First impressions of the second impeachment

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Attorney Bruce Castor walks through The Senate Reception Room ahead of the second day of former U.S. President Donald Trump's second impeachment trial in Washington, U.S., February 10, 2021. Photo by Brandon Bell/Reuters.

Josh Barro and Ken White talk about President Trump’s lawyers’ first day of impeachment arguments, and more on the legal cases of those arrested during the riot. President Biden seeking the resignation of all Trump-appointed US Attorneys (except one), and his Department of Justice drops its suit against a former aide to Melania Trump. Plus: Palm Beach seems pretty okay with Trump living at Mar-a-Lago now, why Smartmatic’s defamation suit is looking pretty good, 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, which is the podcast formerly known as All The President's Lawyers. All we did was move an apostrophe in that title because now the show is about the legal problems of two presidents: former President Donald Trump and President Joe Biden. All presidents have legal problems, but 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. And I just want to say we're not limited to just former President Trump and President Biden. I mean, Jimmy Carter should watch his back. 

Josh Barro: He really ought to, that guy. He's been out of control for too long.

The impeachment trial of former President Donald Trump has begun. House managers started their presentation on Tuesday with a remarkable video compilation of footage from the Capitol riot, interspersed with footage of the former president making statements to his supporters that they say constitute incitement. The former president's attorney David Schoen attacked this video as -quote- spliced and manufactured -unquote. Ken, the remarkable thing to me is, this is a trial about events for which the jury was present, which obviously is not typically how a trial works. What did you make of the evidentiary value of this video and the strategy of playing it for people who had been present for the riot? Now, I would note, Missouri Senator Roy Blunt said the video was the longest he'd sat and watched footage of that terrible day. So obviously, it could have some impact on people, even if they'd been there in person for the riot.

Ken White: I thought it was very effective, particularly taking into account what we really have here, as opposed to what we're pretending to have here. You know, what we really have here, as we've talked about before, is a partisan political vote, and not really a refined application of facts to law. And what the video did, I thought, was do a very good job of setting up what the stakes are, just how bad the behavior was, just how close we came to significantly higher body count or more destruction, and really just how completely deranged the people attacking the Capitol were. And I thought in terms of setting the stakes about why the members of the Senate should care about this happening and worry about it happening again, I thought it did a very good job.

Josh Barro: So it seems to me that there are basically three components to what the prosecution needs to argue here. They need to argue that what former President Trump did was bad, they need to argue that it specifically merits impeachment under our Constitution, and they need to argue that this impeachment proceeding is constitutional, even though it is taking place after Trump left office. So what do you make of the need to argue all three of those things and the approach that they have been taking to make all of them? 

Ken White: They seem to be taking a relatively balanced approach. They are not ignoring any of those components, addressing them head on, and I think they're merging them together pretty well. And even [former President Trump's] own lawyers suggested that they were doing a good job with it and conceded that, which is maybe not the way you normally play things. So —and this is something we talked about before, what do you do when the fix is in and it's pretty clear that the jury is going to acquit because of who the jury is? — well, I think you do the absolute best you can with the most thorough and effective presentation you can, and that's pretty much what they've done. 

Josh Barro: There is at least one senator who appeared to change his mind about something. Now I'm not suggesting that the outcome of this trial is in doubt. I don't even know that the senator is going to vote to convict in the end. But Bill Cassidy, who's Republican senator from Louisiana, sort of surprisingly voted in this motion after we had the initial presentations on Tuesday. There was another vote about:is it even constitutional to proceed with this trial?, and you got six Republicans instead of five voting to say that it was, including Cassidy. And when Cassidy was interviewed by reporters after the proceedings, he basically said, 'well, I listened to the arguments and the House managers had the better of the argument.' There were a number of other Republican senators who, even though they didn't vote against the president's interest on that, were critical of the presentation from the president's attorneys being of poor quality. It almost feels like they're trying to test how badly they can perform and still see the president be acquitted. 

Ken White: It does or it's just ...the work you do if you don't care, and it really seemed as if they didn't particularly care. They thought that the outcome was a foregone conclusion, and therefore, you know, why put in the work? And who as a student hasn't at some point just absolutely phoned in a paper and just said, you know, I need to have 500 words on this and these technically are all 500 words and so here it is? There was sort of the scent of that. Now, usually, when you see bad lawyering, that's done when the person is certain to lose. You see lawyers fail in their jobs because they're up against impossible odds, the evidence against the client is overwhelming, whatever it is, and they just go in and phone it in, and it's disheartening. You don't often see this where the fix is completely in favor of the lawyers and they can't even muster what it takes to take a triumphal romp through the evidence that's going to get them to win. They just go in and do it the way you write a paper at four in the morning with a hangover. 

Josh Barro: Speaking of that, I want to play a little bit of sound of Trump attorney Bruce Castor. This is one of the President's several attorneys. Bruce Castor, among other things, was the district attorney of Montgomery County, Pennsylvania, which is a large suburban county. He has a relatively distinguished career of various kinds of lawyering and yet, here is how he chose to present one portion of his argument.


You know, it's funny, this is an aside, but it's funny. You ever notice how when you're talking, or you hear others talking about you, when you're home in your state? They will say, you know, 'I talked to my senator,' or 'I talked to somebody on the staff of my senator'? It's always 'my senator.' Why is it that we say 'my senator'? We say that because the people you represent are proud of their senators. They absolutely feel that connection of pride, because that's not just Pat Toomey of Pennsylvania. That's my senator from Pennsylvania, or Bob Casey, from Scranton. That's my senator.And you like that! People like that. The people back home really do.

Josh Barro: [laughter] So Ken, Alan Dershowitz was on TV on conservative cable news network Newsmax after this presentation from the president's attorneys on Tuesday. Dershowitz's take was: 'I have no idea why he's saying what he's saying.' And in a period when there hasn't been a lot of agreement across the aisle about matters relating to the president's impeachment, there seemed to be pretty universal agreement that Bruce Castor's presentation on the first day of this trial totally sucked. And in particular, sucked in that it was pointless. It wasn't even really an argument. What was he doing up there? 

Ken White: And the particularly aggravating thing about this, Josh, is that this guy's a former district attorney, so he knows how to put on a good show for us, even when it's not necessary because the jury in question is absolutely biased for him. But he didn't. He just went in there and straight up meandered through fields of his own mind, saying things that didn't really have anything to do with the matters before him. He just sort of, you know, drunk grandpa free-associated. And it was, you know, a little alarming, and it made me angry in the sense that this is a super important thing, and in a way, this was sort of flaunting: doesn't matter what I do here, the Senate's gonna acquit anyway.

Josh Barro: One thing that Castor did do [in] substantive comments that he made in the course of this presentation is he admitted several times that President Trump had lost this election. And in addition to being something that Trump doesn't like hearing, isn't that adverse to the president's legal interests in various ways? I mean, isn't the president's argument, for example, about the phone call to the Georgia secretary of state that when he said, 'go find votes,' he wasn't asking the secretary of state to do something illegal because his view was that the real and true outcome of that election was that he had won Georgia. And so he was asking him to go out and make sure and fix the election so that it had been honest, rather than to make it dishonest. So if you have the president's attorneys admitting that he really did lose, isn't that an admission against his interests? 

Ken White: Not exactly because the [former] president was never going to win anything on the theory that it's true that the election was stolen. Where he could win defenses is by arguing that he believed sincerely, if incorrectly, that the election was stolen. So having one of his attorneys admit it in Congress when he could hardly fail to admit it doesn't really move the ball in terms of establishing whether Trump, while on that call, held these deranged beliefs.

Josh Barro: What do we think about David Schoen, the president's other attorney, who at least was more energetic than Bruce Castor?

Ken White: More energetic. Not, again, the level of advocacy one would expect something this historic. More of an indication of the sort of advocacy that you might get if you have a long-term hostile relationship with most of your lawyers, you fail to pay them regularly or reliably, and you hire reliable ones and then quickly fire them when they won't agree to push your nonsense and get new ones at the absolute last minute. Under all those circumstances, then Schoen's presentation wasn't so bad.

Josh Barro: Isn't it a little weird that Alan Dershowitz wasn't there? I mean, I realize there are other attorneys, like Pat Cipollone and Jay Sekulow who had represented the president previously who had various reasons for not wanting to continue that reputation, but it seems like Alan Dershowitz is a person who is eager to go on television and defend the President still, and say what you will about Alan Dershowitz, he's a more capable courtroom lawyer than than Bruce Castor. Certainly. It's a little weird to me. Why isn't he there making a less embarrassing presentation?

Ken White: Well, he said different things about this. He said he didn't want to get involved. I don't recall whether he was one of the ones who claims that he was somehow a witness and therefore couldn't be involved. But I think he may see this as an embarrassment and there is some line, Alan Dershowitz won't cross and we found it.

Josh Barro: [laughter] Two more notes on former President Trump's lawyers before we move on. One is that various news outlets, including CNN, reported that he was displeased with his attorneys' performance and for once, I feel like the president had pretty good reason to be dissatisfied with the people who provided him services and maybe even want to stiff them. CNN said he was 'almost screaming' — I'm not sure what it means to almost be screaming, I guess that means you're not screaming. But you know, at this point, in his defense I assume the president is stuck with these people, right? Would you fire Bruce Castor after that Day One performance?

Ken White: Well, generally, you don't want to fire an attorney in the middle of trial. It's fairly disastrous, but this is not a usual trial and these are not usual circumstances. So given what has yet to come, which is just really argument and not trying to form a bond with a real jury as opposed to a senate jury, then why the hell not? I mean, how much worse could it be by shifting in the My Pillow guy or something at the last minute? So I think when you get to this level, where it doesn't really make a difference, then, you know, let him vent, let him knock himself out over that sort of thing. What harm can it do? You know, I think you could bring in the worst attorney in the world, and you're still going to get the same result, so maybe what Trump should be focusing on is what makes him feel good about himself.

Josh Barro: And then finally, there's one attorney on this team, Michael van der Veen, which, by the way, is a great name. He was suing Donald Trump on behalf of another client as recently as December. What are the rules around that, where there can be someone that you once represented and now that you are adverse to them in a proceeding? Can you do that? 

Ken White: The hard and fast rule is you generally can't be adverse in the same proceedings. You can't be (without the proper waivers) representing both sides of the V [versus]. It's not a problem, necessarily, to represent someone you have previously sued. So unless that's going to get you access to some sort of confidential information that breaches your prior obligations, you can do it and honestly, it's not uncommon for people to hire attorneys who had previously sued them if they thought they did a really good job and were impressed with them. So as long as this isn't a situation where he is still representing someone suing former President Trump and representing former President Trump, setting up a conflict like that, then no, it's not an impediment. 

Josh Barro: Former President Trump obviously is far from the only person with legal problems stemming from the Capitol riots. Zoe Tillman from BuzzFeed News tweets: "federal grand jurors in DC were busy, busy, busy. Per docket entries showing up today, at least 10 Capitol insurrection defendants were indicted yesterday. Some were originally only charged with misdemeanors and are now facing a felony count. For example, Jenny Cudd." I would note Jenny Cudd is the person who's gotten in the news because she requested and was approved for her request to travel to Mexico on a previously scheduled vacation. While she's under a diamond. We'll talk about that in just a moment, but first, the grand jury. We've talked about the extraordinary strain that doing so many prosecutions will put on various parts of the federal judicial system. What about the grand jury? Does the need to process so many indictments, does that overwhelm the grand jury?

Ken White: It can, but they're doing it at such a pace that it doesn't seem that it will. So you have to look at how the grand jury is being used here. Grand juries are kind of classified in two ways as investigatory or accusatory. So if you're investigating, say, Rudy Giuliani, in a case that's going on for years, you're using an investigatory grand jury, and you just bring witnesses in front of them occasionally and sometime way down the road, maybe you ask for an indictment. The far more busy grand juries on a day-to-day basis are accusatory grand juries, and those are the ones where you throw in all the fast breaking cases in front of them and they might see, in the one day a week, a particular group of serving, they might see 10 or 15, or even 20 indictments. And those go very quickly. So bear in mind that the grand jury proceeding here is not like what you might occasionally see on Law & Order where there's a lengthy proceeding. It's, you know: the door swings open, an AUSA [assistant United States attorney] walks in, reads the proposed indictment, calls an agent, the agent summarizes the evidence, and then they say, 'okay, vote,' and it's done. And for something like this, that's pretty straightforward, particularly when the grand jury is hearing over and over cases out of the same core of facts and they don't need to hear all the background where you read over and over again, you can easily get through 10 cases in a day.

Josh Barro: Let's talk about Jenny Cudd, who is going to get her vacation to Mexico. A lot of people are upset about this and think it looks like special treatment for mostly white, right-of-center defendants that are in these cases. Is it unusual or inappropriate to be granted permission to go on a foreign vacation while you're under indictment?

Ken White: No, it's neither unusual nor inappropriate. So bear in mind, federal bail: you're supposed to get bail and be out prior to trial, unless there is no combination of conditions that can assure that you'll come back for trial and that you won't be a danger to the community. So the default is you're supposed to be out, unless there's no way to secure your appearance and your safety. And in terms of the conditions, if you are someone who does not seem to be a flight risk or a danger, then it is fairly routine for there to be something saying, well, normally you need to stay in your state, but you can apply for leave to go on a business trip or a family vacation or wherever. And I know people get upset about that, but that's because people seem to think 'well, it's been accused of crime, and therefore they shouldn't be able to do anything the government doesn't say,' which is just not the law, and no way to run a railroad. So this person is exactly the sort of person I would expect to ask for and get that type of relatively routine exception. What it does highlight, of course, is that the federal system does a little better job of it than the state, but the system tends to make it easier for middle class and wealthy people to get bail and bail conditions than poor people because those conditions that are likely to assure your reappearance tend to be things that rich people and middle class people have and poor people don't. And that's how you wind up with a lot of people in jail for want of $1,000 to post to assure their reappearance. But you know, if you had pretty much anybody, no matter what race and they had a job and they had a stable living place and family in one place, and they asked for that they would likely get it.

Josh Barro: I guess the thing that feels strange about this is that, in theory, pretrial detention is not punishment. It's not for the purpose of punishment. It's, as you note, it's only supposed to be used when there isn't an alternative way to ensure that somebody will show up in court and not be a danger to the community. Now, in practice, pretrial detention functions as a punishment all the time, not just because it is extremely unpleasant but because it's used as leverage to get people to plead to things, right?

Ken White: It absolutely is. You know, the cop saying is 'you can beat the rap, but you can't beat the ride,' the ride being the ride to prison and waiting there until something happens. So it is functionally punishment, it is functionally extortion to make you plead guilty to something even if you didn't do it, or even if you didn't do exactly what they charged you with, or even if the terms they're offering are unfair. And so in that sense, it's punishment all the time. And again, the federal system does a somewhat better job at stopping this than the state system, but it remains the case that the people most likely to be able to offer conditions that will assure that they're not a flight risk or a danger tend to be people with assets.

Josh Barro: We talked previously about Couy Griffin, the founder of Cowboys for Trump. We talked about how he was being held without bail before trial, even though he was only charged with a misdemeanor because he made certain threatening statements after the riot and there was a concern about him being dangerous if he was allowed out. Now he is out, and that was a decision by Judge Beryl Howell and I note that now we've seen Beryl Howell go in both directions in the way that she has overruled magistrate judges. We've seen a case previously, where a magistrate judge ruled that somebody should be allowed out and Beryl Howell said 'no, this person needs to be held.' Now we've seen her do the reverse, where you had a magistrate judge order somebody held and Beryl Howell has ordered this person to be released.

Ken White: Yeah, and that's not unusual, and you can try to flyspeck these two cases and say what exactly is different between them, but a lot of the time it's the judge's gut reaction to the person on some level and how they've acted. Other times it is the recommendation from pretrial services. We don't see the pretrial services report, so that's a big part of the analysis that we're missing. Pretrial services, just so our listeners know, is an arm of the court. They're an agency of the court, kind of like probation, and pretrial services, when you're arrested, interviews you, interviews your family, does a background check and comes up with a recommendation of what they think the bail should be. And because they do it all day, every day from a neutral stance, judges tend to take their recommendation quite seriously.

Josh Barro: Let's take a break. And when we come back, we'll talk about some legal issues facing President Joe Biden. You're listening to All The Presidents' Lawyers.

This is Josh Barro and I'm back with attorney Ken White on All The Presidents' Lawyers. As we tape on Wednesday, President Joe Biden is expected to imminently seek the resignation of all of President Trump's politically appointed US attorneys except for one. David Weiss, the US Attorney for Delaware will be asked to stay on. Weiss's office is investigating financial matters related to Biden's son, Hunter Biden. Joe Biden is also expected to keep special counsel Hohn Durham employed, running the investigation into the origins of the investigation of Donald Trump's 2016 campaign and its links to Russia. But Durham will be asked to step down from his day job as US Attorney for Connecticut. So Ken, first of all, it's normal to dismiss most or all of your predecessor's US Attorney picks. People will remember there was a minor scandal over Donald Trump's dismissal of Preet Bharara as US Attorney for the Southern District of New York. That was only scandalous because Trump had initially said that he was going to keep Bharara on and then he decided later that he was dissatisfied with him and terminated him. But it wouldn't have been scandalous or odd if Trump had decided initially to dismiss Bharara, along with all of the other Obama US attorneys, and similarly here, it's normal that Biden is sending all of these people away.

Ken White: Yeah, there's a minor scandal over that, there was a minor scandal over President Obama dismissing US attorneys, there was a minor scandal over President George W. Bush dismissing US attorneys. This goes back as long as I can remember. We don't seem to have a great object permanence or long term memory about this sort of thing, because the same issues seem to come up again and again, and the same dumb arguments made about them. 'Oh, this is terrible, look how he's reworking the system,' when every president does it.

Josh Barro: What do you make of this Delaware move? I assumed that Biden was not legally obligated to keep David Weiss in place overseeing this investigation of his son but it's the sort of norm-following effort to avoid the appearance of impropriety that you would have normally expected in the pre-Trump era.

Ken White: Right, exactly. I think it's bending over backwards to appear fair and appear to respect the system and, you know, we will trust this process to take place and we won't do anything that interferes with it to avoid the appearance that I'm interfering with the investigation of my son. Very norm-following, very old school, and to the extent that he wants to avoid any criticism, completely futile, because you know, you're really stuck here between the argument 'oh, the fix must be in, that's why he's hanging on to this guy and the price for hanging on to him will be to get rid of the investigation' versus 'oh, he fired him, he's clearly trying to impede the investigation.' So, from the crazy Qanon crowd from that wing of the Republican Party, nothing he can do in this situation will be satisfactory. But I think this will be broadly seen as a responsible norm-following attempt to build back up a little bit of respect for the rule of law.

Josh Barro: President Biden's brother Frank is not a lawyer, but he is a "non-attorney senior advisor" at a Florida law firm called the Berman Law Group. The Washington Post reports: "as President Biden enters his third week in office, the firm where his brother is a non-attorney senior advisor has aggressively touted his ties to power, emphasizing the brother's connection, declaring that their values are aligned, highlighting Biden's policies as it advertises its services, and generally playing up Frank Biden's role even on cases in which he is not involved." So this is sort of, like, classic Billy Carter, Roger Clinton kind of stuff, it feels like to me.

Ken White: I was just about to say, it seems as if one of the hallmarks of a modern president is an embarrassing brother and this seems to be that sort of thing, where Biden isn't doing anything wrong, but he's got a brother who's going to do things that are going to embarrass him by creating this appearance of attempting to curry favor and trade on the name of the president. So I'm sure that it's gonna make for some awkward family gatherings.

Josh Barro: The Justice Department has dropped a lawsuit against Stephanie Wolkoff, who was a former top aide to former first lady Melania Trump. Wolkoff wrote a tell-all book that Melania was very angry about. The Trump DOJ had been suing her for violating a nondisclosure agreement. So one thing I think that is interesting about this is we've talked about a number of these legal cases, including the E. Jean Carroll defamation case, the John Bolton case about not going through the full preclearance process when he wrote his book about serving in the Trump White House, where you might expect to have a continuity of legal interests between administrations, even though they disagree maybe on the particulars of certain facts and how they feel about certain people, there are legal prerogatives of the executive branch that these lawsuits are intended to preserve and promote, and that therefore the Biden Justice Department might be reluctant to reverse some of these legal actions. But here we have them doing that. Is that because, I mean, Trump had this weird penchant for non disclosure agreements and forced a lot of people in his White House to sign them in ways that wasn't clear that they were legally binding, so is it just that, you know, the idea that the First Lady's aides have some obligation not to disclose non classified information, that's not a key legal interest that the Biden ministration feels the need to to protect?

Ken White: Right, I mean, this lawsuit was widely perceived as Trump and Melania Trump using the Justice Department to attempt to vindicate a private interest and not a public one, to basically come in and strong-arm a private dispute between the First Lady and a member of her staff. And this seems to be the Biden White House agreeing that it's not really something that the Justice Department should be involved in.

Josh Barro: But so John Bolton should maybe not take too much comfort in this. 

Ken White: No, and indeed, I think the circumstances suggests that he shouldn't, because there hasn't been any change yet to his case, and I think while we may be seeing more of these types of things, we don't seem to be seeing any movement in that one or a few other key ones where there were genuine arguments about whether or not the person broke the law.

Josh Barro: President Trump has moved down to his club at Mar-a-Lago. And there's been this ongoing question about whether that's legal, whether a residential use of this property is permitted. Decades ago, when former President Trump converted the former Merriweather Post mansion into this private club, his attorney had made a promise to the town of Palm Beach that he wouldn't live there, that he would just would have access to the rooms at the club like any of its members, but the members were only allowed to stay there 21 days of the year, and so certain residents of Palm Beach had been pushing that the town should try to prevent Donald Trump from taking up residence in this nonresidential property. But the Palm Beach town attorney has now issued a letter in support of President Trump being able to make his residence there. And what the letter basically says is that former President Trump's attorneys decades ago had made a verbal promise that he wouldn't live there, but that's not binding. It's not part of the contract. It's not part of the agreement. And so basically, that promise, former President Trump doesn't have to follow it.

Ken White: Exactly. And this is something all contract lawyers know about called an integration clause, and it's basically a part of a contract that said, 'look, this contract, the four corners of it, this is the deal, and if anyone outside promised you anything else, or said anything else to you, don't rely on that, because that's not part of this deal.' And the town lawyers quite correctly saying that these side agreements anyone may have made, are not binding or not contractual. But more interestingly, the town attorney and the town seem to be buying into an argument that Trump is making about why it's okay for him to stay at Mar-a-Lago despite this contract saying, nobody will live there more than seven days. And that argument is that former President Donald Trump is a Mar-a-Lago employee, you know, like, chauffeur or a scullery maid, and there's a provision in there that no non-employee people may live in the premises. This is pretty clearly intended to let them have certain employees be able to live on the premises to more easily serve the guests. And so now, Donald Trump is just under the employee clause. So, you know, presumably he keeps that up, you know, he sweeps the porch a few times a week, you know, maybe serves drinks, and he's gold.

Josh Barro: Well, but I mean, prior to being president, he was sort of like a glorified maître d' at Mar-a-Lago. My understanding is that he really was engaged in customer service, they're going around and greeting all the members not just as a purely social activity, but as part of what's appealing about the clubs. So that actually sounds pretty plausible to me, that he is, you know, actively engaged in a work manner in his time at Mar-a-Lago.

Ken White: Yeah, I mean, I make fun, but it isn't implausible at this type of rich person's club. There is usually some sort of general manager whose job it is to go around and gladhand: 'oh, good to see you again, let me meet your guest, let me tell your guest about this great club we have here, let me flatter you by recognizing you and recognizing your spouse.' And you know, that's a very typical PR function at one of these places. So it is in fact plausible.

Josh Barro: Donald Trump has also avoided some government trouble with another one of his businesses, the parliament in Scotland has decided not to urge an investigation into the finances of his Scottish golf courses. He owns two of them. Nicola Sturgeon, who is the First Minister of Scotland, has said that the law enforcement officials need to make decisions about that, not politicians. I'm wondering, and you know, this seems like it would apply more abroad than in the US, but now that Trump is not president anymore, some of the vigor and interest in pursuing investigations of him might fade a little bit. I don't know about in the United States, but certainly in Scotland, I can imagine people just wanting to spend less of their time thinking about Donald Trump.

Ken White: As would we all. But yes, I think that's true. And I think the cachet of standing up to him has probably diminished substantially, as he's now no longer president.

Josh Barro: Georgia Secretary of State Brad Raffensperger is officially investigating that 'find the votes' phone call that we mentioned earlier in the show. Also, the Fulton County District Attorney, that's the county where Atlanta is located, has opened a criminal investigation into the call. How much should the former president worry about that?

Ken White: It's hard to say yet, and it's hard to say how much of that is real and how much is sort of performative and wanting to impress a somewhat small segment of voters there. So there, there are problems that we've talked about before with proving up something about that call and they have to do with whether or not President Trump's mental state really was to try to demand fraud or whether it really was pursuing evidence that he sincerely irrationally believed might be out there. So an investigation doesn't surprise me but let's check in again, once they've made a decision about whether they can prove his requisite fraudulent intent here and see what they do with that.

Josh Barro: Smartmatic has filed lawsuits against Rudy Giuliani, Sidney Powell, Lou Dobbs, Maria Bartiromo, Jeanine Pirro and the Fox News channel. We talk a lot about the Dominion Voting Systems lawsuits — Smartmatic has this extra layer where they didn't even do business with the places where the fraud has been alleged. So does Smartmatic have an even stronger position than Dominion in that case, because the belief that Smartmatic was engaged in a fraud conspiracy is even less reasonable than the belief about Dominion?

Ken White: Yes, I mean, to the extent factual statements that are literally impossible were made, that improves their hand in attempting to prove defamation. So if they're saying that, you know, they use their machines in this state, and there weren't machines in this state, that makes it even tougher. Smartmatic has some international ties that Dominion doesn't, that are freakishly twisted out of context and away from the truth, to spin up some of these bizarre theories. So on those, it might be a little harder. But on the main, it's a stronger case for defamation.

Josh Barro: Sidney Powell also has trouble in that Gretchen Whitmer, the governor of Michigan and the state's secretary of state and attorney general are seeking sanctions against her in court there. She has doubled down in a response to this, insisting that her conduct was appropriate. We talk a lot on this show about how bad conduct (unless you are stealing client's money) it's really difficult to get in trouble for your conduct as a lawyer. Has Sidney Powell crossed that line?

Ken White: Yes. And that's very unusual to say. So I think that her array of behavior is simply so historically bizarre and so shocking, that it's a sort of thing that will push a judge into putting their foot down and saying, 'okay, this? This gets sanctioned.' 

Josh Barro: And then finally, before we go, Long Suffering Federal Judge Emmet Sullivan is no longer so long suffering — or is about to not be so long suffering. He is going to take senior status as of April. So that means that you're, like, semi-retired as a judge, and you have some flexibility about how much judging you want to continue to do. Is that something that he probably did because now there's a Democratic president who can appoint his replacement? Should we expect more of the judges that we have focused on on the show to be doing that in the coming months?

Ken White: I think so, yes. I think that judges are going to be thinking, 'oh, thank God. Now I can stop doing this,' and take senior status, which, as you point out, means that you kind of choose how many and which cases you take. And certainly he put in his time, both before and during the whole Trump era. And I think you'll see sort of an acceleration of those for a while, as is usually the case when a new administration from a different political party takes power.

Josh Barro: There's much more to talk about, but I think that's a good place to leave it this week. Ken White:, thank you 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 @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 All The Presidents' Lawyers.



Sara Fay