Mary Trump, President Trump’s niece, has a tell-all book about the president that’s supposed to be published later this summer. The president doesn’t want it to be published and he says Mary Trump signed a non-disclosure agreement as part of a settlement over the estate of Fred Trump (the president’s father and Mary Trump’s grandfather). So, President Trump’s brother Robert has been suing to stop the book’s publication and a trial judge in New York granted a temporary restraining order, saying the book can’t be published before he holds a hearing on Robert Trump’s request for an injunction. The book’s publisher is appealing that restraining order. So suppose Mary Trump really is bound by an NDA. What sort of relief would Robert Trump get? Might the book never come out? Would the other Trumps get damages? And why is Robert suing and not the president himself?

Then: Roger Stone was supposed to report to prison by June 30, but Long-Suffering Federal Judge Amy Berman Jackson agreed to delay his report date due to the coronavirus pandemic and then delayed it again, but with a spin: she noted there aren’t any cases at the facility Stone will go to, but because Stone resides in a county with a spike in cases, Judge Jackson ordered him to stay confined to his home for the two weeks before his report date so that HE doesn’t bring the virus to the facility. The question remains: will President Trump pardon Roger Stone?

Plus: is Sidney Powell a good lawyer? And what about Jay Clayton, tapped to be the new head of the Southern District of New York — is he a good lawyer?

Well, it wasn’t quite a Friday Night Massacre but Friday night was pretty weird. Attorney General Bill Barr released a statement late Friday saying Geoffrey Berman, the US attorney for the Southern District of New York, was stepping down. But a couple of hours later, Berman released his own statement, saying he wasn’t quitting and he was surprised to see the attorney general claim he was quitting. Then, on Saturday, Bill Barr announced that the president had dismissed Berman and Berman agreed to admit he had been fired, but not before a key concession from Barr: pending the confirmation of a new US attorney, SDNY will be run by Audrey Strauss, Berman’s trusted deputy. What’s going on here? Is this retribution for something Berman did or something he was about to do?

Then: a divided three-judge panel of the DC Circuit ordered (while we were recording this episode) Long Suffering Federal Judge Emmet Sullivan to dismiss the case against Michael Flynn, the president’s former national security adviser, without any further hearings. Ken and Josh speed-read what the judges wrote and talk about what happens next.

Finally: remember John Bolton’s book? The judge blocked the Trump administration’s request to stop publication of the book, essentially because the horse is already out of the barn, but Bolton might have more trouble ahead with some of the content.

The US government is suing former national security adviser John Bolton. Details about Bolton’s tell-all White House memoir started to come out right after we taped this episode, but let’s focus on the big issues here: the president is using the US Department of Justice to stop a former government official from talking about him. The suit says John Bolton breached both his obligation not to disclose classified information and his obligations under a non-disclosure agreement he signed when he took the job at the White House. President Trump says any conversation he has with people is classified — that’s not true, but it does reflect the expansive view he has of his ability to suppress public comments of his former employees.

Where were we? Right: Michael Flynn. Listeners will recall the president’s former national security adviser pleaded guilty to making false statements to FBI investigators, but following his guilty plea and literally years of maneuvering on the way toward sentencing, the Justice Department has decided he wants to dismiss the charge against Flynn, which is fairly unusual. Judge Emmet Sullivan decided that he wanted to hear some arguments before he decided whether to allow that dismissal, which is fairly unusual but then this is an unusual situation. Flynn appealed, saying Sullivan should promptly grant the motion for dismissal, which is also the government’s position. Flynn is seeking what’s called a writ of mandamus, an extraordinary action where an appeals court intervenes and tells the trial court what to do.

Another unusual aspect of the situation is the Judge Sullivan appointed an outside attorney, Beth Wilkinson, to argue against the granting of the writ.

So there are two separate legal issues here: one is whether Flynn in the US government are entitled to have these charges dismissed. The second is whether the appellate court should intervene and force Sullivan to rule right away, when Sullivan hasn’t even ruled against Flynn yet. That’s going to be argued in the appellate court on Friday, but we’ve already seen the written briefs. Ken and Josh talk through the arguments.

Plus: Ken schools us on Section 230 and what you need to know and ignore about President Trump’s executive order on social media. Did the president defame the man who was knocked over and injured by Buffalo police officers in that viral video? And, if the president is going to pardon Roger Stone (so Stone can “sleep well at night”) and Stone’s gotta report to prison by the end of June, wouldn’t that need to happen...soon? Oh yeah, and is Michael Avenatti a good client?

This week we were going to talk to you about President Trump’s executive order directed at Twitter and other social media companies. But then news overtook us. Ken White speaks with national security law expert Steve Vladeck about President Trump’s threat to use the military to quell unrest and looting in cities following the police killing of George Floyd. Can the president send in the army if he thinks governors aren’t responding forcefully enough? What’s the Insurrection Act anyways? Isn’t this martial law? And what does it mean for Antifa to be labeled a terrorist organization?

The Michael Flynn saga continues, and it’s still very unusual. So remember: Flynn pleaded guilty to a charge of lying to federal investigators, then the government reversed course and moved to drop the charges, and then Judge Emmet Sullivan hit the brakes, asked for amicus briefs on the issue and appointed an outside counsel to argue against dropping the charges. Flynn appealed, basically saying if the government wants to drop the charges, it gets to. He filed a writ of mandamus, asking the DC Circuit to force Judge Emmet Sullivan to rule on the government’s motion to drop the charges. Now that’s before a three-judge panel of the DC Circuit, and they’ve directed Judge Sullivan to explain himself and why they shouldn’t just issue the writ. Who’s on that three-judge panel and is there anything interesting about their recent decisions? Does Judge Sullivan really intend to deny the government’s motion? Might he be trying to get certain things on the record?

Meanwhile, the FBI will do its own probe into the investigation that Flynn got caught up in, and this probe won’t be run by the inspector general, which would seem to give Attorney General Bill Barr a certain amount of control over it. And there’s been a lot of turnover at the U.S. Attorney’s Office in Washington D.C., which handles a lot of the cases we’ve been falling. Ken says it suggests a higher-than-normal level of micromanaging from the Department of Justice.

We should talk about Joe Scarborough. Should Joe Scarborough sue the president for insinuating he’s a murderer? What would happen if he did sue? What could protect the president in this instance?

Plus: the Supreme Court hit pause on a House committee’s efforts to obtain redacted grand jury materials from the Mueller investigation, a fraud case against the Trump company and family is allowed to proceed to discovery, and is this a good time to plead guilty to a short sentence, as Lori Loughlin did this week?

So Long-Suffering Federal Judge Emmet Sullivan didn’t just simply approve the Department of Justice’s motion to drop the charges against Michael Flynn. Remember: Flynn, the president’s former national security adviser, already pleaded guilty to making false statements to federal investigators and repeatedly affirmed his guilt to the court.

Before he makes a decision, Judge Sullivan appointed a retired federal judge to make the argument that the charges should not be dismissed since both the Flynn and the government, formally on opposite sides of this case, are now in agreement. Sullivan also asked the judge to look into whether Flynn should face contempt of court charges for perjuring himself, based on what Flynn now says were false statements about his own guilt. So what has Sullivan done and what are Sullivan’s options? And what are the standards for those options?

At the same time this is all going on, President Trump has been trying to rid the executive branch of pesky inspectors general, who are supposed to investigate claims of misconduct. Attorney General Bill Barr has been talking a little bit about Obamagate, Republicans are moving closer to subpoenas for Obama administration officials related to the Russian investigation, and the Fourth Circuit en banc voted to allow discovery to proceed in one of the emoluments case brought by Maryland and the District of Columbia against the President.

Just after last week’s episode, the Department of Justice moved to drop the false statements charge against former national security adviser Michael Flynn, a charge he already pleaded guilty to in 2017. The Justice Department says the case should never have been brought, that whatever misstatements he made about his dealings with Russian ambassador Sergey Kislyak were not material to an ongoing investigation, and as such he should not have been charged for making them. Did they, in fact, misuse the law compared to how it’s otherwise used against other federal defendants? In other words, is this a broad policy or philosophy change for the Department of Justice, or is this...just for Michael Flynn? Ken says the government has never made this argument before and it’s unlikely they’ll ever do it again. The ball is now in Judge Emmet Sullivan’s court. What are his options?

Oral arguments were held yesterday in the three cases that concern subpoenas for the president’s financial records (two cases from the House of Representatives and one from New York state attorney general Cy Vance). How did the arguments go? There was news this week that prestigious law firm Skadden Arps paid $11 million to settle a dispute with Yulia Tymoshenko, the former Ukrainian prime minister who was jailed by the government of Viktor Yanukovych...who was represented by Skadden. That’s a lot of money. What could be going on there? 

Plus: Paul Manafort is released from federal custody to home confinement, Bridgegate, and big boy federal crimes.

So, it looks like Michael Cohen won’t be getting out of prison because of the coronavirus epidemic. Is this because of the tell-all book he’s apparently writing, or is Cohen caught up in a Bureau of Prison policy change, like many other federal inmates? Well, and about that book: President Trump’s attorney Charles Harder sent Cohen a cease-and-desist letter, reminding him of a non-disclosure agreement he says Cohen signed. But an NDA probably can’t prevent the book from being published. The bigger issue, Ken White says, is Cohen’s attorney-client obligations to President Trump. Ethical obligations generally don’t allow lawyers (former or otherwise) to spill their clients’ secrets for money. You bet the president might sue him for that, and if that happens, it could get ugly for both of them and others.

Ok and Michael Flynn: is there any way Michael Flynn was entrapped by federal prosecutors leading to his indictment and guilty plea (and then, you know, all the flip-flopping that’s happened since)? Ken says, uh, no. Prosecutors just used a fairly common tactic. It’s a fair criticism that the tactic isn’t just or fair, but it is legal.

Plus: more letters from Charles Harder, Stormy Daniels, and no, Devin Nunes, it’s still not RICO.