Interview Only; CNN Legal Analyst explains Diddy's Freak Party NDAs. Presidential Victory will change Supreme Court.HONIG

Summary

Detailed Summary of "The Stephen A. Smith Show" Featuring Ellie Honig: Diddy's NDAs and Supreme Court Implications

Release Date: November 5, 2024

In this engaging episode of The Stephen A. Smith Show, host Stephen A. Smith sits down with CNN Senior Legal Analyst Ellie Honig to delve into two pressing topics: the legal implications of P. Diddy's non-disclosure agreements (NDAs) amidst his ongoing legal battles, and the potential ramifications of the upcoming presidential election on the United States Supreme Court.

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1. Understanding P. Diddy's NDAs and Their Legal Efficacy

Ellie Honig initiates the discussion by addressing recent reports from TMZ about attendees of P. Diddy's parties being required to sign NDAs. This revelation has sparked speculation about whether these agreements could influence the outcome of Diddy's criminal case.

Stephen A. Smith expresses skepticism regarding the protective power of NDAs in criminal proceedings:

[02:34] Stephen A. Smith: "I don't think they're going to do him much, if any, good in his criminal case."

He elaborates that while NDAs are standard in corporate settings to prevent individuals from speaking out against organizations, they hold limited sway in the face of criminal investigations. NDAs cannot override the obligations to testify or provide evidence in court:

[03:15] Stephen A. Smith: "You cannot avoid testifying in a grand jury, testifying at a criminal trial, turning over evidence by saying, well, I was a guest at one of these events and I signed an NDA."

Ellie Honig concurs, emphasizing that courts prioritize public policy and the integrity of criminal proceedings over private agreements:

[04:24] Ellie Honig: "Would this be a bad idea? And the One thing that NDAs absolutely cannot overcome is a criminal investigation."

The conversation highlights that while NDAs can deter individuals from making public statements that could harm reputations, they offer no shield against legal obligations in criminal cases.

2. Recent Developments in P. Diddy's Legal Challenges

The discussion shifts to the influx of civil lawsuits alleging sexual assault and harassment against Sean "Diddy" Combs. Stephen A. Smith notes that these additional claims could introduce more witnesses into the criminal case:

[09:40] Stephen A. Smith: "There's been a slew of civil lawsuits... If you conclude as a prosecutor, well, 3, 2, 18 of these new people are credible, they get added to your case."

Ellie Honig explains the prosecutorial process of vetting new allegations, suggesting that credible additional claims could strengthen the prosecution's position:

[10:00] Ellie Honig: "Prosecutors are going to check that person out... Can I back it up? Can I corroborate it against other evidence?"

This surge in allegations underscores the challenges Diddy faces, potentially broadening the scope of the legal battle against him.

3. Presidential Election Outcomes and the Future of the Supreme Court

Transitioning to the broader political landscape, Ellie Honig and Stephen A. Smith examine how the upcoming presidential election could reshape the Supreme Court. With the current composition at six conservative and three liberal justices, the election outcome holds significant implications.

Stephen A. Smith outlines two primary scenarios based on the election result:

• Scenario A: Donald Trump Wins

  • Potential retirement of justices like Thomas and Alito, leading to the appointment of younger, conservative justices who could shift the court's balance further to the right.
  • [14:27] Stephen A. Smith: "If Donald Trump wins that majority is two things are going to happen...new conservatives who are given precedent, 45, 50 years old..."

• Scenario B: Kamala Harris Wins

  • Possibility of liberal justices like Sotomayor retiring, allowing for the appointment of younger, liberal justices, thereby balancing the court.
  • [15:10] Stephen A. Smith: "If Kamala Harris wins, then we might see Justice Sotomayor, who's the oldest of the three liberals... we could see the same thing."

Additionally, Stephen A. Smith highlights the significance of Clarence Thomas potentially becoming the longest-serving justice in U.S. history:

[15:50] Stephen A. Smith: "Clarence Thomas is about to begin his service as a Supreme Court justice in the 10th presidential administration... he will become the single longest serving justice in US history."

The conversation underscores the enduring impact of presidential appointments on the judiciary and the long-term trajectory of the Supreme Court.

4. Conclusion and Key Takeaways

The episode concludes with Stephen A. Smith and Ellie Honig reaffirming the limited role of NDAs in criminal cases and the profound influence of presidential elections on the judicial landscape. The insights provided offer listeners a comprehensive understanding of the intersecting realms of entertainment law and constitutional governance.

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Notable Quotes:

• Stephen A. Smith:

  [05:31] "Corporations enter into NDAs all the time... Sometimes it just says we get to sue you for damages."

• Ellie Honig:

  [08:07] "Eventually they absolutely will if they're going to testify at trial... prosecutors ensure these individuals are protected."

• Stephen A. Smith:

  [07:01] "You just, you don't even look. Yeah, sure, I agree. You know, these people are often... So I think there's going to be some problem enforcing these NDAs anywhere."

This episode of The Stephen A. Smith Show offers a nuanced exploration of legal strategies in high-profile cases and the intricate dynamics of the Supreme Court's future, providing listeners with valuable perspectives on pivotal national issues.

Transcript

[Stephen A. Smith]

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[Greg Rosenthal]

What's up, everyone? It's Greg Rosenthal and I'm teaming up with the King of spring, Daniel Jeremiah. He requires me to say that we're going to be bringing you 40s and free agents, the only podcast you'll need this NFL draft season. From DJs mock drafts to my top 101 free agents, we'll have it covered for you with all new episodes every Thursday keeping you up to date as we head to the NFL Draft. Listen to 40s and free agents starting on March 6th on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.

[Ellie Honig]

Before I get to my next guest, let me say this because I had to bring up something in regards to P. Diddy. We all know that he's incarcerated. He's in a Brooklyn jail. Obviously he's been charged with racketeering along with other charges that I've already brought up on numerous occasions. And then lo and behold, I'm reading a story with TMZ and it's talking about how some of the folks that showed up to Diddy's parties all had to sign non disclosure agreements. And as a result, it had me thinking and it's got some people out there thinking that maybe, just maybe, he ain't gonna spend the rest of his life in jail. Maybe, just maybe, he might get off. I am not qualified to answer such questions, ladies and gentlemen. So I brought somebody on here that would shed some light to it because he's been on here before and he was absolutely spectacular when he joined the show. Joining me to break down the NDA and more about the ongoing is attorney is CNN senior legal analyst Ellie Honig. Ellie, what's going on man? How are you? How's everything?

[Stephen A. Smith]

Stephen? A election eve. We ready? This is going to be. This is going to be something to watch. I'm ready. I think people are anxious but I'm ready to get it over.

[Ellie Honig]

All of us are anxious and all of us are ready to get it. Two things can be true and both of those things that you were anxious and we're anxious for it to be over and done with. But let me get to Diddy for a second with you. NDA non disclosure agreement. We read these stories, we hear TMZ talking about it. A lot of people are thinking Diddy may end up winning. Because you know what? These NDAs may be enforced and nobody may say anything about them. How real is that possibility? Ellie?

[Stephen A. Smith]

I would not be overly optimistic if I was Sean Combs or his defense team because of these NDAs. I don't think they're going to do him much, if any, good in his criminal case. Now, here's the deal. NDAs, Non Disclosure Agreements, they sound bad. They're usually not great. They don't look great, but they're not illegal. Ordinarily, they are legal. Corporations enter into them all the time. There are valid purposes for NDAs, and there are invalid purposes. And what courts are going to ask if somebody like Sean Combs says, well, this person can't testify me against because he or she signed an NDA, the court's going to ask, first of all, is this bad for public policy? And second of all, did the person fully understand what they were signing? Are the terms clear? Did it make sense? Let's assume just for the sake of argument that the terms were clear on these NDAs. I'm not so sure that's the case. But then the court's going to get to the other question, which is, is this against public policy? Would this be a bad idea? And the One thing that NDAs absolutely cannot overcome is a criminal investigation. You cannot avoid testifying in a grand jury, testifying at a criminal trial, turning over evidence by saying, well, I was a guest at one of these events and I signed an NDA, therefore I can't break the NDA. That will not work. Prosecutors will tell you we don't care about the NDA. FBI will tell you we don't care about the NDA. And the law will tell you that in that situation, the NDA does not protect Sean Combs in a criminal case.

[Ellie Honig]

Well, then what the hell are we missing, Ellie? I mean, when folks sign an NDAs, I mean, I mean, we're thinking that that provides some level of security for the people who drew up the NDAs, because they don't want folks talking their business and they don't want people slandering them. Maligning them in any way. If you're telling me the FBI, the district attorney's office, the courts, et cetera, don't care about it, then how significant is an NDA in today's society?

[Stephen A. Smith]

Yeah, so we see these, like I said, all the time. Corporations have people say that Donald Trump famously had people sign NDAs if they worked for him. In other terminology. Sometimes people call it hush money. Here's the way they do work, though. Let's assume everything's on the up and up. Let's assume both parties understand what the NDA means and they sign it willfully and voluntarily. Then the way it does work is if somebody speaks out publicly against Sean Combs outside the context of a criminal case, then they can be sued. And this is what sort of Donald Trump's NDAs are. A lot of us may not even realize that we've signed them. When we signed contracts to work for certain employers, there's often an NDA in there that says you cannot after your employment disparage, fill in the blank organization. And if you do, then under this agreement, we get to sue you. Sometimes it says specifically how much money. It could say some crazy amount, $10 million, whatever. And sometimes it just says we get to sue you for damages. So the reason they do work is, again, assuming that they're sort of written up in a legal way, they can actually be used to prevent somebody from speaking out in a public non criminal setting.

[Ellie Honig]

Well, it's interesting that you bring that up because if you know that and you're educating us about that, you certainly can surmise that Diddy's lawyers know that yet. And still they file paperwork with the Southern District of New York on Sunday asking the judge to order potential witnesses in his criminal case to be quiet. What do you make of that?

[Stephen A. Smith]

No chance. No chance that motion gets granted. No federal judge is going to say, welp, you signed an NDA, therefore you can't be a witness at this trial. Now, judges do and sometimes can and sometimes do, Steven, issue what we call gag orders. Again, we saw some of these in the Trump cases where he says, okay, parties to the case, federal government, doj, Sean Combs, maybe sometimes even witnesses, you are not to make out of court public statements because I don't want you to potentially impact the jury pool. I don't want to create pretrial publicity that may be harmful to the defendant here, Sean Combs, who does have constitutional rights. So you might see a court say something like that. But no judge on the planet is going to say, oh, Well, I guess we, the criminal courts are out of luck because you signed an NDA, so therefore we don't get your evidence. That would. Imagine if that was the case. Imagine if you could keep someone off of the witness stand or out of a grand jury by just making them sign. And yeah, you would. You would allow rich, powerful people to avoid accountability like crazy. Just go, oh, sorry, can't testify. You signed this thing.

[Ellie Honig]

What is it that people are saying? They're saying that this Diddy NDA is not a standard NDA. What's different about this one if it's not a standard one?

[Stephen A. Smith]

Also, it's interesting. There's no one size fits all. I'd be interested to see the specifics of what's in it. But what judges are going to look at, basically, look, there are. If you just went online and googled sample NDA, you would see samples, and lawyers use samples all the time. The key things that a judge is going to evaluate. So let's say hypothetically, one of these witnesses went forward and did an interview, forget about the criminal case, but did an interview with some, with tmz, let's say, and said, here's what I saw at this event where I signed an NDA. And then Sean Combs said, oh, you violated the NDA, now I'm suing you. The first thing the court's going to do is let's look at the NDA. Are the terms clear? Are they fair, and is it bad for public policy to keep this person from talking? A lot of times these NDAs are very unequal in terms of the bargaining power. Right. You just, you don't even look. Yeah, sure, I agree. You know, these people are often, I assume the people who are signing these were not represented by lawyers. So I think there's going to be some problem enforcing these NDAs anywhere. But again, definitely not in criminal court.

[Ellie Honig]

Is it true that some of the Jane and John Doe victims have to be revealed in this case? Is that, is that true?

[Stephen A. Smith]

Eventually they absolutely will if they're going to testify at trial. It is absolutely standard procedure, Stephen, that at this phase, and we have an indictment, but we're moving towards trial, prosecutors are going to protect the identity of those witnesses. I think for obvious purposes, they don't want people being intimidated, tampered with. And so, yes, you often will say something like John Doe, Jane Doe witness, one generic terms. But if and when there's a trial in the state, and I think there will be, then the people have to take the stand and they can't be anonymous. In some very extraordinary situations, usually involving someone who's a mic, there's ways to protect that person's identity. The defendant would still know who it is, but to protect that person from the public. I actually did that once. We had a 16 or 15 year old who had witnessed a robbery. We were able to allow him to testify under certain circum, you know, sort of more confidentially than normal from another room by video feed. But ordinarily, once you put someone on the stand, you have to identify that person to the defense. And anything that happens in trial, Stephen, is public record. You or I could go watch. You can get the transcript. So, yeah, eventually these people's identities will be revealed. But look, the government, when I say government, I mean prosecutors, FBI, they have an obligation to protect these folks and make sure that they're taken care of and make sure that they're not threatened or endangered.

[Ellie Honig]

So you, you weren't here weeks ago compared to weeks ago to where we are right now in light of the inordinate amount of information that has come out, whether it be NDAs or anything else. Is Diddy in any kind of better situation now, at least perception wise, that he was, dare I say, six weeks ago, anything like that?

[Stephen A. Smith]

No, I think he's in a worse situation, as far as we can tell. And we always have to say we're not on the inside. We don't know what's happening behind closed doors. But here's the biggest thing that's happened, Stephen, since we last talked. There's been a slew of civil lawsuits, right, that have come forward and alleged, again, not criminal, but sued Sean Combs and said that he has sexually assaulted and harassed people. Now here's what prosecutors are going to do. They probably already knew about some of these folks and so, fine, But I assure you some of these people were previously unknown to prosecutors. Now, as a prosecutor, you don't just take someone who's sued and go, well, that person's good to go. We're going to put that person on our witness list. But you absolutely are going to check that person out. You're going to ask the lawyer, hey, I saw the allegation. I'd like to speak with this person. You're going to cross check their information. Can I back it up? Can I corroborate it against other evidence? And if you conclude As a prosecutor, well, 3, 2, 18 of these new people are credible, they get added to your case. So I think mathematically that can only mean more witnesses against Sean Combs. Even if only 1 out of 3, 1 out of 4 of them pan out to the point prosecutors want for.

[Ellie Honig]

I let you get on out of here, I'd be remiss in neglecting to have you on the air and not bring up Donald Trump and his legal issues only from this perspective. I'm not going to ask you to speculate about the election. That's not your bag. I get that part. But here's where it becomes very, very riveting to me. So much has been made that, you know, whether it's true or not, so many people believe the major reason he's running for office right now is to stay out of jail. If Donald Trump were to lose this election, in light of the legal matters he has waiting for him, if he is not President Elect Donald Trump at some point in time this week, what's his future looking like? Ellie I don't think.

[Stephen A. Smith]

I don't think we've ever had a moment in American history, Stephen, where somebody had as much at stake as Donald Trump does. Right now. Just focusing on Donald Trump himself, Scenario A is he wins the White House. If that happens, these cases are all either dead or they're postponed until he's out. He's never going to get tried. He's never going to go to prison. If he wins this election with the two federal cases, he'll either dismiss them, have his attorney general dismiss them, fire Jack Smith. There's a bunch of things he can do, but the two federal cases will die. The two state cases in New York and Georgia almost certainly will have to be on hold until he's done being president. So that's scenario A, he's in the White House. Scenario B, he loses and he's gonna have to wrestle with all four of these cases. The Manhattan case, the hush money case that he was convicted on, he said to be sentenced in three weeks. At the end of November, he will have a sentencing date set. Now, even if he gets prison, and I think it's 50, 50 whether he gets prison, he's almost certainly not going to get sent away right away. He will get to do his appeals first, but that could well end up in a prison sentence for him. He's going to have to deal with the two federal cases, the January six case and the Mar A Lago documents case. He may have to deal with the Georgia case, although it's looking like that case may end up getting dismissed, but he's going to have a three or four front criminal legal battle. So scenario A, he's in the White House scenario B, he spends the next two, three years fighting for his freedom in the criminal courts and could end up behind bars.

[Ellie Honig]

And to be clear, even though it's unlikely that she would do so, could he be. Could he be. Would she have the license, the right as President of the United States to pardon him from these crimes, or is it just a federal thing and she can't do anything for him with state issues?

[Stephen A. Smith]

So two of the four cases are federal. And with respect to those two cases, not just Kamala Harris, if she were to win, but Joe Biden, I mean, Joe Biden still has another couple of months in office. But, yes, a president can absolutely issue a pardon to Donald Trump. We saw some precedent for that back in the 70s when Gerald Ford pardoned Richard Nixon before he could be indicted. So, yeah, I don't think it's at all likely that Joe Biden would make one of his final acts in office a pardon of Donald Trump. And I wouldn't want to be Kamala Harris in that situation. I don't. I wouldn't bet that she will pardon him either. I should say another possibility is a commutation. It could be that they say, well, let's let these cases play out. Let's let him go to trial and then we'll see what the sentence is. And maybe three years, two. Three years from now, he's been convicted and sentenced to X amount of time in prison. And somebody, whoever the President is, might make a decision, well, we'll leave his conviction on the books. I don't want to issue a full pardon like Nixon, but I'm not sure he needs to go to prison again. I think that's unlikely. But you're absolutely right, Stephen, that that's possible. Now, the two state cases, New York and Georgia, there's nothing the President can do about. In New York, only the governor can issue a pardon. I don't think Kathy Hochul, the Democratic governor of New York, is likely to do that. And in Georgia, there's this board of part pardons that has to recommend it to the governor, which doesn't look especially likely to me either.

[Ellie Honig]

Last question. What happens at the Supreme Court if either side wins?

[Stephen A. Smith]

Wow. I mean, so the stakes here, everyone's rightly focused on the White House and Congress, which are all at stake on Tuesday. But the Supreme Court's at stake, too. I mean, right now it's six to three. Six conservatives, all appointed by Republicans, three liberals, all appointed by Democrats. If Donald Trump wins that majority is two things are going to happen. One, you could see retirements from the two oldest justices on the court, Thomas and Alito, both of whom are in their 70s, mid-70s. And if that happens, they're going to be replaced with new conservatives who are given precedent, 45, 50 years old, and they're going to hold those seats for another 25, 30 years. On the other side, if Kamala Harris wins, then we might see Justice Sotomayor, who's the oldest of the three liberals. She's 70 now. She might retire, which would then give Kamala Harris the ability to do what we saw happen under the Biden administration when Stephen Breyer retired and then Ketanji Brown Jackson, who's 30 years younger, 25 years younger, came in, we could see the same thing. And that doesn't even get into like, God forbid, what if someone were to pass away? But if someone does die in the next four years, then that could actually change the 6 to 3 balance could become 7. Two conservatives if Trump wins, could become 5, 4. Even if two conservatives were to pass away, could end up with a 5, 4 liberal court by the end of the so and Stephen, just a little fact for you here. Clarence Thomas is about to begin his service as a Supreme Court justice in the 10th presidential administration. He was appointed in 91 by Bush. And if he makes it to the end of whoever wins, whether it's Harris or Trump, if he makes it to the end of 2028, he will become the single longest serving justice in US history. Right now, he's second to a guy named William O. Douglas. So there's a little if it comes up on Jeopardy. For you under Supreme Court trivia, you'll have that locked in.

[Ellie Honig]

Ellie Honig, you are absolutely, positively, you're just fabulous, man. I really, really appreciate you showing up and coming on the show for me again right before the election. Really appreciate you so much. Thanks, my man, and we'll talk soon. All right. You take care.

[Stephen A. Smith]

Thanks, Steven. Great talking to you. See you. Foreign.

[Greg Rosenthal]

What'S up, everyone? It's Greg Rosenthal, and I'm teaming up with the King of spring, Daniel Jeremiah. He requires me to say that we're going to be bringing you 40s and free agents, the only podcast you'll need this NFL draft season. From DJs, mock drafts to my top 101 free agents will have it covered for you with all new episodes every Thursday keeping you up to date as we head to the NFL Draft. Listen to 40s and free agents starting on March 6th on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.

[Stephen A. Smith]

What's up, everyone? Julius Rippinks here, along with former NHL player Nate Thompson. We're doing a new podcast together. Here we go. The name Energy Line with Nate and jsb. Each week we'll get together and talk about hockey life. All topics are fair game, right? Exactly. And you'll never know who will drop by to join us. Julie is pretty well connected. She has text threads going that you wouldn't believe. Listen to Energy Line with Nate and jsb on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.