Trump Verdict Watch Begins

A
Welcome to Pod Save America. I'm Tommy Vitor.

B
And I'm Alyssa Murray.

A
On today's show, we are officially on Verdict Watch as the jury in Manhattan begins deliberations. Robert De Niro, of all people, hit the campaign trail for Joe Biden this week and got into it with protesters outside the courtroom. And the Trump team reportedly thinks they have a sympathizer in the jury room. We're also going to talk about the cluster that the Florida documents trial is turning out to be what we might expect from the Supreme Court this week and the latest and greatest on the Justice Alito flag saga, including allegations of spitting using the c word. We now have a letter from Sam Alito himself that we were just reading. So that's a fun one. But the best news of all is that Melissa Murray is here riding shotgun. Melissa, as you know by now, is a co host of the fantastic Crooked podcast Trick Scrutiny, a professor at NYU Law School and the author of the very excellent book the Trump Indictments. Melissa, great to see you.

B
Thanks so much for having me. I'm so excited. I have so much to say.

A
I just, I love strict scrutiny every week. But boy, when there's an Alito news item in there, it really, it just.

B
He is truly a friend of the pod. He really is.

Content creator Sam Alito.

A
Yes, content creator, flag lover, or maybe not.

B
Or not.

Not a fan, but feminist, because he defends his right to love his wife, who loves flags more than he does, and his right to throw her under the bus as often and as forcefully as possible to avoid any, any responsibility.

A
For any of this to the press, to the Senate. He'll put it in writing. He'll say it anytime. Yeah, she is under the bus, but we will get to that.

B
We're going to get to that. Yes.

A
But let's start with the Trump trial, because as of this recording, we don't have a verdict in Donald Trump's Manhattan hush money trial. Judge Marshawn has charged the jury that is given them the legal instructions on how to make their decision about Trump's innocence or guilt. And the twelve jurors are now holed up somewhere in 100 Center street. They're probably eating some bad catering, arguing with each other, and wondering about what kind of book deal each of them is going to get when this is all over. I did want to note that we have an imprint. Just throwing that out there. Your media, we don't have any indication yet of how long deliberations might take, but odds are we'll get a verdict immediately. After we released podcast episodes, because that's how it goes here. The defendant didn't seem too optimistic about things outside the court today.

Maybe he's just playing the expectations game, but let's listen to a clip.

B
I would say in listening to the charges from the judges, as you know, very conflicted and corrupt because of the confliction.

A
Very, very corrupt.

B
Mother Teresa could not beat these charges.

These charges are rigged. The whole thing is rigged.

A
Melissa, I'll get to my real question in a second. I just love how, like, dated his references are. She died in 1997.

B
Confliction like a new word. And also the cheek to say this judge is so corrupt.

Mere hours before Samuel Alito issues his letter, which we're going to get to, but also days after the second Alito flag has been reported.

Sir, read the room.

A
Freak flags are flying all over the place. So let's back up a bit. We haven't talked since the closing arguments concluded earlier this week. The defense summations took 3 hours. It was Todd Blanche basically spending most of his time focusing on Michael Cohen and called him the mvp of liars and the gloat, which is the greatest liar of all time. As a Tom Brady fan, I appreciated that one for the creativity, Todd. The prosecution then took about 5 hours to go through a detailed timeline of evidence that corroborated Cohen's testimony. Melissa, any big takeaways from you about these closing arguments?

B
One, they were way too long, I thought, on both sides. The prosecution went on for about 4 hours. Todd Blanche went on for 3 hours. Like, that's a lot. It's a lot of information for the jury to comprehend and digest.

Typically, closing arguments are probably 2 hours max, depending on how complicated the case is. And I don't know that this case is so complicated that it required going on until 08:00 last night, which is when they finally did break. But, you know, I will say this, and I think it's important for listeners to understand it. The real pressure here is on the government to establish, establish Donald Trump's guilt on every charge beyond a reasonable doubt, which is to say very, very, very certain that he is guilty of all of the things of which he has been accused and charged. All the defense has to do is basically say that the government hasn't done this. The defense isn't required to put on a defense, and indeed, it did not put on much of a defense here. The defendant isn't required to take the stand. All they're required to show to prevail here is that the prosecution hasn't met its burden. The problem, though, is that the prosecution really has done a relatively good job of meeting its burden. They've been very clear here that their star witnesses are not Michael Cohen or Hope Hicks or any of the other corroborating witnesses that they called their star witnesses. Are these documents, and in particular, the smoking gun documents. That's people's exhibit 35 and people's exhibit 36. Those are the handwritten notes that talk about how this repayment to Michael Cohen is going to be grossed up. There's handwriting from Allen Weisselberg and Jeffrey McConney, who's the Trump Organization comptroller, who are basically explaining how they're going to create these falsified business documents for the purpose of repaying Michael Cohen for the $130,000 he paid to stormy Daniels lawyers.

But then they have to plus it up in order to make Cohen whole, because the payment has been classified as legal services, which counts as income and which is going to be taxed as income to Cohen. So they have to make it bigger so that he can ultimately make, be made whole after the IR's gets its cut. Those are the real smoking gun documents. And as much as Todd Blanche dwelled on all of the infirmities of Michael Cohen as a witness, he never really refuted the fact of those smoking gun documents, which I thought was really surprising. He didn't provide an alternative story or narrative that could explain why those documents exist or why they very clearly show this scheme to plus up the number so that Cohen could be made whole again. And he also didn't explain that very damning audio tape in which Donald Trump and Michael Cohen are discussing how this scheme is going to work and how Cohen is going to be made whole again.

Yes, the defense has to poke holes in the prosecution's case, but you also have to create a kind of counterfactual or counternarrative that the jury can latch onto. And I'm not sure Todd Blanche did that here. And I'll just stop there. We can say more. I mean, I have lots to say about Todd Blanche as a lawyer, but to me, that was the most glaring aspect of these 3 hours. I was waiting for the refutation of those key pieces of evidence, and it was never forthcoming.

A
Yeah, he just sort of hammered Michael Cohen. I think you and Trump actually seem to have agreed on the prosecution's closing arguments there. I think he truthed boring and filibuster were his big takeaways.

B
The former president, it was really long. I mean, I think Joshua Steinglass was really terrific. It was very methodical. And to be fair, from all accounts, inside the courtroom, the jury was with him. They seemed to be very responsive. They had a good rapport. So, you know, maybe it's fine, but I just, you know, 4 hours, it's 08:00 at night. Like, I'm two unisoms in, and I'm gonna be asleep by 09:00 you're talking.

A
To a guy who loves a 90 minutes movie. I'm with you on all of this.

B
A 90 minutes movie, a play with no intermission. These are the gold standards.

A
That's what we're talking about. Yes. We also heard Trump attacking the judge's jury instructions. In that clip we played, judges have some latitude in how they instruct the jury, and that can have big consequences, or at least that's what smart lawyers on tv tell me. Did anything seem surprising or noteworthy about the jury instructions? And can you just give listeners a sense of how bad jury instructions can actually bite the prosecution in the ass down the road?

B
Sure. So the jury instructions are basically the directives that the judge reads to the jury in advance of the jury going out by itself to deliberate about the case. And it's where the judge instructs the jury as to the particular points of the law that they then have to apply to the facts as they have found them. And so the parties usually spend a lot of time fighting over the jury instructions. When I was a clerk, we would get jury instructions from the prosecution, we get jury instructions from the defense, and they would be very, very different, proposed jury instructions. And the job of the chambers, the judge, would be to kind of meld them together, figure out what was the right sort of mix, how to present certain things so that no side was unfairly advantaged or disadvantaged. And one of the things I noticed here was there's this really intricate question about the way the prosecution has charged the case, because ordinarily in New York, the falsification of business records, which is the bulk of the charges against Donald Trump, that's ordinarily a misdemeanor, but when it is done in furtherance of another crime or the concealment of another crime, it can be elevated to a felony. The defense had asked for the jury to be instructed that the prosecution actually had to come up with a single theory of what the other crime was, that Donald Trump was allegedly falsifying business records in furtherance of, or in the concealment of. And the prosecution said, no, we actually don't have to do that according to the law.

All that we have to show is that it was done in furtherance or in concealment of some crime. We don't actually have to establish beyond a reasonable doubt what that other crime is, nor do we have to specify what particular crime is or single out any particular crime. And so the prosecution here actually identified four different theories of alternative crimes that were the sort of predicate crimes and furtherance, or in concealment of. And the judge struck one of them, but that left three of them. A tax fraud claim, a federal election claim, and then a New York state election claim. And the judge, in writing these jury instructions, basically went with the prosecution's theory of this. They don't actually have to identify a single crime that this is in furtherance of or in concealment of. Nor is the jury required to find that Donald Trump actually committed that crime. It just has to be in furtherance of a concealment of. It doesn't actually have to have been committed. And I think that's a big win for the prosecution.

A
Well, and you've seen Republicans like Marco Rubio, who is apparently on the short list to be vice president, is picking up on what you just described, the fact that Marshawn told the jury they don't have to come to a unanimous decision on which underlying crime was committed, and saying that that shows that this whole thing is rigged and unfair to Donald Trump. What do you make of that?

B
I don't think that's true. I mean, I think that is the law, and that is the point the prosecution made in arguing this point with the defense before the judge. Like, you don't have to prove that unanimously. You don't have to settle on a single charge. Like, three jurors can think it's about the taxes. Three jurors can think it's about the federal charge. Three jurors can think it's about something else entirely, some other crime that's been identified here, the state level election charge, and all of that might be fine. The defense very much wanted the prosecution to pick one. And again, if the prosecution had been required to pick one, it would have really played in the defense's favor. So it's not surprising that that's the argument that they were making, nor is it surprising that the prosecution was arguing the opposite side of that. I think what is really important here is that there had already been precedent in New York state that you didn't actually have to identify a single crime that the falsification of business records was in furtherance of. And so the judge just kind of played this down the middle, and it was a playing down the middle that kind of worked for the prosecution. So, you know, I don't think there's much here to Marco Rubio's claims, but I also think there often isn't much there to Marco Rubio.

A
Oh, yeah, he's the king of saying things that are devoid of substance. But you also, you don't think that anything in those jury instructions creates risk for the prosecution upon appeal?

B
Oh, I think that is certainly going to be an appealable issue. I mean, I said from the beginning, this question of whether the prosecution could sort of bootstrap these charges to get to a felony was always going to be a big question. It really didn't become a big question at the trial. But I do think it may be a big issue that one that could actually be appealable if Trump is convicted going into the next phase of this. And trust me, there's going to be a next phase if he is convicted on any charge, he is going to appeal. I think this might be something that becomes fodder for an appeal.

A
Yeah. Well, let's talk about the potential outcomes and the phases here. So the simplest one is total acquittal or total conviction. A full acquittal is the worst case scenario for the prosecution. Trump walks. The government can't appeal. People like us get to say double jeopardy. So that's fun. We get to talk about that because that's why you can't prosecute him again. Right. But even Trump's allies seem to think there is little chance of a full acquittal. We'll see, I guess.

B
Well, I mean, they kind of were communicating that. I mean, in his closing argument, and this was very, very controversial, Todd Blanche, who, and I have to say this, Todd Blanche is not a defense lawyer by trade. He's been a longtime prosecutor. This is actually one of his first big defense trials, maybe even the first that he has done. And so he's more often on the other side of the v. Prosecuting cases. So he knows that when you are talking to the jury in your closing arguments, you cannot mention the prospect of punishment because the jury doesn't determine punishment. It's the judge that does that. And so in his closing statement, he said something to the effect of, you know, do not send Donald Trump to prison on the say so of Michael Cohen, the greatest liar of all time. And he was immediately rebuked by Judge Merchand because, again, it's playing on the sympathy of the jury, and it's a huge no no since the jury has no role in determining the ultimate sanction or punishment. But I think it was also kind of a concession that they don't have high hopes for their chances with this jury, that the prosecution's evidence is really damning and the best they can hope for is perhaps one or two jurors just, you know, being a little on the fence about whether this is something for which someone should serve prison time or whether this, they're even convinced that Donald Trump did this. So I don't think they're holding out hope for a complete acquittal. I think they are really hoping for a hung jury that leads to a mistrial.

A
Two things, though, before we go to break. In 2014, a prominent indian judge died at a wedding. The authorities said it was a heart attack and his passing barely made the news. But when his niece approached a journalist two years later, she shared a different narrative, that the circumstances around Judge Brijgopal Loya had made his family doubt the official story sound interesting? Tune into killing justice, the newest limited series from Crooked media and the branch hosted by Ravi Gupta. Killing justice follows the reporting and legal fallout from this tip, examining the conflicting evidence to answer how one man's death became a magnet for the increasingly polarized politics in India, and what this means for the future of the world's largest democracy. Subscribe to hear the first two episodes of Killing justice, available on Apple, and Spotify new episodes every Monday. For ad free access to episodes, join Friends of the pod Crooked subscription community@Crooked.com friends also votes of America's 2024 volunteer program organizer Else has already driven almost 6000 volunteer signups, but we still need you to take action and join this competition for the fate of democracy. Just go to votesaveamerica.com 2024. Get assigned Team east or Team west and get matched with opportunities and training tailored to you and the causes you care about. Right now, Team east is kicking Team West's ass, leading with 38,000 more voter outreaches. So if you live on the west coast, we better see you at a kickoff soon.

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So the best case scenario for us, right, is a full conviction that then I guess you start the clock on sentencing, and I'm sure Trump will appeal.

B
Yeah.

A
Yes. But with 34 counts, my understanding is you basically have 34 separate verdicts, and in each case, the jury has to be unanimous. So you could see Trump convicted on some counts, acquitted on others. Right? So what, how does it work in a, in a split case? Does the sentencing process begin? Does the appeals process slow everything down? Are they concurrent? Like, how does that go?

B
So there's the ordinary case, and then there's this case, right? I mean, so I should just say at the outset, most cases never make it to a trial by jury. And certainly, you know, my husband's a former prosecutor. One of the first things he said about this case was for any other defendant, there would have already been a guilty plea just based on what the indictment said and the evidence that it seemed very clear the prosecution was going to marshal that, you know, most defendants would have pled out to this. It's like falsification of business records. Very unlikely to lead to jail time. Like, you don't even want the hassle of this. Just, you know. And if the evidence is so clear, just get it over with. He's taken this to trial. That by itself is unusual. We've already seen in the disposition of the gag order requests and the various arguments involving the gag order that Judge merchandise, he is very straight down the middle. He seems very reluctant to throw this defendant in jail. And so I think there are going to be some real questions going forward, if Donald Trump is convicted on any of these charges, whether or not we're going to see immediate action. Usually what happens once a defendant has been convicted is that it then shifts to the probation office to work up what is known as a pre sentencing report. A pre sentencing report goes through the defendant's criminal history, his family circumstances, his work circumstances.

They talk about the nature of the crime, whether there's a likelihood of recidivism in the future. All of this, and it's like a six to seven page document that is supposed to inform the judge's response in the sentence, like it's supposed to inform the judge's sentence. But this is someone who, despite not having a criminal history, has some legal troubles in the background that may be worth talking about in a pre sentencing report. And he's also someone who's on the campaign trail. And so any sentence, even if it's probation or house arrest, would have huge implications for his ability to participate in campaign season, to press his case before the american people. And so I wonder if Judge Merchand is maybe going to drag his feet a little on the sentencing in order not to unduly influence the election cycle. So, you know, the PSR, the writing of the PSR, that whole process could take a month, maybe two months, maybe it just takes a little longer, and maybe the appeals process starts and Judge merchand decides to stay the sentencing until the appeals can be worked out. Maybe all of that happens and we actually don't get a sentencing before the election is concluded.

A
Oh, interesting. And just a little more on the sentencing. I know Norm Eisen, who's been on the show a bunch of times, analyzed cases like this one, where falsifying business records was the most serious charge, and norm found that only one in ten cases resulted in incarceration. That said, CB's news reported that Secret Service has been in touch with local prison officials. So who knows? But I think, like, you know, to our listeners, chanting, you know, lock him up in the shower every morning, like, pump the brakes, maybe.

B
Yeah, I mean, I think this could, I think the maximum sentence that could be imposed here is about four years incarceration. But again, like, going back to the gag order, this was a judge who explicitly said, I am loathe to put someone who is a former president, maybe even a future president, in jail for violating the gag order. And I bet he's also worried about the prospect of imposing a sentence that some view is unduly harsh and that might incite Donald Trump's followers to do whatever it is they do, maybe even things that are violent. So prison time, I think, is an outlier here, but I don't think that means there can't be a meaningful sentence that speaks to accountability for this. But, you know, if this was the vehicle through which you were going to get all your accountability out for everything, like, including January 6, is probably not it.

A
Yeah, I'll probably give him house arrest. It'll be 2020 election all over again, and then we'll lose. And that's just the, you know, the future we're doomed to. Just kidding, everyone. I'm much more optimistic than that. The other big wrinkle, though, is obviously the various hung jury scenarios where jurors can't get unanimity on Trump's guilt or innocence on a given count. I know that if you have a hung jury on every count, you have a mistrial and the prosecution has to start all over. But what happens if you have a hung jury on a couple counts or one count?

B
I mean, again, if it's a hung jury and they don't get to a conviction, all of it sort of the question kind of looms out there. Like, does the prosecution attempt to do this over again? I think it's probably unlikely here.

A
So expensive and politically. So expensive and embarrassing.

B
It'd be politically embarrassing. I don't think Alvin Bragg wants that smoke. I also think Donald Trump would make hay of it, and he would talk about this as, again, kind of doubling down on this persecution narrative. And I think it actually would be very powerful for his followers.

A
Yeah. So the bulwark had a story yesterday about how the Trump team thinks a hung jury is basically their only hope here, the only shot of him escaping legal consequences, that they're eyeing one juror in particular. So the hope here comes from this guy's making eye contact, or this juror, I should say.

B
Yeah, we don't know which juror it is.

A
Right? They're making eye contact. There's been certain head nods during things that were favorable to the defense. There's a perceived enthusiasm for Trump surrogates in the courtroom, like JD Vance. Now, this could all be nonsense, but one Trump insider quoted in the article acknowledged, like, hey, maybe this person just trying to mess with us, essentially. But, you know, there's a guy named Harry Litman, a former federal prosecutor who was appointed by Bill Clinton. He wrote on Twitter, quote, there's one juror that people are worried about, and I share the worry. Can't identify her or him per judge's orders, but seems less engaged and slightly irritable. Melissa is this ton of speculation.

I would be so pissed if I sat for 5 hours, too. But, like, is this, like, when the Daily Mail is doing, they call in a body language expert to look at, like, the.

B
Oh, yeah. So they look at Prince Harry and Meghan Markle and they're like, oh, they're not holding hands. Obviously going to be getting a divorce.

A
Is that what this is? Like, is this serious?

B
So I'm just going to say this at the top.

Juries are really weird organisms. No jury is alike.

It's like twelve people who are totally random being thrown together in pretty shabby circumstances, if I'm being honest. Like, I was just down at the New York courthouse for my own jury duty, and not luxurious. So they're thrown together in these kind of gross, desultory circumstances for days on end. They kind of bond together in certain aspects, but they're not. Like, they're familial, but they're not family, and they're sort of bound together in this one particular trial. And I just think the dynamics of something like that, it's basically the real world with law, and it's just weird. And I think it's really unpredictable. And so looking for clues from whether they smile at you or they don't smile at you, like, I guess, but, you know, jury consultants make tons of money. I'm not sure it's all deserved. Trying to predict what juries will do or trying to figure out who would make the right collection of people to be on a jury. But I think it's just inherently unpredictable. Like, this is just an organism that is constantly evolving and is its own animal. And I think nine times out of ten, when you talk to the jury after a trial, you're really surprised by what moved them and what didn't.

A
Yeah. So a jury is like the real world with the law, or like being on survivor without all the fire starting and starvation and.

B
But with a good LSAT store. Do you know someone like that?

A
I do know someone like that. Or at least me, too, who considers himself as having a good LSAT score. We'll see. For listeners, we know as literal about those deliberations as we do about the ones happening in New York. It's a black box.

B
Yeah, I think that's exactly right.

Yeah. Outlast, outwit, outkill, whatever. Like, what happens?

A
Love. It's like taking swimming lessons in the backyard. Okay. So lately, though, Trump has been fighting it out outside the courtroom, too. He's been relying on high profile surrogates to make news on trial days and get around his gag order. But yesterday, Democrats decided to get in the game. The Biden campaign had Robert De Niro and two former Capitol police officers outside the courthouse. They were attacking Trump for January 6, and they were kind of mixing it up with all the Trump fans. Let's take a listen.

B
You think Trump ever threw a punch himself or took one?

This guy who ran and hid in the White House bunker when there were protesters outside?

No way.

A
You're not going to intimidate.

B
That's what Trump does to try to intimidate. We are going to fight back.

You are gangsters. You are gangsters.

A
Putting on your, you like raging bull, putting on your politico hat there. What did you make of this messaging effort?

B
I mean, I'll just say this. He didn't have far to go. Robert de Niro, he lives in Tribeca. The courthouse is probably a ten minute walk from his home. So I think he probably went out there with the best of intentions and the whole thing kind of, it got the better of him. Like, I mean, it's probably not his finest hour, probably not the best surrogate for the Biden administration.

You know, I'm sure Corinne Jean Pierre is like, ugh, like, right now, like John Roberts smoking furiously while holding a Dunkin Donuts cup.

But, yeah, this was weird to me. Just, we don't normally do this, I think. And it was, it was kind of a weird moment.

A
Yeah. Everything is new here. I mean, I talked to some of the Biden campaign staffers who are making these decisions, and the rationale from their standpoint was, one, let's go where the cameras are. They're recording. Let's talk to them. Right? They're just sitting there. Two, they wanted to try to put the focus on January 6 and the stakes for the american people in the election, and not just the stakes in the verdict for Trump himself, which I think is smart. And then three, I think, like, De Niro's in this new campaign ad, so it kind of made sense on some level to put him out there. But he's also a celebrity and he's more likely to get covered. And the places they're getting killed are like kind of TikTok voters, like people who aren't reading the New York Times every day.

B
So Robert De Niro is your picked up there. Yeah.

A
So an 80 year old is your obvious choice.

He did a dance, I think.

B
I mean, you know, I love Robert De Niro. He's one of the greatest actors of modern times. I don't know if he's going to play on TikTok. I just don't. Well, I mean, Timothee Chalamet, I think if he had come out for this, that would have been great.

That guy, Reggie Jean Page, also would have been, I think, a welcome addition for the Biden. I'm just riffing here.

A
You guys taking notes?

B
Call me up. Biden administration. I've got nothing but suggestions for TikTok able stars to be your surrogates.

A
Tiktokable stars.

B
Yeah.

A
Well, this election already feels longer than the Irishman, so we'll see about that. Last thing on Trump. So Maggie Haberman had an interesting piece about Trump running as an outlaw. This is the New York Times. So his Bronx rally featured a rapper who faces two counts of attempted murder.

In an effort to get the endorsement of the libertarian party, Trump promised to commute the sentence of a guy named Ross Ulbricht, who created the website Silk Road, which was used for drug trafficking and all kinds of illegal stuff. And Trump recently hung out with Afroman, a rapper who apparently punched a female fan at a concert. I did not know that. That is crazy. Though. Some people argue he should be in jail because of the song. Cause I got high. But what do you think? Does America want a bad boy? Is that what's happening here?

B
Honestly, this makes me so enraged, I actually have to step back. I mean, I just think about poor Barack Obama, where the worst thing he ever did was put on a tan suit.

A
I know.

B
And he just got pilloried for the audacity of tope. And this guy is literally running and comparing himself to black men and trying to sort of make common. Cause we're all outlaws. It's just gross.

Honestly, I can't actually even read Maggie Haberman anymore. I mean, I have to read her in such small doses because it makes me so angry. But this is. I just can't. I don't even know what else to say.

A
Like, no, the disconnect in how this would be covered if it were Obama is just so glaring. I remember, like, he had a birthday barbecue and it featured, like, some celebrities and rappers and athletes. And I remember Fox News had a headline that was like, Obama's hip hop barbecue won't create jobs. Like, okay, I get what you're doing.

B
Do you remember when they were leaving the White House and they had that party with, like, all.

Just all of these hip hop stars? Everyone came and they were pilloried for that. I mean, they were literally on the way out. I mean, it's almost over. Let them live. And this was.

A
I was at that party.

B
Was it great?

A
It was incredible. Prince was up there. Shout out, like, he was within his sort of rock era, though. It was like rock era princess. And they were just playing. It was wild.

B
So can I tell you, Prince played in Oakland. And my husband was able to get tickets. And I said I couldn't go because I had promised to host some Berkeley law students at my house for something, like, for an auction item that they had won at the public interest auction. So I said no, and said, we'll just see him the next time.

A
Oh, no.

B
And he, like, literally died two months later. And I can't look at those students anymore. I just feel like they got in the way of me and princess.

A
I hope you failed all of them.

B
I didn't. It wasn't their fault. I just, like, I'll never be that conscientious again, ever.

A
I was once at a bar and I put on Afroman. Cause I got high, like ten times in a row on the jukebox and then left. And I felt really. I thought that was a very funny thing to do. Enough about Afroman. We're gonna take a quick break, and when we come back, we're gonna talk about the latest with the classified documents case, and of course, the latest with Martha Analito and her stop the steal flag. So stick around for that.

C
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A
All right, Melissa, we haven't talked a lot about the classified documents case on this show, the one playing out in Florida, because it seems less and less likely that anything is going to happen there before the election, mostly because the Trump appointed judge in the case, Aileen Cannon, doesn't seem to want it to happen or maybe isn't qualified to oversee the case or maybe some combination of both. But there's been a lot of weird stuff happening that we should discuss. So Trump the other day said that the FBI agents who raided Mar a Lago were given the okay to shoot him. Steve Bannon called it an assassination attempt. This is total nonsense.

B
I mean, remember Trump, depending on how the immunity case turns out at the Supreme Court, it might actually be fine.

A
May or may not be legal, though, unfortunately for the FBI, Trump wasn't at Mar a Lago that day. So it would have been tough to assassinate him. But that doesn't stop these guys from making these claims. So after Trump makes this claim, Jack Smith, prosecutor, requested a gag order to stop Trump from saying it again. Judge Cannon denied that request on Tuesday and criticized the special counsel for not following the proper procedure and consulting with Trump's lawyers before making the filing. This has been a pattern with Aileen Cannon. She seems openly hostile to the prosecutors, and it's reviving criticism on the left about the decision to try this case in Florida rather than in Washington, DC. What do you make of that critique?

B
I mean, I think Jack Smith, when deciding where to charge these cases, was trying to sort of play it straight down the middle, recognizing that these cases would be extraordinarily scrutinized and his decisions would be really scrutinized as well. The bulk of the action happened at Mar a Lago, which made it an obvious place to file the Southern District of Florida, although it would have been more favorable, obviously, to the prosecution to have this case brought in DC, where there is likely to be a more favorable jury pool, certainly likely to be more experienced district court judges who were prepared to try this case, who have some expertise in some of the arcane procedures involving classified documents that have to be brought in as evidence in a case like this. But I think he was playing it down the middle, just recognizing that any decision that seemed unorthodox would be heavily scrutinized and would be classified or characterized by the Trump campaign as a kind of political persecution brought on by the Biden administration.

A
I mean, it just seems like it's almost impossible for this case to happen before the election, right?

B
Oh, it's. No, it's never going to happen. I mean, you know, Andrew and I wrote that book, the Trump indictments, and we annotated all four indictments. We probably should have just done one. There's only one case that's going to go to trial here. We can talk about the Trump immunity decision, which I think is going to be the nail in the coffin of United States versus Trump, the January 6 federal election interference case that Jack Smith brought. But I think both of these federal cases are.

They're not long for this world. Eileen Cannon has been the nail in the coffin for the documents case, which is a very serious case, and I think a very straightforward case that would have very easily led to a conviction. And the Supreme Court is the nail in the coffin to the election interference case.

A
Yeah, well, let's get to the supreme court, because I know strict scrutiny. You guys try not to play favorites. You love all your children equally. But Sam Alito is a special boy. Justice Alito. So the New York Times this week reported some remarkable new details about Alita. Oh, hold on, real quick. We gotta get into. We gotta get to character here.

B
Okay?

A
This is important for everyone.

B
Oh, yes.

A
Watching on the YouTube, we brought in our upside down flag, because love it leaves for half an hour.

B
Let your freak flag fly. Let it fly.

A
I love it. Thank you, guys. Thank you. Love it goes away for a day. And I'm doing prop comedy like I'm fucking carrot top at this place. So the New York Times, they reported some remarkable new details about Alito, his wife Martha Anne, and their love for insurrectionist flags and symbols. Uh, in case listeners haven't heard about this saga, back in January of 2021, Alito flew an upside down american flag at their house in Virginia. And they kept that flag up even after January 6, either. After the insurrection, they had the upside down flag up there, despite the upside down flag becoming the symbol of the MAGA insurrectionist movement. After the Times reported out that first story, Alito blamed his wife and said she hung the flag because Alito's liberal neighbors had been mean to her. Basically. The Times later reported that years later, in 2023, the Alitos flew another flag linked to Trump in the insurrection at their beach house in New Jersey. Which brings us to this week in this latest reporting by Jody Cantor of the Times. The New York Times interviewed the neighbors the Alitos were reportedly beefing with. Here are a few things we learned in this report. First, this couple, the Badens, actually called the police on misses Alito and asked the cops to make her stop harassing them. Somehow, I'm not sure how that would have worked, but it happened well.

B
It was also what was really interesting about the way they framed. It was like, she's the wife of a very important person. Like, it's almost like she feels she's above the law, and we need law enforcement to help us.

A
Yeah, it's wild.

I can't tell if it's like a very karen move, if it shows some real concern.

B
And Martha Analito is going to call the management, or maybe she is the management.

A
She is the man. Yeah, I think she's. I think that's it. We also learned that Martha, an Alito, swore at these. This couple and called the Badens fascists. And they did. She did so in front of her husband, Sam Alito, who said nothing. And then, most importantly, though, this reporting contradicts Justice Alito's excuse for why his wife flew the upside down flag. Alito said that his wife hung this flag up in response to the Baden's calling them vulgar names. But the incident when misses Baden called Martha and Alito the C word, as in Cu next Tuesday, happened after the flag was up.

B
I thought the C word for the Alitos and women was citizen, but that's the meanest thing for apparently, it's a different one.

A
Okay, so minutes before we started recording, we learned that despite all of this, despite this glaring conflict of interest, you're, like, basically raising an insurrectionist flag and then ruling on the cases involving January 6, Alito says he will not recuse. Melissa, you've been watching this guy for years. What does this saga tell us about him? What do people need to know about Sam Alito?

B
Sam Alito is basically on DGAF energy. He's fueled entirely by DGAF energy. He does not give a fuck about anyone, anything. He has a six to three conservative supermajority. Dick Durbin can't stop him. The president can't stop him. The chief justice can't stop him. No one can stop him. He does whatever he wants, and if you even question it, he will just throw his wife under the bus and keep doing it. So that's house Alito in a nutshell. And I have to say this letter that he wrote to Dick Durbin, responding to calls that he recused himself from the January 6 cases that are currently pending before the United States Supreme Court. Fisher versus United States and United States versus Trump. It's just the most trolly energy ever. I mean, it's just one giant f you to Congress. And he's also trolling the american people and american women in particular because he kind of puts out there that, you know, his wife did this. And you know what, folks? She's a citizen. She's an equal citizen. She makes her own decisions, and he honors her right to do so.

This from the man who wrote Dobbs versus Jackson women's health organization, withdrawing the right to an abortion and literally preventing american women from making their own decisions about an essential aspect of health care. Like this guy is literally whipping it out and just like, giving us a full frontal finger and he's enjoying it.

A
Yeah, I mean, I guess what must have happened is Durbin and Sheldon Whitehouse, two us senators, asked him to recuse himself from those cases. So Alito personally writes back this response, because it's a decision made by the individual justices, right? Not by like the court as an institution or a body.

B
This is what I mean. Like, the chief justice can't make him do anything. Like, he gets to choose.

A
He just gets to choose. So in this letter, just to read a little bit from it. So I love that. You're exactly right on the tone. He says, in considering whether this event requires recusal, an unbiased and reasonable person must take into account the following facts. And he sort of walks through some of those facts. He says he was not even aware of the upside down flag until it was called to my attention. He says, quote, as soon as I saw it, I asked my wife to take it down. But for several days she refused because.

B
She does what she wants. She's a free citizen. I can't control her. So instead, I'm going to control all other american women. That's Thomas, can't control Ginny, and I can't control Martha Ann. So we'll control all of you bitches.

A
He also says, my wife and I own our Virginia home jointly. She therefore has the legal right to use the property as she sees fit. And there are no additional steps that I could have taken to have the flag taken down more promptly.

B
She's a rights holder and equal citizen. Do you tricks know anything about that? No, you don't, because I took away your rights.

A
Alito, he says, my wife is fond of flying flags. I am not. Clears that up. He also says our vacation home was purchased with money she inherited from her parents and is titled in her name. It is a place away from Washington where she should be able to relax.

B
But Kylie Jenner's not the only sugar mama in town. Martha Ann got me this place, and she flies all the flags she wants. She has rights, and I respect and honor her right to do so. I mean, it's so trolly time. I mean, like, he literally is just telling american women to f. Right off.

A
He's absolutely, all of us terrible. Well, it's. Okay. So, like, stepping back, like, the impunity and the lack of consequences for anything these supreme court justices do is just so galling. You've got justices accepting lavish gifts from people with business before the court. Nothing happens. Jani.

B
Including Sam Alito.

A
Including Sam Alito. Jeannie Thomas, Justice Thomas's wife, as you mentioned, was an active participant in the stop the steal movement. Nothing happens. Now, Alito is refusing to recuse himself in this case. How do we hold these guys accountable? Is it hearings? A new ethics law, a new chairman of the Senate Judiciary Committee? Because Dick Durbin won't do it. Like, what do you make of this?

B
So, first, before I answer that, ask me what I'm drinking.

A
What are you drinking?

B
So, last summer, the official strict scrutiny cocktail was a ginny tonic. This summer, it's a Martha Rita with salt. Plenty of salt.

A
Oh, that looks delicious from me.

B
It's so good. I mean, because of the letter, I'm drinking it out of this, like, vat. It's enormous. Okay, so what can we do about the supreme court? Basically nothing. The Supreme Court. Supreme Court is like, cruising on Real Housewives of Atlanta. She by Charay who gonna check me. Boo energy. Like, no one's gonna check them. The chief justice isn't gonna check them. Congress isn't gonna check them. They have this faux ethics code that is completely unenforceable and toothless. And it just means that maybe occasionally, they might deign to tell us when a millionaire buys them, like, a home somewhere or a flag that they fly upside down. Like, maybe if we're lucky, they'll tell us. So. So, really, the only accountability we have is literally to vote so that Sam Alito and Clarence Thomas do not get to resign under a republican president and get replaced by fetuses, allowing this conservative six to three super majority to last until the end of time. Like, I know nobody wants to hear this, but winning the Senate, winning the presidency, means that justice sotomayor can step down and be replaced by someone younger, someone progressive, maybe more progressive. Justice Kagan can step down, do the same thing like, we don't have to live with the six to three supermajority. The fact of a democratic controlled Senate, the fact of a democratic president means that if Sam Alito or Clarence Thomas, both of whom are in their seventies, unexpectedly passes away in the next four years, they will be replaced by a democratic president, and we will be on our way back to clawing back the progressive majority.

That might have happened if the Senate had allowed President Obama to have a nomination hearing for Merrick Garland back in 2016. Those are the stakes. I mean, people don't talk about this election as though the court is on the docket. The court is totally on the docket, because the minute there is a republican president, these two fools, Clarence Thomas and Sam Alito, are going to retire. They're going to be replaced by younger movement conservatives, and they're just going to go off to wherever they do to get fetted by billionaires. Like, maybe they'll actually get sponsored by NASCAR billionaires, and we'll just, like, they'll drive race cars somewhere with, like, tattooed pictures of billionaires on their backs. I don't know. But they're definitely going to step down if Donald Trump wins, and they're going to be replaced by younger conservatives who are going to make the rest of our lives in the law absolute crap.

A
That's a hell of a pitch for why this election matters for the courts. Yeah.

B
And it's all, listen to Martha Rita mine, fueled by the.

A
And Trump himself has said that, like, what he's looking for is youth in his judicial nominees.

B
Yeah, he's been very explicit about that.

A
He'll name, like, a 35 year old who will get to. Or a fetus. Yes. That's the final stage in the fetal personhood debate.

B
Right.

A
Is making one.

B
The fetus becomes a member of the court. That's when we'll know.

A
But just on this ethics question, like, I don't know. Look, obviously, these guys and its guys, mostly, they will not go away if there are new ethics laws or if they're forced to, I don't know, come before the Senate. Do you think any of it would matter, though, in terms of just shaping things in the meantime?

B
I do think it would matter if the Democrats appeared to want to fight about this. I think it would be buoying to the public. I think it would be buoying to those of us who care and understand the importance of the court. I think it would signal that the Democrats really are taking seriously the question of the court and running on the court in the way that Republicans have in the past. And there just doesn't seem to be an appetite to fight. And I'm like, if you're not going to fight about this, what's the point? This is a big deal. I mean, we have become anesthetized to this kind of grift for our leaders, and that's really unfortunate. But if you go back even a generation, think about Thurgood Marshall, the first African American to sit on the court. He had been a lawyer for the NAACP legal defense fund for years before he was appointed to the federal bench. And he was a very gregarious, social person. When he and his wife, Sissy, moved to Washington, DC, they basically became recluses because she knew her husband was the first black justice. They had to be above reproach. They couldn't be seen to be fraternizing with individuals who might have business before the court, which was a lot of the people with whom they had previously been friendly. And so they kind of kept to themselves, kept to their family. They were not flying flags upside down. They were not going on lavish vacations at Harlan Pro's house or in getting pictures of themselves painted with billionaires. Like, they were really concerned about the optics, knowing that he could not have any questions about whether or not he was biased or whether or not he could be impartial.

And so that was just a generation ago. Abe Fortas, again, a generation ago, stepped down because he accepted, I think, a $20,000 payment for someone that he later gave back. And he stepped down because there was bipartisan outcries for him to leave the court because the optics of it were so bad. And here we just have these dudes, like, you know, fantastico. Like, it doesn't matter if I'm hanging out with billionaires. It doesn't matter if my wife is flying flags upside down, like, maga battle flags. Like, I'm happy to sit on this case. I'm happy to decide if Donald Trump is above the law and not subject to any kind of constraint on criminal liability. I mean, like, it's just madness.

A
And then they whine to the press about attacks on the court or the court's reputation damage.

B
Why aren't the lawyers defending us? Because you're indefensible, moron.

A
Yeah, the reputation damage is coming from inside the house, guys. You're all doing this last thing on this, but unfortunately, Justice Alito, he's plowing ahead with his job, his constitutionally mandated work of helping Donald Trump escape accountability.

B
For the incident he's obligated to do so as he said in the letter.

A
Yes, as he flies the flag at the courts tomorrow, Thursday the 30th, is probably going to be a Supreme Court opinion day. Do you think we'll finally get a ruling on Trump's immunity claim? And can you just, like, remind listeners why it matters?

B
So the Trump immunity claim is basically going to decide whether or not the criminal case against Donald Trump, the federal election interference case, can go forward, and whether a president can be held criminally liable for acts undertaken during the course of his presidency, whether those acts are in furtherance of his presidential duties or outside of the scope of those presidential duties. And the short answer, Tommy, is, I don't think we're going to get that decision tomorrow. I'd love to be wrong on this, but I think this is a conservative supermajority that kind of seemed half in the bag for Donald Trump. We certainly have one of them who's flying flags, or, I'm sorry, House Alito is flying flags for the MAGA movement.

I think they recognize that the longer they wait on this, the more unlikely it is that this trial is going to go forward in the district of Columbia, and that is a de facto winner for Donald Trump. Like, whatever the court finally decides. And I think it's very unlikely that they say that presidents are completely immune from any criminal liability. I think that's very unlikely, but it won't matter. It'll be completely academic, like something I teach in constitutional law, but nothing that matters for this particular case and whether Donald Trump will be held accountable for what happened on January 6, 2021. And I think they know that.

A
Well, that is a very depressing place to end, but end we shall. Melissa Murray, thank you so much for doing the show. A huge newsweek. Really, really appreciate it. And everyone, please subscribe, download tell your friends about strict scrutiny. It is such a great show. It is so fun and funny, and you feel smarter afterwards.

B
I mean, it's time for some bad decisions, Tommy. I mean, that's why we're here.

A
We got a whole lot of them coming, and they're all, you know, the next month, it's going to be packed full of them. So get ready.

B
Thanks for having me.

C
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