The end of impeachment, but not the end of legal exposure

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U.S. Senate Minority Leader Mitch McConnell (R-KY) speaks about former U.S. President Donald Trump, accusing him of dereliction of duty, immediately after the U.S. Senate voted to acquit Trump by a vote of 57 guilty to 43 not guilty, short of the 2/3s majority needed to convict, during the fifth day of the impeachment trial of former President Donald Trump on charges of inciting the deadly attack on the U.S. Capitol, on Capitol Hill in Washington, U.S., February 13, 2021. Photo by U.S. Senate TV/Handout via Reuters.

Former President Trump was acquitted over the weekend in his second impeachment trial. A record seven members of his own party voted to convict him but that wasn’t enough to bar Trump from seeking future office. How strong was the defense his lawyers presented? The end of the impeachment trial doesn’t signal the end of legal exposure for Trump either. The newly elected district attorney in Fulton County, Georgia, talked to the New York Times about investigating Trump’s efforts to interfere with the state’s vote count, and there are two civil lawsuits against Trump and others stemming from the riot. Josh Barro and Ken White discuss those, what Mitch McConnell had to say about Trump and the justice system after the end of impeachment, the possibility of state RICO charges, the “turducken of legal incompetence” and more.

Read the full transcript below

Josh Barro: This is Josh Barro, host of KCRW's Left, Right & Center. You're listening to All The Presidents' Lawyers, the podcast about the legal problems of presidents and their associates. All presidents have legal problems, some have more legal problems than others. My co-host is Ken White. Ken is a criminal defense attorney and former federal prosecutor. He writes the Popehat Report, which you can subscribe to on Substack Hello, Ken.

Ken White: Hello, Josh.

Josh Barro: Former President Trump was acquitted at his impeachment trial. Over the weekend, 57 senators voted to convict including a record seven from his own party. But that didn't meet the two thirds threshold required for — well, I was gonna say required for removal. But Trump, as his defenders consistently noted, is already not president. But the failure to convict means they did not reach the choice of whether to bar him from seeking future office. So Ken, this means Trump can run for president again. We talked last week about how the initial part of the former president's defense wasn't very good, in part because it didn't need to be. The jury was in the bag for him. Now, I note that wasn't quite as in the bag as we thought. There are a couple of Republican senators who I was quite surprised to see vote to convict who did so, but still, he had more than enough cushion in the form of politically loyal senators to avoid conviction. Did the quality of the defense presentation improve at all through the trial?

Ken White: Maybe marginally, but not a whole lot. There were still many moments of both incompetence and low comedy. But ultimately, it raises the question: is a defense that works by nature a good defense? I mean, the defense worked. Of course, you probably could have sent a golden retriever in there to bark at the Senate for two days, and that would have worked. So it's kind of an existential question.

Josh Barro: There was this moment when they were discussing whether to call witnesses which we'll talk about in a moment, this sort of chaotic few hours where it looked like there might be witnesses in this trial, and one of the president's attorneys Michael van der Veen got up there and was talking about how there were so many people that if you're going to call witnesses that they would need to depose, and that they were going to need to depose House speaker Nancy Pelosi to see if she had somehow allowed this riot to happen, and they would need to depose Vice President Kamala Harris, and that they couldn't do these depositions over Zoom, that they would have to be done in person. Then he goes "in person at my office in Philly-delphia," at which point the Democrats, you know, the jurors of sorts in the in the Senate just burst out laughing at him, and he demands to know why they're why they're laughing, which ...you don't want the jury laughing at you in a trial.

Ken White: Yeah, generally the question 'why are you laughing' is a signal that something in the trial has gotten away from you. And, you know, I was waiting for the guy to start instructing the Senate where they could park at his office if they wanted to attend the depositions.

Josh Barro: His office in Philly-delphia!

Ken White: Yeah, exactly. So it was comical. But I mean, so much of it is theater, pure theater, in that what's going to happen is whatever they decide is going to happen, not what any law or rule says is going to happen. And so there's a way that the absurdity of his demand that they may depose 300 witnesses in his office in Philly-delphia just sort of highlighted the absurdity of the theater of the idea that we're going to pretend this is a solemn proceeding, following specific rules and the rule of law, when really the proceeding is just whatever we decide the proceedings are going to be.

Josh Barro: Yeah, I mean, so there were a few things that were really odd about this proceeding, if we're thinking of it as a trial, and I realized it's not literally a criminal trial, and they get to make a lot of the rules. But first of all, when there was this dispute about whether there would be witnesses, it was after the trial presentation was almost complete. It seems like, wouldn't you want the witnesses to be part of that presentation, the way you do a criminal trial? You have an opening statement, but most of the presentation is witness presentation. I think part of what happened is the president's attorneys kept making representations about the president's behavior during the riot, that were just sort of risible, suggesting that the president had really tried to stop the riot when he had not. And so that was why... Democrats would have been eager to call witnesses. They wanted statements from people who spoke with the president or people who spoke with people who spoke with the president. That would give indications about his state of mind during the riot and also about what steps he might have taken to stop it. And so there was that eagerness for witnesses, but then what they realized was something that was more or less true about what the president's lawyers were saying: they wouldn't have been able to force 300 depositions, but it's true that the there would have been weeks more of proceedings, which Democrats did not necessarily really want here. I mean, the Biden administration would like to get along and start, you know, actually doing some lawmaking of its own rather than spending time on a trial of a predecessor. So it seems like they realized, 'oh, oops, the trial would have to be a lot longer if we did this.' But it's kind of weird not to decide at the outset, when you're at whether you're going to have witnesses or not.

Ken White: True. I think they did decide at the outset that they didn't want witnesses, but then it seemed as if maybe they wavered and had a moment of temptation when this news dropped about how House Republican leader Kevin McCarthy had a angry phone call with former President Trump during the riots in which he got into a shouting match with him about whether Trump was going to do something to get these lunatics out of the Capitol building. And this seemed almost too good to be true in terms of evidence of Trump not merely inciting violence, but reveling in it as it was happening. But I think the Democrats kind of wavered there for a minute and thought that maybe we need witnesses, after all, if this is how good some of that stuff is going to be.

Josh Barro: One of the witnesses that they were going to call was Congresswoman Jaime Herrera Beutler, from Washington state, a Republican from Washington State. And she had issued this statement about how she was aware that House Minority Leader Kevin McCarthy had gotten on the phone with Donald Trump during the riot, was urging him to call off the rioters, and that the president said something to him like, 'Kevin, it seems these people are more upset about the election than you are,' going to the idea that the president was actually pleased about the fact that the Capitol was being sacked by his supporters. Now, isn't that double hearsay, if you have Congresswoman Butler come to the Senate and tell them what Kevin McCarthy told her the president told him during the riot?

Ken White: It's hearsay, not double hearsay. So, hearsay is an out-of-court statement offered to prove the truth of the matter. But there are exceptions. And one of them is a statement by the person you are suing or prosecuting. So a witness coming in and saying what Trump said is non-hearsay because it's what's called a party opponent. Trump is the defendant and so his statement is not hearsay. However, Kevin McCarthy's statement, if related by someone else, is hearsay. So this again sort of illustrates the oddness of the procedural posture and about how in a Senate impeachment-so-called trial only such rules apply as they want to because if they had called the congresswoman simply to relate what McCarthy had said to her about what Trump said to him, that definitely ...would have been one layer of hearsay.

Josh Barro: So the end of this trial is not the end of the former president's legal exposure. And that's a point that Senate Minority Leader Mitch McConnell was at pains to make in a speech that he gave before the Senate explaining why he was voting to acquit the former president. McConnell said that his position that it is unconstitutional to impeach and try a former president does not create a so-called "January exception" to the oath of office, where you can do whatever you want and you'll get away with it because there's not enough time to try you, because the former president is not insulated from criminal prosecution or from civil lawsuit. McConnell said we have a criminal justice system in this country. We have civil litigation and former presidents are not immune from being held accountable by either one. So this is basically McConnell suggesting, hey, you know, now if you're if you're going to prosecute Trump, or if you're going to sue Trump, go ahead, now is the time. And obviously Trump was pretty upset about this. He issued a statement on Tuesday, calling McConnell an unsmiling hack who sucks or something like that. But what do you make of...

Ken White: Dour.

Josh Barro: Yes, dour and unsmiling. What do you make of McConnell's suggestion there, that civil litigation and criminal prosecution — is that a reasonable substitute for impeachment? I mean, obviously, there can be things that are impeachable offenses that are not criminal offenses. But is it true that, whatever Trump did here that was the subject matter of the impeachment trial, that our legal system does provide a significant avenue for holding him accountable?

Ken White: Well, first of all, I think McConnell is is clearly just trying to have it both ways: trying to signal to normal people — non-Trump supporters, people who are potential donors, people who are potential Republican voters, but not Trump people — that there's a sense of normality left in the republican party and it's not just Trump's party, and yes, we didn't impeach him, but we think this was bad. I don't think that means that he or any of the other people similarly making feeble gestures are really going to support any consequences happening to former President Trump. The answer, Josh, is that I think that civil consequences, at least in the form of civil cases going on for a while, are significantly more likely than criminal consequences because they're much easier and less politically explosive to do. So we see some civil cases happening already. And I'm sure we'll talk about them, in cases against former President Trump and people who committed violence at the Capitol. We haven't yet seen any criminal charges or even really clear, reliable indications of serious criminal investigations of former President Trump. Are they possible? Certainly. But it's going to be something of an uphill fight. And I don't know how many people how many DAs or US attorneys are really prepared for that fight to go after Trump criminally.

Josh Barro: Well, let's talk about some of the possible criminal and civil avenues that Trump could be facing right now. Now, first of all, Fanny Willis, the newly elected district attorney in Fulton County, Georgia — that's the county that includes Atlanta — she gave an interview to the New York Times in which she indicated that she's investigating the efforts to interfere with Georgia's vote counts, and that avenues she might pursue in terms of criminal investigation and prosecution might include charges related to making false statements to government bodies in Georgia, to efforts to seek election fraud, notably, the resident's phone call to Georgia Secretary of State Brad raffensperger, demanding that he find votes such that Trump would be putting the lead in Georgia. And she also raised the prospect of racketeering charges. Now, so I guess, Ken, is this a state RICO case that we're going to see here in Georgia, possibly alleging that there was some sort of broad criminal conspiracy to interfere with the state's vote count?

Ken White: So there are in most states, some sort of analogue to the infamous RICO racketeering laws and Georgia is no exception. And Georgia's racketeering law is just as pointlessly convoluted as the federal racketeering law. You know, this is an art not a science, but the vibe I got off of that whole talk was more, you know, a newly elected DA looking for publicity and less a serious, thoughtful roadmap for actual prosecution. That's probable. So, you know, racketeering is a super complicated way, as we've constantly said, to prosecute something. If you were going after really big people with huge assets and a huge base, you wouldn't go with an unnecessarily convoluted way to do it, particularly if you had simpler, more straightforward things like for instance, lying to a government body. So I kind of took that more as performance and posturing than as a serious indication that they're going to try to bring Georgia RICO charges against anyone. Now most of that [interview] seemed to be focused on Rudy Giuliani. And I think Rudy Giuliani may be closer to being in the soup simply because really, absolutely no one likes him, unlike Trump. And he's less powerful, less protected, and may have had his hands dirtier in some of these things. So I think it's too early to tell it short, whether or not that is anything other than sort of puffery.

Josh Barro: Isn't it quite irregular for a district attorney to to talk about an ongoing investigation, especially when that would obviously be in the early stages like this one? I thought they're just supposed to say 'we don't comment on cases that are active investigations,' rather than giving an interview to a major national newspaper about what you might investigate.

Ken White: Well, you know, that's a value that tends to be more respected by federal prosecutors in the Department of Justice than by DAs and state level prosecutors. But the fact that she did it that way does sort of inform my feeling that it was more performative than substantive that if there really was an actual specific investigation going on, she would have been a little less free with talking about what it was going to do because it would not be considered to be appropriate, which isn't to say that some DAs wouldn't do it anyway.

Josh Barro: One of the issues here, the question of whether the president committed a crime by demanding that the Georgia Secretary of State find additional votes, that's still a big intent issue, right? That in order to show that the former president committed a crime there, you have to show that he knew that he'd lost Georgia that he was asking for a fraud to be committed here? I mean, I assume his defense would be: 'I won Georgia, or at least I sincerely believe I won Georgia and when I told the Secretary of State to find the votes, I just meant for him to correct the vote count to reflect the true outcome that I had won the state. I was not asking for a fraud, I was asking for the correction of a fraud.'

Ken White: That would be his defense, and it's true that you would have to prove fraudulent intent and you would have to prove it, I'd point out, to a jury in Georgia. So that's an uphill battle, but not completely impossible. I think the call was so shocking that it is something that could plausibly be something that they'd eventually charge, but just not certainly. And I don't think we're there to make that call yet. I think we have to be careful to distinguish the popularity right now of talking big about going after Trump from actually going after Trump.

Josh Barro: Let's take a break and when we come back, we'll talk about some of the civil exposure that former President Trump could face. This is  All The Presidents' Lawyers.

This is Josh Barro and I'm back with attorney Ken White on All The Presidents' Lawyers. Senate Minority Leader Mitch McConnell and explaining his vote to acquit former President Donald Trump talked about the availability of criminal and civil avenues to hold the former president accountable. We talked about one of those criminal avenues. What about civil lawsuits? We've started to see these lawsuits trickling in against the former president and his associates related to the events of January 6. One of those is a lawsuit brought by Congressman Bennie Thompson, a Democrat from Mississippi who sued President Trump and Rudy Giuliani and the Oathkeepers and the Proud Boys alleging that they violated the Ku Klux Klan Act, which is a law that makes it illegal to try to interfere with the business of Congress. And so one thing that's interesting to me about this lawsuit is that it alleges some sort of conspiracy to cause the riot. That allegation would be quite fact dependent about who exactly coordinated with whom to do what to encourage people to do what. So would there be some interesting discovery in a lawsuit like that, where you'd be looking into the communications that the former president and people around him had with other people? And if you were going to have a lawsuit like that, how would that interplay with Congress simultaneously investigating those events, and conceivably certain prosecutors also investigating those events for criminal purposes? I mean, certainly, there there are ongoing criminal cases against people who are not former President Trump, even if he himself is not going to face a criminal case.

Ken White: Geez, Josh, you sure you crammed enough questions into that one question? So the answer is that the civil theories — and I think they're interesting that people are now advancing and suing over — generally rely on conspiracy, so both the member of Congress who's suing under the Ku Klux Klan Act, basically on the theory there was a conspiracy to impede him from an official duty, which was going through this procedure on January 6, and another one by the NAACP, saying that there was a conspiracy to interfere with vote counting and other voting activity... They both charged a conspiracy, and a conspiracy is not merely a bunch of people who have the same aims doing similar things at the same time. To be a conspiracy, you have to prove that people had an agreement: an agreement to do something specific illegal, and that they knowingly entered into that agreement intending to advance it. And often, then you have to prove that someone did at least one thing towards that goal. So it's not going to be enough just to show that people had similar goals or that they had goals in common or that they, in a philosophical sense, agreed with things. You would have to show that there was an actual agreement where, you know, former President Trump and people in his circle agreeing and asking people to act based on that agreement and those people agreeing, whether they're the Proud Boys or the Oathkeepers or anyone else who's being sued. So that's not easy, particularly when you have highly protected people like the former president, who have a lot of loyal people surrounding them who may not be willing to give up exactly what he said. The fact there being criminal investigations at the same time can complicate things because it can create an opportunity for lots of people who might otherwise be questioned or deposed or have to answer written questions in civil discovery to take the Fifth — to assert their Fifth Amendment rights against self incrimination and decline to answer questions on that basis, as long as the criminal investigations are going on. And congressional investigations of course are always just a complete clusterfuck and are often more of an opportunity for posturing and getting on camera and saying things on camera than they are actually about using useful investigative tools or techniques, or actually finding out things as opposed to proclaiming things. So I think if there are criminal investigations and they're happening at the same time, as in a congressional investigation and civil cases, it's going to be a huge mess with a lot of conflicting interests happening at the same time that really is going to impede everybody in doing what they're trying to do.

Josh Barro: You mentioned the NAACP suit, which alleges a different conspiracy, saying that Trump worked with the Republican National Committee and others in an effort to disenfranchise minority voters by interfering with vote counts and with their right to vote. And one thing I was wondering about this suit is that distinct from a suit over the sacking of the Capitol, which happened and caused all sorts of damages to a variety of people in institutions, the president's efforts to interfere with the count of the vote in this election ultimately failed, so who has standing to bring a lawsuit over his failed conspiracy to interfere with those vote counts? Are there people who can show that they have damages because of what the former president did there?

Ken White: So standing has been, as we've talked about, frequently one of the main impediments to litigation against former President Trump for years now and I think we may see it continue to be here. So one of the problems with standing arguments in the past in cases against Trump has been the argument that you have to show that this harmed you specifically in a way and not just everybody in the abstract. And so I do think this is going to be a problem. With that said, the law on standing in Voting Rights Act cases is more forgiving, to potentially disenfranchised or deterred or harmed voters and I think the NAACP has a better shot of showing that it has standing in the sense that it represents the interests of people whose votes were subject to attempted threats and intimidation and deterrence and whose votes the people were trying to prevent being counted. 

Josh Barro: While the president is not yet facing any particular criminal prosecution, we are obviously seeing many of these charges being brought against people who participated in the Capitol riot and one thing that is interesting to note is that we've seen some conspiracy charges brought against members of the Proud Boys and the Oathkeepers, in addition to that civil lawsuit that we discussed roping in those groups. And so what do you make of the fact that conspiracy is being charged in these cases? I assume that might be more difficult to prove than stuff like you broke into the Capitol building or you stole a lectern out of the Capitol building. So what do you make of federal prosecutors leaning on conspiracy there?

Ken White: Well, conspiracy is one of federal prosecutors' favorite tools, because it's a way of roping people in without connecting them to very specific acts. So instead, all you have to do is show people in effect acting in concert towards various illegal acts. And that's why it's easy to get people involved in it, even if you don't have them on the scene or if you don't have them doing the specific illegal thing. So in a way, I think it's easier rather than harder in that ...if they have communications, private communications, which they may have through various sources, or if they have these very public communications — I mean, this is a insurrection done live on TV and social media and, you know, heavily documented by the people carrying it out — so if they have encouragement of each other and statements of, you know, that people we're doing this together, and we're all in this together and so forth, that's going to be very useful in proving conspiracy and the defense is going to be left to say 'okay, but that's, that's all just rhetorical. It doesn't reflect an actual agreement to do something illegal.'

Josh Barro: What do you make of the timeline that we've seen here so far? Are you surprised that we're not seeing guilty pleas yet? Is that something that you would expect to start seeing soon for those people who are going to agree to plead out in these cases?

Ken White: Absolutely not. I'm not surprised at all to not see guilty pleas yet. Federal cases, generally, you don't have guilty pleas for a good chunk of time. Unlike state court where these things can go and do go a lot quicker, the standard of practice in federal court is more generally, if your person has been charged, you're likely going to wait to get discovery and go through all the discovery and see how defensible it is before you negotiate a plea. In federal court, generally, there are only early guilty pleas when they've been negotiated before the charge has even been brought. It's quite rare even when it's pretty clear early on that it's likely your person is going to plead guilty. It's quite rare for it to happen that quickly.

Josh Barro: One prospect that I saw Zoe Tillman, who's a reporter from BuzzFeed, raise is whether it's going to be possible to have joint trials of suspects in these cases, which we've seen after certain other mass disruption-related cases. Is that something that you can do? Can you take a bunch of cCapitol rioters and try them all together? Are they entitled to individual trials, are they better off being tried individually?

Ken White: So there's a complex analysis of when it's appropriate or not appropriate to join defendants together for trial and the analysis has to do with things like whether or not they have mutually hostile defenses, whether or not joining them together is going to prejudice them for one reason, like, you know, a relatively not particularly badly acting person joined for trial with really badly acting people where it's going to slop over to the less culpable person, whether it makes it more unwieldy and difficult to do. There's a whole variety of factors, judges tend to have a significant amount of discretion. And I think we're not going to know until we get closer to any of these people actually going to trial. For now, because they haven't been charged together, they're not going to be tried together, absent some sort of superseding indictments that come in trying to put everyone into the same cases. So for now, there's not a sense that it's going to happen together but you can't rule that out in the future that they'll try some sort of maneuver to do that.

Josh Barro: You mentioned mutually adverse defenses. So for example, Eric Munchel, who people will remember as "zip tie guy" from one of the legislative chambers, he was there with his mother. And the indictment documents describe how he traveled to Washington with his mother and breached the Capitol with his mother. And now we have a filing from his public defender, basically saying this was all his mother's idea and his mother's fault. And he was only following his mother into the Capitol because he was concerned about what she was getting herself into. So presumably, if that's going to be his line of defense, that would be a reason you couldn't try him jointly with his mother?

Ken White: Right. Well, so if he is going with a Norman Bates defense, then I think that that would be a factor that a judge would consider in determining whether to try him jointly would not necessarily be a determinative factor. But if you're going to have a trial where the defendants are pointing the fingers at each other and the government's just sitting back and smirking, that is certainly one of the things that a judge will think about deciding whether to let it go jointly.

Josh Barro: Sidney Powell, who is being sued by Dominion Voting Systems for making a wide variety of ludicrous and false statements about them being behind a conspiracy to steal the election from Donald Trump, she now has an attorney in that case. She will be represented by Lin Wood, who has been one of her sidekicks in this conspiracy nonsense. And so it seems to me that what would look like a problem with that is that Lin Wood has also made a bunch of crazy false statements about Dominion, and conceivably would be sued by Dominion himself. Can you represent somebody else, when you face extremely similar legal jeopardy of your own?

Ken White: Well, first of all, Josh, I don't think we're done here with this yet. I expect to see Rudy Giuliani come in to represent Lin Wood in connection with his representation of Sidney Powell. And then maybe I don't know Michael Avenatti or someone on a layer on top of that. It's kind of like a turducken of legal incompetence.

Josh Barro: [laughter]

Ken White: Yeah, I've been saving that one. Um, so there are answers on a couple of levels, Josh. One is conflict of interest. So as a lawyer, you're not supposed to represent somebody without their informed consent when you have an interest that's implicated in the case and here certainly Lin Wood has conflicting interests. He has possible liability for defamatory statements that could come out during the Sidney Powell case. And then the interest in adequately defending Sidney Powell. So that would be something where at a minimum, he would have to get her informed consent and waiver of the conflict before he could represent her. Then there's a doctrine that in general, you can't be someone's lawyer when you're going to be a witness at their trial, again without their informed consent. And it's likely that he would be a witness at any defamation trial of Sidney Powell, because he's so wrapped up in all the underlying facts and what's going on there. So again, that would require her informed consent. But there are a number of impediments there and even if they're conflict waivers, you know, you've got something where he's going to be her lawyer, and he's also going to be deposed in the same case as a fact witness as someone who is engaged with her and doing the same things.

Josh Barro: Our producer Sara Fay notes that Sidney Powell does have an additional attorney, Howard Kleinhendler. So I guess if Lin Wood gets conflicted out then she will be left with an attorney. But what would it be like for you, if you were counsel on a case and then your client announced that they were hiring Lin Wood to conduct the representation alongside you?

Ken White: You know, you joke a little bit, but this sort of thing happens. So, first of all, I think we have to consider that Lin Wood's retention here, by Sidney Powell, who already has a lawyer, may be performative, that it may be about fundraising and generating buzz and excitement and media attention, as opposed to for real and because of Lin Wood's legal skills. And it is something known to attorneys that clients are vulnerable to flashy, big talking attorneys who will say 'why don't you hire me as another attorney on your case because I have all these big theories that play into all your wildest dreams about how everyone on the other side are Satanists who did the RICO and I'll throw punches that your attorney isn't throwing? You know, the underlying reason the reason they're not throwing them is that they're crazy.' So everyone who's an attorney is familiar at least once with this sort of thing happening with the client hiring some complete imbecile because that imbecile sort of confirms the client's priors and says the things they wish you would say.

Josh Barro: Before we go, I want to talk a little bit about the Lincoln Project which is imploding. And mostly this is not a legal story, or at least not the specific kind of legal issues that we cover on this show, but if you've not been following this news, the the proximate cause of the implosion is a large number of inappropriate messages sent by one of the founders of Lincoln Project, John Weaver, of a sexual nature to young men in some cases who were seeking employment or were employed by the Lincoln Project as interns and such. And so that has caused extensive fallout. And then in one case, you had another co-founder Jennifer Horn, who was the formerly the chairwoman of the New Hampshire Republican Party, who had a non-amicable parting with the project. And the Lincoln Project in the last week posted on Twitter, a large number of her direct messages with a reporter — Jennifer Horn's direct messages with a reporter who was writing a story about the Lincoln project. And you could see these screenshots that included snippets of other direct messages that Jennifer Horn had had with other people. It was clear that this was an unauthorized release of Jennifer Horn's private messages by her former employer. And so this happens and everyone's looking at this and George Conway, who's another co-founder of the Lincoln Project, husband of Kellyanne Conway, he posts on Twitter saying this appears to be a violation of federal law, it should be taken down immediately. You are not allowed to access somebody else's Twitter direct messages and post them for the world to see, right?

Ken White: So now, to be fair, Twitter apparently later said, and it's not clear why, that this wasn't a violation of Twitter's terms of use. But it seems as if what happened here is that someone within the Lincoln Project, went into this person's Twitter account (through what access they had, it's not clear) and without their consent posted private messages. Now, the Lincoln Project might say that, 'well, we had access from when this person worked with the Lincoln Project and we had consent then.' But it's pretty clear they no longer had consent by the time they did it. And I think that George Conway was right that at first glance, this appeared to be a potential violation of federal criminal law. The Computer Fraud and Abuse Act is a 1980s-era congressional statute that is classic in the genre of Congress coming in and legislating things that they have no understanding of whatsoever. And basically, it's been used in various infamous instances to criminalize the act of unauthorized access to computer accounts and social media accounts and things like that. And it is certainly plausible that this could have been a federal crime. It's not certain by any means and Twitter saying that it wasn't a violation of Twitter rules tends to cut against that. But I would certainly tell a client: no, don't do that under any circumstances, because if it takes the wrong bounce, you're gonna find yourself charged in federal court.

Josh Barro: There is so much more that we could talk about, but I think that's a good place for us to leave it. Ken White, thank you so much for speaking with me.

Ken White: Thank you, Josh.

Josh Barro: If you have questions, please send them to us. You can find us on Twitter at @LRCKCRW. You can also leave us voicemail at 424-538-8888.  All The Presidents' Lawyers is produced by Sara Fay. Our technical director is JC Swiatek. Todd M. Simon composed our theme music. I'm Josh Barro. Thank you for joining us, and Ken and I will be back next week with more of  All The Presidents' Lawyers.

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Hosts:
Josh Barro, Ken White

Producer:
Sara Fay