Josh Barro and Ken White talk about former President Trump’s efforts to keep Republican groups from using his image to fundraise. Were his cease-and-desist letters performative, or does he actually have a legal argument that his name and image can’t be invoked by party organizations? Plus: Congressman Swalwell sues the president and his associates, a judge in New York threw out a lawsuit from Trump against the New York Times, Fulton County brings in a state RICO expert, a former SDNY prosecutor is looking into Governor Cuomo, and the Capitol rioters are still unhappy with their interactions with the justice system.
Read the full transcript below.
Josh Barro: This is Josh Barro, host of KCRW's Left, Right & Center. You're listening to All The Presidents' Lawyers, the podcast about the legal problems of presidents and their associates. All presidents have legal problems, some have more legal problems than others. My co-host is Ken White. Ken is a criminal defense attorney and former federal prosecutor and he writes the Popehat Report, which you can subscribe to on Substack. Hello, Ken.
Ken White: Hello, Josh.
Josh Barro: Former President Trump sent cease-and-desist letters to various Republican campaign committees, including the Republican National Committee, demanding that they stop using his name and likeness in order to fundraise. And it appears that they've complied with this to ban. Now, sometimes, if you demand that people stop doing something, they'll comply with your demand because they don't want the negative publicity, or because they don't want to get involved in a lawsuit that can work even if you don't have a legal right for them to stop, even if you couldn't have actually won that lawsuit. So Ken, what is the situation here? Does Donald Trump actually have a legal right to tell these political organizations that they can't use his name and his picture?
Ken White: Probably not in this context for politics. So there's a right of publicity to prevent people from using your name and likeness to make money but it's typically applied in commercial context. So if someone was using Trump's name and a picture of him to say, sell orange spray tan or something like that, he would definitely have a legal right to stop that. But that's not what's happening here. Here, people are talking about purely political speech. They're referring to him as the former president and his likeness to invoke his political positions and their position on those political positions is their support for him. And that's core political speech and it's very unlikely that the right of publicity can prevent something like that. Because if you think about it, that could mean you couldn't send out mailers saying, you know, you've got to give us money to stop Hillary or stop Nancy Pelosi using their picture. I mean, neither party would ever have anything to send out. So I don't think it's a well taken claim on his part.
Josh Barro: Wait, so I'm sorry: is the distinction the commercial nature of the usage? Or is it about whether the usage implies an endorsement because I mean, brands can talk about each other and you know, Prego can compare itself to Ragu, and it can talk about Ragu in the ads. Isn't isn't the issue that like, you know, if you try to sell Arnold Schwarzenegger toothpaste, and you put Arnold Schwarzenegger his face on the tube of toothpaste, that it implies that Arnold Schwarzenegger has endorsed your product? So would that be an issue here? If the email didn't just say, you know, 'give us money to support Donald Trump,' if the email said, 'Donald Trump wants you to give us money' even though Donald Trump did not in fact endorsed it, would that be illegal?
Ken White: That could potentially be illegal if it falsely suggests the explicit recommendation by Trump or endorsement by Trump. But that doesn't seem to be what he's forbidding. He seems to be forbidding all use of his name and likeness, including stuff about, you know, help us promote President Trump's agenda, where it's clearly not making any such claim.
Josh Barro: Donald Trump had filed a lawsuit against the New York Times over an op-ed that was published in 2019 and that lawsuit was dismissed in the past week. The op-ed in question had argued that the Trump campaign and the Kremlin (quote) "had an overarching goal: help beat Hillary Clinton for a new pro Russian foreign policy" (unquote). And so the Trump campaign sued the New York Times and said this was defamatory, that they did not in fact collude with the Kremlin as part of the campaign. There was a fairly brief opinion from a judge in New York State throwing out this lawsuit on several grounds, one of which was this was protected opinion, it wasn't really a factual claim, it was an argument about the campaign and therefore that was protected speech, it could not be defamatory.
Ken White: Right. That was the lead basis of the judge's finding and remember that for something to be defamatory, it has to be a false statement of fact, and opinions, unless they're based on false facts, can't be defamatory. Here, it was an op-ed and it was couched as opinion based on revealed facts in the news. So that's protected by the First Amendment. The judge also said that he had failed to allege facts that could support actual malice, which they would have to prove since Trump and his campaign are public figures.
Josh Barro: And so actual malice would mean, they would have to show that the Times either knew that the op-ed was factually false or that they published it with reckless disregard for the truth.
Ken White: Exactly.
Josh Barro: There was a third ground too which was the campaign lacked standing. And basically what the judge said was that the claims in the op-ed weren't really about the campaign as an entity. They were about the former president and the former president's associates. And so basically, they'd be the ones who would have to sue if they were going to claim that they'd been defamed rather than the campaign itself. And I was interested in that because I mean, in the subhead of the article, it said "the campaign and the Kremlin" had conspired together. So I guess, what the judge says here is that if statements are about an organization, they have to be really fundamentally about the organization rather than about individuals associated with the organization for the organization itself to have standing to sue?
Ken White: Yeah, that's a little puzzling to me, because I think you're right that if it's in the header, that it's about the campaign. That would seem at least to be enough to get past a motion to dismiss. But it's true that the law tries to focus in generally on statements about individuals and not groups or entities. And here the judge seemed to think that the gravamen of the statements were all about the people, not really about the campaign as an organization.
Josh Barro: I want to talk about Fulton County District Attorney Fani Willis. Fulton County is the county that includes Atlanta in Georgia. And we talked last week about her grand jury investigation into the former president on his phone call to Georgia Secretary of State Brad Raffensperger, in which the former president tried to get Raffensperger to (quote) "find" additional votes so that Trump would have become the winner in Georgia instead of Joe Biden. And you said something about this last week that I found surprising, which is that you thought that she might actually indict pretty quickly in this case—that the district attorneys don't behave like federal prosecutors, they don't necessarily do really long grand jury investigations, they're more willing to go out on a limb and bring charges that might not exactly hold up in court. And in this case, it would be dicey to prove the president's requisite intent that you would have to show in order for him to be guilty of a crime here. Do you still think what you think last week, do you think we might be headed to a pretty rapid indictment here?
Ken White: I think it's possible. I think bringing in a hired gun, so-called racketeering expert doesn't necessarily show one way or the other what's going to happen. It could be to build a careful, slow case, or it could be to sort of, really partially for publicity and hype. I just know that the state grand juries tend to go much faster than the federal grand juries, because that's the way the state tends to use them: accusatory, as opposed to investigatory. And I think that at any rate if it's longer, the longer is going to be longer from a state perspective horizon, meaning months, not years, because the state grand juries just aren't used for that, aren't really set up for that. So I guess that's a long winded way of saying yes, I still stick by what I said. I expect if something's going to happen, it's going to happen relatively soon, in the horizon of relatively few months.
Josh Barro: The district attorney gave an interview to the local Fox affiliate in Atlanta, where she talked about the investigation in general terms at least and one thing she said to a reporter is (quote) "a case is like an onion. When you peel things back, you learn different things, we will treat this case like any other case, some investigations, you do, no charges are brought, because that is the right answer. Some investigations you do, it is only appropriate to bring charges. That's the way we'll treat this case" (unquote). And so I see two significant things about that statement: one is, that seems to be her suggesting that they are using the grand jury as an investigatory tool rather than as an accusatory tool. Now, obviously, I assume there's a gradient there in terms of how much investigation that means you're doing in the grand jury, but it sounds to me like she's at least explicitly saying there that, you know, they're not using the grand jury just as a tool to indict. They weren't done with it, their initial investigation when they brought in the grand jury, that there they are going to be using this to ask questions. So that would seem to indicate some amount of time. Now, obviously, to your point that that could be months, not years.
Ken White: Right. So you know, it's a question of whether she's got a you know, big gigantic brown onion there or a tiny little pearl onion and the states tend to treat it as the little onion and not dig that deep. And there's just not a whole lot of institutional expertise in the types of very lengthy grand jury investigations you'd see on the federal side, where if the feds were doing this, you'd expect them to dilly dally for years, quite possibly. So I actually think it's a good thing that the state can take things at a more robust clip. I think it's more just for things, for any charges to happen sooner after the event. The witnesses haven't forgotten about it. The populace hasn't forgotten about the significance. So if it happens fairly quickly, I think it's a good thing.
Josh Barro: The other significant thing about that quote, she acknowledges something that you just noted, which is that maybe this investigation won't lead to any charges. Will we find that out? I mean, because we're used to these federal cases where the prosecutors are pretty tight-lipped, and they're really trying not to tell you about what they're looking at, what they might bring charges about, and so if they don't bring charges, they just don't bring charges. If Fani Willis and the grand jury go through this for a while, and they decide there's really nothing to prosecute Trump or any of his associates over, do you expect that there would be some sort of press announcement to basically say, 'we've looked into this, and we're not going to charge anyone'?
Ken White: I do just because of the way she set it up. So since she's kind of hyped it up and set it up and brought in a hired gun and all that type of thing, I wouldn't expect her just to let it die away and, you know, be fielding questions about it forever. I think she'd need politically to close it somehow. Now, usually, federal investigations don't get closed that way. Maybe the target of the investigation gets a letter saying that it's closing. But other than that, no. So I think it's likely that if they decide, and having an expert on racketeering brought in can be seen as a way basically to give cover to a decision not to charge then I think there will be some sort of announcement.
Josh Barro: Speaking of investigations of unknown duration: in New York state, we've started to see this investigation into Governor Andrew Cuomo. There have been a number of claims about inappropriate workplace behavior against the governor. New York's Attorney General, Tish James, who we've talked about a lot in relation to Trump related investigations, she is overseeing a probe into those claims against Governor Cuomo. And she has picked two lawyers to lead that probe. One is an employment discrimination lawyer named Anne Clark, and the other is Joon Kim, who had been running the US Attorney's Office for the Southern District of New York on an interim basis for a while during the Trump administration. That was after the firing of Preet Bharara. So what do you make of Joon Kim's arrival into this? How should Andrew Cuomo feel about that?
Ken White: Well, I think he should feel that whatever he's done is going to come out and that Kim is going to be able to marshal the witnesses and the evidence, and so he's going to have to deal with the fallout of whatever it is he did. And so far, there certainly seem to be a number of witnesses talking about inappropriate conduct.
Josh Barro: And so is there any way to game out how long an investigation like that would take? Obviously, this is a relatively unusual workplace conduct investigation, since it involves a high profile political figure. Is this something that you would expect to be handled relatively quickly?
Ken White: Well, yes, I mean, a good workplace investigation is done swiftly. Because if it's not, then the bad things are potentially still happening. And when I train people on workplace investigations, I always say, you know, I want it done in days or weeks, not months. So here, I think they have every interest in getting past this and I would expect them to do it fairly rapidly, because they can do it pretty much as rapidly as they want if they're going to throw the resources at it. There's nothing about it that inherently requires it to drag out for long periods of time.
Josh Barro: Does that depend at all on how cooperative the governor is in that process?
Ken White: Sure. Although, for this type of process, the governor's cooperation doesn't tend to figure that much until the end. So typically, in a harassment investigation, and this is, you know, obviously not a typical workplace harassment investigation, you talk to the complaining witnesses, and you talk to all the witnesses who might have seen something, and then you'd go to the accused to get their take on things and then maybe do some follow up. So they can get a lot done before they have to get around to talking to the governor and they can come to conclusions certainly whether or not the governor gives them any answers.
Josh Barro: Let's take a quick break. And when we come back, we'll talk about more fallout from the Capitol riot. You're listening to All The Presidents' Lawyers.
This is Josh Barro and I'm back with attorney Ken White on All The Presidents' Lawyers. Congressman Eric Swalwell of California has filed a civil lawsuit against Donald Trump and Donald Trump Jr. and Rudy Giuliani and Congressman Mo Brooks of Alabama. The lawsuit essentially accuses them of fomenting the Capitol riot and then makes various legal claims arising from that, saying that they conspired to violate his civil rights, that they intentionally inflicted emotional distress upon him, that they negligently incited a riot against the law of the District of Columbia etc. This is the second civil lawsuit filed by a member of Congress over the riot The first was filed by Mississippi Democrat Bennie Thompson, and that one brought in some extremist groups as co-defendants. Before we get into the specifics of the claims in this filing from Congressman Swalwell, is this a lawsuit that's actually designed in a way to win in court and recover damages? Or is this a lawsuit, like so many that we've seen over the last few years, that is basically here to make a political statement?
Ken White: I would say the latter. I would say it seems to be performative. There's already other suits out there seeking damages. It's not something where this particular plaintiff can likely show significant personal real damages. And it seems to be more getting on the bandwagon of helping to reveal the really unacceptable things that happened and the former president's role in them.
Josh Barro: A number of the claims here from Swalwell relate to incitement. And we've talked a lot about incitement on this show, especially in regard to the Capitol riot and how difficult that is to prove incitement in a criminal case. Statements that are incitement have to be intended and likely to cause imminent lawless action. And the bar of proof for that has to be high, because otherwise laws against incitement could sweep in a lot of protected speech, especially in areas like this, where the speech is about politics. And it's important that people be able to talk freely about politics. Is that calculus any different in a civil lawsuit? Do you have a lower standard of proof? And does that allow you to establish more speech as plausibly enough incitement to win in a civil lawsuit rather than in a criminal case?
Ken White: Well, certainly in a civil lawsuit, you're dealing with a lower burden of proof upon preponderance of the evidence, rather than beyond a reasonable doubt. So it's easier to get past that that hurdle and here, they've done a very meticulous job of breaking down all the speeches and all the comments and putting them very cleverly in the context of all the violent things that were being said online at roughly the same time, sort of implying, you know, a connection there. I still think that it's not an easy case for incitement. The statements are not as explicit as you would expect and really, what makes it plausibly incitement is the proximity to the Capitol and the extremity of the circumstances and the fact that it actually happened afterwards. So I kind of think that in this case, as in the other one, the Ku Klux Klan Act claim, a claim basically that these people conspired to stop government officials from doing their job, is probably a stronger case than the incitement claims.
Josh Barro: I was a little confused by the negligence claims in here because I don't understand how you could have negligent incitement. Since incitement involves intent to cause something to happen, doesn't it have to be intentional? I don't understand how it could be negligent.
Ken White: That's not clear to me, either. And it may be some nuance of District of Columbia law or its particular weird statutes but it seems to me that you can't meet the First Amendment standard for incitement with negligence because the imminent harm has to be intended and likely.
Josh Barro: Swalwell was one of many, many, many people in the Capitol on that day. One thing we talked about is, you know, to have standing in a lawsuit, you have to have particularized injuries. It's not just that you were harmed, it's that you were harmed in a special way, based on where you are. Is that good enough to be one of several hundred people in a building? I mean, we talk about stuff where you know, you're just a member of the general population and you have a concern about an election result—that doesn't establish standing but I assume that you know, the fact that you're part of a large crowd, that's not a problem for for establishing standing?
Ken White: Yeah, it's not, it's good enough, even if it's a big crowd, anything where it's something that is physically happening to you or an event like that, it's going to give standing so that's why you know, in a crash of an airliner, every separate survivor can have their own claim that they can bring. Same principle. Everyone who is physically menaced or interfered with or harmed here has standing.
Josh Barro: And then as I noted, this is the second of these lawsuits by a member of Congress. And the two lawsuits also have, you know, somewhat different sets of defendants. There are a lot of other people who were similarly situated who could bring similar suits. Would this litigation and all get rolled up into one big lawsuit? Or can you sort of have this thing where you have one incident that involved quite a number of bad actors and quite a number of people who were victimized by it, and then you get, you know, just this wide variety of lawsuits among them?
Ken White: Well, it would not surprise me for the cases to be at least moved to one judge — one future long suffering federal judge whomever — and it's not impossible that they would be somehow consolidated, but I think because you do have some different groups in each one — again, the earlier case more focused on the hate groups, and this one more focused on sort of cronies — I don't know that they'd be a good fit together. But I do think that there's a strong chance they'll be moved to the same judge.
Josh Barro: The Capitol riot defendants who are still being held in jail pending their trials are not happy about it. And that makes sense. Richard Barnett, who was photographed with his feet on Nancy Pelosi's desk basically threw a tantrum in a virtual court hearing when a judge set his next hearing for May. He did not want to stay in jail for... he said another month, that's actually you know, that's that's going on two months. Barnett had previously been ordered released to home confinement by a magistrate judge, but prosecutors appealed that to Judge Beryl Howell who ordered him detained pending trial. Barnett had been seen carrying a stun gun into the Capitol so he had a weapon which made him you know, more of a concern about is he going to do violent things if you let him out. And then also, Barnett posted to Facebook in December: (quote) "came into this world kicking and screaming covered in someone else's blood, I'm not afraid to go out the same way" (unquote). So this sounds like a combination of behaviors that would tend to get you held pending trial.
Ken White: Yes. And you know, the courtroom outburst probably doesn't move the judge a whole lot. Sometimes defendants lose it. Most judges, they'll just sort of let it roll over them. It's more pathetic than terrifying. But it was a fairly classic example of someone who has always viewed the system as an outsider and likely a supporter suddenly finding themselves on the business end of it and finding it incomprehensively unfair and Kafkaesque and can't believe that they're actually experiencing this. So all of his conduct was really designed to make it more likely he'd get detained — everything from his past statements and the references to blood, just to you know, as we've said before, being a jerk. It shouldn't be the case, but it is: defendants who act like jerks, who are sort of performatively obnoxious are less likely to get a break on things. And that's certainly the way he was.
Josh Barro: And you don't just mean in court there — you mean the stuff with his feet on the desk and his manner? I mean, obviously, like everyone who rioted in the Capitol was behaving in a disrespectful manner toward the US Congress. But I guess the visual image of the feet on the desk just goes, you know, it's a cherry on top.
Ken White: The feet on the desk and his sort of smug comments afterwards and all that type of thing. Yes, they add up to something where you don't want to be the defense attorney and you know you're going to be fighting uphill, because the judge is going to be fighting their inclination to think this person's a complete ass and to be fair.
Josh Barro: Federico Klein was arrested last week and charged with assaulting an officer with a weapon during the Capitol riot. Now, Klein is notable because he was a political appointee at the State Department in the Trump administration. He was still employed there, holding a top secret security clearance at the time of the riot. Klein was also ordered held pending trial and one thing prosecutors pointed out was that his job must involve taking an oath to the Constitution, which his actions during the riot would have violated.
Ken White: Right, and this is an argument the prosecutors like to make. The theory is this: getting out on bail involves following an oath, your oath to come back and not do any more crimes. And if someone is already an oath breaker, how can you trust them to follow this oath? So you'll see that argument a fair amount from prosecutors whenever you have someone who's in a position of trust and authority, who's up for bail. They'll say 'if they've already violated trust, why wouldn't they violate this trust of this bail from you, judge?'
Josh Barro: Is that usually a convincing argument? I assume that comes up a lot in white collar cases, where my understanding is those defendants tend to be more likely to get bail, right?
Ken White: It's not terribly convincing in that sort of circumstance. Generally, the more your bad behavior, the closer it comes to defying a court, the more likely it is the court will think that you're going to flee or or do more crimes. The further away it is from that, the less likely the court is going to make that connection.
Josh Barro: Klein also asked — and in a considerably more polite manner than the one in which Mr. Barnett had conducted himself in his hearing — if he could be held somewhere that didn't have so many cockroaches and the judge noted that he was about to be transferred. He was going to be sent to a District of Columbia jail so those at least would be different conditions. I don't know that that means that they would be better conditions.
Ken White: Well, if you want someplace without more cockroaches, may I recommend doing crimes in Scandinavia, or some other civilized country that treats its prisoners minimally decently? If you don't like cockroaches, don't crime in America. That's all I can say about that.
Josh Barro: Those sorts of conditions are even worse in jails than in prisons typically, right?
Ken White: Yes. Jails tend to have a lot more turnover, often are more violent, often have significantly worse conditions.
Josh Barro: Finally, this week, Channing Phillips has been named, he will be the new acting US Attorney for the District of Columbia. What do we make of this choice, because obviously, that's you know, that's that's the office that is overseeing all of these Capitol riot prosecutions.
Ken White: Sure, well this an experienced prosecutor with a long history in the Justice Department. He was acting US Attorney for DC under Obama for a number of years, never got confirmed. So he has years of experience with this particular office, he has experience within main justice at the Justice Department so he can coordinate well with them. And he has experience with complex cases, including racketeering type cases. So he seems to be a good solid choice of a serious prosecutor, a prosecutor's prosecutor, not sort of a political appointee.
Josh Barro: And then Michael Sherwin, who has been running the office on an acting basis for a year...the news stories about this appointment of Phillips suggested that there might be some role in which Sherwin would stick around too. He had been Trump's choice to be the acting US Attorney, and he had been associated with Bill Barr, but he's also a career prosecutor who had been down in Miami. And so I guess what is the administration's consideration there? How much do they think about Sherwin as like Trump's guy versus him being a DOJ guy? I assume there's some institutional memory associated with you know, overseeing a sprawling set of prosecutions like this and you might want the person who've been leading that to continue to be involved in them, especially if you can get yourself comfortable with their political alignment.
Ken White: It varies administration to administration, how people like that are treated. Very senior, assistant US attorneys with a lot of experience under their belts, they can get in effect, shuffled off to some terrible job, and stuck there until they quit. Or they can be moved someplace where they're doing serious work, you know, not heading an office, maybe not even heading a unit, but in charge of some type of important cases commensurate with their experience. I suspect Biden is likely to use somebody like this not in a senior leadership role, but in a senior attorney role handling significant cases.
Josh Barro: There is much more we could talk about, but I think that's a good place to leave it this week. Ken White, thank you so much for speaking with me.
Ken White: Thank you, Josh.
Josh Barro: If you have questions, please send them to us. You can find us on Twitter at @LRCKCRW. You can also leave us voicemail at 424-538-8888. All The Presidents' Lawyers is produced by Sara Fay. Our technical director is Kat Yore. Todd M. Simon composed our theme music. I'm Josh Barro. Thank you for joining us and Ken and I will be back next week with more All The Presidents' Lawyers.