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- [00:00]
A
Foreign. Hi, it's Ken White and it's Josh Barrow. And this is serious trouble. So, Ken, we got some breaking news on Friday morning, just as we were about to tape. It appears that Don Lemon got arrested late Thursday night in California related to this church incident a couple of weeks ago in Minneapolis.
- [00:24]
B
He did. You know, they attempted to charge him with other people week before last. They failed. It was rejected by a magistrate judge. And now it appears in some reports are saying that they got a grand jury indictment and with that, an arrest warrant that they used to arrest him here in Los Angeles Thursday night. Now, they arrested him and took him out of the Grammys, which I would call a mixed blessing. But it is, you know, a continuation of this incredibly aggressive approach they've been taking to prosecuting people associated with that protest in a Church in St. Paul.
- [01:08]
A
And so the, you know, the magistrate judge had rejected the arrest warrant on this in the first place, which. And how unusual is that? Is that less unusual than a no bill from a grand jury?
- [01:20]
B
It's medium unusual. So if the most unusual in federal criminal practice is a no bill from the grand jury, then the next most unusual is a magistrate judge turning down an arrest warrant. And that's because in seeking federal arrest warrants, the feds tend to be pretty over cautious. You know, we've talked on the show a lot about how the feds are cautious in charging. Less willing to roll the dice than state prosecutors. They tend not to seek complaints unless they have a very clear case. So here the reporting is that the magistrate judge rejected five out of the eight arrest warrants, turned down five out of eight people they sought to charge initially. But of course, that allows you, the government, to do two things to follow up. One would be to present it to a grand jury and get a grand jury indictment. And another would be to represent to the magistrate judge with a different affidavit with more information, or we've learned maybe a third way.
- [02:26]
A
Right. There was this effort to try to pressure appellate judges, or first, the first a trial judge to overrule the magistrate judge. And when he declined to do that, they went up to the 8th Circuit under seal, made this filing requesting that the 8th Circuit give a writ of mandamus to. Basically, they said that if we don't arrest Don Lemon immediately, people are going to go invade more churches this Sunday.
- [02:49]
B
Right.
- [02:49]
A
And that's why it's an emergency and you have to do it right away. And they were sort of. Well, I was gonna say laughed at, but it didn't seem like that federal judge was laughing about the whole situation that he was put in there, but thought that the whole claim that they were in an emergency was ridiculous. I sort of took part of the government's urgency there to be a suggestion that they thought they were gonna have some difficulty if they went before a grand jury, that they wanted the news of the arrest, and that they thought this was somehow the most effective way to get it. So I guess that makes it sort of interesting that they apparently did go to a grand jury and succeeded in getting an indictment from a grand jury.
- [03:22]
B
Right. Well, that's always the best bet, because as much as we've seen some no bills, particularly in ICE protest cases recently, the grand jury, on the average, is still the most likely to rubber stamp for you and ignore any problems with your case. But the chain of events here is really quite extraordinary. And we know a lot of it from letters written by Chief Judge Patrick Schlitz, who's the Chief United States District Judge of the District of Minnesot, Minnesota, who wrote letters to the 8th Circuit as they were considering things, basically describing what had happened. And so what we learned from him is that, yes, this United States Magistrate judge had turned down five out of the eight arrest warrants, rejected probable cause as to five out of the eight people Department of Justice tried to charge.
- [04:18]
A
Just to give a little background on who these eight people were, there were three charges that came down, two of them against veteran activists in the Minneapolis area, one of them formerly ahead of the local naacp, who were sort of leaders of this protest in this church, where they were under the impression that one of the pastors at the church is a senior employee in the field office for ice in St. Paul. Don Lemon was also there with his producer. And two of the restaurants that were rejected initially were for Don Lemon and his producer. And so basically, I gather the thinking here was that intent is an important part of the charge here. That, you know, if you. If you make some noise in a church and you're talking about whether that's a violation of the KKK act, there has to be an assessment of why you were there and what you were up to and that Don Lemon, you know, was there as a journalist to cover it and therefore did not have an intent to interfere with people's First Amendment right to exercise religion. Is that normally a question that a grand jury concerns itself with, or is that a. Is that sort of intent question normally like a. Like a trial jury question?
- [05:17]
B
Well, I mean, it's one of the elements. So the grand jury has to Find a probable cause that they had the requisite intent. And, of course, how the grand jury goes about doing that depends on how honestly the United States Attorney's office instructs them on the law, tells them the elements, and presents the information to them. So what happened after this, you know, refusal is that the Department of Justice immediately filed papers with the district judges of the District of Minnesota seeking to review the magistrate judge's declination. Now, the Judge Schlitz wrote that he had surveyed everyone and found nobody who had ever heard of the Department of Justice trying to do that. I, in my entire career, have not ever heard of the Justice Department trying to do that. That's because if a magistrate judge says, no, I don't think you have a probable cause, normally the remedy is to say, okay, fine, we'll indict, or to prepare a better affidavit with more information in it. I've literally never heard of this happening. And I've been doing this for 30 years. Judge Schlitz had never heard of it happening. None of the judges he talked to had ever heard of it happening. And so Judge Schlitz told the government, well, why don't you file a brief that talks about whether or not we have the power to do that? Can a district judge who, you know is nominated by the President. Article 3, approved by Congress. Can we second guess the magistrate judge who, remember, is a sort of a junior assistant judge appointed by the other judges. And rather than file that brief, the Department of Justice immediately did an emergency motion to the 8th Circuit saying it's imperative that we be able to arrest these people immediately. That's a whole other level of fabulous subnormality way outside of whatever happens. And that's what Schlitz was writing to the 8th Circuit about. That I've never heard.
- [07:19]
A
Yeah, I was confused. Why was it under seal?
- [07:21]
B
Well, because the government purported to say that, you know, this is all highly secret and, you know, that it would, you know, cause problems if it got out.
- [07:30]
A
I don't. I don't understand that. I mean, you know, the. The effort to indict him obviously was not secret.
- [07:34]
B
No.
- [07:36]
A
What would the specific secrecy interest in the pursuit of the writ of mandamus be?
- [07:40]
B
The theory seems to be that if they knew that we are right now actively pursuing them still, that they might flee now to the Grammys, apparently. Well, but they were going after the other people, too, you know, all five of them. And one thing, that if there's any point in the administration's favor, they had some evidence that some of these people were doing things like staying in hotels and, you know, packing up possessions just because they didn't want to get arrested easily. So that's a point in favor of a fairly normal argument you'd make about flight risk. They appeared to be evading possible arrest, and not a great one, but an argument. So what the 8th Circuit ultimately did was turn down this extraordinary writ, although, as convention requires, the Trump appointee judge said, oh, yeah, in my opinion, all this is plenty probable cause of all these people. They have other remedies, so I'm not going to give them extraordinary relief. So it appears from this that they did, in fact go back to a grand jury and get the grand jury to indict on something. We have not yet seen the indictment as to any of these people. As of Friday morning at 7 o' clock Pacific, I expect we will see one relatively soon. And one of the first things that's going to happen is that Don Lemon, having been arrested, will be appearing in federal court in Los Angeles.
- [09:07]
A
He was arrested in la. He'll appear in federal court in la. And then what did this? Because I. The. With the. The three people who were initially charged here, the government made some argument that they should be held without bail, which I think.
- [09:19]
B
Right.
- [09:19]
A
Sort of laughed at. And they've been released pending trial. I assume that they're going to, you know, make the same histrionic argument about all of these people that, you know, the, that these, you know, these people are a threat and, you know, blah, blah, blah, Don Lemon. Everyone's so scared of Don Lemon, but I assume they're. They're going to let him out, but do they first have to transport him to Minneapolis before they can let him out?
- [09:40]
B
So, yeah, I expect the same arguments to be made, and those were repeated in those petitions to the district court and the Eighth Circuit. You know, as you suggested, the. The argument was basically, if we don't show everybody that we've immediately arrested these people, they are going to lead a surge of invasions into churches of America. And, you know, people will be weeping in the aisles and that type of. So I expect some of the same arguments to be made here. I do not expect any magistrate judge here in Los Angeles to entertain that for a second. And I think the overwhelmingly likely outcome is that Don Lemon will be given bail. Now, when you're arrested on a federal warrant in a different district than where the warrant was issued, you have some procedural rights. You have a right to see the warrant. If you've only been charged in a Complaint and not an indictment. You have a right to a preliminary hearing, which is a very rare thing to happen, because usually they just get the indictment that's not applicable here, because apparently they have a grand jury indictment, and you have a right to a hearing where basically they determine you're the same Don Lemon who's charged in Minneapolis. I don't expect him to exercise any of those procedural rights. I would expect him to waive all those and just agree to appear in Minneapolis.
- [10:55]
A
He will travel under his, you know, he'll book a ticket on Delta and go to Minneapolis, or they going to. Are the marshals going to take him to Minneapolis?
- [11:01]
B
Well, he would get bail here, most likely.
- [11:04]
A
Okay.
- [11:05]
B
And then travel himself to Minneapolis. So that's what I expect to happen. Okay.
- [11:12]
A
When there have been these other really high, you know, priority political indictments for the Trump administration. I mean, first of all, they've made a lot of mistakes at the indicting stage, and so I guess, you know, we'll see what this indictment looks like. You suggested the possibility that they may not have, you know, been super square in the way that they instructed the grand jury on the law. Law here. Are you suggesting that sort of similarly with the Comey and Letitia James indictments, there might be an effort to try to argue that the indictment itself is flawed and needs to be thrown out for that for reasons related to the grand jury process.
- [11:43]
B
So I think the Comey and Letitia James indictments are unique and very different from this one. This one act. I think it's ridiculous, and I think that there are strong First Amendment defenses and extremely dubious arguments that he had the requisite intent to violate the relevant status ratchets. But it doesn't have the same structural problems that they had because it's. It's not something where, you know, he's being singled out solely because of stuff he said. And we have this record of Trump railing about how he was going to corrupt justice to appoint a new U.S. attorney in order to indict him. So it's not like that. There may be vindictive or selective prosecution arguments, but I think they're going to be much weaker. I think this one is much more likely to proceed based on the lack of merit of the facts rather than arguments like that. Although Don Lemon's lawyers are very good and very aggressive, and if it can be done, they'll do it.
- [12:41]
A
But this was, again, Abby Lowell.
- [12:43]
B
Right, Right, Exactly.
- [12:44]
A
Busy man.
- [12:45]
B
Very. Well, it's all hands on deck for that type of lawyer these days, I guess.
- [12:51]
A
He's not dealing with Hunter Biden anymore, so he has some more free time.
- [12:54]
B
I mean, again, they are not sending their best, the Department of Justice, on this. There has been a lot of bumbling. We saw that with people like, you know, Lindsey Halligan and, you know, the sort of people who are willing to engage in this sort of thing are kind of the dregs of the United States Department of Justice. So it may well be their screw ups.
- [13:15]
A
When, when you say strong First Amendment defenses, is that specifically as regards Don Lemon and, and his producer, if his producer is also indicted, that basically they're there in a press function.
- [13:24]
B
Yes.
- [13:25]
A
And that's, that's the First Amendment right to be vindicated here.
- [13:27]
B
Yes. I mean, journalists don't have any greater authority to go in and disrupt a church service than anyone else. But the statutes in question can't be read or interpreted in a way that violates the First Amendment. So to the extent the government's argument is, you know, if there's a Protestant, you're there covering it, you're necessarily contributing to it and violating the rights of people there, I don't think that argument washes and I think the First Amendment prevents it. The problem for Abby Lowell and the other lawyers for Don Lemon is that in the federal system, it's very difficult to bring intensive fact based challenges to a prosecution before trial. So in the state system, there are things like a preliminary hearing, things like that, where there are sort of factual challenges earlier in the case. There's really not an opportunity, a federal case, for a steam standard. You know, they can't prove this or the evidence is going to show this, and that's not good enough type of motion.
- [14:36]
A
Lots of other news coming out of Minnesota and the developments that have happened there. We had this remarkable motion made by local officials in Minnesota after the second fatal shooting by federal agents, the killing of Alex Preddy by Customs and Border Patrol officers who was working there under the auspices of ice. So after the first fatal shooting of Renee Goode, the feds were uncooperative with the local officials and there was contamination of the scene of the shooting. And in an attempt to prevent a repeat of that, you had Minnesota officials who refused federal requests to clear the scene after Preddy's shooting. And then additionally, they filed a motion seeking a temporary restraining order telling the federal government, don't destroy any evidence. And I was interested some people commenting, and I think you agree with this, that this is a motion that would have been considered frivolous, you know, a little more than A year ago, it would have been frivolous, because you're asking for a motion telling the government not to break the law.
- [15:35]
B
Right. And so I think it was my colleague, Akiva Cohen, who said this, and he said, basically, this would have been frivolous a year ago. But the fact that it was granted and taken seriously demonstrates how completely the federal government has lost a presumption of regularity in terms of its dealings before federal courts. So, yeah, normally saying, you know, we order the federal government not to break the law is not something that a court would entertain. But here, given their pattern of behavior, the refusal to allow local officials to investigate a killing in their own jurisdiction, the refusal to allow access to evidence, and I think very meaningfully, the fact that the people who killed this man are masked and their identity is not known, their identity is being withheld by the federal government. All those, together with the Trump administration's very disreputable record of how it litigates, were enough for a federal judge to say, okay, I'm not going to order the federal government to turn everything over, but I am going to order them not to destroy anything.
- [16:46]
A
Yeah, I guess that's worth noting. Minnesota asked for several things. The judge didn't order all of them, but he did grant this TRO saying, you know, don't destroy any evidence.
- [16:53]
B
No. And that's a watershed. That's basically saying there's. There's cause to believe the United States government would corrupt and obstruct justice by destroying evidence of misconduct by its own agents. And I think that's absolutely right. I think that it would be foolish to assume anything else, given the Department of Justice's record on these matters.
- [17:14]
A
The Trump administration has not disclosed the identity of the officer who shot Alex Preddy. I guess there's two officers who fired shots. We don't know if two of them fired shots that hit him. I've been wondering whether they will be able to keep that secret even if they try. If Minnesota is performing some sort of criminal investigation here, and one of the things that they want to know in the course of that investigation is the identity of the agent, do they have an ability to go to court and compel the federal government to disclose that?
- [17:41]
B
Yes, there are various avenues over which they could try. The question is, what is the administration going to do to resist and refuse and litigate it, and what are higher courts going to do in response to that? Because if the federal government decides we're going to protect these people from any state prosecution, we're not going to turn over this information, then that's something that is going to get mired in the courts for a while. So under the Supremacy Clause, the state compelling the federal government to do things, turn things over, has limits. And I would expect that if the federal government wants to do this, wants to basically say, you know, our agents can kill people and you're not entitled to know who they are, then that's something that is going to get mired in litigation for a while, which would, again, be a very scary development.
- [18:32]
A
There's been a lot of political expectation around the actions of those Minnesota officials. But one of the things here is, you know, you watch we have a federal government right now that likes to bring prosecutions just for, you know, the show of bringing a prosecution.
- [18:44]
B
Right.
- [18:45]
A
I assume if and when Minnesota tries to bring a prosecution there, that they're going to try to bring one with a case that they can win. And therefore, you know, the, you know, to the extent that there's, you know, unusual difficulties in terms of, you know, building the evidentiary case there, I'm just wondering, like, that might be a very long timeline, right?
- [19:06]
B
It could be because the feds basically disappeared all the evidence and they took away the defendants, the people who did the killing. And that makes it much more difficult to do a thorough good job of doing a prosecution. And the people in Minnesota are under tremendous pressure to do something about this. And there are a lot of calls to do this immediately. And why aren't they already in jail? Why are there already criminal charges? There are comparisons are made to the George Floyd case, where the officer who murdered George Floyd. Those prosecutions began in a matter of a few days. But that was a very different case because you had a cooperative district attorney's office and police department that had access to not just a video, but to all the physical evidence in all the personnel. And that's not the case here. So particularly when it's already so hard to win a case against law enforcement, and particularly where you've got a hostile federal government that's going to be removing any prosecution to federal court, I think it would be kind of reckless to rush into it. And that is a sentiment that's very unpopular among people who think that we should go in guns blazing for right and justice and charge them immediately.
- [20:35]
A
And then there's two other big areas of complication in these Minnesota areas. One has to do with we've talked some about this litigation that Minnesota has brought asserting 10th Amendment claims and commandeering claims and various other things, trying to get a federal court to enjoin some moral aspects of this enforcement operation that is occurring in Minnesota. And Judge Kate Menendez, who's overseeing that, has been reluctant to try to enjoin the operation, saying some things that I think we sort of previewed here, where it's basically like the amount of discretion that the state wants her to exercise in terms of figuring out what burdens the federal government is and is not allowed to indirectly place on the government of the state of Minnesota just looks, it looks like an awfully expansive role for the court. And one of the things she said in this hearing was basically not every problem has an available remedy from an injunction from a federal court. However, there's one thing that she does seem to have been pretty hung up on, which is that there was this letter from Attorney General Pam Bondi and certain other statements from officials in the administration that get really remarkably explicit about the idea that they're demanding certain policy changes at the local level. They want jails to honor ICE detainers, which is to say that they don't just want people who are convicts coming out of prison handed over if there are deportation orders. They want the local jails to hand over people who may or may not have been convicted of crimes, to hold onto them until ICE can come pick them up. And then they also want some other things that are even less related to the immigration operation to do with welfare fraud and data on voter rolls and things like that, and sort of strong suggestions that basically it's a quid pro quo, that if you do these things, then we'll call off the dogs. And it seems like she's wondering. You have to get awfully explicit for commandeering. The federal government has to be it's not necessarily just like the government does something and it's expensive and causes reaction by the where it's actually the government is requiring the state to use its own resources towards some end. It's starting to look more like that when you look at this letter. And she wants briefing on how she should think about that, Right.
- [22:44]
B
So United States District Judge Kate Menendez, who is, I think, only briefly suffering, but feels like long suffering, there's a few threads to what she's been doing. The one you're referring to is about this whole commandeering issue where the state and locals are saying they're basically taking us over and we want you to stop this surge, this attempt to commandeer our resources. And Menendez did say, and I think she's right, that the law really doesn't support such a broad assertion of Power by me. And I see what you're doing, and I sympathize, but I'm not sure I can. But the one area where she's asking for more briefing is on this Pam Bondi letter, which is really shockingly thuggish. And I say that even the context of this administration and the news we've been seeing, because one of the things Pam Bondi asked for is basically the raids and the killings, killings are going to continue until you turn over your voter rolls. Now, of course, the Trump administration has been obsessed with getting access to state voter rolls, even though federal government is not supposed to have a role in state and local elections. And it's clear that those have to do a lot with what shenanigans they can play with the midterms. And they're saying basically give us access to your voter rolls or all this is going to continue, which is completely illegitimate. No, no plausible argument that it's lawful. And Menendez is saying, well, I want to hear more that I, I would.
- [24:11]
A
Note she's not quite that explicit in the letter, which, which I think might matter legally. Right. Like, it's sort of more in the, like, you know, shame if something happened to it realm. Like, here are some, some things that I can hope, that I hope we can accomplish together. The strong implication of the letter is if you do this, we will pull back. I don't think it ever, I don't think there's a sentence that lays it out quite in black and white like that.
- [24:33]
B
I think that's true, but I think it's, it's not that remotely subtle. And I wouldn't see any court having difficulty interpreting it as a threat. It's very much, you know, nice state you have here, shame if something happened to it because you won't give us your voter rolls.
- [24:48]
A
Well, sure, but I mean, I, just, because it is, you know, because of the, the great reluctance of the courts to, to involve themselves in these sort of things. That, that's sort of why I wonder about the importance of the explicitness.
- [24:59]
B
Well, let me put it this way. I, I, I do not see any federal judge who is otherwise willing to give relief declining because this isn't sufficiently specific. So that would not be the thing that hangs it up. What would hang it up would be that the law isn't there allowing the judge to take action. The hang up would not be, this doesn't say it explicitly enough. If a judge is saying that, they've already made a decision about not helping. So we'll see how that Additional briefing goes. But the letter by Bondi is remarkable. It is quite a flex and kind of demonstrates that an overarching theme of what's been happening in Minnesota, I think is an expression of power and how you do what we say. And that's kind of like behind the lemon arrest too, right? It's a flex. It's demonstrating. Here's this high profile person, he defied us and protested, and we're going after them. The Bondi letter is more of the same. This state will obey or will inflect consequences. You know, it's a, it's a very sort of Stephen Miller type of sentiment. So there's another thread to the issues before Kate Menendez that we could talk about, and that is this issue of the, the use of force by ICE against protesters.
- [26:19]
A
Right.
- [26:20]
B
And I think we, we touched on this in the last episode, but there have been developments since then.
- [26:25]
A
Judge Menendez had previously issued an order trying to impose certain restrictions on the manner in which ICE could operate in Minnesota, certain tactics that they could and could not use. And this has been, there's a, there's a stay from an appellate panel. We've had this come up a number of times where there's basically stuff where, like, you know, the, if, if police are going to violate your rights in certain ways, you know, with certain tactics, that stuff is often very fact specific in terms of whether or not they violated your rights. And that makes it very difficult. And it's been disfavored going up to the Supreme Court for judges to try to offer prospective relief, trying to set up rules about what the police can and can't do in the future, because either you end up saying don't break the law, or you end up with coming up with rules that the courts are concerned or don't queue closely enough to what the Constitution actually prescribes. Is that what's happened here? Again, it is.
- [27:14]
B
So Kate Menendez issued this order saying basically, don't tear gas peaceful protesters. And Department of Justice took that to the 8th Circuit, and the 8th Circuit Circuit stated saying the government was likely to prevail. And there are a few of these concepts in that order by the 8th Circuit that show how the Supreme Court's recent rulings have made it very difficult to enforce rights as against the federal government. So they say, first of all, the class you've picked here, this being a class action with a tentative class is too broad and non specific. So this is basically just a nationwide injunction dressed up as a class action. You can't do that we say, said there can't be nationwide injunctions for things like don't tear gas protesters. So that's strike one. You can't do nationwide injunctions even if the government is doing nationwide things in violating rights. Step two is that you can't do it by class action unless we like the way you've defined the class. And here it's too broad. Step three is they say basically, well, the problem is that all six of these people who are the class representatives here, they saw and experienced different things. So not everyone got tear gassed. Not everyone once saw the same type of abuse of protesters. They're too disparate. And therefore it's not suitable for this type of order or this type of class action approach. So that's again, something where in effect, the only way you can do this is if each separate person whose rights are violated sues based on their own facts. And then they were saying, you know, this is too broad and vague. You know, don't tear gas peaceful protesters. What does that mean, how a police is supposed to interpret what that means? So that type of attitude, that's a further away. So the combined impact of all this, Josh, I think, is that it becomes increasingly difficult to do anything legal if the United States government has decided to violate people's rights, unless it's for each individual whose rights are violated to individually sue over it and pursue relief.
- [29:20]
A
And this is clogging up the courts, basically, is the thing.
- [29:22]
B
Absolutely.
- [29:24]
A
If you can't have these broad resolutions, then you end up with. And this also has to do with. It's not just protesters. More of the court action has to do with people who've been detained by ICE who have been challenging, often successfully, their detentions. But the thing is that if you make them do it all on an individual basis, then you end up with a whole lot of cases.
- [29:44]
B
Exactly. And just this past week, a couple of federal judges have expressed frustration about this, one of them in Minnesota. So Chief Judge Schlitz, who we talked about before, threatened to hold and contempt the local head of ICE for not releasing people when Judge Schlitz had issued habeas corpus orders, finding that they were entitled to be released after they've been detained for immigration reasons. And ultimately I avoided the embarrassment of having to bring in this high official in the court, which they're always reluctant to do, by simply releasing the specific person whose specific case was at issue. But Schlitz was complaining, a lot of these judges were complaining that basically the Supreme Court has come up with a system where we can't grant relief on a large scale level. So we have to do individual cases and that means tons of individual cases. And then ICE doesn't respond. They don't release the people when they're ordered to. And they're complaining. It's because of the press of business in so many cases and all this type of thing. There's a similar situation out here in Los Angeles where a federal judge complained basically that the immigration authorities are refusing to release people and forcing her to do it on sort of a case by case basis. And that draws things out and then they don't even respond on a case by case basis. So I think this is the rule enacted by the United States of print court, working as intended, which is that stopping any sort of large scale relief for the large scale violation of rights means that the system breaks down. It becomes impractical even to give individualized relief for violation of rights.
- [31:37]
A
We have some non ice, non Minnesota related news this week. I want to start with Candace Owens. She, she posted in a YouTube video and will Sommer hopefully took these out as stills from the YouTube video. So I didn't have to watch 40 minutes of Candace Owens. But so she's been going around, in addition to saying that Brigitte Macron is a man and various things, she's been spinning out various conspiracy theories about the death of Charlie Kirk. And she used to work at Turning Point usa, which Charlie Kirk ran. And so she, she posted these excerpts from a cease and desist letter that she got from Turning Point saying you signed a non disparagement agreement and the things you've been saying are in violation of that. And this is an interesting twist. We talk a lot about how hard it is to prove defamation and the extremely high bars around that. However, if you enter into a contractual agreement that limits what you're allowed to say, then it might be a lot easier to prove that you said things that you weren't legally allowed to say because you contracted away some of your First Amendment rights. And so is Candace Owens in that situation here?
- [32:44]
B
She could be. We haven't seen the entire contract or its context or all the language, and that's something I would be suspicious about. But you can absolutely contract away rights. And that's why confidentiality agreements, non disparagement agreements, and things like that are enforceable. Generally speaking, you know, a court would, if you were suing for violation of 1, look carefully at the language to make sure that the specific thing you did and the context in which you did it, violated it just like in any breach of contract case. But you can do that. And kind of the trick is that most Americans value and exercise our fundamental right not to read the contracts we sign. And it's very typical for people to say, wait, I signed what? I'm not allowed to do what? And realize that there's a non disparagement clause. There's a body of law that, that prohibits non disparagement clauses in some situations. So generally they're illegal in consumer contracts. So, you know, if you go to Kmart for a pack of socks and there's a contract on the back of the receipt, you're allowed to criticize Kmart. And they can't enforce that.
- [33:56]
A
I assume for employment there's a broader scope.
- [33:59]
B
There is. So even states like California that make it very hard to enforce a non compete agreement, in other words, that say that if the company says, says if you work for us, you can never work in this industry again, that we won't enforce that. They will enforce, they will enforce non disparagement clauses. But I mean disparagement is what Candace Owens does. She's in sort of selling lunacy to people who like lunacy business. And I'm sure this is a priced in cost of doing business because if Turning Point USA sued her her for basically saying that Turning Point USA was part of the conspiracy to kill its own person, Charlie Kirk, that would be the best thing ever for her. That would drive an enormous amount of content for her, just like the Macron lawsuit did. And you know, she'd be in the clover.
- [34:50]
A
But doesn't that drive how much damages TPUSA could be entitled to? Like if she made a lot of money off of doing that, wouldn't that like entitle them to more damages?
- [34:58]
B
Well, so the measure of the violation of non disparagement, the measure of damages not be how much money you made doing the disparagement, you would need to demonstrate great harm to Turning Point usa. And so the question is, what is the metric of lunacy? I mean, how does Turning Point USA show that its idiot listeners somehow stopped being its idiot listeners and became Candace Owens idiot listeners because of what she said? How do they trace harm to her conspiracy theories?
- [35:28]
A
I assume you'd have a claim for intentional infliction of emotional distress. It's Charlie Kirk's widow, Erica Kirk is now the CEO know of the organization. Like.
- [35:37]
B
Right. But that would be an individual claim by her.
- [35:39]
A
Okay.
- [35:40]
B
And that's very hard to do for the same reason a defamation claim is very hard to do so. Anything by Charlie Crick's widow is going to face the same challenges as any defamation case, whether she styles it as infliction of emotional distress or as defamation. The organization can't sue for those things. The organization can only sue for the contractual breach or for defamation to the extent it hurts the organization. But what I'm saying is I think in this kind of fever swamp environment of right wing media, I would say it would be very difficult to trace damages to like Candace Owens saying crazy things as opposed to all the other subcultures and conflicts and conspiracies and stuff like that that's constantly bubbling in that and then.
- [36:27]
A
But I mean, you know, Candace Owens presumably, you know, in this theoretical lawsuit ends up being a pretty unsympathetic defendant. Are punitives like an important avenue here or is that just you have the usual issue where like the punitives can be no more than 9x, whatever the actual damages were or something.
- [36:43]
B
Punitives generally can't be more than maybe nine times tops what the actual damages are. It can't be more than a particular percentage of the company's net worth. But that's way down the road. Josh.
- [36:55]
A
Well, I guess Dominion was a settlement, but I just continue the best private equity deal in history. That Dominion Voting Systems thing gets a settlement for like 20x what the company was worth when they bought it. Like that's the dream.
- [37:08]
B
But litigating against Cadnus Owens would be incredibly messy and difficult. And it's not something where you're going to be getting a good result within this year or next year. It's going to be a years long project and things change so much in that fever swamp. I'm not sure if that's a feasible way to do it unless Turning Point wants to do it again. To drive content, to drive clicks just the way Candace Owens wants to. To.
- [37:37]
A
Maybe, I don't know. Jeffrey Toobin, who wrote that profile for the New York Times Magazine of Tom Goldstein, the founder of SCOTUS Blog, who is on trial for financial crimes related to his high stakes poker and sugar baby related activities, allegedly. We talked about the unwiseness of sitting for a New York Times Magazine profile right as you're about to go on trial. And indeed federal prosecutors pounced on this and said we want to admit various inculpatory statements that Goldstein made in the New York Times. And the judge made basically said you can. However, the Times article is hearsay and so it can't be admitted directly. Instead you'd have to call A witness from the New York Times to testify to the fact that Tom Goldstein said these things to us and that's why we printed them. And so they've subpoenaed Jeffrey Toobin, who does not want to testify. And he has a bunch of arguments about why you shouldn't have to testify at all, which I think, we think are pretty weak, but then some arguments about how to limit his testimony that are stronger.
- [38:36]
B
Sure.
- [38:37]
A
And we all agree with limiting what Jeffrey Toobin will show you in court.
- [38:41]
B
Very much so. There's sometimes on a transcript is just better. So, yeah, his arguments are he and his colleague, who both of whom were subpoenaed, are that the government waited to the last minute to do this. This is an untimely subpoena, which was something that the judge. Judge doesn't give a about. I mean, you know, it's. It's not like they interrupted them in the middle of breakfast. If the judge wants to allow the. The judge won't stop because of the date on the subpoena.
- [39:13]
A
Right.
- [39:13]
B
They're also claiming that, you know, the government's basically admitted it has enough evidence without this. But that's generally not the standard. You don't get to say that I don't want to appear because they. They don't need me. That's kind of the government's call. Unless there's some specific legal protection against you having to appear, in which case it might be a factor, a balancing test. The real action, I think, is their final argument, which is that if you're going to make me testify, then I should only be made to testify about the fact that he said XYZ to me, and I fact checked that with him, and then we published xyz. So what he doesn't want to happen is to allow the government or the defense to try to inquire into sort of like, well, what else did he say? What were your means and methods of collecting this information? What editorial discussions did you have? Did you find other things that you haven't published that you're still working on, all that internal stuff for which there are sometimes legal protections. And of course, sort of the government doesn't want to get into any of that. The defense may want to in order to deter and thwart Jeffrey Toobin from testifying. So they. They have an incentive to say, oh, yeah, we need to get into all that stuff just in hopes that the judge will say, well, I don't want to get into that legal analysis. So they're not testifying. But I think the Likely outcome is that the judge allows them to testify briefly, just on a limited issue of what he said to them that got published and let it go of that.
- [40:48]
A
Right. And then finally this week, a case, case that we haven't discussed before and I think we probably won't discuss again, but just there's an amusing press note on this. There's this unfortunate woman named Shannon o' Connor who is on trial down in Silicon Valley for having basically maintained a house for, like, teenagers to misbehave in through, you know, during and after Covid, where she was throwing these. These parties where they allege that minors were given alcohol, minors were having sex. There are claims of sexual assault and various things. All these things happening under her watch in her home, under, they allege, her guidance. And so she gave an interview to the local NBC affiliate. She's been held pending trial. She's clearly going a little bit stir crazy in prison there, wants to tell her side. Of course, she's on trial. So the trial is one opportunity to tell your side. But she spoke at length with an NBC reporter and said, among other things that you have to understand, these kids were desperate for socialization. They were cooped up because of COVID and they needed outlet.
- [41:49]
B
Yes. Shannon o', Connor, who is, from the view of the district attorney's office, someone guilty of. Of dozens of counts of child endangerment. And from the perspective of local teenagers, the best mom ever, gave these interviews to NBC saying, basically, well, you got to understand Covid was rough on these kids.
- [42:13]
A
They were bored.
- [42:14]
B
I was giving them an outlet. An outlet was like, you know, a house and alcoh, which is, of course, exactly what teenagers prize is a house to do things and alcohol to give them the courage to do those things. And so I guess we have to amend the list, Josh, of things not to do when you're accused of a crime. And one of them is to. From jail, talk to NBC and say, well, you have to understand, I did it because of COVID I don't like to gripe, you know that, but I feel like a lot of these things on the list are. Shouldn't have to say.
- [42:54]
A
Well, I mean, and one of the things she told NBC was that she was talking to them against her lawyer's advice. So it's not like her lawyer didn't understand that.
- [43:03]
B
Josh, that is the moment that when the lawyer just says, you know, I'm not the one going to jail.
- [43:11]
A
Okay, I think we can leave that there this week. Ken, thank you, as always.
- [43:14]
B
Thank you.
- [43:14]
A
Serious trouble is created and produced by Very Serious Media. That's me and Sarah Fay. Amy Keane produced and edited this episode. Jennifer Swatic mixed the episode. Our theme music is by Joshua Mosher. Thanks for listening. We'll be back with more soon.
- [43:26]
B
We'll see you next time.