Jane Coston (2:43)

The Fourth Amendment disagrees. Speaking of the Constitution, former special counsel Jack Smith testified in front of the House Judiciary Committee on Thursday about the steps Trump and his allies took to overturn the 2020 election and foment the January 6th insurrection. Smith did so knowing that he is already at the top of Trump's enemies list, which Trump made even more clear by posting on Truth Social Thursday that he hopes Attorney General Pam Bondi, quote, is looking at what he's done so to get into all of these investigations. I spoke with Ken White. He's a former federal prosecutor and criminal defense attorney who hosts the legal podcast Serious Trouble. Ken, welcome back to what a day.

Ken White (3:22)

It's good to be back. Thank you for having me.

Jane Coston (3:24)

Former special counsel Jack Smith testified in front of the House Judiciary Committee on Thursday. He led the investigations into the president's role in attempting to overturn the 2020 election, as well as mishandling classified documents, which is why Trump spends a lot of time screaming about him while. Why was he testifying?

Ken White (3:40)

Well, I mean, he was giving his side of the story, and Democrats saw it as an opportunity to get out a narrative about what really happened and how there was real evidence behind the prosecutions he brought. Republicans thought it would go well for them, which speaks to their ongoing complete lack of judgment. It actually was not going well for them because Jack Smith is. Is good at what he does, and that includes beating down stupid, dishonest questions.

Jane Coston (4:09)

What were some of those stupid questions?

Ken White (4:11)

Well, you know, how can we trust the justice system when you're, you know, only pushing against Republicans and Democrats, aren't being prosecuted, and, you know, a bunch of kind of conspiracy theory questions and, and stuff that had two audiences. One was Donald Trump, and the other was people so completely addled by Donald Trump that they'll believe anything. But it was not largely successful in making any of those narratives sound credible because he was able to respond in a restrained and yet forceful way.

Jane Coston (4:45)

What were the takeaways from the hearing? Did we learn anything new? And where is this going?

Ken White (4:51)

Not anywhere. Seriously. This is largely performative for Congress in a way to get on camera either saying nice things to Jack Smith or mean things to Jack Smith. It's not so far, going anywhere that is really going to accomplish anything. We didn't learn a lot new, nor should we have, because it was really not a situation where he was able to reveal, for instance, grand jury information or other things that had previously been secret. It wasn't the right context for that. There wasn't court authorization for that. The only new thing that really came out, I think, is just the ongoing willingness to carry water for false Trump narratives about things. And the ongoing willingness of some people on the Democrat side and for Jack Smith to continue to say in a forthright way, no, actually, we had evidence that he knew he lost and he was pushing false narratives anyway, and that's why he was charged.

Jane Coston (5:52)

Jack Smith is near the top of Trump's very long list of enemies, which includes you, me, the New York Times, Rosie o', Donnell, and that list grows longer every day. And he's been now using the Department of Justice to go after his enemies. His latest targets are Minnesota officials, some of whom, including Minnesota Democratic Governor Tim Walz, received grand jury subpoenas on Tuesday. The Trump administration is investigating, and I'm saying investigating, but you can feel the air quotes around it, whether they obstructed federal immigration enforcement in the state through public statements they have made, according to the Associated Press. Is there anything solid behind the DOJ's argument, given that these are public officials? Like, can you say, stand up to ICE if you are the governor of a state?

Ken White (6:40)

Yes, there is no there there. In reality, there is no remotely valid basis for federal charges or even a federal criminal investigation. However, this is the challenge for people like you or like me who talk about this administration and legal issues surrounding it. They say an enormous amount of stupid stuff and make a lot of entirely bogus threats, but they also do a lot of stupid stuff and stupidly aggressive attempts at prosecution. So James Comey and Letitia James being two examples, and I hope you'll ask me about in a while, Don Lemon. So it's hard to know which crazy threats to report on when sometimes they actually follow up on them with crazy charges or attempts to charge. But there is no valid basis for any actual federal criminal charges against anything that any of the Minnesota people have done. It is simply not a federal crime to say I should fuck off. Which they should.

Jane Coston (7:48)

Agreed. But to that point, on Thursday, Trump officials announced the arrests of three activists involved in a protest that disrupted a St. Paul church service over the weekend. In a tweet announcing one of the arrests, US Attorney General Pam Bomb Gandhi wrote, quote, listen loud and clear, we do not tolerate attacks on places of worship. Now, obviously, this wasn't an attack, but is it legal to protest inside of a church?

Ken White (8:13)

So here's the thing. No, it's not necessarily legal, but that doesn't make it a federal crime. So there's a difference between saying that going into a church and disrupting a service might be disorderly conduct, a state misdemeanor, and saying that it's a violation of the Ku Klux Klan act and a federal crime, which is what this administration is trying to push.

Jane Coston (8:34)

Right? Can I interrupt just for one second? Because I hear Ku Klux Klan, and I think, huh, what is the Ku Klux Klan Act? Very quickly.

Ken White (8:43)

Basically, it makes it illegal to conspire with a group of people to go out and injure or oppress people in the exercise of their rights. It was designed during the Reconstruction period and later period to stop the Klan and other groups that were willing to use force to stop black people from voting or assembling or anything else that they're supposed to be able to do under the laws of the United States. So the theory here is, well, these people conspired to interfere with the First Amendment right of freedom of religion. The problem is, that's a bad argument because, again, not every disruption is a federal crime. The history of the civil rights movement included some disruptions in churches, like black people going into segregated church and kneeling and praying. But unless something is done with a specific intent to injure or oppress people to prevent them from exercising their rights, that is not a violation of the Klan Act. This is a fairly broad gesture to intimidate protesters and also to take advantage of optics. The key optic here, I think, is that the protesters were black and the parishioners were white. And this administration loved the optics and the hatred and resentment they could whip up off of that.

Jane Coston (10:03)

As you mentioned earlier, a judge in Minnesota rejected the DOJ's attempt to charge former CNN anchor Don Lemon over the same protest. Lemon says he was there as a journalist. What does his attempt to prosecute Lemon say to journalists and activists right now?

Ken White (10:17)

Well, first of all, I think they kind of got out over their skis and talked themselves into this, because once it became clear that Don Lemon was there covering and reporting on this protest, Kristi Noem and all these other people immediately said, well, we're gonna go after him. We're gonna get him. He's. He's outspoken and he's black. So, of course they want to take him down. So they thought they could get him, but, you know, they could not get it past a magistrate judge. So for federal charges, they have a couple of options of how to try to charge you with a crime. They can go to a grand jury, which they've been having a lot of problem with recently, and have you indicted, or they can get an initial complaint against you by taking a sworn affidavit to a United States magistrate judge. The magistrate judge reads the affidavit and says, is there probable cause here? Now, Matt Strait. Judges giving a thumbs down to a complaint against somebody is somewhat more common than a no bill from a grand jury, but it is still very uncommon. It represents a pretty big blunder or a pretty big failure of understanding by the government. So I think the magistrate looked at this and said, okay, clearly Don Lemon was there and he was reporting, but what remotely plausible evidence do you have that his intent was to conspire to injure people in the exercise of their. There's no evidence of that.

Jane Coston (11:38)

The Associated Press also reported this week that Immigration and Customs Enforcement officials have authorized agents to use force to enter homes with only an administrative warrant. Now, historically, officers have needed a judicial warrant to enter a home. I did not go to law school. What is the difference between an administrative warrant and a judicial warrant?

Ken White (11:57)

Okay. A, it's not too late to go to a law school. B, but you definitely shouldn't. C, the Fourth Amendment says that no warrant shall issue except upon oath or affirmation, meaning the person has to come in and say, say, I swear this information is true based on probable cause. So to get a search warrant for somebody's home, you've got to go before a neutral judge and convince that judge that there's probable cause to believe there's evidence of a crime in there. An administrative warrant is one employee of the executive branch telling another employee of the executive branch, yes, you can go do this. So the administration is saying, basically, we want to give ourselves permission to go into people's houses. And they are doing it. They are kicking down doors on camera. They're being very brazen about it. Breaking into people's homes on the theory that we have an administrative warrant for this person who is deportable.

Jane Coston (12:54)

Yeah. No, that sounds to me. So will this change in ICE policy stand up in actual court with actual judges?

Ken White (13:02)

No, I don't think it will. And most Fourth Amendment experts do not think it will. They think it's clearly bogus. Oren Kerr is probably the preeminent Fourth Amendment expert in the United States. He is extremely reserved and professional. His reaction was, if they have a theory why this is right, I would like to see it. Which is the equivalent of me saying, you all are completely full of shit. So the part that's going to make you unhappy is that I'm going to tell you that they're not going to win. But there are very few remedies that work. So the conservative movement, the right, the Heritage foundation, the Federalists, the conservative majority of the United States Supreme Court, have worked very hard and very successfully to make America a place where the government can violate your rights with largely impunity. And they have steadily chipped away at every method that we might use to make it meaningful that this is unconstitutional to do.

Jane Coston (13:59)

As always, Ken, thank you so much for joining me.

Ken White (14:02)

It's good to see you. Thank you as always.

Jane Coston (14:04)

That was my conversation with Ken White, criminal defense attorney and host of the legal podcast Serious Trouble. Did you know that you can watch what a day. We're on YouTube, so check us out in living color five days a week. And don't forget to smash that subscribe button. Pew pew, pew. More to come after some ads. This episode of Whataday is brought to you by Wild Grain. Wild Grain is the first bake from frozen subscription box for sourdough breads, artisanal pastries and fresh pastas. Plus, all items conveniently bake in 25 minutes or less. Unlike many store bought options, Wild Grain uses simple ingredients you can pronounce and a slow fermentation process that can be easier on your belly and richer nutrients and antioxidants. There are no preservatives and no shortcuts and Wild Grains boxes are fully customizable. In addition to their variety box, they have a gluten free box, a vegan box, and a new protein box. I am admittedly obsessed with chocolate chip cookies and the wildgreen cookies are some of the best I've ever had. There's nothing like having an artisan bakery in your freezer to chase away the winter chill. Now is the best time to stay in and enjoy comforting homemade meals with Wild grain. I highly recommend giving Wildgrain a try. Right now, Wildgrain is offering our listeners $30 off your first box plus free Croissants for Life when you go to wildgrain.com wad to start your subscription today. That's $30 off your first box and free Croissants for Life when YOU visit wildgrain.com waad or you can use promo code WAD at checkout. What a Day is brought to you by. Mill Food waste is one of those problems that feels huge and impossible to fix. But. But here's the wild Most food waste comes from our homes, and that means we can actually do something about it. Mill is the odorless, effortless, fully automated food recycler. Potato peels, avocado pits, chicken bones, even dairy. Mill takes almost anything while you sleep. Mill quietly transforms those scraps into nutrient rich shelf stable grounds. No mess, no smells, no fruit flies. Mill can process up to 10 pounds overnight and it can work for weeks before you even have to think about emptying it. We've been using MILL in our office and already it's produced more than 15 pounds of food grounds. Try MILL risk free for 90 days and get $75 off at mil.com wad and use code WAD at checkout. That's $75 off at mill.com wad and use code wad mill.com wad and use.

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Jane Coston (17:05)

Builder here's what else we're following today. Header Lines.

J.D. Vance (17:13)

Are you proud of how.

Ken White (17:15)

Your administration is conducting this immigration crime.

Jane Coston (17:18)

Down here in Minnesota right now?

J.D. Vance (17:19)

Well, I'm proud of the fact that we're standing behind law enforcement and I'm proud of the fact that we're enforcing.

Jane Coston (17:24)

The country's laws, blah blah blah. Vice President J.D. vance did way too much of that while visiting Minnesota and Ohio on Thursday. Sorry to those states. After delivering a defiant speech in Minneapolis, Vance took questions from the press, including one about reports that federal agents detained a five year old boy in Minnesota earlier this week. Vance did his best to somehow rationalize it.

J.D. Vance (17:48)

And I'm a father of a five year old, actually a five year old little boy and I think to myself oh my God, this is terrible. How did we arrest a five year old? Well, I do a little bit more follow up research and what I find is that the five year old was not arrested, that his dad was an illegal alien and then they went when they went to arrest his illegal alien father, the father ran. So the story is that I detained a five year old when? What are they supposed to do?

Jane Coston (18:13)

I don't know, not detain a 5 year old. Also, I should note here that nothing he says has been verified. This is the same man who said the fatal shooting of Renee Goode at the hands of an ICE officer was quote, a tragedy of her own making. So empathy is not something I would expect from him. Ironically, Vance said he wanted to meet with ICE officials, business leaders and local law enforcement in Minneapolis, partly to quote Tone down the temperature a little bit. Not sure it's working. The next stop on JD's Peace Tour is the March for Life in Washington, DC. Today's event is the nation's largest annual anti abortion rally, drawing thousands to the Capitol every year. And yesterday, the Trump administration rolled out fresh anti abortion policies just in time to re energize their frustrated conservative base. Trump's policies target the usual suspects, blue states with abortion protections and federal funding tied to Planned Parenthood. But according to Politico, anti abortion activists aren't very impressed. They see these policies as the least the administration could do. And they don't go far enough to guarantee their support for Trump's agenda heading into the midterms. But of course, they will support Trump's agenda in the midterms. They always do. Trump blew a bit of a hole in his relationship with anti abortionists recently after he suggested flexibility on abortion funding and the FDA approved a new generic abortion pill.

Ken White (19:37)

We're going to be very successful in Gaza. It's going to be a great thing to watch. And we can do other things. We can do numerous other things. Once this board is completely formed, we can do pretty much whatever we want to do. And we'll do it in conjunction with the United nations, you know.

Jane Coston (19:54)

Trump and company established the new Board of Peace as an official international organization in Davos, Switzerland, on Thursday. The supposed mission of the board is in part to help ensure, quote, accountability as Gaza transitions from conflict to peace and development. But momentum to map out a future for the war torn Gaza Strip has been overshadowed this week by Trump's ongoing will he, won't he invade Greenland thing. At the board's inauguration on Thursday, Trump's son in law, Jared Kushner, presented a master plan for the Gaza Strip.

Ken White (20:25)

Rafael we'll start with this will show.

Commercial Announcer (20:26)

A lot of workforce housing. We think this could be done in two, three years. We've already started removing the rubble and.

Ken White (20:31)

Doing some of the demolition. And then new Gaza. It could be a hope, it could.

Commercial Announcer (20:35)

Be a destination, have a lot of industry and really be a place that the people there can thrive, have great employment.

Jane Coston (20:41)

New Gaza, more buildings, fewer Gazans. Great. Head to our YouTube channel to see the slideshow of white futuristic skyscrapers and flourishing cities that are supposed to make the area perfect for coastal tourism. Sounds great, right? No, not at all. The reality on the ground shows a stark difference. Palestinians are still suffering from the humanitarian crisis unleashed by the war. And according to Gaza's health ministry, more than 470 people have been killed. By Israeli fire in Gaza since the ceasefire began in October. As we mentioned earlier, Attorney General Pam Bondi announced the arrests of three people allegedly involved in an anti ICE protest that disrupted a Minnesota church service on Sunday. A local official with ICE reportedly serves as a pastor at the church, but that's the least surprising part of the story. According to an analysis by the Guardian, the White House posted an image on Twitter of one of the women arrested that had been digitally altered to make it look like she was crying. Yes, the White House. What a day's Mat Berg reached out to the White House press office to ask if the photo had indeed been altered. The press office simply replied with a link to a tweet from a White House official that said, in part, enforcement of the law will continue. The memes will continue. Thank you for your attention to this matter. None of these people will see heaven. And that's the news. Before we go Amid ICE raids and the escalating war on immigrants and American citizens, hear from someone who's been standing up to ICE firsthand and making headlines doing it. Kat Abigailzale. She's an activist and congressional candidate in Illinois, and she joins Hysteria this week to talk about her experience and how to show up for immigrants in your community. Plus, Aaron and Alyssa get into updates from Minnesota, the death of Renee Goode, the status of the Epstein files, and how Trump used his first year in office to line his own pockets. Tune into Hysteria every Thursday wherever you get your podcasts or watch on YouTube. That's all for today. If you like the show, make sure you subscribe. Leave a review Congratulations to The mayor of Austin's 37th Street a pug Chihuahua mix named Mo Bamba. And tell your friends to listen. And if you're into reading and not just about how Mo Bamba is the first dog to win the office, which was established four years ago with more than 12,000 people casting a ballot. Like me. Water Day is also a nightly newsletter. Check it out and subscribe@crooked.com subscribe I'm Jayden Coston and Mo Bamba's campaign slogan was he won't just fight for you, he will bark at you. Inspiring. What a Day is a production of Crooked Media. It's recorded and mixed by Desmond Taylor. Our associate producers are Emily Foer and Chris Allport. Our producer is Kaitlyn Plummer. Our video editor is Joseph Teutra. Our video producer is Johanna Case. We had production help today from Ethan Oberman, Greg Walters and Matt Burton. Our senior producer is Erika Morrison and our senior vice president of news and politics is Adrienne Hill. Our theme music is by Kyle Murdoch and Jordan Kantor. We had help today from the Associated Press. Our production staff is proudly unionized with the Writers Guild of America East. At Amica Insurance, we know it's not just about where you're going, but who you go with. That's why we work even harder to protect what matters most. Visit amica.com and get a quote today.

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