WEBVTT - The Rittenhouse Trial and Law Stuff 0:00:06.880 --> 0:00:10.160 Welcome back to it could happen here, the podcast that 0:00:10.360 --> 0:00:14.600 is occasionally introduced competently as it sort of was today 0:00:15.240 --> 0:00:18.520 because our guest today is someone who is very near 0:00:18.600 --> 0:00:22.840 and dear uh to me and to like almost every 0:00:22.880 --> 0:00:27.320 other person that I know and work with. Um, Moira 0:00:27.480 --> 0:00:31.920 Meltzer Cohen. Moira, you are a lawyer, uh, focusing on 0:00:32.440 --> 0:00:35.519 civil rights and movement kind of cases. Uh. And you 0:00:35.560 --> 0:00:39.600 are the lawyer of yeah, like every everybody I respect 0:00:39.640 --> 0:00:45.519 in the world. Yeah. Um, you're the person that I 0:00:45.600 --> 0:00:49.400 text whenever I need to know, hey, was this a crime? Um? 0:00:49.600 --> 0:00:54.400 Or it? And it never is. I'm with law abiding, 0:00:54.520 --> 0:00:58.120 very law abiding um. And uh. Yeah, we wanted to 0:00:58.160 --> 0:01:01.360 have you on both as you're always a breath of 0:01:01.400 --> 0:01:04.959 sunshine and because um, there's some like lost stuff happening 0:01:05.000 --> 0:01:08.280 these days. We just had our mutual friend Molly Conjure 0:01:08.319 --> 0:01:11.640 on to talk about the Charlottesville case, which is quite 0:01:11.680 --> 0:01:14.720 a thing. Today was the day. Yeah, Today Today had 0:01:14.760 --> 0:01:19.039 some had some moments. Chris can't Well and Richard Spencer 0:01:19.160 --> 0:01:24.920 representing themselves separately, each cross examining each other. I'd have 0:01:25.240 --> 0:01:32.600 so many thoughts, but mostly my thoughts involved laughing. It's very, 0:01:32.760 --> 0:01:35.600 very funny. It's it's it's the funniest of of an 0:01:35.640 --> 0:01:41.800 incredibly tragic and infuriating situation. Something finely funny finally happened. Um, 0:01:41.840 --> 0:01:45.360 So at least there's that often very funny in spite 0:01:45.440 --> 0:01:49.840 of himself. Yeah, UM, I would love one day to 0:01:49.920 --> 0:01:51.520 just get you on and duo, we can do a 0:01:51.560 --> 0:01:55.320 reading of some of Chris can't Well's better legal filings. Um. 0:01:55.880 --> 0:01:59.600 These guys quite the legal mind, Robert. I think I 0:01:59.720 --> 0:02:04.400 maybe didn't ever tell you about the fact that we 0:02:04.600 --> 0:02:08.920 um did a Poorams Feel, which is a performance of 0:02:09.000 --> 0:02:13.160 the story of Esther Um, Oh my God, traditionally done 0:02:13.760 --> 0:02:16.639 at Poor Ram, which is a Jewish holiday. Um, and 0:02:16.760 --> 0:02:25.400 it was based on the complaint that he filed God. 0:02:24.760 --> 0:02:29.840 Those Twitter the third was prominently featured in the role 0:02:29.880 --> 0:02:33.720 of Hayman. For those of you who don't know, Chris Cantwell, 0:02:33.840 --> 0:02:36.560 the crying Nazi from the Unite the Right rally, has 0:02:36.560 --> 0:02:39.520 been incarcerated for a year or so now UM and 0:02:39.600 --> 0:02:44.079 continues to put out his own legal motions, generally handwritten UM, 0:02:44.120 --> 0:02:47.280 alleging all kinds of conspiracies from the people who did 0:02:47.320 --> 0:02:50.440 not call the FBI and admit to committing several crimes. 0:02:51.600 --> 0:02:54.080 We should we should absolutely absolutely do a crossover with 0:02:54.160 --> 0:03:00.560 Dannel Harper um and to discuss Wells legal genius. But 0:03:00.560 --> 0:03:02.840 but today more we wanted to have you on because 0:03:02.880 --> 0:03:05.880 there is another case that, uh, a lot of folks 0:03:06.000 --> 0:03:09.320 are rightly concerned about, because it has some pretty dire 0:03:09.360 --> 0:03:12.400 implications depending on how it goes in a number of ways, 0:03:12.800 --> 0:03:16.960 the trial of Kyle Rittenhouse. Um. For the I mean, 0:03:16.960 --> 0:03:20.400 everyone knows Kyle written House took a gun illegally across 0:03:20.440 --> 0:03:22.679 state lines to a protest so he might have the 0:03:22.760 --> 0:03:25.480 chance to shoot people. Um, and then shot people. This 0:03:25.560 --> 0:03:28.720 is my opinion about what happened. Obviously, the legal case 0:03:28.840 --> 0:03:32.639 is unfolding. Um, there's been a lot of talk online 0:03:32.880 --> 0:03:36.440 on on Twitter and whatnot about how obviously unfair the 0:03:36.520 --> 0:03:38.800 judges being. This is what the talk on Twitter is about. 0:03:40.000 --> 0:03:41.680 And it's because of a couple of things. One is 0:03:41.720 --> 0:03:44.920 that the judge and and again I'm before I cut, 0:03:44.960 --> 0:03:47.000 I go to you, Moira. I'm just explaining kind of 0:03:47.040 --> 0:03:49.280 the way the discourse has been. The discourse has stated like, well, 0:03:49.280 --> 0:03:52.440 the judge said, you can't call Kyle, you can't call 0:03:52.480 --> 0:03:55.400 the people that he killed victims, but you can call 0:03:55.480 --> 0:03:58.480 the people that he killed looters and arsonists. UM. And 0:03:58.520 --> 0:04:01.040 so people are saying, look at this very clear example 0:04:01.080 --> 0:04:04.560 of how how bad the justice system is. UM. And 0:04:04.600 --> 0:04:06.440 I wanted to bring you on for a number of reasons, 0:04:06.440 --> 0:04:08.960 including the fact that, like there's a lot of stuff 0:04:09.000 --> 0:04:11.880 that seems fucked up and in fact is fucked up, 0:04:11.880 --> 0:04:14.920 you could argue, but it's also like like pretty normal 0:04:14.960 --> 0:04:17.520 justice system stuff and some stuff that seems fucked up 0:04:17.520 --> 0:04:20.400 but actually isn't. This is not I'm not necessarily talking 0:04:20.400 --> 0:04:22.320 about the Rittenhouse case here, just in general, and we 0:04:22.320 --> 0:04:24.479 talk about the law. So I guess I wanted to 0:04:24.520 --> 0:04:27.440 have you on to explain to us what's happening in 0:04:27.839 --> 0:04:31.920 your opinion and how normal, abnormal, good, bad are kind 0:04:31.960 --> 0:04:34.359 of the things that we're seeing the decisions we're seeing 0:04:34.360 --> 0:04:38.440 this judge make UM in this case so far. Yeah, sure, 0:04:38.560 --> 0:04:42.040 absolutely so the trial, UM. I think when you asked 0:04:42.040 --> 0:04:46.600 me to comment on this, UM, the trial had not started. 0:04:47.200 --> 0:04:52.160 The trial has now started. It has been characterized by 0:04:52.240 --> 0:04:59.159 the defense saying the N word be here this morning. 0:04:59.200 --> 0:05:02.920 I think was just missed for making a cruel and 0:05:03.240 --> 0:05:07.320 nakedly racist joke. Uh. And apparently the judge had a 0:05:07.320 --> 0:05:11.200 fit of peak about the media's response to his evidentiary rulings, 0:05:11.200 --> 0:05:15.159 which are what you've asked me to come discuss, UM, 0:05:15.200 --> 0:05:19.359 which is itself actually one of the more unusual things 0:05:19.400 --> 0:05:24.279 about this how this trial is going. UM. It's always 0:05:24.279 --> 0:05:26.400 a little bit hard for me to appine on a 0:05:26.560 --> 0:05:31.480 case that is not my case. UM. I feel tentative 0:05:31.520 --> 0:05:35.560 about it. UM. This would never be my case because 0:05:35.600 --> 0:05:38.760 I would not represent a white supremacist, and I am 0:05:38.800 --> 0:05:43.160 not a prosecutor and would never be a prosecutor. And 0:05:44.080 --> 0:05:48.599 I was not able to look at the briefing because 0:05:48.640 --> 0:05:53.279 although all of the briefing was ostensibly publicly filed, it 0:05:53.440 --> 0:05:57.440 is not actually publicly available. UM. I had a very 0:05:57.480 --> 0:06:00.760 interesting conversation with the Clerk of court and Nosha, who 0:06:00.880 --> 0:06:04.320 told me that if I mailed her a request, she 0:06:04.360 --> 0:06:08.920 would fax me the briefing at a dollar twenty five 0:06:08.960 --> 0:06:12.520 a page. And I said, thank you very much, goodbye. UM. 0:06:12.880 --> 0:06:16.279 So I'll do my best to speak to these rulings, UM, 0:06:16.960 --> 0:06:20.279 and the sort of larger issues as I see them. UM. 0:06:20.320 --> 0:06:22.040 As you noted, there's been a lot of kind of 0:06:22.080 --> 0:06:26.240 salacious headlines about the evidence here in this case. UM, 0:06:26.320 --> 0:06:30.119 and I think those headlines are really they're less about 0:06:30.160 --> 0:06:32.359 what's actually happening in the case, and they're more reflective 0:06:32.360 --> 0:06:36.640 of the sort of pearl clutching um liberal impulse to 0:06:36.640 --> 0:06:42.120 to notice the totally self evident hypocrisy of the legal system, uh, 0:06:42.160 --> 0:06:45.200 and then to conclude that because certain groups are shown 0:06:45.200 --> 0:06:49.279 more leniency, the way to resolve this hypocrisy is to 0:06:49.320 --> 0:06:53.000 make sure everyone is pleased and prosecuted and punished as 0:06:53.080 --> 0:06:58.880 viciously as the left is, which is not actually the 0:06:58.880 --> 0:07:02.960 goal that I have. UM. And just to clarify when 0:07:03.000 --> 0:07:06.560 I when I talk about liberals as I as I 0:07:06.600 --> 0:07:09.480 will probably do a little bit, UM, I don't mean 0:07:09.560 --> 0:07:13.920 like I mean liberal as opposed to radical um. People 0:07:13.960 --> 0:07:17.240 who are more or less okay with the underlying big 0:07:17.280 --> 0:07:22.240 systems uh, like capitalism and white dipremacy and hetero patriarchy 0:07:22.360 --> 0:07:27.080 and like maybe are more concerned with the iterations of 0:07:27.120 --> 0:07:30.400 those things that are particularly ghost but they don't actually 0:07:30.760 --> 0:07:34.600 mind the systems themselves or the way that those systems 0:07:34.600 --> 0:07:40.040 are reiterated and enforced by, for example, the American criminal 0:07:40.120 --> 0:07:44.080 legal system. UM. So you know, I think the kind 0:07:44.120 --> 0:07:48.320 of liberal read on these rulings is not only not 0:07:48.440 --> 0:07:53.040 legally sound, UM, I think it's actually incredibly dangerous. And 0:07:53.080 --> 0:07:58.480 it's watching this unfold and watching the liberal commentary on it, 0:07:58.600 --> 0:08:00.840 I think is one of the things. It's one of 0:08:00.880 --> 0:08:03.560 the ways that I can really see liberal liberals and 0:08:03.640 --> 0:08:11.160 liberalism losing credibility. Um, because because they're sort of calling 0:08:11.160 --> 0:08:13.280 out this hypocrisy and at the same time, there's a 0:08:13.320 --> 0:08:16.640 little bit of a double standard that they want to um, 0:08:16.640 --> 0:08:20.000 that they want to propose an enforce UM. So okay, 0:08:20.040 --> 0:08:22.800 So I'll talk about the rulings that you discussed. UM. 0:08:22.800 --> 0:08:26.120 The first one is that the judge UM said that 0:08:26.160 --> 0:08:28.640 the prosecution is not allowed to refer to the people 0:08:28.640 --> 0:08:33.360 at Rittenhouse killed as victims. UM. I will remind you, 0:08:33.559 --> 0:08:37.960 as I remind all of my clients continuously, UM, that 0:08:38.120 --> 0:08:43.079 the law is at best adjacent to common sense understandings 0:08:43.080 --> 0:08:50.400 of justice and even frankly common sense understandings of reality. UM. Obviously, 0:08:50.480 --> 0:08:54.880 the people that Kyle Rittenkow's killed were victims. UM. But 0:08:55.080 --> 0:09:02.720 as my beloved colleague Sandy reminded me, UH, the concept 0:09:02.760 --> 0:09:06.400 of victimhood, the status of victimhood is among the things 0:09:06.440 --> 0:09:09.240 that needs to be proven beyond a reasonable doubt at 0:09:09.280 --> 0:09:13.760 this trial. Yeah, right, UM, And so in in fact, 0:09:14.600 --> 0:09:18.400 this is a totally straightforward ruling. It is a ruling 0:09:18.440 --> 0:09:21.079 that I would argue for as a defense attorney and 0:09:21.120 --> 0:09:24.959 that I expect to win where I trying in murder case. 0:09:26.040 --> 0:09:30.920 So you know, it's one of those things like you 0:09:31.000 --> 0:09:34.840 have to overcome this, this you have to overcome when 0:09:34.880 --> 0:09:37.040 you're thinking about a trial, like the fact that you 0:09:37.080 --> 0:09:39.960 know he's guilty, because the point of a trial is 0:09:40.000 --> 0:09:43.400 that everyone like there's a process, right, we don't just 0:09:43.480 --> 0:09:47.920 do street justice because that's what written House did um 0:09:48.080 --> 0:09:51.719 like we're we're you have to like one of the 0:09:51.840 --> 0:09:54.080 It is troubling to me the extent that people are like, 0:09:54.160 --> 0:09:57.520 well he he should be presumed like we should be 0:09:57.559 --> 0:10:00.200 referring to the people he shot as victims before where 0:10:00.200 --> 0:10:03.880 he has been adjudicated as guilty, because like that's that's important, 0:10:03.960 --> 0:10:07.400 Like the presumption of innocence matters, and it's it's it's 0:10:07.400 --> 0:10:11.400 also something that's very unfair, Like there's a person in Portland, 0:10:11.920 --> 0:10:15.559 Alexander Dial, who got in trouble for taking a hammer 0:10:15.559 --> 0:10:18.640 out of a Nazi's hand during a rally um and 0:10:18.679 --> 0:10:21.360 has been charged with several felonies, and because his trial 0:10:21.440 --> 0:10:23.560 kept getting delight spent two and a half years under 0:10:23.640 --> 0:10:27.160 pre trial conditions, So the presumption of innocence is hardly equal, 0:10:27.320 --> 0:10:31.800 but it is important. Yeah, exactly, And I think that 0:10:32.960 --> 0:10:35.920 you know, we'll talk about this, I think in a 0:10:35.920 --> 0:10:40.719 little bit, but that's exactly the issue, right, is that, Um, 0:10:40.880 --> 0:10:44.760 we need to be enforcing the equal application of the 0:10:44.800 --> 0:10:50.160 presumption of innocence, not being you know, rapidly going after 0:10:50.559 --> 0:10:53.240 the right in the same way that we are used 0:10:53.280 --> 0:10:58.480 to uh, law enforcement and the judiciary going after the left. Um. 0:10:58.559 --> 0:11:03.200 The other rule thing that the judge made, um, which 0:11:03.200 --> 0:11:07.720 you mentioned, was that he said that the defense is 0:11:07.760 --> 0:11:10.760 authorized to characterize the people that written house killed as 0:11:10.840 --> 0:11:13.760 looters or rioters if there's evidence presented that they were 0:11:13.800 --> 0:11:17.560 in fact looting and were rioting. I would, if I were, 0:11:18.480 --> 0:11:20.360 you know, in this case, which of course I'm not, 0:11:21.800 --> 0:11:24.160 I would object to this on the grounds that it 0:11:24.320 --> 0:11:30.000 is prejudicial in bullshit, and it's sucked up in bullshit. Yeah, yes, 0:11:30.320 --> 0:11:34.600 that said, I am not super surprised by that ruling. UM. 0:11:34.679 --> 0:11:38.240 I would say, it's likely within the sound discretion of 0:11:38.280 --> 0:11:41.840 the judge and if you know, and if the prosecution disagrees, 0:11:41.880 --> 0:11:48.560 it's a matter for appeal. UM. You know, I think, UM, 0:11:48.600 --> 0:11:51.400 one of the things the judge said about this actually 0:11:51.480 --> 0:11:55.959 that I think is really important and correct, UM, is 0:11:56.520 --> 0:12:00.320 that he has uh a tremendous amount of discretion making 0:12:00.360 --> 0:12:04.320 evidentiary rulings rulings. UM. One of the rulings he made 0:12:04.360 --> 0:12:09.400 was that he's admitting the testimony of an expert witness, UM, 0:12:09.400 --> 0:12:12.160 which you know, I think a lot of people are 0:12:12.200 --> 0:12:16.719 also quite upset about. UM. But that said, again, this 0:12:16.800 --> 0:12:19.520 is not that unusual, and it's very difficult for him 0:12:19.559 --> 0:12:22.760 to deny that motion to have his evidence or his 0:12:22.840 --> 0:12:28.120 testimony admitted, because the prosecution routinely uses use of force 0:12:28.240 --> 0:12:33.240 experts in similar trials. UM. So now we're they're just 0:12:33.360 --> 0:12:38.120 on the other side of the table. Yeah. So you know, 0:12:38.880 --> 0:12:41.160 first of all, I get that these rulings don't make 0:12:41.240 --> 0:12:46.400 us feel good, UM, but they aren't that strange. And 0:12:46.559 --> 0:12:51.000 as I said, the judge has tremendous discretion in these matters. UM. 0:12:51.040 --> 0:12:53.400 I was thinking about how to illustrate this, and it 0:12:53.440 --> 0:12:55.200 occurred to me that I think the last time I 0:12:55.240 --> 0:12:58.200 was on one of your podcasts, you asked me whether 0:12:58.240 --> 0:13:02.920 cocaine was illegal. Yeah, what are we landing on that? 0:13:03.000 --> 0:13:05.280 By the way. So I think the first time you 0:13:05.360 --> 0:13:08.720 asked me, I was a total kill joy and was like, 0:13:08.800 --> 0:13:12.600 of course, it's a legal probert um. But if I 0:13:12.600 --> 0:13:15.000 had actually taken your question more seriously, I think a 0:13:15.040 --> 0:13:20.320 better answer probably would have been nobody knows, um for 0:13:20.480 --> 0:13:24.280 precisely this reason, because the real question is not what 0:13:24.520 --> 0:13:30.079 the law says. The real question is how, or whether, 0:13:30.559 --> 0:13:33.520 or against whom, or to what degree and under what 0:13:33.640 --> 0:13:38.760 circumstances will that law be enforced. And these are always 0:13:38.840 --> 0:13:42.040 open questions and arguments, and judges have a ton of power. 0:13:42.200 --> 0:13:45.880 This case is no exception. So you know, again, not 0:13:45.920 --> 0:13:48.680 only are these rulings pretty standard, but there I think 0:13:48.720 --> 0:13:51.840 within the judge's discretion. Some of them I really dislike. 0:13:51.960 --> 0:13:56.440 Some of them make total sense to me, um, And 0:13:56.480 --> 0:14:00.559 I think that what is happening is is not necessarily 0:14:01.400 --> 0:14:05.240 sound legal analysis. But liberals sort of trying to argue 0:14:05.280 --> 0:14:09.400 that Writtenhouse should be more harshly prosecuted by saying that 0:14:09.520 --> 0:14:12.880 these specific rulings are unfair or unusual. It's a little 0:14:12.880 --> 0:14:16.280 bit like the liberals crying out now because people are 0:14:16.320 --> 0:14:18.959 putting like, let's go Brandon on printing it on rifle 0:14:19.000 --> 0:14:22.200 receivers and saying like, well, the Secret Service should investigate it. Well, 0:14:22.200 --> 0:14:24.600 if they do that, then some then like thirty. If 0:14:24.600 --> 0:14:26.920 they do that and like one company gets a fine, 0:14:27.320 --> 0:14:29.280 forty people are going to go to prison for having 0:14:29.280 --> 0:14:31.720 red flags on their body armor. Like that's the way 0:14:31.760 --> 0:14:35.480 it works in this country. But the right Yeah, any 0:14:35.560 --> 0:14:37.680 any anarchists for the three D printer is gonna immediately 0:14:37.720 --> 0:14:52.400 go to jail. Yeah that's not like that is correct? Yeah. Yeah. 0:14:52.480 --> 0:14:54.480 So I guess the thing that I want to point 0:14:54.480 --> 0:14:57.040 out here is that what is actually unusual about this 0:14:57.120 --> 0:14:59.560 case is not these rulings. It is that Written House 0:15:00.160 --> 0:15:04.320 is going to trial at all. And the reason Rittenhouse 0:15:04.400 --> 0:15:06.640 is going to trial is able to go to trial 0:15:06.920 --> 0:15:11.400 is largely because this prosecution is fundamentally calculated not to 0:15:11.520 --> 0:15:14.960 be repressive. Um So, I want to kind of zoom 0:15:14.960 --> 0:15:19.360 out and get away from the weeds of the evidentiary rulings. 0:15:20.120 --> 0:15:24.240 Um So, in its simplest expression, when we talk about 0:15:24.280 --> 0:15:30.720 the difference between state and federal jurisdiction, we're saying, kind of, um, 0:15:31.080 --> 0:15:36.280 jurisdiction for dummies, Uh, overly simplified is stuff that happens 0:15:36.320 --> 0:15:40.720 inside or only impact a given state. Is typically prosecuted 0:15:40.760 --> 0:15:44.320 by the state and if it impacts if your offense 0:15:44.400 --> 0:15:49.920 conduct or alleged offense conduct impacts more than one state, UM, 0:15:50.000 --> 0:15:54.160 then it is or can be prosecuted by the Federal 0:15:54.200 --> 0:15:59.640 Department of Justice. So Kyle Rittenhouse cross state lines with 0:15:59.760 --> 0:16:04.280 a pretty serious firearm and he shot three people. This 0:16:05.080 --> 0:16:10.320 puts us immediately into federal jurisdiction land. UM. He did 0:16:10.400 --> 0:16:13.120 this in the context of an uprising for racial justice 0:16:13.200 --> 0:16:16.080 that has been characterized by the fact that those rising 0:16:16.160 --> 0:16:19.360 up on the side of racial justice have been subject 0:16:19.400 --> 0:16:23.080 to intense repression by the federal government. D o J 0:16:23.280 --> 0:16:27.800 has shown themselves to be fire breathingly enthusiastic of opicizing 0:16:27.840 --> 0:16:33.000 their jurisdiction over heady offenses based on totally tenuous grounds 0:16:33.640 --> 0:16:38.480 um for people on the left or who are perceived 0:16:38.560 --> 0:16:41.520 to be on the left. UM. D o J has 0:16:41.560 --> 0:16:46.360 asserted jurisdiction in order to prosecute people for um absolutely 0:16:46.440 --> 0:16:50.760 trivial but politically motivated offenses that would be left to 0:16:51.040 --> 0:16:56.320 the state to prosecute absent the politics of the accused. UM. 0:16:56.360 --> 0:17:00.800 They have assertained federal jurisdiction on really flim the bases, 0:17:00.840 --> 0:17:05.959 like that a local police building or vehicle UM. Belongs 0:17:05.960 --> 0:17:08.880 to an apartment that has received federal funding, so property 0:17:08.920 --> 0:17:12.720 damage against it becomes a federal offense. One thing they're 0:17:12.760 --> 0:17:15.480 doing that is unusual is the federal government is as 0:17:15.480 --> 0:17:19.720 certain concurrent jurisdiction to prosecute offenses. So I know, there's 0:17:19.720 --> 0:17:25.680 someone in Courtland who is simultaneously being prosecuted by multnoma 0:17:25.840 --> 0:17:31.360 and also the federal government um for allegedly throwing some 0:17:31.440 --> 0:17:36.760 accelerant on a police building. UM. Right, So it is 0:17:36.880 --> 0:17:41.760 very curious that written House, who quite clearly did something 0:17:41.760 --> 0:17:46.400 that would you know, fall under federal jurisdiction, is not 0:17:46.480 --> 0:17:50.000 being federally charged. And it matters a lot for how 0:17:50.040 --> 0:17:55.440 the case proceeds, UM, because the way that federal prosecutions 0:17:55.520 --> 0:18:02.640 operate is that the Feds will typically stack these indictments 0:18:02.720 --> 0:18:06.679 UM in a way that really puts tremendous pressure on 0:18:06.800 --> 0:18:10.439 them to plead guilty um, which is not typically the 0:18:10.520 --> 0:18:13.199 case or it doesn't happen in the same way in 0:18:13.240 --> 0:18:18.240 a state prosecution. So UM, you have these stacked indictments 0:18:18.240 --> 0:18:23.520 with multiple, multiple counts ranging you know, all all kinds 0:18:23.560 --> 0:18:27.920 of conduct um, often involving you know, a conspiracy, which 0:18:27.960 --> 0:18:31.080 can be very very easy to prove um, and a 0:18:31.119 --> 0:18:34.119 guilty finding on any of those counts could be like 0:18:34.160 --> 0:18:37.320 a mandatory minimum of five to ten years. And then 0:18:37.359 --> 0:18:40.439 if you're looking at, um, you know, a guilty on 0:18:40.960 --> 0:18:44.000 more than one or all of those counts, you're looking 0:18:44.040 --> 0:18:48.840 at a sentence, potentially concurrent sentences that our tantamount to 0:18:48.920 --> 0:18:54.400 dying in prison. Right, And so this creates tremendous pressure 0:18:54.440 --> 0:18:58.879 on federal defendants to negotiate a pre trial disposition to 0:18:58.920 --> 0:19:03.159 take a guilty plea um. So again, Kyle Rittenhouse crosses 0:19:03.200 --> 0:19:06.800 state lines with this firearm which gets used in the 0:19:06.960 --> 0:19:10.119 in the commission of an act of violence. And I 0:19:10.160 --> 0:19:14.119 feel extremely confident that any federal prosecutor could come up 0:19:14.119 --> 0:19:17.920 with a stack of counts against him within about ten 0:19:17.960 --> 0:19:25.040 minutes without breaking a sweat um. But you know, so 0:19:25.320 --> 0:19:27.560 you know, if you think about him being in that position, 0:19:29.040 --> 0:19:31.919 you think through, Okay, if I go to trial, what 0:19:32.160 --> 0:19:37.240 is what are likely outcomes? If Kyle Rittenhouse went to 0:19:37.320 --> 0:19:42.400 trial federally, and even if he prevailed on a self 0:19:42.600 --> 0:19:47.080 defense right, which which could happen if you were found 0:19:47.119 --> 0:19:51.119 guilty on one or more of the lesser charges, he 0:19:51.160 --> 0:19:55.760 would still be looking at really really serious time, right, Um, 0:19:55.800 --> 0:20:00.000 but that's not where we are, right. Um. We are 0:20:00.040 --> 0:20:03.440 in a really weird place where like in a federal context, 0:20:04.160 --> 0:20:09.640 we wouldn't even be like talking about evidentiary rulings because uh, 0:20:09.680 --> 0:20:16.000 he would almost certainly not be going to trial, right yeah, 0:20:16.760 --> 0:20:19.600 or you know, if he had a reasonable lawyer, he 0:20:19.640 --> 0:20:22.960 would probably be negotiating a plea. I'm curious what do 0:20:23.000 --> 0:20:25.080 you think about because one argument I've heard, and I'm 0:20:25.119 --> 0:20:27.920 certainly in no position to evaluate this personally, is that 0:20:28.480 --> 0:20:31.439 if federal charges had been placed on him, you know 0:20:31.840 --> 0:20:36.400 when the crime in Trump would have pardoned him. Um, 0:20:36.840 --> 0:20:39.200 I don't know, yeah, Like I've heard people argue that 0:20:39.200 --> 0:20:40.879 that like, well, at least with the state charges, he 0:20:40.920 --> 0:20:43.639 can't be pardoned by President Trump. Like, I'm in no 0:20:43.680 --> 0:20:46.119 position to really evaluate that, but I'm curious what you 0:20:46.119 --> 0:20:51.320 think about that. Hey, honestly can't even yeah, speculate about 0:20:51.840 --> 0:20:55.160 what might have happened. That is very interesting. I do 0:20:55.240 --> 0:20:57.760 think that if if d O J wanted to charge 0:20:57.840 --> 0:21:01.280 him at this point, I mean not he only, but 0:21:01.440 --> 0:21:07.000 like there I think wasn't opening for that to happen 0:21:07.600 --> 0:21:10.880 after Trump left. I see, fact, there is a very 0:21:10.960 --> 0:21:13.560 interesting foy a request to be made to d o 0:21:13.640 --> 0:21:18.240 j uh to see what kind of memo was circulated 0:21:18.240 --> 0:21:21.000 about whether or not they were going to pick this 0:21:21.040 --> 0:21:26.280 one up. They clearly declined to prosecute Um. I the 0:21:26.359 --> 0:21:28.720 only thing that I could come up with, to be honest, 0:21:28.760 --> 0:21:31.840 And I looked and did not really see any meaningful 0:21:31.840 --> 0:21:38.119 discussion of this, of their decision not to prosecute Um. 0:21:38.160 --> 0:21:40.800 The only thing that occurred to me is that they 0:21:40.880 --> 0:21:44.040 might have been reluctant to a search jurisdiction over a minor. 0:21:45.480 --> 0:21:48.760 But they can prosecute anyone over the age of fifteen 0:21:48.800 --> 0:21:51.480 as an adult if they engage in violent crimes or 0:21:51.520 --> 0:21:53.720 if they are alleged to have engaged in violent crimes. 0:21:53.760 --> 0:21:58.040 So that's not it wouldn't entirely undermine their ability to 0:21:58.080 --> 0:22:04.040 do so. UM. So, you know, for whatever, you know, 0:22:04.119 --> 0:22:08.120 for whatever reason they didn't, I think it is worth noting. 0:22:08.359 --> 0:22:12.080 I think it is, as I said, very curious UM. 0:22:12.080 --> 0:22:15.080 And it's particularly curious in light of the intense federal 0:22:15.119 --> 0:22:18.439 repression that has been faced by people perceived to be 0:22:18.480 --> 0:22:23.200 on the left, you know. So, like again, I want 0:22:23.200 --> 0:22:26.080 to be very clear, I don't I'm not suggesting that 0:22:26.160 --> 0:22:29.720 I want him to be federally prosecuted. UM, I don't 0:22:29.800 --> 0:22:34.320 particularly I'm not interested in arguing for more prosecutions or 0:22:34.359 --> 0:22:38.919 for making the state the arbiter of political righteousness, or 0:22:39.760 --> 0:22:46.119 um giving the state more enforcement power or more resources. UM. 0:22:46.160 --> 0:22:50.280 You know, but you know, and look at no shade 0:22:50.280 --> 0:22:54.040 to Kenosha, Wisconsin. All right, But UM. One of the 0:22:54.119 --> 0:23:00.159 things that the UH federal prosecutors are really have a 0:23:00.160 --> 0:23:09.439 lot of experience doing is digital forensic investigations, and UH 0:23:09.560 --> 0:23:13.240 in this case, one of the sort of critical questions 0:23:13.359 --> 0:23:17.399 is did he have specific intent to go across state 0:23:17.400 --> 0:23:21.760 lines and engage in violence? And I suspect that if 0:23:21.840 --> 0:23:25.120 you were to access all of his texts and metadata 0:23:25.240 --> 0:23:31.879 and social media posts, that you could probably find evidence 0:23:32.000 --> 0:23:35.000 of that specific intent. And I think that the federal 0:23:35.040 --> 0:23:38.840 government is probably better positioned to do that than the 0:23:38.880 --> 0:23:46.000 prosecutors UH in Kenosha. And they decided not to, right, so, 0:23:46.600 --> 0:23:52.000 you know, and that is exactly the kind of investigation 0:23:52.040 --> 0:23:55.280 that they mounted against Daniel Baker, who justs a the 0:23:55.359 --> 0:23:58.280 yoga teacher in Tallahassee, who just got three and a 0:23:58.359 --> 0:24:04.080 half years for posting vague sort of incoherent, mutually contradictory 0:24:05.240 --> 0:24:10.119 I'm not at all frightening. Yeah, it's not that I 0:24:10.119 --> 0:24:15.359 wouldn't threats, but I hesitate to to that. You know, 0:24:15.440 --> 0:24:18.440 he posted some stuff on social media and and now 0:24:18.440 --> 0:24:23.840 he's going to do. Yeah, my attitude on the nature 0:24:23.880 --> 0:24:26.760 of what he posts that, Like if prior to his prosecution, 0:24:26.960 --> 0:24:28.840 you had brought that post. But to me, I said, well, 0:24:28.880 --> 0:24:32.200 probably not a great idea to post. But also literally 0:24:32.280 --> 0:24:35.400 every week a right winger in the Portland area posts 0:24:35.440 --> 0:24:39.280 something significantly more actual. Right now, Chandler pappas currently being 0:24:39.320 --> 0:24:42.280 charged with assaulting six police officers in the state capital 0:24:42.320 --> 0:24:45.920 and Salem, just announced that he's doing armed training as 0:24:45.920 --> 0:24:51.280 a convicted felon outside of Portland's uh later this November. Um, 0:24:51.800 --> 0:24:54.960 which if he's if he touches a firearm, he should 0:24:54.960 --> 0:24:56.920 go away to like based on the letter of the law, 0:24:56.960 --> 0:24:58.919 he should go to prison for years. Like that's the 0:24:58.920 --> 0:25:01.520 way the law is written. Nothing's going to happen to him. 0:25:01.560 --> 0:25:03.080 He's going to get to train people with guns and 0:25:03.119 --> 0:25:05.760 continue to carry guns and it's it's fine for him. 0:25:06.160 --> 0:25:12.360 Um anyway, whatever, I'm sorry, it's okay. I guess your 0:25:12.440 --> 0:25:18.320 your listeners can't see that. I have my head. Yeah, 0:25:18.359 --> 0:25:22.360 I mean, look what Daniel Baker did was certainly ill advised. 0:25:22.520 --> 0:25:27.119 If advised, it would characterize I have clients who have 0:25:27.240 --> 0:25:29.600 been visited by the Secret Service or have been visited 0:25:29.600 --> 0:25:32.680 by the FBI for saying stuff that when they call 0:25:32.760 --> 0:25:34.159 me and they're like, well, I just said this, and 0:25:34.200 --> 0:25:37.400 I'm like, yeah, I know that you're not gonna actually 0:25:37.400 --> 0:25:41.800 do that, but maybe don't you know, it's it's not 0:25:42.760 --> 0:25:45.520 it's ill advised, but it's protected by the very First 0:25:45.520 --> 0:25:51.240 Amendment more or less. And you know, I've said this before. 0:25:51.240 --> 0:25:58.879 I don't think the solution to two um being surveilled 0:25:58.920 --> 0:26:02.560 on social media is self censorship. I think it is courage. 0:26:02.600 --> 0:26:05.520 But I also think that discretion is the better part 0:26:05.520 --> 0:26:09.639 of ballotor. So yes, pick your battles and maybe, yeah, 0:26:09.880 --> 0:26:15.439 understand that it's not fair, you know. Yeah, And also 0:26:15.520 --> 0:26:18.560 like what do you gain by you know, being bump 0:26:18.640 --> 0:26:22.200 stous on the internet. It's one of those things where, yeah, 0:26:22.200 --> 0:26:25.880 if that guy had had a high dollar lawyer, Um, 0:26:25.920 --> 0:26:28.480 if he if he'd been a rich person, yeah, maybe 0:26:28.480 --> 0:26:31.960 he would have gotten away with it. Um, who knows, 0:26:32.000 --> 0:26:34.720 but like he it's it's he certainly would have gotten No, 0:26:34.760 --> 0:26:36.359 I can certainly say he would have gotten away with 0:26:36.359 --> 0:26:38.120 it if he'd been a right winger, because a bunch 0:26:38.160 --> 0:26:42.320 of them do every single day. UM. I can't make 0:26:42.359 --> 0:26:45.840