berman Jackson. Three years and four months is, of course, less than the 7-9 years prosecutors had sought before revising that recommendation (and you know what happened next). Ken and Josh recap the sentencing hearing and what’s next for Stone. He hasn’t gone to prison yet. He’s trying to get a new trial, saying his conviction was tainted because the jury foreperson was biased. Did anyone make a mistake here? Then: ...

The wave of pardons

President Trump remembered this week (as he does periodically) how much he enjoys his pardon power. As with previous waves of pardons and commutations, he has shied away from using them in the specific cases where he feels like the victim of a witch hunt. So: no pardon for Paul Manafort or Roger Stone or Michael Flynn, but President Trump found sort of similar cases of wealthy and connected people who, well, did they really deserve what came to them? Josh Barro and Ken White discuss...

The post-acquittal flex

President Trump raged against prosecutors’ sentencing recommendation for Roger Stone. Then the Department of Justice reduced the recommendation and the four prosecutors who made the original recommendation have withdrawn (one quit the DOJ). Is there a limit on the president’s power now that Attorney General Barr seems to be stepping in to support the president protecting his allies and going after his enemies? There may be theoretical limits, but it seems there aren’t really any pra...

After impeachment

Impeachment, the centerpiece of President Trump’s legal problems, is wrapping up. But the House will continue to investigate him on various fronts. There is ongoing litigation over efforts to obtain his financial records. The House could also try to subpoena John Bolton, even though the Senate declined to. And what’s the deal with Trump’s Department of Justice making arguments about remedies for disobeying subpoenas that are the exact opposite of his impeachment defense team? What’s...

All about Bolton

The president’s legal defense team made their opening statements and now we’re in the phase where senators can submit questions to the House impeachment managers and the lawyers. But the biggest developments in the trial have arguably occurred outside the Senate chamber. The New York Times reported on the contents of former National Security Adviser John Bolton’s forthcoming book. Among other claims, the book says President Trump told Bolton he wanted military aid to Ukraine withhel...

The Senate trial begins

It looks like the House managers and the president’s legal team are going for different audiences in their opening statements, and neither seems to be speaking to the audience of senators in front of them. Ken and Josh discuss the tone and strategy so far, and whether it seems like this impeachment trial will be conducted very differently from the Clinton impeachment. Both sides are taking partisan shots and were admonished by Chief Justice Roberts late in the first night, but Whit...