When you’re surprised anyone is surprised

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Former Montgomery County District Attorney Bruce Castor shares a laugh with a person (not in photo) as he leaves Montgomery County Courtroom A after spending all day on the witness stand in a pre-trail hearing for entertainer Bill Cosby and his sexual assault case in Norristown, Pennsylvania, February 2, 2016. Castor testified on Tuesday that he decided in 2005 not to bring charges over the Constand allegations. Photo by Clem Murray/Reuters.

Last week, Josh Barro and Ken White talked about the very normal legal team defending President Trump in his impeachment trial. Well, one week later, the entire team is gone and a new set of lawyers has come in. So, who are they? Are they good lawyers?

Ken and Josh analyze the arguments in the briefs from the House impeachment managers and the response from Trump’s lawyers. Then: the New York Times reported on how much money President Trump spent on legal efforts to contest the election, and it looks like he took the PR strategy more seriously than the legal strategy. It seems to have worked as a fundraising strategy too.

Plus: Kevin Clinesmith’s sentence, the Lincoln Project isn’t happy with Rudy Giuliani, Lin Wood’s in trouble in Georgia, listeners have follow-up questions for Ken on the capacity concerns of prosecuting all the Capitol rioters, 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 formerly known as All The President's Lawyers, about all of President Trump's legal issues and other people in his orbit. But now it's All The Presidents' Lawyers because it's about all the legal issues of at least two presidents, former President Donald Trump and President Joe Biden. All presidents have legal problems, some of them have more legal problems than others.

My co host is Ken white. Ken is a criminal defense attorney and former federal prosecutor who writes the Popehat Report, which you can subscribe to on Substack Hello, Ken.

Ken White:  Hello, Josh.

Josh Barro: The President is preparing for his impeachment trial next week. We talked last week about how he hired two lawyers who seemed surprisingly normal: Butch Bowers and Deborah Barbier, prominent attorneys in South Carolina. Bowers has represented governors including Mark Sanford when he faced possible impeachment when he was governor of South Carolina. So these seemed like good, qualified normal choices. How is that going, Ken? 

Ken White:  Yeah, they're gone. So President Trump did hire two very normal-seeming, professional lawyers. And they came to an agreement no longer to be his lawyers in a move that was completely unanticipated and a surprise to anyone who hadn't paid close attention to the phrase: "Trump hired two professional, normal-seeming lawyers." He fired— or the lawyers agreed to leave, there were actually a number of the more than two —and now [Trump] has completely cleaned house only days before an impeachment trial and come up with a new team.

Josh Barro: And so this new team, the new lawyers are David Schoen, and Bruce Castor. Now, David Schoen used to represent Jeffrey Epstein. And a lot of people have been snickering at that. But if you're a big-deal criminal defense lawyer, isn't Jeffrey Epstein kind of a big get? Isn't that like representing OJ? 

Ken White:  Well, sure. And I mean, a lot of criminal defense attorneys make it a habit of representing very big names, who will get their names in print and get them on TV. It's sometimes like a lost leader, you don't make money off of it, but you get attention off of it. And that brings you more clients. And to be fair, someone who has successfully dealt with someone like Jeffrey Epstein — well, maybe successfully is pushing it — probably has some practice in dealing with, you know, high profile, very difficult clients. 

Josh Barro: And so one thing that we've seen this week is we've seen David Schoen on television, and I gather, that was one of the concerns that the president had about his prior set of lawyers, that they seemed interested in preparing for a trial rather than going on TV to defend the president's actions, whatever they were. And so I guess, you know, is that you have to do what the client wants, right?

Ken White:  To some extent, well, you don't have to, you can quit if you don't like what the client wants. And we've seen this happen with a number of Trump era figures where the lawyers just had enough and got off the train. But sure, ideally, you're going to come to some sort of meeting of the minds with your client about strategy. And that's either going to be persuading them of the strategy you think is right, or deciding to live with a strategy that they want to pursue. And either here there is a meeting of the minds or Mr. Schoen decided that he would live with Trump's strategy.

Josh Barro: His other attorney Bruce Castor, was formerly a politician. He was, among other things, the district attorney of Montgomery County, Pennsylvania, and in the the reply brief that we've gotten from the president, we've seen the brief from the House managers about all the things the president did wrong and why the Senate should convict him. And then there's been a response brief from the president's attorneys saying why he should not be convicted. And I would note this brief, it is signed by Bruce Castor. Now, both of the names are on the signature block, but should we should we assume that this is sort of the division of labor that David Schoen goes on television and Bruce Castor is the one writing this memo about why the president should not be convicted?

Ken White:  You know, I don't know, I'm sure they both had a hand and both reviewed it. I will say this about the president's brief: it is not completely crazy. So I mean, it advances Trump's theories which include things like, you know, you can't convict for impeachment someone who's no longer president, and the First Amendment protected my speech. But it is not as pants-on-head crazy as one might have expected. It does not assert Trump's viewpoints about the election as aggressively as Trump has himself done in the past and is not the sort of brief you'd expect from say, a Lin Wood or Rudy Giuliani. It is somewhat measured in making its arguments that are now familiar Trump arguments. 

Josh Barro: Before we get deeper into that reply brief, I want to talk a little bit about the brief from the House impeachment managers saying that the president should be convicted. Is there anything surprising in that brief because this is kind of an odd impeachment process for a number of reasons, but one of them is that this action over which the impeachment has been brought happened in front of everyone with tremendous attention paid to it by everyone that happened in the Capitol building as the members of the Congress were right there. So I wonder a little bit about whether there's less to argue than there normally would be. It's pretty self evident what happened, and you can reach your conclusion about whether the president should be convicted for it or not. But so when you went through that brief from the House impeachment managers, were you surprised by anything?

Ken White:  Not really. So it was a thorough, very capable, very straightforward exposition of the case. And the thing we have to keep circling back to here is that impeachment, and then conviction on, you know, impeachment charges in the Senate, are political decisions and not legal ones. And House managers very, very much had that in mind. It's stating a legal case for impeachment, but only in a way that gives a plausible political case for impeachment. It is very self conscious that it needs to make a political case, it is very self conscious that the Senate decision is not inherently a legal one, but an exercise of constitutional political power. And it does a very capable advocate's job of setting up the case in both legal and political terms. So there's nothing surprising in there. It's just a well written, straightforward brief. And, you know, it reminds me of what I have to do sometimes as a lawyer and what I teach young lawyers to do, which is, you know, you have to sometimes make the case as strongly as possible, even though you know you're going to lose, and that's the job as a lawyer. And that's very much what they've done here is to make the maximum bets case on something the Senate is certainly going to vote against.

Josh Barro: So the arguments that are made in the president's reply brief: one, of course, is that you can't try a former president in an impeachment trial. We've discussed that at length over prior weeks and sort of the balance of legal opinion that's on the other side of that that says you can, and part of the reason is that otherwise the the power in the Constitution, to prohibit someone who has been impeached and convicted from holding future office, that power would not be very meaningful if the defendant in the trial could defeat it simply by resigning before the trial was concluded. But I want to talk about some of the other arguments that the President's attorneys raised in his defense. And one of them, first of all, is that the President's remarks and by and large what the President is accused of doing, he's accused of doing by speaking, including by speaking before this crowd of his supporters and urging them to go to the Capitol and fight. They say that his speech was protected by the First Amendment and you can't punish someone for their First Amendment protected speech. So does that apply to impeachment of Congress, you know, that you can't be thrown in jail for protected speech? So first of all, is what the president engaged in here was protected speech? And I guess that's a separate question, but if it's protected speech, does that include protected from impeachment and removal over that speech?

Ken White:  The vast weight of commentary and legal authority suggests that's not the case that the First Amendment doesn't protect you from impeachment. I mean, the First Amendment is, first of all, just philosophically, a limit on government power against the individual and impeachment is really a limit on government power. And so it's a little strange to try to limit it by the First Amendment in the first place. Second of all, it's clear that high crimes and misdemeanors as imagined in the impeachment clause is historically and meant to be and in practice more than simple violations of criminal law. And you can imagine a lot of scenarios where it would be ridiculous if the president couldn't be impeached for things that are protected by the First Amendment like for instance, you know, advocating the communist overthrow the United States government, or going on wild racist tirades, or anything like that.

Josh Barro: So wait, hold on hold on, advocating the violent communist overthrow the US government is not protected by the First Amendment. You can be... 

Ken White:  It depends on how it's said. So, basically, there's a whole lot of things you could do that are protected by the First Amendment, but that you can be impeached for and you know, we've seen historically cases of judges having their impeachment be in part based on extremely intemperate behavior that would another context be protected by the First Amendment. You know, the Andrew Johnson impeachment included references to speech that was protected by the First Amendment. So it's an argument that's a minority view, but really not one that's widely accepted or respected. 

Josh Barro: One thing that's also discussed in this brief is one of the things the president said that was that was viewed as part of the incitement was we 'won this election, and we won it by a landslide,' which is something that he said on January 6, and the reply brief denies that this statement was factually in error. Now, I would note, that's not the same thing as saying that the statement was true. And you talk about this brief avoids fully defending the president's conspiracy theory claims about what happened in this election. So what would it mean for that statement not to be factually in error, besides for it to be a claim that the president, in fact, was the landslide winner of this election? Is the idea that this statement was, you know, pure puffery, and really not a factual claim at all about the election result?

Ken White:  Well, there are a little cagey about that, aren't they? It seems to be a combination of things. It seems to be a statement that it was you know, puffery and rhetorical hyperbole, it seems to be a statement that well, even if it's not literally factually true, there was a basis for him to argue that it was true, and he didn't say it, you know, believing it to be false. And so it's kind of mishmash of a variety of different legal issues into there. But again, the problem is that you're not dealing with a purely legal issue, you're dealing with a political one. One thing that I think that the president's reply does a decent job of doing is pulling apart the different statements cited in the article of impeachment, and this is a classic legal trick, looking at each one very separately and saying, 'well, this isn't so bad, this isn't so bad, this isn't so bad,' when clearly the import of the article of impeachment is how these things all combined together to form something that is arguably actionable incitement, even if measured on the First Amendment. And so that's kind of what's going on here, when in reality, the way any court that was, you know, hypothetically, looking at something like this to see whether or not Trump's speech was incitement outside the protection of the First A mendment would be to look at it as a whole in the complete context. And that includes the context of what happened before, what he knew about the crowd that was in front of him and what he told him before, and what the crowd had said recently about violence.

Josh Barro: Another thing that brief says is that the president's due process rights were violated in various ways, including because they didn't have impeachment hearings. Now, obviously, it's very unusual to have no impeachment hearings before approving an impeachment in the House of Representatives. But is there any constitutional right for there to be a hearing before you're impeached?

Ken White:  No. And in fact, it's pretty clear that that is a non justiciable political question that courts would not get involved in. So you know, in the past, some litigants have tried to argue that some element of the impeachment process isn't fair. And the courts shut that down. So you know, that's up to the Senate, how they want to do it, and what process they think is adequate. 

Josh Barro: But it is the important thing here in terms of making the argument in this brief, whether that's non justiciable? I mean, it isn't part of the idea when the Constitution sets out certain things that it directs the Congress to do and the courts say, well, Congress is the arbiter of how to apply this provision of the Constitution, that doesn't mean that anything that the Congress does is equally correct, right? Congress is supposed to have some sort of duty to follow the rule in the Constitution, Congress basically has the duty that the courts might have, in other cases to interpret them. And just because the courts not going to stop you doesn't mean that every possible interpretation is right. Now, I look at the impeachment provisions in the Constitution. I don't think they create any obligation to have a hearing. But I'm slightly concerned in general about this idea that, you know, just because the courts aren't going to intervene, that means that Congress may do wh atever it wants. There's a difference between that and that the Congress will be able to do whatever it wants.

Ken White:  Well, sure, but I mean, if you say due process applies and due process wasn't followed here, you have to be referring to some sort of shared understanding of what due process is and that's based on courts and on interpretations of the due process clause and what courts have said about it. They've never said any of that about impeachment proceeding. And there's very notably no real authority cited here for what due process somehow specifically requires. So, you know, again, we keep coming back to the idea that this is a political proceeding. And these are arguments trying to import legal norms into a political proceeding. 

Josh Barro: One argument that I actually don't see in this brief, but that we've been expecting to hear from the president's attorneys, is that the rioters had pre existing plans to sack the Capitol building — that they didn't just get whipped up at the White House and go and commit this right? That they had not intended.... they showed up in Washington intending to do this and therefore, the president didn't incite them. And so that, that seems like it would be a plausible argument in a criminal proceeding, right? If you're incitement has to be intended and likely to cause imminent lawless action, so I guess then we'd be focused on the word cause there, right? If the crowd was going to do this anyway, then you didn't cause them to do it with your speech. So is that is this an important defense for the president to raise? 

Ken White:  Not necessarily. So first of all, it's kind of a politically unappealing argument, because it's basically saying, my supporters are such lunatics that I don't have to incite them, which doesn't really move the ball in the direction of this is great. Also, I mean, incitement is a crime if it satisfies the constitutional test, even if it doesn't actually result in violence. So it doesn't have to be incitement that worked. It just has to be incitement. It's the same, it's similar to a threat in that sense, if you threatened to kill somebody in a way that a reasonable person would interpret as a genuine statement of intent to do harm, it doesn't matter whether you intended to carry through or whether you do carry through the threat is the crime. The same with incitement. It doesn't matter whether or not it actually happened. Whether or not actually happened may be an element of proof as to whether or not it's likely to cause imminent lawless action. But it's not necessary. Also, I think, if he got if they got into that you'd get into the weeds about, okay, well, how many people there came in intending to do violence no matter what, and how many people were moved to violence as a result of the speech? And what's the mix? A nd just none of that looks good for president, former President Trump. And none of it really makes a whole situation less outrageous. I mean, the the gist of it, the Gestalt of the whole thing is that there were these extremely violent people who attacked Congress in support of former President Trump, and arguments about how, well, he had already basically riled them up before they got there so this particular speech isn't what incited them, I don't think is very persuasive. 

Josh Barro: One thing that has gone relatively well, for former President Trump over the last few months is fundraising. And they have fundraised off of these allegations that the former president made that the election was stolen from him, they took in over a quarter of a billion dollars in November and December, which is unusual. Normally, you do not raise a lot of money after the election that you've lost. And they only spent about 80 million of it. So you have these entities that have held on to quite a bit of money, and that the associates of the former president will have the ability to decide how to spend in the future. The New York Times dug into how the money was spent that was spent and about 50 million of the spending was for advertising and text message outreach. And then only about 10 million of it was actually spent on legal costs related to the election contest itself. And we've seen a breakdown of some of that spending $1.6 million to the firm Kasowitz Benson Torres, $500,000 to Jones Day, which is a law firm that does a lot of business with Republican campaigns generally, $600,000 to Dechert; there was a lawyer, Kurt Hilbert, who was on that infamous phone call with the Georgia Secretary of State: his firm got nearly half a million dollars. Three million to actually do the recount in Wisconsin. What we did not see was a payment to Rudy Giuliani for his services. He only got about $64,000 in travel reimbursements. So you know, Giuliani, whose associate requested a fee of $20,000 a day for him, looks like at least directly he's not making any significant amount of money off this.

Ken White:  Yeah, I mean, we all suspected when this all was going on, and we were all talking about how much money was flowing in that this is the way it was gonna go right? That this was not actually going to go to legal things, but it was building up some sort of war chest. And to be fair to Trump and the people involved in his fundraising, the fine print was pretty clear that they got to use it the way they wanted to use it, but only certain parts of it would actually be used for contesting elections. And so I would be surprised if anyone is surprised. So my sense is that even the people who are sending money were doing it more in a sort of 'my life for you' gesture of devotion to Trump  and less as a really specific 'okay, I actually specifically think this is going to be used in this way.' So, you know, they, I think they got what they paid for.

Josh Barro: Rudy Giuliani also making some noise. He has a new aspect of the conspiracy theory about the voting machines in the election theft and he says that the Lincoln Project, the anti Trump political group was in on a conspiracy with Dominion to rig the machines so that Trump would lose this election and then the Lincoln Project, after Giuliani said this, responded with a letter threatening to sue him for defamation. Now, there's been a lot of defamation threats here, there have been some defamation lawsuits filed. We've discussed on this show how Dominion Voting Systems is in an unusually strong position to actually make and quite plausibly win defamation cases because the statements that have been made about Dominion are so wildly ridiculous, and also quite clearly damaging to his business interests. But what about the Lincoln Project? Does the Lincoln Project have any damages if Rudy Giuliani goes out and tell some lie about them being involved in an election conspiracy? How does that harm the Lincoln Project? 

Ken White:  I just don't think it does. I mean, first of all, you have to look at the context. So Rudy Giuliani is being interviewed by Steve Bannon. Steve Bannon. And Giuliani says they have some sort of secret informant witness who has this information about the Lincoln P roject, and Steve Bannon calls him out: "what are you talking about? What are you talking about? Well, what do you what do you mean, here, you've got to have some sort of explanation of that." I mean, too crazy for Steve Bannon is pretty BLEEPing crazy. Just have to say, so even the person who's interviewing him immediately expresses extreme doubt. The thing is, I I find it extremely difficult to conceive of anyone who used to support the Lincoln Project, monetary or otherwise, seeing this exchange and saying, 'oh, well, I'm gonna stop supporting them now, I'm not going to do business with them, I'm not gonna send them donations, whatever.' I mean, who is this hypothetical person who exists? So I don't think they have actual damages. Could they have you know, nominal damages, you know, $1, something like that, I suppose. But I frankly am put off by and disappointed by the Lincoln Project's decision to trade on this and sort of fundraise off it, frankly, and send a threat letter to Rudy Giuliani. Has Rudy Giuliani been responsible for years of lies and some of it defamation that actually has hurt people? Absolutely. But the Lincoln Project isn't getting hurt here. It's getting money here. This helps the Lincoln Project and for them to go, I mean, for them to publicly bash Rudy Giuliani and call him out as a liar and use it as an opportunity to illustrate all the places where he's been a liar? That's great. But to threaten more performative litigation, that's just disappointing. I don't think they have actual damages. And if it came down to the merits of the case, the question is, would any rational human being observing that exchange come to the conclusion that there is actually something factual, some evidence of the Lincoln Project doing that and I find that rather dubious because defamation analysis presumes we're talking about an audience that is familiar with, with the context: familiar with Steve Bannon's show, familiar with Steve Bannon, familiar with Rudy Giuliani. And the question is, does any such person — assuming that they're awake right now and not like drunk — do they really understand that as a statement of fact as opposed to blustering, posturing and bleep-talking and I kind of doubt it. 

Josh Barro: Let's take a break. And when we come back, we will talk about investigating the investigators. 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. So there was this much ballyhooed investigation into the origins of the investigation of the Trump campaign and its links to Russia during the 2016 campaign, and there was one criminal prosecution that came out of this: Kevin Clinesmith, who was an FBI lawyer pleaded guilty because he doctored an email as part of an effort to obtain a warrant as part of this investigation. And now Kevin Clinesmith has been sentenced, and he was not sentenced to any time in jail. He got one year of probation, and he has to perform 400 hours of community service. Ken, I guess I have two questions about this sentence. Does it surprise you? And is it fair? 

Ken White:  So it doesn't surprise me at all. This is somebody with no criminal record, who did something dishonest that probably didn't have a substantial impact on the way things happened, who then pled guilty to a false statement type crime. It's a very typical sentence in that circumstance. It's the type of sentence that you might have expected someone like, say, General Flynn to get if he had gone straight to sentencing instead of you know, successfully campaigning for years for a Trump pardon. It's very much the type of thing you see in such 1001 guilty pleas and sentencings all the time. Is it fair? I think it's fair if you're comparing it to the context of other people who do similar things who get prosecuted similarly. It's a very middle-of-the-road type sentence for someone like that. You know, you can make an argument it's not fair because people with, you know, who didn't work for the government who don't have the same resources, who are poor, who do similar petty things wind up spending time in jail, maybe because they can't afford bail. You can say it's unfair in that sense that it's so lenient, but if you're comparing it to all the 1001 false statement cases out there, then yeah, it's fair. It's it's what you expect.

Josh Barro: WSB, which is a television station in Atlanta, is reporting based on a source in the Georgia Secretary of State's office that attorney Lin Wood, who is one of the conspiracy theorists behind the Dominion claims, that he's being investigated for having voted in Georgia when he was not a resident of Georgia. And this is based on a statement that Wood made about himself having actually been domiciled in South Carolina. So I'm wondering what what you make of this. Now, I mean, this, you know, first of all, this is something that that's coming out, basically as a leak. But my understanding has been that, you know, you vote where where you are a resident, and being a resident is sort of an emotional state in a lot of cases, it depends on your your intent to return. And that, in general, people are given a lot of leeway to say where it is they live, so long as they're only voting in one state, or voting in one location, excuse me. So my you know, is this something that Wood might actually be prosecuted for and successfully prosecuted for? 

Ken White:  So the law on this varies from state to state. The exact definition of, you know, what your mental state has to be for you to live in a particular place to vote there. And then the mental state required for it to be a crime if you vote someplace else, so, you know, I'm not gonna speculate too much on what Georgia law is other than to say that, yes, people get prosecuted for voting in a place where they said they don't live. But there's often a defense where someone will come back and say, Oh, well, you know, living means different things for different purposes. And when I talked about having moved to South Carolina, I didn't mean in domiciled sense or something like that. But this is a very good example of a theme we've been talking about for a long time is for Trump people, saying things that get them in trouble because they don't fully consider the legal implications of those things, you know, running their mouth and then finding out in court whoops, maybe I shouldn't have said that. It's also, frankly, concerning that they're just ongoing leaks like this. This is not the sort of thing that should be investigated in public. The leak is troubling, and it's not the only troubling thing happening to Lin Wood right now. And if I may, we also saw reports this week that the state bar in Georgia has demanded that Wood have some sort of mental health evaluation as a condition of retaining his law degree now. Lin Wood, to me, is clearly mentally ill. And you know, we've all made jokes about it, which is maybe not the best thing we could do. But it's really disturbing to have the state bar admitting this and being open about it, and basically saying, 'yeah, that's right. We're making him do that.' That's not something that should be done in the open, help stigmatize mental illness, it's a private proceeding, that absolutely the state bar should not be putting out there. So as much as I think that Lin Wood is a legal train wreck, and should face a lot of consequences, I'm a little disturbed by these entities doing this sort of thing in public.

Josh Barro: I want to talk some aabout the ongoing aftermath of the Capitol riot and the prosecution's that are going to flow out of that. Now, first of all, we got a lot of listener responses about your comments last week about there being a very real capacity issue that would make it difficult to prosecute hundreds and hundreds of people for their involvement in this riot. And a lot of the questions were sort of of the "really?" nature. I mean, I guess that to start from the top, like, we created a whole special court in Guantanamo Bay, because of a, you know, very difficult legal situation that arose from a particular circumstance that we were in. And so if we can have this court, you know, somewhere that's, you know, only really sort of US soil, and that has all these resources involved, why can't we marshal the legal resources to bring this set of prosecutions? I also had someone point out, you know, it's not just there's a courthouse in Alexandria, but there's, you know, in the Maryland suburbs you can bring judges and prosecutors in from Baltimore, from Wilmington, you can have joint state-federal prosecutions, can't you rent out spaces to use as makeshift courtrooms? So why, you know, if this is important, can't the government just, you know, marshal the personnel, marshal the resources from from other courts and from other staff in order to do this?

Ken White:  Well, sure, they could. I've never said they couldn't. The point is, people dramatically underestimate how big, difficult and historically unusual it would be. So you know, the Gitmo example: Gitmo since 2001 has had fewer than 800 people, and they're not doing real trials, so the analogy of 'hey, so we can then pull it off, add 800 new people and double the capacity of this court in one year,' is not exactly getting what the difficulties we're dealing with here. Everything you're talking about is making pretty dramatic changes to the system. Now, could we decide that this is so historic and important that we should make those dramatic changes to the system? Sure, we could. And I mean, you know, we've dramatically ramped up resource production and allocation to fight disasters and wars and things like that and we couldn't do it here. But everyone who's just saying, 'oh, it's simple,' just doesn't get how hard it actually is. And it stresses every single part of the system and a lot of people don't grasp how many parts there are. So it's not just a matter of more prosecutors. It's a matter of more defense attorneys, more judges, more judges' staff, more pretrial services, more probation officers, more US marshals, tons of people who generally aren't visible in the system, many more courtrooms and, and so on and so forth. And yes, there would have to be special authorizations for some of that, that would probably require legislation that goes beyond the authorizations there already are. And it would be a very big deal. Now, I think that we absolutely should pull out all the stops to prosecute more people than we normally would here because it's such a historic and dangerous violation. But I also think that a lot of this is a classic example of 'I don't know about it, so how hard can it be?' That just drives me crazy. And you know, everyone making suggestions, I'm sure sees that happened in their own field of expertise and it drives them crazy, too. But it would be completely unprecedented in federal court history, and maybe it should be done anyway. But you shouldn't underestimate how hard it's gonna be. 

Josh Barro: So when you say, if we decide this as a priority and we want to do this extraordinary thing, we can, who is 'we'? Is that the attorney general? Is it a group of people at the Department of Justice? Is that something that President Biden would weigh in on directly? Will we need legislation from Congress in order to do a significant amount of this stuff, who makes that decision about whether to do this, this extraordinary resource allocation to do all these prosecutions?

Ken White:  So within the framework of existing regulations and laws, it's going to be the US Attorneys for the particular districts, probably in consultation a lot of time with the chief judge of the particular district. To the extent extraordinary measures are needed, it's going to take at least main justice, and maybe congressional action. Depends upon the scope and the particular nature of the additional resources that are needed. So it will be interesting to see how a, you know, somewhat divided Congress would react to requests for more allocations for this, given that the Democrats want to emphasize how terrible this is and the Republicans generally are trying to play it down. But probably to gear up to genuinely double the capacity of this federal court in a very short time is going to need some congressional action.

Josh Barro: To talk about one of these specific cases, Couy Griffin, who is the founder of the Cowboys for Trump group. He was arrested and charged with one misdemeanor count of illegal entry, didn't actually get inside the Capitol building but got inside a perimeter which he was not supposed to cross. A DC magistrate judge has agreed with the government that he should be held pending trial. This case is interesting, because he hasn't been charged with a felony. He's only been charged with this one misdemeanor, but on the other hand, after the insurrection, he posted on social media that he was going to return for inauguration day that there would be blood running out of the Capitol Building. So I guess this is a demonstration that even if you are not charged with a crime that carries the possibility of a really long sentence, making threats like that is not a good idea in terms of your pretrial release?

Ken White:  Absolutely, because the rules for bail cut both ways. So remember, the basic rule for federal bail is the presumption is you get bail unless there's 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 there's a presumption. But on the one hand, you can still get bail even if you're accused of really serious things if there are conditions. On the other hand, even if what you're accused of is not terribly serious, if it appears you're going to be a danger to the community, then yes, you can be detained without bail if the conditions won't limit that. So we are seeing some of that we're seeing a lot of public outrage over people getting bail, but I am really not seeing, frankly, bail decisions that are dramatically different or outside the norm of what you see in federal courts here. I'm not seeing what people are speculating that this is because these are, you know, bearded white gun enthusiasts that they're somehow getting easy treatment. Now the stuff that's happening is more or less within the the norms of federal bail decisions. One thing you are seeing that's interesting is something that's very much a legal realist point, which is, you know, you're less likely to get bail if you're an asshole is the best way to put it. Okay? The way you act has consequences and judges, if you're being a gratuitous jerk, like the person with their feet up on Nancy Pelosi's desk or things like that, if you're, you know, a smirking jerk, then the decision is more likely to go against you. That's not the law, but that's real life. And some of the people who are getting detained seem to be because they were more gratuitously, self-promotingly obnoxious, and that's really the way the system works sometimes.

Josh Barro: You mentioned that you're not seeing bail decisions that you think are out of the norm. We have seen a couple of these cases where a magistrate judge has agreed to release and then the government has appealed. And the real trial judge has said 'no, actually this person can't be released.' Is that unusual to see that sort of split?

Ken White:  I mean, I wouldn't say it's common, but it's not rare. It's somewhere in between there. You know, you see a number of those every year in any given district. District Court judges and magistrate judges will disagree. Magistrate judges, by their nature, look at these bail decisions, you know, all the time. They will probably make hundreds of bail decisions in a year, whereas district judges are relatively rarely involved in the bail decision. So part of it is that, that the district judges don't have the same sort of sense of the flow of all the cases. But also sometimes magistrate judges get it wrong, or sometimes there's just a disagreement, a difference of opinion.

Josh Barro: There is much more that we could talk about, but I think that's a good place 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 Kat Yore. Todd M. Simon composed our theme music. I'm Josh Barro. Thanks for joining us, and Ken and I will be back next week with more All The Presidents' Lawyers.




Sara Fay