rationally BASED

Episode 13 | Revenge of January 6

• Center of the American Experiment

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Our hosts, law professor Ilan Wurman and Kathryn Johnson, take a deep dive into the ongoing January 6 lawfare, and particularly the civil lawsuit against President Trump brought by capitol police officers and lawmakers in D.C. Did you even know that such a lawsuit was going on? Our hosts break down the 2024 immunity decision, talk about the Independent Counsel statute from the Watergate era, and break down the causes of action against Trump in the civil case. Did Trump "direct" others to assault and batter capitol police officers? Did he "aid and abet" the attacks? Or is the civil lawsuit another outrageous attempt by Movement lawyers to abuse the legal process to harass their political opponents? The hosts round out the episode with discussion of the lawfare against the ordinary citizens who served as "alternate electors" in 2020 and the recent disbarment of Trump lawyer John Eastman. 

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SPEAKER_00

Welcome back to Rationally Based, a podcast about law and politics on the edge. Catherine, what's on deck for today?

SPEAKER_02

We're covering all things January 6th because the law fair against Trump continues. A district court in DC has allowed a civil lawsuit against Trump to proceed surrounding the events of January 6th. We will take a deep dive into this last-itch attempt to weaponize the legal system against Trump. Looking first at the Trump immunity decision from 2024, second, the recent district court decision denying immunity in a civil lawsuit. And third, we'll break down the merits, or rather the meritlessness, of that lawsuit. Fourth, the barfare against Trump's allies also continues. John Eastman, an architect of President Trump's January 6th certification strategy, has been disbarred by the California bar. This episode might leave you asking, will the Democrats ever stop?

SPEAKER_00

Probably not. But let's dive in.

SPEAKER_02

And I'm Catherine Johnson with Center of the American Experiment.

SPEAKER_00

As always, hit that like and subscribe button. Catherine, where should we start?

SPEAKER_02

Well, recently a federal district court has denied Trump immunity in a civil lawsuit. Now, a civil case is usually one between two private parties, whereas a criminal case is where the government is prosecuting you and seeking criminal punishments like imprisonment. If you're like me, uh listeners might know about the criminal case against Trump when it comes to January 6th, which we'll actually talk about later. But you might not know that there were also civil charges filed against President Trump.

SPEAKER_00

So Yeah, I had no idea this was going on either. I just want it for the record. Did anybody, did any of our listeners know that there was a civil lawsuit still going on about January 6th? Aaron Ross Powell, Jr.

SPEAKER_02

And basically there's some some officers, Capitol Police officers, um, who have an action against Trump, which is interesting. We'll we'll get into the details. But what about the immunity decision from 2024? Wouldn't that still apply here or not?

SPEAKER_00

Aaron Powell Yeah. So this the whole thing is kind of surprising. And the reason that we're spending time talking about the immunities decision from 2024 and now this case is because I had no idea what was still going on. I was kind of surprised when I, you know, read the headline uh that a DC district judge denies Trump immunity in the civil lawsuit. Like I had no idea that the officers had sued. Uh and it's not just the officers, it was also some members of Congress for like they're suing for like intentional infliction of emotional distress, which doesn't surprise me because a lot of members of Congress are probably snowflaky. And but not to, again, like diminish what happened on January 6th. But not everything is the stuff of a federal lawsuit, okay? And one of the themes that I guess we're gonna get into today and why I really wanted to talk about this is how utterly insane this lawsuit is. Just on the merits, all right? Just on the merits, putting aside the immunity stuff. So but to get to your question, like where did this all come from and how does this sort of relate to the show?

SPEAKER_02

Yeah, why wouldn't he just automatically have immunity based on what was decided already?

SPEAKER_00

Aaron Powell So in 2024, you had that famous, infamous, notorious, depending on who you asked, Trump v. United States case, um, where the Supreme Court held that a former president is immune from criminal prosecution um for official acts, and the court sort of divided those. So the first kind of thing to keep in mind is that everybody agrees that you can't criminally prosecute a sitting president. Did you know that? No matter what? No mat no matter what. Like so I at least it it is the position, I guess, of the Department of Justice. And it's probably right, that if Trump shot someone on Fifth Avenue, like he joked, he could do and people would still vote for him. So if Trump shot somebody on Fifth Avenue, I still think New York or the federal government, you know, th I doubt there would be a federal crime there, but maybe. They couldn't prosecute him while he was president. Uh uh Congress, I think, would have to impeach him first and remove him from office, and then he could be subject to the laws.

SPEAKER_03

Okay.

SPEAKER_00

But I guess, I mean, there are a couple of reasons for this uh theory. The first is, well, if you're being criminally prosecuted, like are they gonna are they gonna detain him pretrial? And if they detain him pretrial, are you president? Who's gonna run the country? Can you can you be president from behind a jail cell?

SPEAKER_02

Can you run very effectively probably not.

SPEAKER_00

You know, many people have run for Congress uh through From their basements. From their jail cells, actually. Oh, from their jail cells. There's a venerable tradition uh in British history and in American history of electing people while they're in prison. Um I did not know that. Especially if it's like political prosecutions or things like that. Um but so you so that's like kind of like the first thing is you the the Department of Justice position has always been you can't prosecute a sitting president for crimes. Um part of the reason being because that you know the the president has to be president. So if there's serious probable cause, then Congress should impeach the president first. But the other sort of question is who who would pro certainly if it's a federal crime, who would prosecute the president?

SPEAKER_02

Yeah, like himself?

SPEAKER_00

It's kind of crazy, right?

SPEAKER_02

He would just never do that, right? Could he?

SPEAKER_00

Uh so could the pr I mean I I don't could the president well there we go. Could the attorney general or a prosecutor prosecute the president? Sure. Would the president let it happen, or would the president just fire the prosecutor? Uh and so uh presumably the president would fire the prosecutor because the president is in charge of the executive branch. So this is sort of a federal like a separation of powers reason uh that the president generally cannot be prosecuted because the president is the prosecutor, right? And so the way Congress tried to solve this after Watergate is through the creation of the independent council, an independent counsel statute. And so after Watergate, Congress enacted the Ethics and Government Act, which basically allowed, like it required the Attorney General, any time there was like some reasonable suspicion of wrongdoing from an executive branch official, to impanel a special court, which is just like three existing judges come together as a special court, and they would then appoint a prosecutor to look into the high-level executive branch misconduct. And so this is and and then the neither the president nor the attorney general could fire this prosecutor. Oh, okay. So this think of like 10 star? Yeah.

SPEAKER_02

That's what it was. It was an independent counsel. Yeah, okay.

SPEAKER_00

Um and there were many independent councils between Watergate and the 1990s. Where do you remember the Iran Contra we I don't remember? Well, yeah, I it was just around when I was born, actually. But like, you know, when we sold weapons to Iran, um uh I I guess there was no legal authorization for it was the problem. And then we funneled the money to the Contras in Nicaragua when they were fighting the Sandinistas. And let me let me just like this was a totally based policy. Like we like I don't know, like Iran Contra, like was it so bad as just like, okay, legally maybe it was a problematic and there were like impeachment proceedings that they were talking about?

SPEAKER_02

What was the legal issue? Why why was it problematic?

SPEAKER_00

My recollection of the issue is that they um there was no legal authorization to sell the arms. Okay. And so they were just exceeding lawful authority. It was just like a secret program.

SPEAKER_02

But is that is that like a crime?

SPEAKER_00

I mean, it's not a crime, but pe you know, Congress used to take its responsibilities seriously, holding the president accountable. And if the president is uh exceeding legal authority by doing an illegal program, it may not be a crime, but like I don't know, is it like a breach of the public trust? So look, I'm not I don't lose that much sleep over the Iran-Contra. This is gonna be following me forever, the rest of my life now that I've said this. Because like, well, I'm actually just pro-Contra. Like I'm all I'm all for giving so much money. So I know to our audience, like this is 1980s. I mean, what a time to be alive. There were left-wing communist governments throughout South America and elsewhere in Europe, and part of the Reagan administration's policy was to funnel money to right-wing insurgent groups um in in these countries. And like that was obviously the right thing to do, like if you ask me during the Cold War, like funneling money to insurgent re groups uh to attack the left-wing um communist Marxist governments. Wow.

SPEAKER_02

Is there a reason we stopped doing this? Couldn't we couldn't we do something like this still today? I mean, look at what's going on in Europe and and the EU. I feel like there's a lot of communist forces.

SPEAKER_00

Yeah, so the the the problem is, like, who would we fund in France to topple the government? No, I'm all for funding governments, like and uh you know opposition groups to governments that we don't like. I'm all for playing the world's you know, you know, puppeteer puppet master. Like I'm all for that um because I'm all about like America's national interest and Yeah, that makes sense.

SPEAKER_02

It's kind of somewhere between that and just leaving them all alone and never touching them. I mean, what what's more America first, trying to be the most dominant power of the world in that sense of controlling uh other countries in that way, or is it just, you know, leaving everyone else to their own, to their own demise?

SPEAKER_00

Aaron Powell Yeah, well look, I'm all for American power, and I think it's the right humanitarian thing to do, right? Because the communist governments were terrible. And so it's always it's always I like to joke, it's always wonderful when the interests of my client and the interests of justice align. You know, like my clients are always right. You know, and it's like it's great when America's natural interest coincides with, you know, humanitarian principles. Which, you know, it's it's will often do so, I think, because as a general matter, I think America is a force for good, but whatever the Democrats in Congress didn't like this, and it probably exceeded the legal authority, so they impaneled an independent council to go after um the president. And I know this isn't exactly like the main thing uh we want to talk about today, but it's so fascinating. Is that constitutional? Is the independent council statute constitutional? Can Congress think of like an independent agency, but uh one person who prosecutes government officials? Right? Think of like the FTC or the SEC. You know, the the there's a case in the Supreme Court right now over whether the independent administrative agencies are constitutional. Yeah. And can and they're probably gonna say no, and we'll have a deep dive into that. It's one of my areas of expertise. But again, this isn't like you know making securities regulations or Federal Trade Commission regulations. Or this is just like a prosecutor.

SPEAKER_02

Trevor Burrus, Jr.: Giving someone power above the president, basically, beyond the president that wasn't elected by the people.

SPEAKER_00

Yes, that's exactly the Trevor Burrus.

SPEAKER_02

Yeah, that's kind of crazy.

SPEAKER_00

And so this it would it violates um unitary executive theory, like this idea that if it's executive power, the president is the one who gets to control it. Uh and so the uh the independent council statute again, why are we uh we're doing a little bit of a weave today for oh already from the beginning. We're only like uh ten minutes in. Uh, because the question we started with is can you prosecute a sitting president? And the answer generally is no, unless you can do this independent counsel statute, right, to to get around it. But it it's probably unconstitutional. Now it was upheld as constitutional in the 1980s in a seven-to-one decision in a case called Morrison v. Olson. And Justice Scalia has a classic famous dissent in that case, where he said, This wolf comes as a wolf. Basically saying that in many cases, the damage, the threat to the separation of powers, the threat to the constitutional system of of our of our government uh is subtle. But here, this wolf comes as a wolf. Like this is It's so blatant. It's so blatant that this is executive power, prosecution is executive power, it's always been controlled by the executive, and to acknowledge it's executive power, but then to take that away from the president and to give it to someone else and to recognize that as constitutional is just totally crazy.

SPEAKER_02

Yeah, and how is he the lone descent? That's kind of nuts.

SPEAKER_00

It was a different time, Catherine. This was before our time. Like I don't this is before we were born. It was just before I was born. So well before you were born.

SPEAKER_01

A long time before I was born.

SPEAKER_00

Long time before you were born. Um but it it is uh Scalia's lone descent is considered sort of um a classic now. Um one other point about the independent council, since we're talking about it, independent of what? Like obviously they're supposed to be independent of the president, but are they independent of politics? Are they above it all?

SPEAKER_02

Of course not. I mean, and the person that would get appointed, wouldn't they inherently be on the other side? I mean, if you want someone who's gonna go after the president, it would have to be someone from the other party.

SPEAKER_00

Aaron Powell And that's always what happened. And they always act quite politically. So um speaking of Iran-Contra, um the uh independent counsel who was investigating the Iran-Contra, and it was still going on forever, in 1992, this is just before the 1992 election, when Bill Clinton uh was elected, the weekend before election day, the independent council investigating the Iran-Contra affair filed a new indictment in the Iran-Contra case the weekend before the election against Cap Weinberger, who had been Secretary of Defense for eight years under the Reagan administration, and George H. W. Bush, who was president, had been vice president under Reagan for eight years, right? And the indictment implicated George W. George H. W. Bush. The weekend before the election. It's kind of like do you do you remember this is this is during your time when Comey released the emails? Yeah. Just before the 2016. Did you feel a vibe shift?

SPEAKER_02

Uh yeah, definitely.

SPEAKER_00

I felt a vibe shift. When Comey released those emails like a couple days before the election, it's like, oh wow, Clinton might actually lose. Well, can you imagine an indictment implicating the sitting president of the United States running for re-election? Well, the indictment was thrown out months later.

SPEAKER_02

Oh, right. Wow.

SPEAKER_00

But Bill Clinton won anyone.

SPEAKER_02

But he managed to change possibly. He managed to change the outcome of the election. Because he obviously is going to be a political actor if you need to find someone who's going to go after the sitting president. I have one more question about independent counsel, though. How is this different from like Robert Mueller or these people we know today? I thought those were kind of the same role.

SPEAKER_00

Yeah, so Special Counsel? Yeah, exactly. They're called special counsel. Um, and it's different than independent counsel. One more point about the political thing, and then I'll do the special counsel point. Uh Ken Starr, also political, a Republican, went after Clinton for the Whitewater like land corruption deal, and then ended up going after uh uh Clinton during the Monica Lewinsky thing. Well, guess what? We finally found something that both sides in Washington, D.C. could agree upon. Congress was more than happy to let the special the independent council statute expire uh after both the Iran-Contra shenanigans and the Whitewater and Clint and Monica Lewinsky shenanigans, like, you know what? Yeah, no kidding. Maybe we shouldn't do this anymore. Lass is like a uh rare unanimity uh among members of Congress. But but the special counsel thing, it is a prosecutor with like a special mission and usually investigates government misconduct. But the special counsels have always been firable by the president, right? And so that and that's what you know makes an independent counsel independent, is that under the statute, you can't just fire them. It's very difficult to fire them. And so actually, there was a special counsel investigating the Watergate scandal during the Nixon years before the independent council statute was enacted. But but Nixon fired the special counsel. Archibald Cox was a special counsel, and this is the so-called Saturday night massacre. This is political knowledge, like well before our time. But the Saturday night massacre. Yes, I I recall.

SPEAKER_01

I think I read about it in Apush.

SPEAKER_00

Yeah, something like APO's history, um, where he Nixon wanted to fire the special counsel investigating him, and so he ordered the attorney general uh to fire him. The attorney general refused and resigned. Then the deputy attorney general was acting attorney general, refused and resigned. And the associate attorney general, third in line, Robert Bork, Bob Bork, um, who was nominated subsequently to the Supreme Court and then got Borked, you know, by Joe Biden, and that's modern-day confirmation wars. Okay, we're gonna have to do an episode um on all that. But he was like president is unitary, unitary executive, so he fired Archibald Cox, and then um Congress enacted the independent counsel statute, making it harder um to fire uh these independent counsels. But so today this there are special counsels, but they could be fired by the president. Okay. They could be fired by the by the attorney general. Anyway, I know this is a bit of a weave, but all of this goes to you cannot prosecute a sitting president, and even if you could prosecute a sitting president criminally, um, you know, who would do it? And so unless we had some sort of new independent counsel statute, which again is unconstitutional, probably wouldn't have it. Okay.

SPEAKER_02

Well, okay, so that's sitting president. What about I mean the recent Trump decision was referring to Trump as a former president, right? Trevor Burrus, Jr.

SPEAKER_00

That's how they got around the sitting president thing. Because it was Biden prosecuting Trump as a former president for previous acts. And that's why we get the Trump immunity decision in 2024. Yeah.

SPEAKER_02

So so what acts can a former president be prosecuted for?

SPEAKER_00

So this is the controversy of the 2024 immunity decision. You remember how controversial it was, like, oh, the Supreme Court says the president's a king, you know, sovereign of unity, you know. Right. Um and the answer uh actually seemed kind of obvious to me. Now I'm I I'm gonna risk my decided the case. And if it had been decided the way I would decide the case, it's obvious. Um the Supreme Court basically said, okay, former presidents. So obviously there's no separation of powers problem from a current president suing a former president. So the question is, are there certain acts that the former president did while president that are totally immune for all time? Basically. And they basically said, look, there are there are different kinds of acts the president can take. There are official acts and then there are private acts. Official acts are acts taken within the scope of the president's duties. Some are in the core of the president's constitutional responsibility, so says the court. I don't know what core versus non-core presidential power is.

SPEAKER_02

Like, yeah, which ones are non-core.

SPEAKER_00

Which one's non-core? Like I don't get it. So they said it within the core of the president's power, like I guess if the president pardons somebody. You can't prosecute the president for issuing a pardon, and which that makes sense. The president has the power to pardon. So a criminal law that says, well, you can't pardon, well, that wouldn't be constitutional because the constitution trumps um uh you know, contrary federal statute under the supremacy clause. So that's sort of obvious. But what I didn't understand from the court is like, okay, what are other official acts that aren't core? I I don't actually know. Um you could say executing statutes, but like the executive power to execute statutes seems core, seems like a core power. So yeah, I don't know.

SPEAKER_02

What's I don't get what's non-core, but yes. Trevor Burrus, Jr.

SPEAKER_00

So uh yeah, I mean like speaking, or is that on a or is that private? I guess that's that issue here. Yeah, in the January 6th. Um So look, the the core was a bit weird in the way it divided things, but but here's the bottom line. Forget what the court said. I'll just explain to you what the answer probably is. So like a reimagined uh Trump the United States. There clearly is a difference between uh acting unlawfully and acting criminally. And and the president must have some leeway to act, right? So remember we talked last time, or was it a couple times ago, about Truman seizing the steel mills? Yeah. This is a famous separation of powers case. Um that turned out to be unlawful. They they said that was unlawful, that the president couldn't do it. Could somebody prosecute Truman for um having seized the steel mills? They could say, oh well, it's an official act, but it wasn't an official act, it was unlawful.

SPEAKER_02

Right.

SPEAKER_00

Can you have an act that's official but unlawful?

SPEAKER_02

Well, it doesn't seem fair. I mean, if he if he did that and then you know he thought it was within his power to do that, well, I don't know. And then they tell him no it's not, can you really go after him criminally for that? Doesn't seem like that'd be fair.

SPEAKER_00

Trevor Burrus, Jr. So that is exactly the right instinct. There must be um a range of official acts that are still official, even if it turns out you didn't have legal authority to do them. Right. Uh it sounds weird, but so again, as long as Truman plausibly thought that he had power to seize the steel mills, you can't criminally prosecute him for like a conspiracy to deprive someone of property. Like, I don't know, like you can come up with a crime. Joe Biden, Joe Biden issued student debt relief. Right? That was unlawful. The Supreme Court held that's unlawful. Could you prosecute Joe Biden for a crime?

SPEAKER_02

No.

SPEAKER_00

Can you come up with a crime, by the way?

SPEAKER_02

Uh think about it.

SPEAKER_00

If if Joe like everyone's like, oh well, but Joe Biden didn't ask criminally.

SPEAKER_02

Oh no, no, no. Oh, bribery.

SPEAKER_00

Bingo.

SPEAKER_02

Can I bribery of voters, right?

SPEAKER_00

Yeah. He basically tried to buy off people, purchase votes.

SPEAKER_02

Yes, because that's exactly what it was.

SPEAKER_00

It is a crime to pay people to vote for you.

SPEAKER_02

And I don't think so.

SPEAKER_00

And isn't that what student debt relief is? Am I being too cynical? But like, you know, here's here are young people, here's tens of thousands of dollars. Make sure to come out to the polls in November. Like, that's a crime, no?

SPEAKER_02

And it's absurd. I mean, the notion of just getting rid of all of this debt is so absurd that you have to think, uh, you know, he didn't think this is clearly under my power and authority. He knew it would be challenged, and yet he did it anyway, and hopefully, or just I think hoped that it would take a while.

SPEAKER_00

This is this is great because the line I was about to draw was you must reasonably believe it's within your power. But does anybody really think that Biden really thought it was within his power to issue student debt relief by executive order? Even Nancy Pelosi was like, oh, you need an act of Congress to do this. So I don't know, U.S. attorneys, if you're No, okay, I'm joking. Again, like just because it was exceeded legal authority doesn't mean it was criminal. So the point is even if you're dealing with a former president, it must be the case that even if acts you're you're that you've done end up exceeding lawful authority, if they're within the outer perimeter of your official duties, is basically what they say. Which I interpret to mean like could a reasonable president have believed that he had this power, even if it turned out to be wrong, then I don't think you can criminally prosecute them for that act. But any private acts can be prosecuted. So shooting somebody on Fifth Avenue would be a private act. Right? Can I propose a hypothetical to you?

SPEAKER_02

Yes, please do. But that's because he's a former president. If he was a current president, he could shoot someone on Fifth Avenue.

SPEAKER_00

I guess he could. The difference is they would both be private acts. Excuse me. They would both be private acts. They would not be official acts. The difference is if you are a sitting president, you can't be criminally prosecuted until you're out of office. So in that situation, Congress would have to impeach the president first. Or you wait for his term to expire, and then you can go after him for shooting someone on Fifth Avenue. So that's that's the only difference. But you can be prosecuted for private acts, for non-official acts, as soon as you're out of office. And so um well let me give you a hypothetical. Let me put on my Justice Sotomayor hat or my Justice Sotomayor robe. If the president sent SEAL team six to assassinate a political opponent, what do you think? Official act?

SPEAKER_02

No.

SPEAKER_00

Why not?

SPEAKER_02

Because killing your opponent isn't an official act? I don't I don't I don't think.

SPEAKER_00

Which I think is the obvious answer. I don't actually know what Solicitor General Sauers said in oral argument, but like like the the obvious point is no reasonable president would believe that they had authority to use SEAL Team 6 to kill a political opponent, and therefore it would be a private act, right? In other words, like commanding the military forces is an official act if the orders you give are plausibly within the range of your lawful authority. If they're not plausibly within your range of lawful authority, then it's a private act. If you're just using them as a personal goon squad. Yeah. And so that look, so that makes perfect sense to me, to be honest. That makes perfect sense to me. There must be a range within which uh the president is allowed to make mistakes and that the courts will set aside something that's unlawful, it doesn't mean you could criminally prosecute the president. Uh you can only criminally prosecute for clear for acts that are clearly private, clearly not taken in some sort of official capacity. And so that's what now kind of takes us um to January the January 6th lawsuit.

SPEAKER_02

Yeah, like in this specific let's stay at the criminal one for just one second, because in this specific lawsuit, this is the Jack Smith prosecution in DC in front of Judge.

SPEAKER_00

Right, this was right, the 2024.

SPEAKER_02

This was in 2024 when the immunity uh issue was decided by the Supreme Court. I mean, they accused him of unlawfully conspiring to overturn his 2020 loss to President Joe Biden. He was charged with four felonies, which was conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. And then, of course, this all got delayed by the Supreme Court, but what they decided here then is that those were private acts. Is that right?

SPEAKER_00

Okay. Okay. So um what the Supreme the Supreme Court technically only decided that a few things were official acts versus private acts. Um so a lot of the evidence for these crimes um were based on official acts. So talking to um your attorney general, like I mean, there were a bunch of stuff like um uh about whether like there was voting fraud and to investigate voting fraud. Well, speaking to your principal officers is actually a core executive power.

SPEAKER_02

Right.

SPEAKER_00

There's a clause, the opinions clause, that gives you the right to ask information and opinions from your principal officers.

SPEAKER_02

Well, thank goodness we have a clause for that.

SPEAKER_00

That's actually a very uh astute observation. A lot of people think that that's obvious and trivial, uh, but goes into like a bigger debate of if the opinions clause is there, does the president otherwise actually have the power to direct and control officers? Otherwise, why would you have the opinions clause? So actually there's a profound debate over why it's there, or is it just like, you know, an appendix? Just totally totally useless.

SPEAKER_02

Like I said, I I feel very appendix about that one.

SPEAKER_00

But so they said that like talking to the Attorney General was an official act. They said a bunch of things were official acts. Uh and then I think they uh remanded to the court um to figure out whether the private acts in question could still amount to violations of these things, right? Of uh obstruction of official proceeding and so on. But then Trump won.

SPEAKER_02

Yeah. So he goes from a former president to a sitting president. Trevor Burrus, Jr.

SPEAKER_00

Bingo. And that's why the Jack Smith stuff is done. Because Trump ordered the Attorney General to dismiss the lawsuits, which which of course they did under you know, Department of Justice policy, you can't prosecute a current president.

SPEAKER_02

Uh so does that mean he's just like when he's done being president, is he just in trouble all over again? Is someone gonna go after him immediately after his term is over?

SPEAKER_00

Aaron Ross Powell If they could show that only the private acts amount to these crimes and that the statute of limitations hasn't run. What is the statute of limitations on obstructing an official proceeding? If ten years later, like we're still fighting over Jenny. J6.

SPEAKER_02

Oh my gosh. Trevor Burrus, Jr.

SPEAKER_00

Right. Um but it feels like that's like what we're doing now with the civil lawsuit. Yeah.

SPEAKER_02

Well, so the current lawsuit, um, this was brought by private plaintiffs, two injured Capitol police officers, and some members of Congress who were at the Capitol on January 6th. They are claiming to have physical and emotional injuries caused by Donald Trump's wrongful conduct inciting a riot on January 6th, and by his followers trying to overturn the results of the 2020 presidential election. So the first question that's so crazy.

SPEAKER_00

This is so crazy. I can't believe this is happening. I was having a great week. Who did he do that? Until I read about this.

SPEAKER_02

I'm so confused. Who did he harm?

SPEAKER_00

Well, he that's the whole thing.

SPEAKER_02

Physical and emotional injuries caused by Donald Trump's conduct. Who did he harm? Trevor Burrus, Jr.

SPEAKER_00

Yeah, we'll we'll get to the merits of this, but like it actually he didn't harm anybody, right? It's people at the Capitol harm the officers. And then they are saying that Trump aided and abetted them in doing that and direct them in doing that, which is look at the camera, crazy. It's crazy. But so stay with us, okay? We've still got some immunity stuff to cover. Okay. Oh, okay.

SPEAKER_02

Put the craziness aside and take this seriously. Does the immunity framework change now that we're talking about a civil lawsuit? Before it was criminal charges, now it's a civil lawsuit. So does he still have immunity when it comes to these charges?

SPEAKER_00

Great question. So we've established that you can't prosecute criminally a sitting president. A former president can be criminally prosecuted for private acts, not for official acts. And we were just just discussing like what is an official act? Like, even if it's illegal, it might still be official, right? There must be some range of reasonable activity, believing reasonably that you have official. Civil lawsuits. The answer changes only a little bit. In terms of official acts versus unofficial acts, the answer is actually the same. You cannot civilly go after a president for acts within the outer perimeter of their official duties. Okay? There's a case also from Richard Nixon, Nixon v. Fitzgerald, where Nixon fired a person in the Air Force, a cat I think it was a captain in the Air Force who blew the whistle on some stuff, on some wasteful spending. And he fired him. And then he sues Fitzgerald sues Nixon. And they're like, look, firing somebody in the Air Force, putting aside whether it was because they blew the whistle or retaliation or whatever, is within the outer perimeter of the president's rights, duties, responsibilities. And so they're they're the president was immune. So the distinction, again, between official acts and private acts is the same. The only thing that changes is you can s you can you can engage in a civil lawsuit against a sitting president. So that's the only real difference. You cannot prosecute a sitting president criminally, but you can, a private person can go civilly after the president. And there's a case that said this. Do you know who Paula Jones is? Do you remember Paula Jones?

SPEAKER_02

Yes, well, I know who Paula Jones is because Trump brought her to a debate with Hillary Clinton. Do you remember that?

SPEAKER_00

Vaguely, that's right.

SPEAKER_02

He brought Paula Jones, he brought Broderick Broderick, what was her name?

SPEAKER_00

Juanita Clinton.

SPEAKER_02

Juanita Broderick and these are all women that are. They were sitting accusing of Bill Clinton, sitting front row at that debate with Hillary Clinton. That's how where I kind of got into like, like, what is the lore here?

SPEAKER_00

Because was that in Missouri? Was that debate in Missouri? I was there that day. Yeah, I had a deposition. I was like a young lawyer doing a deposition. And then all the border kids came by. I'm like, is the debate here in St. Louis? And I think it was. I think that was the that was debate, or maybe that was the debate where the fly landed on Hillary. I don't remember.

SPEAKER_02

No, no, no. Fly was Pence, right? Oh that's fly was Pence. Remember the fly kept landing on Pence?

SPEAKER_00

Okay, that's fast. I for I I had forgotten about that. But Paula Jones um accused um Bill Clinton of having sexually harassed her and assaulted her.

SPEAKER_03

When he's governor, right, of Arkansas?

SPEAKER_00

Aaron Powell And so she sued him while he was president uh civilly. And the question in uh Jones v. Clinton or Clinton v. Jones was uh decided by the Supreme Court, can't her lawsuit proceed while Clinton is president? Or is it like the criminal situation where that would too greatly interfere with the president's duties? And the Supreme Court said you can civilly prosecute a or civil civilly go after, right? You know, uh civilly sue uh a sitting president of the United States. Now, maybe that was wrong, by the way, maybe just like criminal law, like you should just let the president finish his term or I'm team Paula, but it seems a little weird.

SPEAKER_01

Like doesn't the president Doesn't the president have a lot going on?

SPEAKER_00

Trevor Burrus, Jr. Is anybody not on Team Paula, by the way? I don't I don't even know.

SPEAKER_02

I mean I think everyone was team Paula.

SPEAKER_00

But it was before me too, you know.

SPEAKER_02

So that's true. Maybe not everyone.

SPEAKER_00

I mean, they were the classic like like uh George Stephanopolis. Trevor Burrus, Jr.

SPEAKER_02

You know who wasn't team Paula at Hillary Clinton?

SPEAKER_00

Trevor Burrus Yeah, well, like they they had a machine to like destroy these women, right? I mean this was totally pre-me too. And so have they all apologized for not believing these women? No, I don't even know what I know of. I don't I don't know.

SPEAKER_02

But they only believe some women. That's still true to this day.

SPEAKER_00

But but notice how Catherine was able to separate her personal preferences from her thought of what like the legal answer should be. So like you could be Team Paula, but think she doesn't have the right to sue him civilly while he's president because you know he's got other things to do.

SPEAKER_02

It seems like a bit of a distraction from the very necessary duties of someone who's president. Trevor Burrus, Jr.

SPEAKER_00

Well, I will say that during the Aaron Burr conspiracy, do you remember that, 1803, a little before our time? Aaron Ross Powell, Jr.

SPEAKER_02

A little before my time, no, I don't remember.

SPEAKER_00

Um there was a qu uh Aaron Burr uh who uh was accused of trying to separate off the Western United States into a separate Confederacy. And so this there was this whole conspiracy, and he was arrested for insurrection, and uh he wanted Thomas Jefferson, who was the sitting president, to testify at trial. Uh and uh John Marshall, Chief Justice Marshall, who was presiding over the trial, the uh you know, seditious treason trial, the tr treason trial of Aaron Burr did order the president um to like produce documents and potentially, I think, to sit for deposition and things like that. I can't remember the exact details of it. So so going back to the Burr trial in the early the first decade of the 1800s, um it it the president of the United States, according to Chief Justice Marshall, is subject to some degree of process. But of course, Jefferson wasn't the party. Right. Right? He was just, you know, held evidence, you know. And like don't you have a right to uh confront your accuser at Jefferson?

SPEAKER_01

I I think the president, I don't know.

SPEAKER_00

Yeah, fair fair enough. So so the general rule is the presidents are subject to some degree of civil process. Yeah. But um uh maybe maybe Clinton V. Jones was wrong, right? Maybe maybe maybe if the pre if the president himself is the defendant in a civil lawsuit, maybe that's too much. That's a bit weird here because of course Trump himself is engaged in all sorts of civil lawsuits right now against the New York Times and CNN and like you know. So he but he's the plaintiff, so maybe he gets to choose that. But anyway, look, look, the the the Paula Jones case established that the president can be civilly sued while in office. And so that brings us to the content of the presentation.

SPEAKER_02

Yeah, is that all the process questions? It's like we're good with the process, it's fine.

SPEAKER_00

This this is Didn't you want to learn about the immunity, you know? Uh yeah, yeah, I did.

SPEAKER_02

Well it's interesting. I feel like we could make a chart. You know, there's like all these different circumstances.

SPEAKER_00

Uh we could make a chart. Like um what do you call it? A quadrant? Quadrant. For a chart, you know, like an x-axis and a y-axis. You know? Um and it would be civil criminal, um, former president, sitting president. And um, you know, the the only one you can't prosecute uh is well a sitting president can't be criminally prosecuted. Everyone else can so a civil uh a sitting president can be civilly prosecuted, but whether it's civil or criminal, not for official acts. Aaron Powell, yeah.

SPEAKER_02

I guess that that makes the most sense. In this situation, I think they mostly came to the right conclusion. Some of it seems a little arbitrary, but it makes the most sense, I think, to say if it's within your plausibly within the president's official duties, he's fine.

SPEAKER_00

Trevor Burrus, yeah. Though that's my spin on it. But this is what the Supreme Lord should have said, but more or less did say uh plausibly within the duties uh is I think is the correct answer uh here. Okay. So on the Trevor Burrus, that brings us to the merits, right? Or as you said, meritlessness.

SPEAKER_02

Meritlessness. What is what is going on here? I mean, do they have a case?

SPEAKER_00

So this complaint is insane. And um maybe we could put it up um in in the show notes. Um but basically, so what what are what are civil lawsuits? Okay, what are like civil causes of action? So like a tort. You trespass on someone's property. That's a civil cause of action. Um assault and battery, okay? Um is a civil cause of action.

SPEAKER_02

A tort is like any harm, right?

SPEAKER_00

Yeah. Exactly right. Uh uh, a tort, it's French for wrong. Tor tort, I can't pronounce it, but is a wrong in French. Um like to et tort, you're wrong. I don't know. I took French in high school. Um and so it is a wrong. So it's like a civil wrong, uh conversion of property, intentional infliction of emotional distress. I mean, there are all sorts of tort causes of action.

SPEAKER_02

Um it's like a classic one L class, right?

SPEAKER_00

That's a classic one L class um in law school. You know, there are property crimes, uh property um wrongs like nuisance, which is sort of tort and property. Um and so it's again a private dispute where you are sort of have this private harm to you, like your trespass um or or what have you. And so what they basically argue in this case is that um uh Trump let's kind of do the two big ones, okay? That Trump directed the assault and battery of officers. You're you're looking perplexed. Well, I mean, why do they have to direct it?

SPEAKER_02

Did he really do that? I'm just thinking back to the day of I mean, so the idea is that he told the crowd to attack the officers, assault and battery on the officers. He told the crowd to do that. That would be a crime, right? Excuse me, not a crime. That would be legit. A torch, a torch, thank you.

SPEAKER_00

Maybe also a crime, by the way. Um that you can prosecute him for after he is leaves office, right? Um I know there's there's too much to keep track here. But yeah, I mean, look, nobody doubts that Trump didn't go to the Capitol and look at a Capitol police officer was like, hey bud, bam, you know. Uh and so the theory is that he directed uh the uh the officers to do it. But of course, did he direct the officers to do it?

SPEAKER_02

I don't think so.

SPEAKER_00

If you look through the complaint, the kinds of things that they say and that he tweeted, like there isn't a single instance when he like directed the assault right.

SPEAKER_02

And in fact, there's only one place where uh he mentions the Capitol Police at all, and it's in a tweet where he says uh at 7 30 p.m. on January 6th, please supported our Capitol police in law enforcement. They are truly on the side of our country. Stay peaceful. That doesn't seem like directing any kind of uh assault or battery.

SPEAKER_00

I just want to set this up for the listener because like this lawsuit is outrageous. It's outrageous, it's outrageous, it's outrageous. And they are still abusing the legal process. It's not criminal process, okay? But they these movement lawyers, these democracy, who's the lawyers? I think I thought we looked this up. It's like United for Democracy or or Protect Democracy or whatever.

SPEAKER_02

One of the lawyers that I looked up, you can see, I mean, longtime campaign donor to he he donated back to uh Obama in 2007. He gave thousands of dollars. So I I went back and looked a little bit and thought, of course, because while reading this, it's so it reads like a hack wrote it. You know, it's like talking about far-right conspiracy theorist Alex Jones, there's info war stickers on things. The way it's all worded, it sounds very much, you know, Democrat hack wrote this.

SPEAKER_00

Well, and let me just tell you, these Democrat hacks have totally made up legal claims. Okay. Now, like directing, okay, just to be clear, directing um an assault and battery would be a would be a real claim. Okay. Um the problem is, like, here's what they say Trump did. Okay, so this is uh um uh paragraph 152 of the complaint. Long complaint. As the leader of this mob, who took their cues from his campaign rhetoric and personal tweets and traveled um from and around the country to the nation's capital at Trump's invitation, Trump was in a position of extraordinary influence over his followers, who committed assault and battery on officers James Blassingame and Sydney Sidney Hemby. I want to read that again. Trump was in a position of extraordinary influence over his followers who committed assault and battery. This is insane. They're not saying Trump directed, he's not saying he ordered his followers to assault these officers. He's saying he had a lot of influence upon these people who happened to assault.

SPEAKER_02

That's really crazy. Thank you for any other situation where, you know, uh say it's a parent, you have extraordinary influence over your child. Perhaps obviously that doesn't mean any crime your child commits you're going to jail for. Now there's a situation where maybe you did uh, you know, aid and abet that crime or whatever, and and you that would be there's some issues with like school shootings, right, where it's just like the the parents knew uh but didn't do anything.

SPEAKER_00

And and maybe there's some amount of aiding and abetting if you knew but didn't do anything. But again, what your analogy is exactly right. It's like the parents didn't know anything. Right. But actually we just had influence over your children.

SPEAKER_02

The parents were like, child, stay peaceful, please.

SPEAKER_00

It's like that's not this is an abuse. This is an abuse of the legal process. Okay? Um so again, so I pulled um so d aga directing a tort is you can be liable for that. This is one of the things called third-party liability. Like sometimes a third party can be liable for the actions that someone else takes. Aaron Ross Powell, Jr.

SPEAKER_02

Like calling a hit on someone.

unknown

Right?

SPEAKER_00

Yeah, like soliciting murder, yes. That that turns out you can be held liable for doing the soliciting. Um that's exactly right. So there are all sorts of third-party um liability uh uh doctrines, one of which is if you direct, another's eight or a bet, and we'll get there. Uh so I pulled the restatement of torts section on third-party liability. Um the restatement of torts being this collection uh uh by academics, uh a restatement of the law as um they understood it in the 1960s. It was this this body of legal scholars and judges who got together to summarize the existing law of tort.

SPEAKER_01

Um all the torts?

SPEAKER_00

Of of Yeah. All the wrongs? Yes. And it it's long. It has sections on all the known torts, what the general law is. Uh it goes through some minority rules and majority rules, and most states adopt the restatement actually. The restatement isn't law of its own force, but it does reflect what is the law in most states. Um there is a newer restatement, by the way, a third restatement, but I don't know of any states who've adopted the newer statement. Um and uh plus, you know, the newer restatements. They're all kind of crazy lawyers um involved in the so whatever. Look, I'm not gonna adjudicate the second versus the third restatement. But here is the second restatement of tort, section 877. For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he orders or induces the conduct. Okay? So for harm resulting to a third person from the tortious conduct of another, one is subject to liability if he orders or induces the conduct. So the conduct uh that has to be ordered by Trump or induced by Trump is the tortious conduct. In other words, what the movement lawyers are arguing here in this abusive litigation is not that Trump ordered the assault and on battery on uh on on Officer Blessing and Hemby. But rather he induced them, he didn't even order them to go to the Capitol, he induced them to go to the Capitol, and among the thousands of people that were there, one of them assaulted an officer.

SPEAKER_02

Wow, yeah, wait. Okay, I see the distinction where that he, you know, he may have influence over them and influence them to do some portion of the things that were done that day, but he didn't say anything to the effect that that would make you think that he actually encouraged people to become violent. But they're trying to equate that he induced people to come to the Capitol as inducing them to become violent.

SPEAKER_00

Exactly. That I the conduct that must be directed by Trump is the tortious conduct, namely the battery. By the way, to our listeners, assault. Is not you don't actually have to hit someone for assault. Assault you just yeah, you No, what? Just like if I go, whoo, that that's an assault. Okay, we're sorry. I thought I thought that would work go over better. Putting somebody in reasonable apprehension of their safety is an assault. It's not a battery until I act until you actually hit somebody. Yeah. Think like a spouse batter battering. Right, okay. But anyway, so battery is actually the physical contact.

SPEAKER_01

I knew I could so easily assault anyone I wanted. That's good information to me. Yeah.

SPEAKER_00

Assault only requires being put in reasonable apprehension of your safety, um, of uh of physical harm. I I don't know the exact uh line, but you don't actually have to make contact with someone for it to be an assault. Right? So if someone brandishes a gun at you, that is an assault. Oh, even if they don't shoot it, right? Assault with a deadly weapon, you hear that's right. And that would be assault with a deadly weapon, right? I guess if they shot it, it would be battery with a deadly weapon, or like actual that that's actually interesting. I'm not sure what the name of that exactly would be. But that's the difference between an assault and battery. But the point is, again, Trump would have had to direct the conduct. He would have had to order them to hit the officers. And of course Trump didn't do it. You read it 7.30. Um not 7.30, it was actually 2.30. And they there was actually a footnote in the complaint about this because Trump had been banned from Twitter. Oh. And so this is like a different time. This is a different country. They had to pull the tweets from a different country. Oh, okay.

SPEAKER_02

So yeah, when I said that the two. It's actually 2.30 p.m. It was earlier in the day when he told them to stay peaceful.

SPEAKER_00

And it says police support or capital police and law enforcement, stay peaceful.

SPEAKER_02

And then a little bit later he he tells people go home with love and in peace. Yeah, we're remember this day forever.

SPEAKER_00

Yeah. These are things and events that happen. It just happens. When a sacred landslide election victory so unceremoniously and viciously stripped away from great patriots. Yeah, look, okay. Not the greatest treat, but like also like he's not inducing violence. No. He's not inducing violence. He's allowed to believe that his uh the election was stolen, rightly or wrongly. He's about he's allowed to believe it and he's allowed to say it, right?

SPEAKER_02

Um, but they're not even claiming that he didn't there was a lack of action on his part, right? Which maybe I think you could actually claim, but wouldn't be um a tort, right?

SPEAKER_00

Well, that well, okay.

SPEAKER_02

Because he didn't maybe act as he should to stop people. That to me sounds like the better argument than he actually, you know, uh beaded and abetted or directed people to that's interesting.

SPEAKER_00

They do say in the complaint that he failed to stop it once it happened. But that's that's not a tort. Like, I mean, if you there's no duty to rescue. Yeah, uh y you know, it's i if someone's drowning and and you were walking by, you don't have a duty to go in and save them. If someone's committing an assault on a Capitol Police Officer that you didn't start, that you didn't instigate, you don't have a right to go in and say, Yeah, I'm gonna get involved. Yeah, I guess that makes sense.

SPEAKER_02

Um, it's not like you have to jump in the fray and get yourself injured.

SPEAKER_00

Exactly. And in fact, if you get involved and do something wrong, you might be held liable for some other tort. Like, you know, um so there's no like duty to interfere. So they do mention that. But again, I think that's not relevant. So again, they're just like muddying the waters here.

SPEAKER_02

Trevor Burrus, Jr.: Yeah, the whole thing seemed to be muddying the waters. They throw out all of this stuff and they go through the whole day and everything he said, and it's all like, okay, well, the point is that he he didn't he didn't ate in a bed. Yeah, you should.

SPEAKER_00

You read the complaint, all right? You go through this, it's like, okay, like um you know, we're gonna f this actually goes to the First Amendment issue, which I know we were gonna briefly talk about, but like the judge who said this is incitement, which is also kind of crazy, is like, we're gonna fight like hell. Like, um I'm sorry, heck. Can we book that out? Oh, anyway, I'm sorry to our family listeners, but we're gonna fight like heck. It's like, yeah, like at the polls, uh politically, intellectually, right? That doesn't mean you know I'm ordering you to assault someone.

SPEAKER_02

Well, in the context of like counting ballots and stuff like that. I mean we're gonna fight like heck.

SPEAKER_00

So so go through the complaint. This is and find me the directing. I challenge anybody. Find me where he directs, find me aiding or abetting. So that's the other, that's the other count, okay? Aiding or abetting. Um so the complaint says this is uh paragraph 165 Trump aided and abetted his followers, Assault and Battery on James Bleising and Sidney Hemby through his suggestive words and encouragement, leaning up give me Oh my God.

SPEAKER_02

So it just give me a break. Suggestive words.

SPEAKER_00

Aiding and abetting, like when you think of aiding and abetting, oh yeah, it's suggestive words. Is that aiding and abetting?

SPEAKER_02

I don't think so. Isn't aiding and abetting like uh you drove the getaway car?

SPEAKER_00

Yes, yes. Here's the gun. Providing the gun like before the crime happens. That's aiding and abetting, driving the car that gets them there. That's aiding and abetting, right? Putting them in a hiding spot after is like accessory after the fact, right? Aiding and abetting. This is, again, shame on these movement lawyers. This is embarrassing. Here's aiding and abetting. Um by the way, why am I so fired up about this? This is our ASU episode when we were live at ASU and we're talking about lawfare and barfare, like Democrats, just stop.

SPEAKER_02

Well, they take it all to another level, I think, too, where you know it opens the door to all kinds of new litigation. It's like, do we have to play this game now? The answer is I think yes, because this is the game being played against us.

SPEAKER_00

But hold on, but even if we could play this game, okay? This is the this is the District of Columbia.

unknown

Yeah.

SPEAKER_00

Okay? So uh assuming this all passes the judge and it goes to a jury trial, who cares what the law is? Who cares what the facts are? That jury is going to find him liable. He's gonna find him responsible, right? And and civilly for their injuries. What DC jury will ever convict or uh find liable in a civil action a Democrat? Like who is that lawyer that basically orchestrated um the steel dossier, which even the New York Times now accepts was fake and discredited? Like uh acquitted by a a D.C. you know, court. Like again, you can't have a district in which all the political prosecutions happen that is 96% one party. That's insane.

SPEAKER_02

That is crazy. I mean, that's such a good point. What is there anything I what can you possibly do about that? That's just the makeup of the district, but it seems clearly unfair. I mean, what do you do about that?

SPEAKER_00

Aaron Powell I don't actually know because the Sixth Amendment requires a jury of your peers, which imply and which implies a jury of the veneer, which is like the neighborhood. But like obviously the 96% of people who voted against you aren't your peers, right, in the relevant sense. Um so I don't know. Like maybe you have to get may maybe you return most of DC to Maryland or something and or Virginia, and then just have like a small pool, and so it's just members of Congress who are on the jury.

SPEAKER_02

Yeah, I mean it just seems kind of random. Like you're you're it should really they should be picking from the whole country, shouldn't they? For these kind of things.

SPEAKER_00

That this probably requires a constitutional amendment. But it's a serious problem. It is a serious problem to have all of these political prosecutions in a city that is almost entirely on one side's political party, right? Uh so how how how how can Republicans play this game? Right? Which is why this has to be stopped. It has to be stopped. So again, like again, suggestive words. Suggestive words isn't aiding and abetting. So guess where I I pulled the state restatement of torts. This is aiding and abetting liability. Uh this is section 876 of the restatement. Uh there's liability for tortuous conduct of another if the defendant knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other, so to conduct himself. So again, the conduct in question must be the actual tort, which means the physical battery of the officer. Okay, or the physical assault, and Trump must therefore have given encouragement to the other to so conduct himself. Again, the encouragement, the inducement must have been to commit the tort, to actually batter the officer. So they are literally making things up to harass Trump, and it is just not okay. And I was just so surprised that this um and and look, look, I don't care what you think about January 6th. You could think January 6th is the greatest political crime of a century, which I think would be kind of crazy. But like, look, you can think that, and that's okay. But then political crimes should be subject to political punishment by Congress, impeachment, by voters. It doesn't mean you could run to the courts and criminally prosecute your opponents. It doesn't mean you could run to the courts and civilly prosecute your opponents. It's just not okay. Can I say one other thing? I know I've been talking a lot because I'm fired up too. They did this in multiple states to the do you know who the alternate electors were?

SPEAKER_02

Oh gosh, yes, sort of.

SPEAKER_00

So it was um uh in uh just before January 6th. So this is late 2020. There are a bunch of court challenges. What happens if Trump wins any of those court challenges and Arizona flips and ends up going to Trump or whatever? Well, the law requires that you have your electors in place by December like 14 or whatever. And so a bunch of Republicans got together and purported to be the duly elected um electors uh for president in like Arizona, and they were the Trump electors. But of course, they they were not the duly qualified electors because the Biden electors were the duly qualified electors.

SPEAKER_02

Okay, yeah.

SPEAKER_00

The attorney general of Arizona, who's a Democrat out for re-election, prosecuted them. Eleven ordinary citizens who simply sign a piece of paper that says we are the duly qualified electors just in case Trump, you know, nobody was fooled. Like nobody's like, oh, oops, Mike Pence, here is the report, wrong one. Like no one did that. They did it because they thought they had to do it to preserve their right um to submit their electoral votes in case some election challenge.

SPEAKER_01

Well, and they didn't actually do anything, did they? I mean, they all they did was sign a piece of paper. Yeah.

SPEAKER_00

They have been criminally prosecuted by Chris Mays of Arizona for the last four years. They've been criminally prosecuted. They've won most of uh the issues um so far. Um, but some of them pled guilty. Like there's some 70-year-old woman in like Prescott, Arizona, some small town who was just the head of like the Federation of Republican Women or something, who was just did what she was told. And she didn't want a felony conviction, so she pled guilty, right? Like these that this is what happens when Democrats do these insane crazy theories.

SPEAKER_02

Um this is the problem, isn't it? And this is a this is what kind of a famous Trump quote, right? They're they they're going after you, I'm just the one standing in the way. I really this is a good example of that. I mean, when it comes to the law affair against President Trump, they're not stopping with President Trump. They're taking these things out on normal people in all kinds of situations. And it's it's sad. I mean, you can look at this and say this is clearly unjust, but it's against President Trump, who himself is imperfect, and you know, maybe as president, naturally you're going to encounter uh uh, you know, opposition like this. But when it comes to just people in Arizona uh encountering that sort of opposition that really takes a toll on or even goes so far as to ruin their lives, it's really sad.

SPEAKER_00

And I think most people didn't know about the alternate electorate case. I mean, like you know, like the Georgia case, you know about Trump's lawyers, they go they're going after Trump's lawyers and things like that. But these are just people who are just members of the Republican Party who just sign up to be electors in case and show up at the national convention or whatever in case you know their candidate wins. They don't know any better, they don't have any sort of ill intent or whatever, and they go after them criminally. And the problem is they're making up crimes to do it, right? So one of the crimes that Chris Mays and her lawyers in Arizona made up, they said that this was a forgery. They committed criminal forgery. What's the the problem? Forgery only applies if you pretend to be someone else. If the maker of the instrument is not or the ostensible maker of the instrument is not the actual maker of the instrument. So if I sign something that says I am Catherine Johnson, here, have my house, that's forgery, okay? Because I'm pretending to be you. Yeah, but that wasn't the situation. Exactly. They signed their own name. I am who I am. I am this person. So how is that forgery? But they because they said, well, but they're pretending to be elected.

SPEAKER_02

How do they get away with this though? Like where what doesn't how come it doesn't get dismissed right away?

SPEAKER_00

Good question. The whole system is just of course now it got all of this got dismissed eventually, but it's it's up on like appeals and things like that, and it was dismissed on weird grounds. If I were litigating the case, I would have just said, this is not a forgery. You are making up crimes to go after these people. Shame on you, and you should lose your bar license. Because it's just so crazy, Chris Mays. You know, you and so I know this kind of takes us to the John Eastman thing, because you know, okay, let's maybe pivot to that because an eye for an eye. Well, John Eastman, right, got debarred for like a pretty I don't know, silly theory about certification, which we can talk about. It's probably wrong. Um but put that aside, is John Eastman's theory any crazier than Chris Mays going after some random woman in Prescott, Arizona for forgery because she pretended to be the duly elected elector? But that is not a forgery, okay?

SPEAKER_02

So let's set this up. That John Eastman, he was the lawyer who was tr he was Trump's lawyer, who was the key architect of the uh constitutional argument about whether Mike Pence could refuse to certify the elections. And he was officially disbarred by the California Supreme Court, which how how does that work exactly? They just vote to they're in charge of the Supreme Court in each state, happens to be in charge of who can be a lawyer or not.

SPEAKER_00

Yes. The state bar is uh so to be a lawyer, by the way, uh we got a questioner, uh a listener question. Catherine is not a lawyer.

SPEAKER_02

If you couldn't already tell.

SPEAKER_00

I know that I joke about like there was that one time where I realized I said, Harmit Dillon, you should hire Catherine, and I had totally forgotten that Catherine did not go to law school. So Harmeet Dillon, you cannot actually hire Catherine because you didn't go to law school. Though it strikes me that you'd be a better lawyer than most um lawyers who've gotten uh to law school. Um I know all about torts now. But when you want to be a law, yeah, and when you if you want to be a lawyer, you need to pass a state bar exam. And the state bar is a professional organization sort of run by other lawyers, but ultimately is an arm of the state Supreme Court.

SPEAKER_02

Aaron Ross Powell Oh, but it's also like really woke and dumb.

SPEAKER_00

Because although look, the rest of us have other things to do, right? It's always the liberal lawyers who take over these institutions because they, you know, I don't know, don't have families. I don't know. Like they've got nothing else to do. And conservatives have to wake up and start taking over some institutions. Trevor Burrus, Jr.

SPEAKER_02

Yeah, they're actually being lawyers. They're not busying themselves with the work of the institution. But then it then you see the things that come out of the American Bar Association or these different like state-based ones, and they're just nuts.

SPEAKER_00

Aaron Ross Powell And they're going after the Republican lawyers. Remember, we talked about this at our ASU live taping, where they're going after Ed Martin in DC, you know, for having uh threatened Georgetown University because they were like, you know, still doing DEI and DEI hiring and whatever. And so they said, oh, that's illegal, you must lose your bar license. The government does illegal things all the time. This goes back to the immunity thing. It doesn't mean you get disbarred.

SPEAKER_02

And lawyers do crazy things all the time.

SPEAKER_00

Right here, the civil lawsuit against Trump, I guess, which is my point. But like go back to Biden. Should all the people who signed the student loan debt relief, all the lawyers who signed off on Biden's student don't student debt relief, should they be disbarred? No. I say if Johnny Smith's disbarred, they should all be disbarred. Well, yeah. But like, okay, but of course they're never gonna do it. It's prepo it's preposterous. It's crazy.

SPEAKER_02

But no, none of them should be disbarred. I mean, the point of having a lawyer is that they will defend you in pretty much any circumstance, right? So what are we gonna go after people for defending obvious murderers? No. We all agree that they should get a lawyer, right? Trevor Burrus, Jr.

SPEAKER_00

Exactly. And so like John Eastman, again, was disbarred just recently by California. He's been going through these proceedings for a while because of his role in January 6th. Because he's the one who had the theory that look got Trump in a lot of trouble, right? This theory that Vice President Pence had the right, when he opens up the votes, to say, I'm not gonna count them. Almost certainly like that that's wrong, just in the sense of like the challenges have to be made in advance. And like members of Congress can challenge them, and then you can Congress could adjudicate the challenge, the states could adjudicate the challenges in advance, the courts can adjudicate challenges in advance. But once the vote that in Congress is done and submitted the vote, to say that the vice president could just say, no, I'm not gonna count them, well can you imagine if Kamel Harris did that. It would be crazy.

SPEAKER_03

Yeah, that would be crazy.

SPEAKER_00

So look, is it a totally preposterous theory under the previously existing electoral counter? No, it's it's it's it's within the range of like possible legal argument. But even if it's crazy and wrong, it doesn't mean you get disbarred from it. It was an argument that John Eastman legitimately believed was a legal argument. And maybe he was wrong about that. Uh maybe it wasn't legal for Vice President Pence to do it, but it just doesn't matter. You don't lose your livelihood because you came up with a crazy theory trying to advance the interest of your client. Trevor Burrus, Jr.

SPEAKER_02

And I think it's also different from because isn't you can get in trouble as a lawyer if you bring a lawsuit that is frivolous, right? Something that is totally nonsensical. I don't know how you would describe that. But that's a problem, right? You can get in trouble for that.

SPEAKER_00

Aaron Ross Powell, yes, and the court can sanction you. It's called Rule 11. If you bring a frivolous case or a frivolous motion, there's a a rule, rule eleven, that allows the courts to sanction you and your clients. So they can pay money into the court or something like that. So they can punish you. It doesn't mean you get disbarred. Okay, ca so the there's again a so maybe maybe John Eastman's argument would have been rule 11, sanctionable if brought in a court. Okay, but it doesn't follow that you get disbarred for it, okay? And I guess the point that I I want to make in conclusion is just that um if if if John Eastman is going to be disbarred, even for a totally crazy theory, you know what else is a crazy theory? That Trump directed the assault and battery, that Trump aided and abetted an assault and battery. You know what else is a crazy theory? That those ordinary folk in Arizona committed a for a criminal forgery and one of them pled guilt. That's crazy. If John Eastman is going to be disbarred, well, why aren't all of them going to be disbarred? So this is just another example of like the Democrats are actually the ones doing the crazy legal stuff. They're the ones doing the crazy legal theories. They're the ones per prosecuting their political enemies in everyday Americans, right? And they don't get disbarred. We're the ones who get disbarred.

SPEAKER_02

No, not only that, then they'll go on and they'll gaslight Republicans and they'll gaslight the American public into saying, like, it's actually the Republicans who are awful. It's actually the fault of the conservative justices that the shadow docket is popping off. Like it's a similar situation, it seems to me, because that is totally the fault of the left's insane law fair, and then they go and they say, No, it's not, you know? Good grief.

SPEAKER_00

They accuse us of doing the crazy things. It's like, oh, shadow docket. You're the one reason we have it, right? Because of all your craziness. So look, I don't know. I'm obviously very fired up on this episode.

SPEAKER_02

Trevor Burrus, Jr.: Okay, so how can how do we solve this? Like, we need to come up with our own bar association. Could we do that?

SPEAKER_00

Could you get rid of the city? Is that a crazy idea? Could you get rid of the state bars? I mean, could you just say practicing law does not require a bar license? I mean, it's just a cartel, right? It's just economic monopolization, right, isn't it? Mm-hmm.

SPEAKER_02

It seems like it. And why do they get all the power if they're kind of like a crazy political entity?

SPEAKER_00

Aaron Powell Uh I look if the left continues on this way, then eventually the solution will be the institutions have to go away. Right? You have to destroy the institutions, which is why Trump is going after the big law firms. It's why Trump is going after institutions of higher education. Because they're all captured by the far left. Like you cannot have this goes back to our episode with Will Chamberlain when we had this discussion who, by the way, gets a shout out features in this complaint.

SPEAKER_01

That is so funny.

SPEAKER_00

Because Trump retweeted one of his tweets, um, which was absolutely Will. So great. Shout out to uh shout out um to you. But but in that episode we were talking about Trump's attacks on the law firms. It's unsustainable to have a system in which billions and billions of dollars in in-kind legal services goes to one political party or another, where the nation's elite lawyers providing the elite legal services, 99% of them are on one political party. That is unsustainable. That perpetuates anti-democratic, oligarchic forces in our society. And it's the same thing with the state bars. If only liberals run the state bars and only Republicans get disbarred, you know, for things that are on the margins of of political activity, then like this is a problem. Eventually our institutions are gonna have to be destroyed and rebuilt if it keeps up this way. And so um thank you for um g letting me get on my soapbox about lawfare and barfare.

SPEAKER_02

My only complaint is that we didn't get to bring up my favorite January 6th uh moment in time, which is actually Melania Trump.

SPEAKER_00

Well, let's do that now.

SPEAKER_02

Okay, Melania Trump, the funniest moment of all of January 6th. It came out during that like, you know, weird commission thing they did. Was that legal, by the way? The January 6th Commission thing?

SPEAKER_00

Uh I don't know. I mean, Congress can impanel all sorts of commissions. It was just members of Congress, right?

SPEAKER_02

Yeah, I think so.

SPEAKER_00

Probably legal.

SPEAKER_02

That seems kind of iffy to get it.

SPEAKER_00

Well it has to, Congress I mean, they would have to have legislative responsibilities. And so I guess you're investigating what happened for future future. They you know they did they Congress enacted the Electoral Count Reform Act of 2022. Could you say that this was a part of that?

SPEAKER_02

But like anyway, so probably probably besides the point, something that came out. One of uh Melania Trump's aides texted her while all this was going on and said, Do you want to put out a statement that says uh Please be peaceful. I support all of our officers. Something along those lines. She just responded back, no, period.

SPEAKER_00

She's based. She's based.

SPEAKER_02

That's so funny. I love that. My favorite moment.

SPEAKER_00

Well, anything we missed?

SPEAKER_02

I don't think so.

SPEAKER_00

Um We're at our hour, so I know we went a little long on a lot of this stuff, but like this civil lawsuit is just it's just crazy, and we thought we would bring it to your attention. So um the Supreme Court's gonna start deciding a bunch of cases, so maybe we'll be pivoting to more Supreme Court stuff.

SPEAKER_02

Yeah, they keep they had a uh a decision I saw come out last week, and then they have another one. What, like this week, right?

SPEAKER_00

There's one coming tomorrow, which is just before this comes out. So uh we've got to be able to do that.

SPEAKER_02

They do it like a crazy, like, you know, it's draft day or something where everyone's waiting by their, you know, updating for the decision. It's really, now that I'm in this world, yeah, it's it's exciting.

SPEAKER_00

It's great, but uh uh our episode might seem outdated by then. But uh in the meantime, thank you for listening. Remember to hit the like and subscribe button. Remember to rate us in Apple and Spotify, subscribe on Substack if you can, and maybe we'll see you next week with some Supreme Court news and Supreme Court uh decisions. So until then, thanks very much.