This covers several topics from severing cases, removals, Rudy, and Michael Avenatti.

Ken White:

Hi, it's Ken White.

Josh Barro:

And it's Josh Barro, and this is Serious Trouble.

Ken White:

Hey Josh.

Josh Barro:

Yes.

Ken White:

Ask the question.

Josh Barro:

Is Michael Avenatti a good lawyer?

Ken White:

No. He is not. The Second Circuit says he is not.

Josh Barro:

We have some Michael Avenatti news. He's in prison. He's still in prison. He filed an appeal trying to, well actually I don't think it would even have gotten him out of prison because this was just one of his four federal prosecutions that he faced. The one about extorting the Nike Corporation. Anyway, he did not impress the Second Circuit with his appeal. We will talk about that later in the show. Michael Avenatti, he's like a palate cleanser course. He's not one of the key figures here anymore, given that he's going to be residing in a federal institution for a long time. Anyway, we have some news coming up about him. Don't miss it. It's going to be entertaining. But let's start with another good lawyer, Ken, Rudy Giuliani. He's a good lawyer, right? He sent the mob to prison back in the '80s.

Ken White:

Well, Josh, Rudy Giuliani has descended from the scourge of the Five Families. The RICO-bringer to the mob of New York, America's mayor, to someone who's excessive drinking is now being investigated by a special counsel to determine whether it is so extreme it prevents him from supplying an effective defense of advice of counsel to the former president. Now, there's a series of sentences you don't expect to hear.

Josh Barro:

No, this is interesting to me. So this was a story in The Daily Beast about how Jack Smith has been asking various people about Rudy Giuliani's drinking. These are people who were sort of around the Trump operation in the aftermath of the 2020 election. The people coming up with the cockamamie ideas about trying to overturn it. Asking questions about how drunk he appeared to be. Also asking questions about whether the then president, Donald Trump was making comments about Rudy seeming to be drunk, complaining about him being drunk, that sort of thing.

And I guess the whole idea here is to argue that if Donald Trump comes into this criminal case and says, "I relied on the advice of counsel. My lawyers, including Rudy Giuliani, told me all this stuff was kosher and that I could do it," if you can show not only that Rudy was drunk, but that Donald Trump knew he was drunk, was bitching about how he was drunk, because Donald Trump famously doesn't drink. He sort of looks down on people who are alcoholics. So anyway, if you can show that, then that undermines the idea that in good faith Donald Trump was simply relying on his lawyer's advice.

Ken White:

Josh, I think it's really two reasons they're looking into it. Not counting for amusement value. I think they're looking into it because some of the narratives that Donald Trump is accused of pushing in the various cases may have originated with Rudy Giuliani. So during some of the conversations with Georgia officials and others, he came up with some of these whoppers, like 10,000 dead people voting in Georgia, things like that, that may have been sourced with Rudy Giuliani.

And if you can establish that, at the time, Rudy was frequently drunk and Trump commented on it, then that sort of diminishes Trump's ability to credibly argue, oh, well, he said these things and I believed them. Similarly, as you said, to the extent Trump wants to use an advice of counsel defense, to the extent he's complaining his counsel was drunk, it comes off much less plausibly that he would have believed that advice or it was reasonable to believe that advice.

Josh Barro:

What can we infer from the fact that the special counsel has been asking witnesses about this? I assume that they look at lots of potential different arguments and avenues in this pretrial phase. Does that mean that this is something that they're going to raise at trial?

Ken White:

I would say it depends on how good the evidence is. If you can get absolutely dream evidence that Trump was griping, here I am in the fight of my life and my attorney's drunk, then that's great. And you can really knock down the advice of counsel. Otherwise, I think they'll probably keep it in reserve and wait to deploy it to the extent Trump's team tries to blame Rudy Giuliani, or say that Trump sincerely believed what he was being told by Rudy.

Josh Barro:

In addition to being indicted in Georgia and being an unindicted co-conspirator in the federal case brought against Trump in Washington DC about the events leading up to January 6th, Giuliani has a number of litigation issues. And one of them is a defamation case that has been brought against him by Ruby Freeman, who was an election worker in Georgia, and her daughter, who was also an election worker. They were at the center of these allegations. Rudy Giuliani was spinning these wild theories about how they had stolen the election for Joe Biden in the state of Georgia, caused all sorts of trouble for them.

And they sued One America News Network, they sued certain executives at One American News Network, and they got settlements out of them. They've also been suing Rudy Giuliani, who has not settled. And we've been discussing how Giuliani has not been very cooperative in discovery in this case, that he tried to write these weird stipulations to avoid having to go through discovery saying, "I admit to these facts but not really, and only for these purposes," blah, blah, blah.

Anyway, it looks like long suffering federal Judge Beryl Howell has had enough. She's suffered so much, she issued an opinion here basically saying Giuliani's been yanking all of our chains here for too long. He is not following his discovery obligations here. And therefore I'm entering a default judgment saying that he is liable for the various things he's being sued for, and that the only question left is the amount of the damages. This is what happened with Alex Jones, right? Where he didn't comply with various aspects of the discovery process, and so when he was put on trial for defamation, it was only to figure out how much the damages were that he did to the Sandy Hook families that were suing him. Similarly here, that's all Giuliani is going to get to contest in court?

Ken White:

It's like that, but I think it's actually worse than Alex Jones. Maybe not in terms of numbers, but in terms of the terms of this order from Judge Howell. Judge Howell here is clearly working some things out, and working them out on Rudy Giuliani. Giving a default against a party for not cooperating with discovery is sort of the civil death penalty. So you have to show as a judge that other measures have been tried and haven't worked. You have to make a real record that he didn't just forget one thing and so I defaulted him. No, there was a long pattern of him not complying.

And she sets it out a very lengthy memorandum. She shows how he's consistently defied discovery obligations, defied her orders, deliberately failed to preserve electronic evidence so it got deleted, hasn't paid almost $100,000 in sanctions, has done this whole screwing around cute game where, well, maybe I don't have to answer discovery if I sort of stipulate to some of it, but not really. And in my mind, most unforgivably, can't be taught how to spell nolo contendere, no matter how many chances she gives him.

So she just blasts him in this order that says default is entered against you. You're still ordered to turn over all these documents. You're going to pay more sanctions for them having to file all these motions, in addition to the sanctions you already owe. The jury is going to be told to draw an inference that you're screwing around and trying to hide facts about your net worth and your assets for purposes of punitive damages. It's just a complete nightmare. It's hard to imagine being in a worse place as a civil defendant than just having had that order put against you.

Josh Barro:

When we've talked previously about why Rudy Giuliani is not complying with his discovery obligations here, we've talked about the enormous legal costs that he is facing here from all of these suits. I mean, we've seen in the press claims that he faces millions of dollars in legal costs. And that sounds plausible to you, right?

Ken White:

Yes. Although I don't know that that really excuses the way he's acting.

Josh Barro:

No, no. No, I'm not saying it does excuse it. I'm just saying that our theory of why he didn't comply was that basically that he was running out of money. That a lot of this stuff, in order to gather all the documents and that sort of thing, would've been expensive and he was finding himself failing to do that.

Ken White:

Not only does it not excuse it, I'm not sure it even explains it. So from the string of refusals to comply that go beyond merely not processing documents, but not also doing other things he's obligated to do. Not answering things, not preserving evidence, you get the strong impression, and it's clear Judge Howell thinks this, that he's basically getting high on his own supply. He's buying his own PR that all this is illegitimate, and therefore he doesn't have to comply with it.

So the problem is you can go out there and tell everyone that all these courts are corrupt and illegitimate, can't get a fair trial. The process is irrelevant. But you can't act that way in front of a federal judge, or they will come down on you like the wrath of God. And Rudy in this case has really acted like the court is not anything he's bound to respect, and you just can't act that way. And he's found out why.

Josh Barro:

Which is not broadly the way Donald Trump has been behaving in his suits, right?

Ken White:

Not as blatantly. Generally, ironically, his attorneys seem to have a better hold on him. Maybe he also has better assets. But Rudy cannot plausibly fail to cooperate. He can't do it in a way that gives him a plausible excuse. He's just doing it in a very bumbling Rudy, suspected of being too drunk to give an advice of counsel defense sort of way.

Josh Barro:

I was also very amused that one of the things that the judge demands from Giuliani in this order, she wants further financial information to be given to the plaintiffs because they're going to need that in order to figure out what sort of damages he might reasonably be expected to pay. And one of the bits of information that she demands is information about his podcast. Audience statistics revenue, statistics. I hadn't realized that Rudy Giuliani had a podcast. It's called Common Sense. It originates through Rumble, but you can get it through any of the major podcast platforms. I want to encourage you to support a fellow podcaster if you're looking for coverage of all of these legal difficulties from a different angle because he talks about this ongoing stuff on his podcast, by the way. Ken, is that a good idea, if you're a criminal defendant and an unindicted co-conspirator and you're being sued, should you have a podcast about this stuff?

Ken White:

I'm almost sure I already had podcasts on my list of things you couldn't do, Josh. I'll have to check. Yes, Rudy is a mouth. He's always been one. And that request from the judge about the podcast has two purposes. One is probably to help uncover his assets, but the other is to determine the extent of damages and punitive damages based on how wide the reach of these crazy things he's been saying are. But this opinion, it's fun. She spends a whole page just ripping Rudy for, what she says, "Donning a cloak of victimization," and says more or less that you might be able to game the election, but you can't game the discovery process.

Josh Barro:

Yeah. One more thing on the podcast. I'm skeptical of the idea that there's a lot of financial value coming out of that podcast. For people who aren't in the industry, the podcast ad market is in really bad shape right now. There's a reason that we do this podcast as a listener supported subscription-based podcast. And by the way, if you want to help us make this podcast for you, so that unlike Rudy Giuliani, we will find it financially viable to continue making this podcast for you every week, go to serioustrouble.show for $6 a month or $6 a year, you can become a paying subscriber. You'll get every full episode. We did 50 episodes in our first year, Ken. Is that right?

Ken White:

That's right. More than promised.

Josh Barro:

And then if we end up with a default judgment against us, then at least there will be revenues, there'll be financial assets available for people to claim. So I think that's an important thing if you're in the audio industry. There's also merch by the way. For $19.99, you can get a Rudy's Common Sense coffee cup, or for 21.99 you can get three loom bracelets. They look like those bracelets that you make at summer camp. Sort of like the braided thing.

Ken White:

Josh, I'm going to call you out on the assumption that's a coffee cup. I think that is a whiskey mug.

Josh Barro:

That's some common sense there, Ken. As you note, the opinion from Judge Howell was quite colorful and quite exasperated. And one thing she says in there that I found interesting is she speculates that maybe the reason that he is not cooperating with discovery here is that he thinks that not turning over materials will help him in certain other proceedings that he's involved in, whether those are civil or criminal proceedings. She says, "Perhaps he's made the calculation that his overall litigation risks are minimized by not complying with his discovery obligations in this case. Whatever the reason, obligations are case specific, and withholding required discovery in this case has consequences."

I'm interested, would that even work if that's his idea, that he doesn't want turn over documents because he doesn't want prosecutors to see them, or he doesn't want someone else who's suing him civilly to see them? I assume if the federal government wants to know what was in Rudy Giuliani's emails, which has been an issue of difficulty here in this civil case, getting full accounting of emails that he sent back and forth about the matters that he's being sued over, I assume if prosecutors want that, they've already gotten it from Google or whoever, right?

Ken White:

Right. They've been very aggressive with grand jury subpoenas to various entities, as we saw with that subpoena to Twitter for Trump's records. So I'm sure they have it. He's probably worried about a couple of things. One being documents going to other potential plaintiffs, of which there are plenty. And second, answering questions that will incriminate him. Generally, you can't refuse to turn over documents based on the Fifth Amendment, with very narrow exceptions not relevant here. But you can refuse to answer interrogatories and things like that on the grounds of the Fifth Amendment. But once you do, that has dramatic consequences that start approaching being as bad as default.

Josh Barro:

Let's talk about what's been going on in Georgia. Again, Fani Willis, the district attorney in Fulton County brought this RICO prosecution with 19 defendants. Several of the defendants have arguments about why their case should be removed from state court into federal court, and they filed these notices of removal saying to federal court, try me here. And that process is ongoing and the strength of the arguments varies from defendant to defendant.

I thought, and we got many listeners who wrote in being very surprised by this, I thought it was really strange that Mark Meadows went and actually testified for several hours about his arguments for why his case belongs in federal court. I mean, it's remarkable. If you're going to be a criminal defendant in this case, you probably don't want to testify in the case. It's remarkable to go and testify in this hearing, right?

Ken White:

It is. That's kind of going all in on your federal court strategy, and your appeal to federal immunity or defenses like that. Normally, you would never let yourself, not only testify, but be subjected to cross-examination by the prosecutor going after you about the core events that form the basis for the prosecutor's case. That's just kind of suicidal. But here Meadows thinks probably that the process is going to be the punishment. And that if he has to go to trial with 18 other complete lunatics in Georgia for however many months, he's destroyed no matter what the outcome. So he seems to be putting it all on getting into federal court.

So Josh, remember we talked about the removal statute that says that a federal officer can remove a state prosecution to federal court, and there are three things they have to show. That they were a federal officer, that the thing they're being prosecuted for was for or relating to an act under the color of their office. And they have to show they have a colorable, meaning plausible, federal defense. So he has the burden of showing those things as the person seeking removal. So that's what this hearing is for. He got to testify to do that. And then Fani Willis put on some of her star witnesses to talk about how he was sort of in on a bunch of things like the crazy phone call to the secretary of state and things like that.

Josh Barro:

What does it mean to act under the color of an office? Because I've seen this argument, including advanced by Fani Willis' office, that the Hatch Act, which is the federal law that makes it illegal for federal employees to engage in certain political activities, that the Hatch Act prevented these various federal employees from engaging in political activity. And so if they were engaged in political activity, that can't have been activity under color of their office. And I thought that was a really strange argument because I thought that you don't have to be acting validly in order to be acting under color of the office. Isn't it just that you are purporting to use powers that were allocated to you?

Ken White:

Right. So under color of your office is something you see a lot in civil rights cases under 1983, charging state actors with doing bad things. And you have to show that they were acting under the color of their office. And you might say it's under the apparent authority they have as a result of their federal office, or invoking that authority or somehow involving it. So it's a fairly lenient standard. And I think the Hatch Act argument is intended to suggest there's no plausible way that these political activities could be under color of office.

Now the Hatch Act doesn't even apply to President Trump. So I don't know if it's the best argument, but it's a argument. We got an important update on this, Josh, when the federal judge who's hearing this, who's very careful, being very methodical, issued an order asking the parties to brief a question. That question is what if I find that only one of the overt acts in this indictment that Mark Meadows is accused of doing was under the color of office? Only one but not the rest. What happens then?

And so that kind of sets everyone a buzz. Because on the one hand, Fani Willis is probably thinking, oh crap, he thinks at least part of it was under color of office. Mark Meadows is saying, oh crap, he may think most of it is not under the color of office. And it's not perfectly clear what happens there. So we don't know, for instance, and people have been asking me this, well, could Fani Willis just dismiss that overt act, or get a superseding indictment leaving it out? That's not clear to me because it would still be part of the case. She'd still have indicated that's an important piece of evidence that's part of the prosecution. So a lot of this stuff for this removal is not well legally established. It's kind of uncharted territory, and this judge is having to blaze new trails to get through it.

Josh Barro:

I was going to ask you whether they indeed do need to show that all the acts are under color of the office, or if it's good enough that only one of the acts be under color of the office. And it sounds like you're saying, not only that you don't know the answer to that, but that the answer to that is unknown because the area of the law is just not well developed?

Ken White:

Well, I would say I don't see any case that answers that question. But logically, if part of the prosecution is removable, it would seem like the whole thing is. If some component of it is subject to protection, then of course you get to the question of whether, okay, you've shown that it's under color of office, but do you have a federal defense to it? And you could still fail on that level. So we really don't know how this judge is going to come out. But I would say the judge, by asking this, is showing that the judge finds it at least plausible that some of what Meadows is accused of doing is under the color of his office of chief of staff.

Josh Barro:

I'm just trying to think, starting from the policy rationale of why we allow these cases to be removed to federal court, which I sort of understand to be about there's concern about whether states will interfere with the operations of the federal government by using prosecutions in local courts, or that federal employees might not get a fair hearing in those courts. And when we're trying them about their actions in the course of their job, we want that in federal court.

And I'm trying to think, if that's why you have the law, whether you would want it to encompass a situation where only some of the acts were under the color of the office. I mean, suppose you had a conspiracy to enrich some outside organization that a politician was affiliated with, and that he voted for certain pieces of legislation as part of that conspiracy, and he also robbed a bank. And you were charging that. Would you want to allow the case to be removed for that? It's sort of not obvious to me what policymakers would've intended in the first place.

Ken White:

Well, most of the cases that comment on the statute say that the original idea behind it is kind of murky, and it's not clear what the basis for it is. I would say that, because the local prosecutor is able to shape their prosecution, the feds have an interest in getting them to shape it in a way that does not encompass things that are under color of federal law, things that the person is doing in their federal role. And such that they only do that, they only include that if it's necessary to the case.

Remember, the thing I criticized about the Fani Willis RICO indictment was that it was sort of bloated and gratuitous. That it had a lot of additional facts that seemed to sort of deliberately call out things that could have First Amendment defenses, or politics defenses, or things like that, unnecessarily. Picking fights that she didn't really need to pick. And this may be a case of that blowing back a little bit. That she didn't need all of those overt acts. And maybe she could have been a little more selective about which ones were or weren't plausibly part of his job.

Josh Barro:

There's also some interesting speedy trial issues here, where this case is likely to take years to go to trial because of the inherently complicated nature of a RICO prosecution with 19 defendants. And then you have some of the defendants who seem eager to delay the prosecution. Donald Trump in general wants to delay these processes. But you also have a couple of defendants who are looking to go to trial quickly. One is, is it Ken Chesebro?

Ken White:

It's Chesebro-

Josh Barro:

Chesebro?

Ken White:

Not Chesebro. So don't say Chesebro anyone. It's Mr. Chesebro.

Josh Barro:

Chesebro. So he filed a motion for a speedy trial, and the judge said, "Sure, we'll do your trial in October," which is really soon. And Sidney Powell also made a request, I don't believe that's been ruled on yet at the time that we're taping. And one aspect of that is Fani Willis has said she wants to try all 19 of the defendants together. Presumably if Ken Chesebro gets a speedy trial, and the others have to wait, then you can't try them all together.

Ken White:

Right. So the judge who granted the speedy trial motion said basically for now it's just this gentleman, the Chesebro. And this made Fani Willis mad because she wants them all to be together. So the DAs this week filed a somewhat comic classic DA culture motion for clarification, which is what the DAs do when they're whining that the judge has done something they don't like, and forgot that you're only supposed to give the DAs what they want. But judge, you didn't go through the factors to decide whether or not to sever him, but judge, that type of thing, in this motion, basically saying she wants them all to be tried together and he has to fulfill certain tests and consider certain factors. The judge is going to slap her down hard on that because this is the sort of thing the judge has absolute control over, wide discretion as to whether or not to sever out defendants for this type of reason.

Now in fact, Sidney Powell has just filed a motion to sever her case from all the other defendants, which is a extremely sensible thing to do. And it makes all the arguments you would make in a motion to sever. Basically, I'm going to have to sit here for an entire trial that involves 18 other people, and a jury is not just going to hear about what I did, but necessarily going to hear what these 18 other people did. And how are they going to just focus on me and what I did. And that's unfair. And of course, that's exactly why Fani Willis charges it this way, and the whole point of the RICO statute is sort of tar everybody with the same big brush.

Josh Barro:

I was amused by certain aspects of her filing. One is she has some very pompous descriptions of what a great attorney she is. That she's practiced for 45 years, and always at the highest standards, and she's all about fighting injustice. Blah, blah, blah. Is that sort of boilerplate?

Ken White:

She's at the highest level of the bar, I believe she said. Although it did not specify the bar. It's a little pompous. And this is a classic Trump crony motion that leans all into the Trump theory that she was just contesting genuine issues. She talks about how she was instrumental in derailing the prosecution of General Flynn, for listeners who remember that. All that type of thing. So very self-serving, very for the base, and for donations. But also, once you get past all that crap, making very sensible points that any good defense lawyer would, that there's no way you can get a fair trial with 18 other idiots. And so I should get my own trial.

Josh Barro:

I was also amused. She says, "I don't know some of these people, some of them I've never even met." And she says those that she does know basically that they don't really like each other very much. That she can't have had a conspiracy with them because they were constantly at odds. And that several of these people, including the president, had disavowed her as early as November 2020, and therefore how could she possibly have been in a conspiracy with these people?

And she also says repeatedly that she was never an attorney for Trump and she was never an attorney for the Trump campaign. Which people might remember, it's almost three years ago at this point, but this was a bit of a mystery at the time in November 2020. She goes to this press conference with Trump's lawyers and makes this presentation with them, and then several days later, the Trump campaign issues this statement saying, "Sidney Powell doesn't represent us." And Donald Trump himself made certain comments to that effect later. But it's not clear that that was true, or at least it's not clear that it had always been true. I mean, those seem like fact questions for a trial in terms of was she really his lawyer. And even if she wasn't his lawyer, was she conspiring with him? Is this really the point where you can argue that?

Ken White:

Well, first of all, you can conspire criminally with people that you don't get along with. I mean, watch a fucking Scorsese movie. Also, yeah, you're not going to get a judge to grant a motion by completely discarding the key factual underpinnings of the government's case. So that's kind of oversell. That's more puffery, I think, than is substance here. So it doesn't matter whether she was the lawyer or not, it just matters what the government can prove, that she agreed with other people to commit a crime. And that's what it comes down to.

Josh Barro:

You still note, though, that she has good arguments about the unfairness of having to go to trial with all of these people, that it will in fact prejudice the trial for her. It sounds like you think the judge should grant this motion to sever.

Ken White:

Well, so yes, I do. I think that the 19 defendant trial is ridiculously unwieldy, and makes it very unlikely that any of the people are going to get what amounts to a fair trial. And all the more so in a case like this where the conduct is so varied in different places by different people doing different things. It's not like a single drug distribution or conspiracy or something like that. It's kind of as convoluted and disorganized as the whole Trump campaign was on this.

Also, the 19 defendant trial is just completely impossible for the judge to run. It's a logistics nightmare. It's a nightmare getting jurors who can qualify for that long of a trial. You're going to have all these competing arguments where one person's going to say, "I demand my speedy trial," and another is going to say, "I can't possibly get ready by then. I'm being prejudiced." So it's very hard to reconcile all that. And the defendants know that and make use of that. So yeah, I think that it's perfectly reasonable here to sever her and other people.

Josh Barro:

Should there be 19 separate trials? I mean, it's not uncommon to have one or two or three co-defendants, right?

Ken White:

Not at all. And often in a situation like this, you might see the judge break it down thematically. So we're going to have a trial of this group of people who engaged in this part of the conspiracy, and did this segment of it. And that's one way to divide it.

Josh Barro:

But then does that mean that some people could end up as defendants in more than one of those trials, if they were relevant to more than one of those groupings? It seems like Donald Trump is a nexus to all of these things, for example.

Ken White:

No, you'd probably wind up just charging them in one. And generally, it doesn't make a big difference for sentencing.

Josh Barro:

Okay. Let's talk about the proceedings in Washington DC before Judge Tanya Chutkan, she had a hearing to discuss a trial date. Again, this is the case about the events leading up to January 6th, the federal case. Jack Smith wanted to go to trial in January of next year, which seemed quite aggressive. The Trump team wanted to wait until mid 2026, basically trying to give themselves as much time to prepare for trial as the federal government had spent investigating up to this point.

Ken White:

See, that was a bad move. That wasn't plausible. Yeah, mid 2026 is not like when you say maybe we'll go to trial. That's where you tell your significant other, maybe we'll talk again about getting married, 2026. It was ridiculous. On the other hand, Jack Smith's January was pretty ridiculous too.

Josh Barro:

But he almost got what he wanted. He got a trial date for March of 2024, which I think you think is still quite fast, right?

Ken White:

It's very fast when you consider the complexity of the issues, the number of witnesses, the number of documents, and the sort of the people involved. But it is just one defendant in this case. And the government was very skillful here, and you pointed this out, Josh, in using Trump's people's own PR against them. This was a great example of our theme on the show of how your public relations strategy and your courtroom strategy can diverge.

So the government skillfully took all of Trump's lawyer's statements, "This is all old stuff. We heard this before from the committee in Congress. They're just regurgitating the rapport to that committee," to say, "Hey, they said this is old stuff. They said they already knew this. They said they already saw this. So how hard can it be?" That was very deft by the prosecution. The defense, fairly reasonably pointed out, there's millions of pages of documents, but the judge pointed out not all of those are relevant. You can do word searches and things like that for key stuff. And she wasn't buying that you needed all this time.

I thought that Trump's team was a little too shrill and a little too over the top to the point where it impaired their effectiveness. So you're always going to have to be a certain level over the top if you're representing Trump or he'll fire you, right? But you can moderate it and get results. I think they kind of went over the top a bit. I think my personal favorite is how they cited as one of the cases expressing how unjust too fast a trial can be. The infamous 1930 cases of the Scottsboro Boys, which were nine young Black men who were railroaded, and very nearly judicially murdered, leading to a whole bunch of review by higher courts. I would not cite that case to any judge, let alone a Black federal judge, if my billionaire white former president client were wanting a trial date two and a half years away.

Josh Barro:

I guess another one of the cases they cited to talk about how they were saying it was typical to wait as long to go to trial as they wanted. One of the cases they cited is a case that Judge Chutkan herself is presiding over. And she basically said that that had delays, there was a superseding indictment, and there were COVID related delays. And that doesn't apply here. You would think you would avoid picking a case that the judge has such familiarity with.

Ken White:

Right. Well, I think the point of that was just saying, "Look, you delay other cases all the time. Well, why won't you for us?" She seemed very firm that this was going to go to trial soon. And the more I think about it, actually, I think I said before in an earlier show, that she should not be thinking about politics at all. And the more I think about it, the more I think that's not quite right. Because the interests of the public in a speedy trial is one of the factors under the Speedy Trial Act.

So I think you could say that there is a big public interest in something this crucial being resolved promptly, and for her to pursue that interest as one of the factors. But she is holding their feet to the fire. I think the date might move a bit, but absent something really catastrophic, I don't think that it's going to completely change.

I did notice, I think, Trump's lawyers setting up one possible safety valve here. And that is you might've noticed one of the lawyers saying, basically, "If you set a trial so soon, I think basically I'm going to be rendering ineffective assistance." So he may be kind of setting up an argument, judge, I have to withdraw. I can't acquit my responsibilities here. I can't do things professionally because I haven't had enough time. I have to withdraw. And then set up this sort of crisis between Trump's Sixth Amendment rights and the trial, all that type of thing. He's planting the seeds for that, I think.

Josh Barro:

Well, can't she prohibit him from withdrawing?

Ken White:

She can. She can refuse to let him withdraw. But if he wants to withdraw and Trump wants to get rid of him, and then wants a reasonable time for the new lawyer to get up to speed, and you reject that, then that's an issue on appeal.

Josh Barro:

We have a listener question about the scheduling choices that Judge Chutkan made.

Joel Gottfried:

Hi, Josh and Ken. This is Joel Gottfried from Wyndmoor, Pennsylvania. I see that barely suffering federal Judge Tanya Chutkan has set March 4, 2024 as the date to begin the January 6th trial in Washington. This is a day before Super Tuesday, and in the midst of the primary campaign.

Josh Barro:

Sorry, Ken, I'm going to interrupt Joel's question here for a second. We'll get back to Joel. I keep seeing talking points like this raised, usually by defenders of Donald Trump, and even sometimes by critics of his, where they're looking at dates that are coming down ordered in these various proceedings and lining them up with the primary calendar, and saying, "Ooh, look how this stuff is just aligned so that it's going to particularly impair the former president's campaign."

And the thing is, Donald Trump is running for president of the United States. He's very likely to be a major party nominee and a key contender who might win an election for president of the United States. The year leading up to the election in which you are a major candidate is always very busy. Every month of 2024 contains significant events related to the presidential election of 2024. And so unless they can schedule trials to start next month, which is unreasonable for a wide variety of reasons, anything, any action in these cases is going to land somewhere in a place that is very inconvenient for the 2024 election for Donald Trump. And that's not a conspiracy, that's just what happens if you're going to be standing trial for stuff at the time you're running for president. It's like the whole year is a key period. So anyway-

Ken White:

I concur with the rant, Josh.

Joel Gottfried:

My question concerns Trump's attendance at trial. I understand that he cannot be excluded from trial, except under extenuating circumstances. But what about the opposite situation? What if he doesn't want to attend? Can he absent himself if he chooses at any time during the trial? Even if he could, are there still moments, for example, when the jury returns the verdict, that he must be there? Thanks for clarifying this. Love the show.

Ken White:

So interesting-

Joel Gottfried:

Thanks for clarifying this. Love the show.

Ken White:

... Rule 43 of the Federal Rules of Criminal Procedure says that he has to be there throughout the trial. But then it has a clause that talks about what if he's not? And it says that if he voluntarily absents himself after the trial starts, then the trial can keep going. And you kind of have to ask, well wait, how do you reconcile those two? It also says if he's excluded from the courtroom because of misbehavior or things like that, the court can keep doing the trial.

So he's supposed to be there. And the judge, if he decides for some reason not to show up after the trial starts and he's been there initially, will decide what to do about that. That could be anything from a bench warrant and having him brought back in cuffs, to just saying, well, fine. He's voluntarily absenting himself. The trial's going on without him. I think that's her call. So it would be interesting to know what she would do. I don't know if that's an easy decision. On the one hand, you have not picking unnecessary fights and not causing unnecessary spectacle. But on the other hand, having the defendant there is an important thing. And he shouldn't be seen to be flouting the system.

Josh Barro:

But so if he chooses not to attend, does he have a right to be out on bail while not attending?

Ken White:

No. Because bail, one of the things you're supposed to do, is show up to court when you're supposed to. And so if you don't, you're violating the terms of your release. And he may be on his own recognizance, but if you don't show up when you're supposed to show up, that's a reason to detain somebody.

Josh Barro:

So basically, in theory, he would have a choice between sitting in jail and sitting in the courtroom. Now, Judge Chutkan doesn't have to impose that choice just because she could, but she could.

Ken White:

She could. Or she could just say, "Well, I'm making a record here that he's voluntarily deciding not to show up. The trial will continue." Now, Trump has not generally shown up for trials. He didn't show up for most of the defamation case against him that E. Jean Carroll won. I think his personality would make it excruciatingly difficult to sit for a four to six week trial.

Josh Barro:

And again, as Joel notes, he'll be busy because it's 2024, and he's going to be busy for the entirety of 2024 running for president. And so I can understand both that he wouldn't enjoy sitting in the trial, and he would want to be able to rant against the trial while it is ongoing. But he also has other campaign activities that he would normally want to be conducting, rather than sitting in a courtroom in Washington DC. But I mean, I also can imagine, if he's not in trial, presumably he'll be rampantly making comments about the trial and about the unfairness of the trial, et cetera, et cetera. I assume that's a factor that would tend to force the judge's hand a little bit more, right?

Ken White:

Yeah, I think if he is attacking witnesses as they're on the stand in front of crowds, that's something where the judge's hand is pretty much forced in terms of doing something about it.

Josh Barro:

So that could be a real mess.

Ken White:

Oh, it could be... All of this.

Josh Barro:

Spring of 2024, a federal judge ordering Donald Trump to jail. I mean, I guess the other thing is if Trump can be convinced, if his lawyers are concerned that that's a real live possibility, and I assume Trump would prefer to avoid that happening. I wonder if that might cause him to actually show up and sit at trial, if he actually can be made to fear that the judge will do that.

Ken White:

Yeah, they could use that. Or when we used to travel with our kids when they were little, we'd use Benadryl. So either way.

Josh Barro:

We're almost done for today. Before we go, I want to go through, we made a couple of mistakes in the last episode about some precedents related to removal, and whether these defendants would be able to have their cases removed. We missed a rehearing en banc of one of these cases we talked about.

Ken White:

Right. In the Horiuchi case, which was the sniper at Ruby Ridge, the decision by-

Josh Barro:

The federal employee, if you missed last week's episode, this is the federal agent who shot someone at the Ruby Ridge standoff back in the '90s. And the state of Idaho was trying to try him related to that.

Ken White:

Right. And the lower court found that he was covered by federal immunity because what he was doing was necessary and proper for his federal job. And what I missed was a higher court said basically, "Lower court judge, you shouldn't have decided that way because you resolved some disputed facts. You should have had an evidentiary hearing and done it like that, sent it back." But before it could go further, Idaho, the politics changed, the prosecutor changed, and the case was dropped.

Josh Barro:

But so does that have any different implications for these removal cases that we're talking about now? Does that understanding make these defendants more or less likely to succeed?

Ken White:

No. It only means that the judge can't basically grant removal, and then dismiss the prosecution without having an evidentiary hearing on the disputed facts.

Josh Barro:

I also misidentified an 11th Circuit judge who had gone against Trump's desires on the earlier documents case, the case where he was suing the federal government for the return of his boxes that had been so cruelly stolen away from him at Mar-a-Lago. That was not Neomi Rao. Neomi Rao was on the DC circuit, not the 11th circuit. I was thinking, well, it was two Trump appointed judges. It was Britt Grant and Andrew Brasher. So I guess I was thinking of one or both of them, but it was not Neomi Rao, and I regret the error. You're posturing like you're about to say something, Ken.

Ken White:

No, I'm waiting for the main event.

Josh Barro:

Oh my God, I completely forgot. Michael fucking Avenatti.

Ken White:

Don't tease me, Josh.

Josh Barro:

So Michael Avenatti, still not a good lawyer, still in federal prison. One of the four cases in which he'd been convicted, the Nike extortion case. Now, remember that he represented an athletic coach with certain claims against Nike. And Michael Avenatti goes in to Nike and basically says, "You have to pay $1.5 million to my client and between 15 and $25 million to me, or otherwise, we're going to wreck Nike's reputation in the press." They had this meeting on a Friday, and by Tuesday, Michael Avenatti had been indicted over this, which is light speed in terms of indictment for a federal crime. And so he had an appeal basically saying that these actions couldn't have been extortion. That this was just sort of an appropriate and normal negotiation of a settlement on behalf of a client. And a Second Circuit panel was unimpressed with that argument.

Ken White:

Very unimpressed. It's a lengthy opinion, very factually detailed, because of the issues. And they slam him. You can really read the disdain of the judges for Michael Avenatti and his legal behavior. So the issue, Josh, is how do you reconcile the idea that you can go to the media and say terrible things about Nike? You have the right to do it. But you can't go to Nike and say, "Give me millions of dollars, or else I'll go to the media and say terrible things about you." How do you reconcile those two things under the extortion statute?

And so what the Second Circuit said in affirming Michael Avenatti's conviction, is that this is a situation where the evidence was more than sufficient to show that the demand was wrongful. So the idea is if you're making a demand that you don't have a right to make, that you don't have any colorable claim of right to make, then that's extortion. So because Michael Avenatti was not just asking for $1.5 million for his client, this coach who had allegedly been wronged by Nike, he was also on the side, without telling his client, asking for an additional $25 million to do some sort of bogus internal investigation.

And because there was no plausible theory under which he had a right to that, to demand the money, to demand to be given that role, then that was wrongful. And in that they looked back at some cases involving Bill Cosby, where a supposed unacknowledged daughter had run an extortion scam. And the same thing. The daughter might have had a right to go to the media and say, "Hey, I'm actually Bill Cosby's daughter." Which she didn't have the right to do was to demand money from him or else she'd go to the media. And so the law of extortion gets clarified a little bit as to what is wrongful in the context of settlement negotiations. Michael Avenatti's first major appeal is a failure. He remains in prison. And the box of chocolate donuts that he promised me does not appear to be forthcoming in the near future.

Josh Barro:

But wait, so what makes it wrongful then? Because I mean, it's fairly common to have settlements where someone was done some wrong and they receive a settlement for it. And in exchange, one of the things they agreed to is that they won't talk publicly about the way in which they were wronged. Is the problem here that it was so lopsided, Avenatti demanded so much money for himself, so much more than what was going to his client?

Ken White:

Well, what was wrong is Avenatti didn't have any claim. His client had a claim.

Josh Barro:

So he could have taken a third of the settlement to his client in sort of a normal manner for a tort lawyer?

Ken White:

Yeah.

Josh Barro:

He couldn't demand his own separate payment?

Ken White:

I mean, he could have plausibly even probably demanded $25 million for his client, or he was going to go to the media. It would be kind of a ridiculous demand, but likely there, there's a claim of right, even if it's extremely excessive. Here, he himself structured it in a way that split off the 1.5 million going to his client almost as an afterthought. And the 20 or 25 million going to him or else he was going to go to the media. That was the part as to which he had no claim whatsoever, and therefore it was wrongful and extortion.

Josh Barro:

So Michael Avenatti, still not a good lawyer. Thank you, Ken, for doing that update with me this week.

Ken White:

Thank you, Josh.

Josh Barro:

Serious Trouble is created and produced by Very Serious Media. That's me and Sara Fay. Jennifer Swiatek mixed this episode. Our theme music is by Joshua Moshier. Thanks for listening and we'll be back with more soon.

Ken White:

See you next time.