All the Presidents' Lawyers

Former President Donald Trump has sued Twitter trying to get back on the platform. His suit says Twitter violated his First Amendment rights and that they broke a new Florida law that purports to prohibit social media companies from being banned in a manner inconsistent with the companies’ internal policies. The thing is, the First Amendment applies to the government restricting free speech and Trump’s theory is that Twitter is a state actor. When would a private entity be considered a state actor? Is there a case to be made that Dominion Voting Systems is a state actor? One group of people thinks so, and they’ve filed a new class action lawsuit against Dominion Voting Systems that says the cease and desist letters the company sent them after the 2020 elections are RICO. Ken, is it RICO?!

Plus: a detailed report on whether Trump is really at risk of state charges in Georgia, Matt Gaetz’s legal team, Dan Scavino evades a subpoena from a congressional committee.

We now know which documents former President Trump is seeking to block from the January 6 select committee: the White House daily diary, which would show his movements and meetings; phone records and records of his senior staff, and a few other documents, including a draft of a speech for the “Save America” rally, a handwritten note, and more. Trump is asserting executive privilege, which is a kind of made-up doctrine but everyone still agrees that former presidents still have some executive privilege anyways. What we do know based on precedent is that the public’s interest in having information will be weighed against the former president’s interest in keeping things secret, but does analysis of whether the former president was up to no good factor in to that?

We now have the January 6 committee putting some requests for documents on hold, and it sounds like they may be doing that after discussions with the Biden White House. What is the strategy behind this? And if there is a big dispute over executive privilege, is that likely to end up in front of the Supreme Court eventually?

Plus: did you know there’s a Trump SPAC? Rudy claims three documents out of more than 2,000 seized in the FBI raid on his home and office may be privileged, and the January 6 judges continue speaking their minds.

The Biden administration said this week that the House Ways and Means Committee can have access to former President Trump’s tax returns. The committee says it wants the returns as part of an ongoing investigation into how the IRS audits presidents – and that Trump’s returns serve a valid legislative purpose. Trump said he’d personally sue to prevent the returns from being turned over (and he did so after we recorded this episode). Are we in for another long battle?

Also: federal judges think out loud, too. A number of the Jan. 6 cases are in front of Chief Judge Beryl Howell of the D.C. District. This week, she asked prosecutors whether the government was being overall too lenient on defendants. Ken White explains why this isn’t all that uncommon in the courtroom, and whether this actually matters as far as sentencing goes.

Then: after he was appointed chair of the Jan. 6 committee, Congressman Bennie Thompson withdrew from his Jan. 6-related civil lawsuit against Donald Trump, Rudy Giuliani, the Proud Boys and others. Was there a legal reason for this? Also: some former federal prosecutors think police officer testimony before the January 6 committee will make it more feasible to criminally charge Donald Trump. Are they right?

Finally: the Avenatti saga continues. What’s the standard for convicting somebody of wire fraud? Is it “down to the dollar,” as Avenatti wants to make the jury believe? Does that strategy make him a good lawyer? We discuss.

There’s been a lack of thumb-headed henchmen news on the show for a bit... so this week, Ken and Josh check in on one. Igor Fruman, a sometime associate of Rudy Giuliani, has pleaded guilty to one count of soliciting foreign campaign contributions. In his indictment, it was alleged that Fruman, along with Lev Parnas and others, illegally funnelled millions of dollars from Russia to U.S. political candidates in an attempt to obtain licenses to operate marijuana businesses. What’s Fruman facing with this guilty plea, and what’s ahead for Lev Parnas, whose trial is set to begin in a few weeks? Yep, it’s time to talk about the company “Fraud Guarantee” again.

Popular January 6 lawyer John Pierce is back after mysteriously disappearing for a week, and he won’t tell anybody where he went. He’s representing nearly 20 Capitol riot defendants, even though he’s never tried a criminal case before. Josh and Ken answer a question from a listener about whether there’s an ineffective assistance of counsel claim to worry about here.

Plus: you can pay Rudy to make a Cameo that goes against his clients, apparently, and the telecomm/social media companies appear to be listening to Congress...so far.

What happens when you’re facing federal charges connected to the Jan. 6 insurrection and your lawyer....goes missing? And their associate, who has been showing up in court, is not a licensed attorney and is facing felony indictments? Yikes. That’s the case for clients of John Pierce, one of the more ideological advocates. What happens when an attorney is incapacitated and unable to represent his or her clients? And what could happen to those clients?

Then: the January 6 select committee is starting to make requests for information, some of which are going to telecommunications companies. At this point, these are requests, not subpoenas. House Minority leader Kevin McCarthy is telling communications companies not to comply with those requests, saying they are unlawful and if the companies comply, “a Republican majority will not forget.” Ken says this is approaching the line of obstruction of justice by in effect threatening future legislation against those who cooperate with a congressional committee.

Another thing Ken says isn’t a good idea: doing anything that will inspire a federal judge to write a 100-page ruling that’s not in your favor. In this case, it’s sanctions for Sidney Powell and Lin Wood from federal judge Linda Parker.

Plus: a possibility $5 million fine for Jacob Wohl and Jack Burkman, another civil suit for former President Trump and more.