Fridays with Nicole Sandler

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86 replies
  1. harpie says:

    I haven’t been able to listen yet, but assume the Documents case was at least mentioned, so:

    New: TRUMP asks CANNON for DELAY:
    [I also posted this at the NAUTA post]
    Apr 13, 2024 at 5:00 PM

    Breaking: Trump asks Cannon to put deadlines in his Florida federal documents criminal case on hold until three weeks after his New York hush money criminal trial ends because he was unsuccessful at stopping the NY case from going forward. [link][screenshot]

    • harpie says:


      [pdf1/6] […] As explained below, the May 9 deadlines would deny President Trump his constitutional right to participate in critical aspects of his defense, and infringe on his constitutional right to counsel of his choice in this case. Accordingly, President Trump respectfully requests an adjournment of the May 9, 2024 deadlines until three weeks after the conclusion of the trial in People v. Trump. […]

      • earlofhuntingdon says:

        Bmaz will have a different take, but the May 9th date was for a written response regarding disclosures regarding experts he plans to use and CIPA section 5(a) notice. Trump won’t be doing any of the associated work. He needs to sign off on it, but he’ll do that on counsel’s recommendation.

        I don’t see how this blanket delay, essentially, of all proceedings before Judge Cannon, is necessary to protect Trump’s ability to meaningfully participate in his defense in that case.

        • P-villain says:

          Impossible to be sure from the snippet, but sounds as if they are arguing Todd Blanche’s unavailability is a primary basis for the motion. Still ridiculous, though.

        • earlofhuntingdon says:

          As with Trump’s complaints that pretrial publicity in NYC would deny him an unbiased jury – publicity owing to Trump’s own relentless propaganda, and which NYC courts ignore – Trump’s staffing of his trials is entirely within his control. A manufactured scarcity.

        • P J Evans says:

          Yeah, his whining about delays is really wild, seeing as he’s *causing* those delays intentionally.

        • xyxyxyxy says:

          And thumbing his nose at Merchan with attacks on witnesses yesterday, Supreme and Appellate Courts last week.
          IANAn analyst but I doubt anything is stopping him now.
          Like a rat, he’s now trapped in court for at least 4-6 weeks with Monday and Tuesday appearing to be perfect golf weather outside those windows; not for the days after that, but if he was in Florida,…
          And then in a week his financial house possibly being toppled.
          Does anyone think he can handle all that coolly and calmly and that his lawyers can keep him at bay in the courtroom without being tranquilized?
          I see him challenging Merchan to have him dragged out with all his squirming, loud whispering and table tapping with his fingers, etc.?
          Yes, I may be crazy.

        • Rwood0808 says:

          It doesn’t matter if it’s necessary or not, it only matters how much trump wants it and how much Cannon wants to give it to him.

        • bmaz says:

          This is bullshit, and the exact kind of politicized thought that commenters here relentlessly rail about. And, yes, the health and status of the criminal justice system is far more important than viewing it only in relation to Trump.

        • Bob Roundhead says:

          I think that your faith in the justice system has blinded you to what everyone else is witnessing. Judge Cannon may be operating within the letter of the law, (except when she is overruled by the 11th circuit) but she clearly is using her discretion to benefit her political benefactor. IMO, Bringing this to attention is not ignorant.

        • earlofhuntingdon says:

          You confuse “faith in” with “knowledge of” the justice system. Rwood’s list of “what matters” is a tad incomplete.

        • wa_rickf says:

          Donald Trump the successful businessman is a Hollywood concoction invented by show runner Mark Burnett when Burnett hired Donald to play the “successful businessman” character.

          In reality, every business that Donald has started himself has failed or was forced out of business for being a sham and/or scheme.

          Trump Org was started by Donald’s father, Fred. Longterm CFO Allen Weisselberg hired by Fred no doubt put guardrails in place to ensure that Donald didn’t cause Trump Org to fail as well.

  2. says:

    Early into the podcast, Nichole and Marcy discuss Trump’s immunity oral argument upcoming soon at the Supreme Court of the United States (“SCOTUS”), and briefly mention another J6 case being argued soon, Fischer v. United States. Nichole was unclear if arguments can be heard live, and both appear to be talking about different dates (?), so I thought I’d clarify:

    First, Arguments are indeed available to listen to live! If the Court link on its website is glitchy, this C-Span link is my go to. Some notes about listening are the first, nested ‘reply’ to this comment, below.

    Second, SCOTUS’s most recent (.pdf) oral argument calendar for the two weeks starting Monday, April 15th, shows:
    1. On Tuesday, April 16, 2024 at 10 a.m., the Court will hear arguments in Fischer v. United States, No. 23–5572, where Fischer challenges the constitutionality of one of his J6-related charges –18 U.S.C. § 1512(c)(2) making it a crime to “otherwise” obstruct or impede “any official proceeding.” Fischer believes the charge was meant to apply only to evidence tampering cases. The district court sided with him,* but appeals court sided with the government, reinstating his indictment.
    2. The former president’s “absolute immunity” case Donald J. Trump v. United States, No. 23–939 will be argued at 10 a.m. on Thursday, April 25, 2024. As Marcy noted in a Dec. 2023 post, two of Trump’s charges involve 1512(c)(2), but since documents were involved, the outcome of Fischer’s case might not affect Trump. But, as she notes, the government’s 353 other cases charging § 1512(c)(2) violations COULD VERY WELL be affected: for those at the pretrial stage, § 1512(c)(2) charges would be dropped; for those already convicted, their convictions under this statute would be overturned and sentences potentially reduced.**

    Because the Supreme Court appears to have adopted Fischer’s version of the Question Presented, many in the defense bar find it likely that the Court will indeed side with Fischer, despite the disruption to J6 prosecutions and convictions. This is because the Supreme Court, in nearly all judicial personnel iterations since the Oliver Wendell Holmes era, has consistenly embraced the rule that criminal statutes must be construed narrowly (“Rule of Lenity”), to protect from prosecutorial over-reach.

    From footnote 2, page 12 of Fischer’s final brief after consolidation, which appears more prominently in his later briefs:

    Crimes should be “defined by the legislature, not by clever prosecutors riffing on equivocal language.” Dubin, 143 S. Ct. at 1572 (quoting United States v. Spears, 729 F.3d 753, 758 (7th Cir. 2013)). Correspondingly, the Due Process Clause bars courts from retroactively applying novel judicial constructions “to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.” United States v. Lanier, 520 U.S. 259, 266 (1997) (citing Bouie v. City of Columbia, 378 U.S. 347, 351 (1964)).

    A hyperbolic version of this argument, making the read quite entertaining, was offered by a similarly situated J6 defendant, Edward Lang, who was represented by EmptyWheel occasional headliner attorney Norm Pattis.

    *As Marcy discusses in her post linked at 2 (see the “update” at bottom), confusingly, Fischer’s case was one of three, originally consolidated for appeal and then later un-consolidated (?), involving three criminal defendants who had the § 1512(c)(2) part of their J6 indictments tossed by district Judge Carl J. Nichols (Trump appointee, former Clarence Thomas clerk), but the government successfully appealed to have the charges reinstated. See United States v. Miller, No. 22-3041, and United States v. Lang, No. 22-3039, mentioned in Fischer’s first brief after consolidation. The oral-argument-hosting website still refers to all 3 defendants in it case description drafted in anticipation of argument.

    **In an April 2023 post, Marcy raised questions about the scope of any appeal, wondering whether the issue of how to define “corruptly” would be considered, noting that opens up another can of worms entirely. Briefs do indeed bring this up, so arguments could get pretty interesting.

    • John Herbison says:

      Mr. Fischer is not challenging the constitutionality of any statute. The question before SCOTUS is one of statutory interpretation. The Court should decide whether 18 U.S.C. § 1512(c)(2), which prohibits corruptly obstructing an official proceeding, is limited to acts that impair the integrity or availability of evidence for use in that proceeding. The defendant’s position is that subsection (c)(2) of the statute is limited to conduct similar to that which subsection (c)(1) prohibits with regard to a record, document, or other object.

  3. says:

    And a few notes for IANALs who are new to Oral Argument listening and Supreme Court of the United States (“SCOTUS”) terminology:
    Both arguments are scheduled to take one hour, with counsel for the criminal defendants (here, called “petitioners” because they lost their cases before the D.C. Circuit Court of Appeals), going first, and usually reserving about 5 minutes for rebuttal at the end.

    While the United States is the party responding to the petition (“the respondent”), U.S. Solicitor General Elizabeth B. Prelogar is only arguing for the United States in Fischer, as Jack Smith has hired his own “Counselor to the Special Counsel” — former Deputy Solicitor General from 1995 to 2019, Michael R. Dreeben, a criminal law expert who has argued over 100 cases before the Court — to argue for the U.S. Interestingly, Dreeben, who was on Mueller’s Special Counsel team, argued his first case in 1989 against another first-time arguer — John Roberts, who later became Chief Justice, a case Roberts won with a unanimous verdict for the respondent, appellee who had prevailed at the appeals court level.

    I offer a gentle warning for those on the autism spectrum seeking to listen live on April 25 — petitioner Trump’s oral arguer, D. John Sauer, has a vocal chord impairment, akin to Robert F. Kennedy, Jr’s, that is similar to, but different from, vocal frye, which can be triggering for those with acoustic sensitivities.

    If for any reason, listening live or later to recorded arguments is not an option for you,transcripts are available usually in the afternoon on the same day as the oral argument.

    • John Herbison says:

      I am a bit surprised that Donald Trump did not upgrade to counsel with more experience before SCOTUS, as he did in the Colorado matter. Mr. Sauer was unimpressive before the Court of Appeals.

  4. harpie says:

    THANKS! to, above, for all the details.
    Here’s something from WaPo [at the Internet Archive].

    Supreme Court to weigh if Jan. 6 rioters can be charged with obstruction Defense lawyers say prosecutors improperly stretched the law by charging hundreds with obstruction of an official proceeding [Ann E. Marimow April 13, 2024 at 10:00 a.m. EDT]

    • earlofhuntingdon says:

      Good summary by Scotusblog. What I find breathtaking is not the govt’s and the appellate court’s interpretation of 1512(c)(2) – which seems mundane – but Fischer’s argument about how narrowly the courts should interpret it.

      His argument, in a way he must think is clever, would omit the statute’s clear language – and liability – concerning, “or otherwise obstructs,” and leave only an emphasis on not spoiling documents or similar evidence.

      Congress specifically chose to use broad, inclusive language for 1512(c)(2), in addition to the narrow, evidence-focused language chosen for (c)(1). If Fischer – or Trump – objects, he should take it up with the legislature.

  5. harpie says:

    A sort of Table of Contents:

    [3:04] TRUMP Trial [NS: “The day we thought might never come appears to be here.”]
    [6:17] Weisselberg back to jail
    [7:20] At SCOTUS on 4/25/24: TRUMP “absolute immunity” claim // on 4/22/24 FISCHER appeal
    [12:10] NS: “This is a big week for Emptywheel.”
    re: Marcy and CIPA [Espionage Act / Schulte / Assange]

    [19:27] MW: “But, the other reason this matters, is because TRUMP’s case has to go through CIPA as well.” [Documents Case]
    [26:00] Why is Aileen CANNON “surly”?

    [30:30] NS: [re: Monday beginning of TRUMP’s trial]: “Should there be cameras in courtrooms?”
    [35:20] Dobbs / ARIZONA / abortion
    [39:00] TRUMP and political violence
    [39:55] NAUTA – FBI interview transcript
    [45:00] Hunter BIDEN [Judge Scarsi] // Prosecutorial dickishness // Smirnoff

    [54:10] MW: “This is something that kind of really concerns me. This guy [Leo WISE] is very close to Rod ROSENSTEIN.” […] [AND Robert HUR, Gary SHAPLEY] […]

    “So you’ve basically got this Baltimore Mafia going after the Biden family, and doing things that other Special Counsels don’t do. I mean, again, legal, just sleazy. That’s how they are conducting this investigation of the President’s son.” [Marcy calls it “sloppy.”]

    [58:09] Conclusion

  6. Fiendish Thingy says:

    Anybody know if Brandi Buchman is going to be at, and live-blogging Trump’s trial tomorrow?

  7. bmaz says:

    Good grief. This is already the most overhyped trial of this century. MSNBC already has a “jury consultant expert” on. This case is so bogus that even Cy Vance declined it as being stupid. That it is the current criminal case against Trump, and that it is being so clamored about, is Trump deranged writ large. The charges are overwrought misdemeanors.

    • SteveBev says:

      That’s as maybe but:

      Michael Cohen was sentenced to 36 months in prison for what Judge Pauley called a smorgasbord of fraudulent criminality which included “brazen violations of the election laws” when he orchestrated hush money payments on behalf of President Donald Trump during the 2016 election.

      I appreciate that his tax fraud and bank fraud got him the bulk of the sentence bearing in mind the duration and sums involved, but the election violations were not negligible.

    • xyxyxyxy says:

      Damn, couldn’t OJ have waited to die this summer or fall?
      Then we could have had him, defendant from last century’s trial of the century, doing play-by-play or analysis of this century’s trial of the century.
      Is Lance Ito available to cover?
      How about Mark Fuhrman?

  8. P-villain says:

    This trial moving forward before the J6 trial is most unfortunate. I still have hope the latter will commence in September, but it’s ebbing.

      • P-villain says:

        After so many other things related to this person proved to have no bottom, perhaps the same will be true of this stock. One can hope, anyway.

      • earlofhuntingdon says:

        It’s not owing just to the start of Trump’s first criminal trial. DJT also announced it would issue 21.5 million new shares. Initially, that decreases the value per share of existing shares.

        The drop in share price today about equaled the reduction in price per share owing to the new shares, apparently not yet issued. Essentially, DJT is bleeding money and can’t make it fast enough to stay in business. Sad.

        • earlofhuntingdon says:

          Issuing 15% more shares within two weeks of the merger – a big red flag that speaks of poor management and a worse business plan – was always going to tank the stock by … 15% or more.

          Announcing it on the first day of Trump’s first criminal trial seems an unlikely coincidence. But the rubes invest on faith.

        • harpie says:

          WaPo reporter Drew Harwell:

          Apr 14, 2024 at 8:15 AM

          New: I talked to Trump Media investors about their shares’ value getting cut in half. A tree remover in Oklahoma who bet basically his whole nest egg told me, “This isn’t just another stock … I feel like it was God Almighty that put it in my lap” [WaPo link]

          Links to:
          Small-time investors in Trump’s Truth Social reckon with stock collapse Trump Media shareholders have voiced doubt and fury over the company’s plunging price. Some said they had invested thousands to show Trump their faith and support. [Photo of “tree remover in Oklahoma” with his gigantic chainsaw]

        • Rayne says:

          Amazes me how stupid and/or naive the TMTG/DJT investors are, but then it’s of a piece with their beliefs and experience that nothing Trump is involved with or does will affect them personally in a negative way.

          Unlike Muslims, BIPOC, women, LGBTQ+, the environment, so on which were damaged during his administration.

    • harpie says:

      WaPo’s Philip Bump:
      Apr 16, 2024 at 8:14 AM

      I was curious how the Trump stock’s rise and fall compared to the early weeks of other tech stocks. In short: unfavorably! [WaPo link]

      Links to:
      Analysis – A Tech-stock bubble and burst, all within three weeks The plunging price of shares of Truth Social’s parent company means Donald Trump is no longer among the world’s richest people. 4/16/24

  9. SteveBev says:

    Re: the the prosecution’s request to have Trump held in contempt, Merchan says he will hold a hearing on the issue on Weds, 4/24 at 2:15pm

    So no Wednesday off this week for Trump and the lawyers

    • earlofhuntingdon says:

      Yes, no break in the trial this Wednesday, only next Wednesday, to hear arguments about why Trump should be held in contempt for violating the gag order. But that seems a long time to wait to deal with an issue that could infect the witnesses and jury pool.

      • SteveBev says:

        Just revised
        Hearing on contempt allegations now reset to
        NEW DATE: Tuesday, April 23 at 9:30 a.m

    • holdingsteady says:

      Yes, we are talking about the draft up here too, Alissa Pili is our local player from Alaska (she played for Utah) – she is going to Minnesota, go Lynx! (she went to our local high school and they are Lynx as well !)

      • bmaz says:

        It is pretty awesome that this is how it gets talked about, isn’t it? Go Lynx! And Clark and Mercury too. There is something transformational going on, and it should be noticed. Thank you for noticing.

        • holdingsteady says:

          Thank you also! I’m getting enthusiastic… I confess to being kind of blasé about sports in the past but I say, bring back trash talk, pretty please!

  10. tinaotinao says:

    Ooops coming through.

    A Heads Up Billy

    Can we put our shitkickers on
    Look it,
    when these maggots
    have been put in their place
    Can we PLEASE make them
    clean up their own mess?
    Spineless creeps.
    Religion used in furtherance
    of corporate control.

    • earlofhuntingdon says:

      What a load of crap. For starters, under NY rules, the bond issuer is supposed to be registered to do business in NY, be subject to NY jurisdiction, have issued a compliant $175 million bond, and have the minimum financial assets required to back it up. None of those things are true. That makes this a non-compliant bond, which Justice Engoron would be right, indeed, be obligated to reject.

      KS’s bond does not commit it to pay anyone anything at any time. Even if KS cures that, it hasn’t the required minimum free surplus of ten times the maximum amount of any single bond it has issued. The Trump bond alone exceeds the total value of KS’s surplus. Paying it would leave KS with no surplus, and at shortfall of about $40 million, which makes its ability to continue to do business long enough to complete this transaction questionable. If it declares bankruptcy, it would generate months to years of delay.

      KS claims to cure that problem – it doesn’t – by having obtained a security interest in Trump assets (a securities account owned by the Donald J. Trump Revocable Trust), purportedly worth at least $175 million. Even if Trump meets his commitments – always questionable – KS would have to enforce its security interest, presumably in state court in Florida, liquidate the account’s assets, and send the money to NYC. That takes more time than the normal bond procedure contemplates.

      And that assumes that Trump does not contest KS’s enforcement of its security interest, something he always does. If the trust declares bankruptcy, it would be a default, but Trump could still do it and delay collection for months.

      This arrangement is insufficient to protect the NYAG’s interests. The bond is non-compliant. It should be rejected and the NYAG should be allowed to enforce its judgment against the Trump defendants.

    • earlofhuntingdon says:

      The Trump memo, submitted jointly by five law firms, engages in the usual sleight-of-hand. A few points.

      It describes Knight Specialty as “well-capitalized.” That does not mean it is “sufficiently” capitalized under NY rules.

      It claims that KS is “an eligible excess lines insurer” in NY, NOT that it IS and does business as an excess lines insurer in NY.

      KS supposedly has a security interest in assets of the Donald J. Trump Revocable Trust. That may be necessary, but it is not relevant to whether KS is qualified to issue a compliant bond. NY rules contemplate, for example, that a bond issuer will have surplus capital sufficient to pay any bond it issues – independently of its ability to collect assets from the beneficiary. That is not true here.

      KS’s assets are not a measure of its ability to pay. Its surplus capital is. KS has less than a tenth of the surplus capital NY rules require it to have to issue the Trump bond.

      It claims that KS “has access” to the assets of its parent or affiliated companies. There’s no proof for the claim and its vagueness is fatal. In the absence of an express commitment, a subsidiary has no claim to the assets of a parent or affiliated company. If it did, it would require enforcement in a lengthy proceeding outside of NY state. The point of NY’s bond rules is to avoid such exposure and delay.

    • earlofhuntingdon says:

      As others have noted, the signature page for the Collateral Account and Pledge Agreement that Trump filed last night appears to have been lifted from the agreement used for the appeals bond in the E. Jean Carroll defamation case. It refers to Federal Insurance, part of Chubb, which issued that bond. It’s also dated sometime in March 2024 (the date is illegible, an error in execution).

      This pledge agreement should be with Knight Specialty, and dated some time in April 2024. Those are fundamental errors that would void this agreement, unless immediately corrected.

      FIVE law firms signed the accompanying Memorandum on behalf of the Trump defendants. Did none of them review the fucking exhibit? Pity that they screwed up in a court filing intended to persuade Justice Engoron to continue to stay enforcement of his judgment in favor of the NYAG. Doesn’t say much for the accuracy of their other filings. Their malpractice carriers should take note.

      • harpie says:

        Thanks you so much for the detailed run-through, EoH! [from someone who doesn’t understand any of this stuff…only that it sounds very questionable.]

        • earlofhuntingdon says:

          Given the stakes, Trump’s position is bonkers. He is putting in jeopardy the stay pending the outcome of his appeal. Adding insult, he is arguing that this faulty bond is such a Trumpian achievement, and the NYAG’s is so wrong in contesting its sufficiency, that the AG should be held liable for Trump’s costs to defend it.

          Trump claims he’s put up all cash security. If that were true, why pay extra millions for a bond, instead of posting the cash with the court? If Trump loses his appeal, he’ll need those millions and then some to pay the final judgment.

          In fact, if Trump had that much cash, why go to Hankey’s high-cost, high-risk organization, when Trump could just buy a bond from an established NYC bond issuer and avoid all his extra effort?

          Or is this supercalifragilisticexpialadocious securities account serving as collateral for more than one Trump debt? That, of course, would itself nix any value this bond might have had to the NYAG. The whole thing’s a dog’s breakfast.

        • earlofhuntingdon says:

          Knight Specialty is severely undercapitalized, for purposes of issuing a $175 million bond on behalf of the Trump defendants.

          It’s irrelevant whether its related-company reinsurers, or its parent or affiliated companies have sufficient funds to pay it. For their assets to be relevant, those entities would either have to be co-issuers of this bond – they are not. Or KS would have to have an unconditional right to call one or all of them to give it sufficient funds, so that KS itself could promptly pay the bond. That does not appear to be true, either.

          Trump must also clarify that KS has an exclusive, first priority security interest in the Trump trust securities account.

          Most importantly, the bond itself needs to be rewritten. As is normal practice, KS must give the NYAG its unconditional promise to promptly pay the full amount of any final judgment, up to the bond limit, when informed by the NYAG that such payment is due.

        • earlofhuntingdon says:

          That Trump claims his eponymous revocable trust has given KS “a security interest” in a securities account – and not “a first-priority” security interest – strongly suggests that Trump has given other creditors prior security interests in that account. They would have to be paid before KS is paid. That’s a problem.

          There are so many holes in this bond arrangement that Trump’s lawyers should be worried about being accused of making material omissions in their statements to the court.

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