Serious Trouble

First: Yet another of SBF's top lieutenants has pleaded guilty to crimes including wire fraud and commodities fraud, and in the plea documents we learned more about SBF’s ill-advised campaign finance schemes. Plus, prosecutors and his own lawyers are proposing an agreement to further restrict SBF’s access to technology — including taking away his smartphone. Then Josh and Ken catch up on Donald Trump’s legal affairs. There are signs that special counsel Jack Smith is trying to move swiftly toward charging decisions — though “swiftly” means something different to a federal prosecutor than to most people, and legal wrangling over efforts to pierce Trump’s attorney-client privilege could delay matters. We talked about why some of Trump’s conversations with lawyers might not be privileged, and what it means for the investigation that prosecutors are so interested in his dealings with his lawyers. And then we talked about different kinds of privilege, relating to Trump’s former role as president. Trump says he can’t be sued for inciting violence on January 6 because remarks he made on the White House lawn were given in his official capacity. The Department of Justice narrowly disagrees (which is surprising). Finally, we looked at Trump’s assertion that executive privilege bars Mike Pence from testifying before a grand jury regarding events related to January 6. In doing so, he faces a legal problem we’ve discussed before: How can you assert executive privilege against the executive branch?

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Defamation litigation tends to be unavailing. Many offending statements don’t meet the definition of defamation — they may be opinions, or insults, or false statements against a public figure made without actual malice, or even true factual statements you just didn’t like hearing. This week’s episode is mostly a deep dive into defamation lawsuits brought against Fox News (and related parties) by two voting technology companies, Dominion Voting Systems and Smartmatic. This litigation looks different from most defamation litigation. Smartmatic and Dominion are large companies whose business has likely been impaired by the lies told about them. Those lies were broadcast extremely widely — no need to worry about the Streisand effect. One of the entities that shared many of the lies, Fox News, is a very deep pocket. And Fox has good reason to worry it could end up facing some very large judgments. Ken and Josh discuss the favorable rulings and power moves in both of these cases, plus an update on Rust shooting. (Appellate public defender Caitlin Smith, who wrote into us several weeks ago about why the enhancement was invalid, has been proved right.) And we talked about how Sam Bankman-Fried got into a position where the judge presiding over his case seems to like him less than the prosecutors do.

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Dear listeners,

We’re back with more serious trouble!

On this week’s show, we take a look at the (partial) report of a Georgia special grand jury that had been investigating efforts to interfere in that state’s reporting of its 2020 presidential election results. The report says the grand jurors think they heard some perjury. And its unreleased portions may contain recommendations about criminal charges — recommendations that Fulton County District Attorney Fani Willis could bring to a regular grand jury for indictment.

We talk about Mike Pence’s effort to avoid a subpoena from Special Counsel Jack Smith. Pence says he’s can’t be forced to testify about January 6 because of the “speech or debate” clause of the US Constitution, which protects senators and representatives from being questioned about their official duties. Except… he wasn’t a senator or a representative, he was the Vice President. The VP has an odd place in our constitutional structure — mostly executive, but also the presiding officer of one house of our legislature — and we talk about the possibility that Pence could assert testimonial protections assigned to either branch.

We talk about federal prosecutors’ efforts to pierce attorney-client privilege and force one of former president Trump’s attorneys to testify about his interactions with his client — which gives us an opportunity to talk once again about the crime-fraud exception to attorney-client privilege.

We talk about Alec Baldwin. As we discussed a couple of weeks ago, he has a good argument that the firearms enhancement prosecutors want to use to extend his sentence can’t be applied to him. His expensive, talented and aggressive lawyers are on that question — after a Variety reporter asked them about the issue, after hearing about it on our podcast — and they’re also looking to disqualify the currently-assigned special prosecutor on his case. Meanwhile, Baldwin is preparing to restart production on Rust… so Ken talks about why it might not be the best idea to literally act out the events that led up to your criminal charges while you face trial.

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Elon Musk got a big win in the civil trial over whether his “funding secured” statements defrauded shareholders. We talked about how “that’s Elon being Elon” can be an effective defense. We also talked about Sam Bankman-Fried and the ever-sprawling pool of potentially-cooperating witnesses who might tell prosecutors about his and FTX’s wrongdoing. For paying subscribers, there’s more: the California State Bar might disbar attorney John Eastman, Mark Pomerantz has written a book about how he thinks the Manhattan DA's investigation of Donald Trump could have been different (he quit the investigation), and the feds are investigating George Santos about the GoFundMe for that poor service dog's care.

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This week, we talk about how not to stay out on bail (yes, once again, it's Sam Bankman-Fried), and how the judge is likely to respond to him contacting FTX employees. We also talk about David DePape, who seems pretty nuts — but not nuts enough to have an effective insanity defense for his attack on Paul Pelosi. That’s the end of the free episode. For paying subscribers, we continue on with answers to your questions about Alec Baldwin, who has officially been charged with involuntary manslaughter. And we have more Trump litigation to discuss — he’s suing Bob Woodward, saying Woodward wasn’t supposed to release the audio recordings of Trump’s interviews with him. And Manhattan DA Alvin Bragg appears to be investigating another angle on possible criminal wrongdoing — but not a very promising one.

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This week, Ken and I talked about a substantial sanctions order — nearly $1 million — that Donald Trump and his attorney Alina Habba must pay for the frivolous RICO lawsuit they brought against dozens of defendants. As sanctions orders go, this is really big — and Ken thinks Habba should worry about being disbarred — but is this really an effective deterrent against Trump, who got lots of publicity and fundraising opportunities from the suit? We also looked at criminal charges against Alec Baldwin. He is to be tried for involuntary manslaughter related to his fatal shooting of cinematographer Halyna Hutchins on the set of his film Rust in 2021. When is a terrible accident also a crime? And we talked about Brian Walshe, whose Google searches helped lead to his arrest for the murder of his still-missing wife.

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This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.serioustrouble.show/subscribe

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Ken is utterly dismayed that Sam Bankman-Fried has started a Substack, where he’s writing in great detail about FTX. Then: Ken and Josh talk about the classified documents found at President Biden’s home in Wilmington and the Penn Biden Center in Pennsylvania, if there is legal exposure for the president, among other questions. For paying subscribers, Ken and Josh preview the trial in the securities fraud class action suit brought on behalf of Tesla shareholders (related to Elon Musk's famous “funding secured” tweet), and some updates on George Santos and Allen Weisselberg, who is due at Rikers soon. Visit serioustrouble.show to become a paying subscriber, sign up for our newsletter and find a transcript and other links.

In some ways, George Santos is having a pretty good year. The congressman-elect's new salary is $174,000 a year, which is a lot more than he was making at the Dish Network call center. Of course, there are some other things that aren’t going so great for him. He is a big lying liar who lies, and while lying about whether you ever worked at Goldman Sachs isn’t a crime, some of the lies Santos told could have legal consequences. We talk this week about problems that could arise from statements he made to the government about his finances, or from the manner in which he funded his campaign, and about how prosecutors will go about figuring out whether any of his lies were crimes. Plus: Sam Bankman-Fried, who’s out of Bahamian prison and confined to his parents’ home in Palo Alto, California, is fortunate to be out on bail. Two of his top lieutenants (Caroline Ellison and Gary Wang) have pleaded guilty and agreed to cooperate in his prosecution. In theory, his trial is scheduled for October, and we also talked about whether — if he doesn’t eventually change his plea to guilty himself — it will be in his interest to hurry to trial or seek to delay and delay.

Finally, a spat between cartoonists. Dilbert creator Scott Adams has threatened to sue right-wing political cartoonist Ben Garrison for drawing a cartoon that suggested Anthony Fauci had hypnotized him into getting vaccinated for COVID. Can a cartoon be defamatory? Maybe. But this one isn’t.

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We talk a lot on this show about bad clients — people in legal trouble who disregard advice, talk when they should shut up, and generally make their lawyers' lives miserable while increasing their own odds of facing a large judgment award or ending up in prison for a good, long time. You know, clients like Sam Bankman-Fried and Donald Trump. So we thought it would be good to talk about what it takes to be a good client. If you're in legal trouble, what can you do to ensure you leverage your lawyer's skills to get a good outcome, instead of driving him or her to distraction and shooting yourself in the foot?

Join the conversation, find transcripts and support the show at serioustrouble.show. Have a Merry Christmas, and we'll see you in January.

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Sam Bankman-Fried… boy, is he in serious trouble. He’s been indicted on several counts, with the central accusation being that he defrauded customers, lenders, and equity investors doing business with his now-bankrupt companies, FTX and Alameda Research. Importantly, the story Bankman-Fried has been relentlessly telling about himself is a story the government says is still fraud even if it’s true. Ken and I talk about Bankman-Fried as a masterclass in what-not-to-do as a criminal defendant. He seems woefully unprepared to face parallel civil and criminal actions, especially since he continues to proudly describe how he doesn’t listen to what lawyers tell him to do. He is, quite possibly, a worse client than Donald Trump. But that makes him very interesting! This show is about 20 minutes for free subscribers and 40 minutes for paying subscribers — if you want the whole show and this week’s second show on the rest of the news, upgrade now at www.serioustrouble.show.