Ep 267 — DOJ Loves Nixon

Law and Chaos

This episode dissects a series of recent judicial rebukes against the Trump administration's legal overreach, beginning with the DOJ's 26th consecutive loss in its attempt to seize state voter rolls. The hosts analyze an

Key takeaways

• The DOJ suffered its 26th consecutive loss trying to seize state voter rolls, with a Georgia judge ruling federal law does not override state privacy protections under the Civil Rights Act of 1960.
• An Arizona appeals court overturned a manslaughter sentence because a trial judge improperly admitted an AI-generated victim impact video that erased interpretive distance between the family's wishes and the deceased's actual words.

Main topics

• DOJ voter roll litigation losses
• AI misuse in courtroom sentencing

Notable quotes

"What he's about to do is ask his employees to spend two years risking prosecution by breaking a whole shit ton of laws."

Conclusion

The episode underscores a growing judicial pushback against executive branch

Transcript preview

Speaker 2 (0:00) What he's about to do is ask his employees to spend two years risking prosecution by breaking a whole shit ton of laws. And for that project, exonerating your literal and figurative criminal forefathers, that seems like a pretty good plan, you know? Speaker 2 (0:34) Welcome to Law and Chaos, where the D.C. Circuit will decide if Justice Department lawyers are allowed to lie to a judge's face, the DOJ is about to exonerate Richard Nixon, and the Three Hat Dance is back in a big way. Olé! We've got a lot to cover, so let's get after it. Speaker 2 (0:55) Happy Friday, Chaos Monkeys. I'm Liz Dye, and with me as always is Andrew Torres. Andrew, how are you? Speaker 7 (1:01) I'm good, Liz. How are you doing? I'm Speaker 2 (1:03) good. I have a little travel plan next week, so we're going to mix it up. The show is going to be kind of different formats. As we said, we're going to be talking about this book by a Cherokee author named Rebecca Nagel. The book is called By the Fire We Carry, and it's about the... Supreme Court decision in McGirt v. Oklahoma. So we'll spend a whole day on that. Yeah, Speaker 7 (1:24) I'm really excited about that episode. Yeah, Speaker 2 (1:26) it's a good show. And we will have some other surprises next week as well. And we'll be making some podcasts. You know, we're not going to stay away from a microphone for a week. Come on. Okay. But before that, Duckin' Alerts! Let us begin, as we often do on the show, with a mazel tov, this time for the Justice Department Civil Rights Division, which is celebrating its... 26th consecutive loss in court in his effort to seize the state voter rolls. Speaker 7 (1:53) Oh, and 26th. They tied the 1988 Orioles consecutive loss record. Congrats, guys. We always knew you could do it. Speaker 2 (2:02) Well, I think they have still more road to go because the DOJ has sued at least 29 states, plus the District of Columbia, seeking to seize state voter rolls. Their latest loss was in Georgia, where Judge Victoria Calvert granted the state's motion to dismiss the government's complaint on Wednesday. Speaker 7 (2:18) Interestingly, this ruling was on supremacy clause grounds. So the court said that nothing in federal law gave the Trump administration the right to override state privacy laws. Most of the other judges to weigh in on this question have said that there was nothing in the Civil Rights Act of 1960 that allowed the feds to come in and grab voting records without a reason, you know, just for spot checks. Or they said that state voter roll was, you know, not a record that. quote, came into the possession of the registrar and thus could not be produced. Instead, it was a document compiled by the registrar, right? Came into possession is the statutory language. That is, that language... was put in place to stop local officials from throwing away black citizens' voter registration forms, right? Like that's the statute that this administration is trying to pervert to get its hands on state voter roll lists. The voter roll list is instead a list that is compiled by the state officials themselves. Speaker 2 (3:17) Right. The Sixth Circuit actually compared this to like... flour, sugar, and butter versus a cake. Flour, sugar, butter are things which come into possession of a baker, and the cake is what comes out the door. But that's not what the court in Georgia said. They just said, no, you don't have a right to override state privacy laws that protect things like driver's license information and social security numbers and the rest of it. So no. You lose, which I guess, you know, when you're the 26th court to consider, you Speaker 8 (3:52) have time to get creative. Speaker 2 (3:54) And speaking of creative, our next story involves AI, but not in the way you think. Liz, Speaker 7 (4:01) I think you mean SI. Have you not heard that Mad King has decreed that we must refer to it as SI now for special super intelligence? I think Speaker 2 (4:11) it's supreme intelligence. I don't know. I have indeed heard that. Anyway, our next story, which was flagged by Reuters, involves the misuse of AI, artificial intelligence, in a courtroom, specifically during the sentencing phase of a road rage manslaughter case in Arizona. I'm just going to read you a little bit. I don't want you to go in with an open mind. At that point, an AI video which depicted the victim speaking to the camera was played. The video began with the AI victim explaining that the video was a version of himself. recreated through AI that used his picture and his voice profile. Then a real video of the victim embedded within the AI video played in which the victim conveyed his faith and spiritual beliefs to an unidentified individual. When the video of the victim ended, the AI victim reappeared and stated that the AI video is a true representation of who he was, not how the courtroom portrayed him. After the A.I. victim thanked the court and his friends and family in attendance, he addressed the defendant, stating in part, I believe in forgiveness and in God who forgives. The A.I. victim then ended his remarks by conveying his love for his friends and family and assuring them he would see them on the other side, while what appears to be another embedded real video showed him fishing. Speaker 7 (5:26) Well, Liz, you got me. I definitely did not see Speaker 6 (5:30) that one coming. Speaker 7 (5:32) Serious question. How on earth could a judge possibly think that was appropriate? Speaker 2 (5:36) Wait for it. So here is what the judge said according to the transcript. I loved that AI. Thank you for that. And as angry as you are and justifiably angry as the family is, I heard the forgiveness and I know the defendant appreciated it, but so did I. As I said, I'd like to think I would do that. I don't know that I would, but I love the beauty in what Christopher, and I call him Christopher. I always call people by their last names. It's a formality of the court, but I feel like calling him Christopher as we've gotten to know him today. I feel that was genuine, that his obvious forgiveness of the defendant reflects the character I heard about today. but also says something about the family because you told me how angry you were and you demanded the maximum sentence. And even though that's what you wanted, you allowed Christopher to speak from his heart as you saw it. I didn't hear him asking for the maximum sentence. Speaker 4 (6:25) After which the judge decreed that he was Speaker 2 (6:27) going to give a Speaker 4 (6:28) higher sentence than Speaker 2 (6:30) even the state had requested. Speaker 2 (6:34) That's not funny. It is funny. It is very Speaker 7 (6:36) funny, but also horrifying. Please tell me that we are covering this story on the show because the appellate court overturned it. Speaker 2 (6:44) Yes, that is indeed what I'm telling you. The Speaker 7 (6:46) appeals court said it was Speaker 2 (6:47) so prejudicial for the judge to consider this video that it constituted a fundamental error. They said, despite the explanations concerning the genesis of the AI video, it presents the statement, including nonverbal communications made through facial expressions and the like, as coming directly from the victim. It erases the interpretive distance between the family's belief about what the victim would have said and the victim's own voice and opinions. Indeed, the AI victim stated, this here is... is a true representation of who I was, you know not how the courtroom portrayed me. No disclaimer could cure that error. Speaker 7 (7:20) So I assume this guy will be resentenced? I mean, I assume he doesn't get a new trial because the trial phase, the guilt and innocence phase, and the sentencing phases are separate. Speaker 2 (7:31) Right, that's correct. And you know, this wasn't played for the jury. It was just played for the judge, who apparently has very bad judgment. Wow. Well, I guess that's something. Okay. And in other good news, the charges against canoeist Davy Hearn for vandalizing the Lincoln reflecting pool were dismissed with prejudice today by D.C. Superior Court Judge Todd Edelman. Yeah, this Speaker 7 (7:51) was a fascinating order. I mean, not the least of which because Judge Edelman was unusually candid about basing his ruling, about basing that dismissal with prejudice, meaning that the charges can't be refiled. on Donald Trump's public statements. I think lots of courts have this sort of reluctance to call out the president's bad behavior explicitly. either because they worry it will make them look biased and potentially undercut their rulings on appeal or because of separation of powers concerns or just because it's never been done that way. I don't know. I mean, maybe they just don't want the smoke, right? Like, certainly any judge that Donald Trump has targeted has to walk around with. armed guards for several weeks to fend off death threats. But here, Judge Edelman made it clear that this ruling was a direct result of Donald Trump's attacks, even going so far as to point out that Trump said the judge was extremely unfriendly to. U.S. Attorney Jeanine Pirro. And frankly, I think she choked because the judge was really vicious. Instead of going after the people that did it, the judge went after her and went after her department. And then dropping to a footnote, in Judge Edelman's opinion, it said, as of the date of those comments, the undersigned had presided over one brief hearing in this case, a July 20th, 2026 status hearing at which the court set a trial date and several other deadlines. So he's saying, I did this ministerial stuff. I mean, I haven't done anything. Anyway, continues. The undersigned made one substantive ruling at the hearing denying the defendant's motion to dismiss. So, in other words, ruling in favor of the government. United States Attorney Pirro did not attend the hearing and was not referenced by any party. or the court. Speaker 2 (9:35) Right. To refresh our memories, this case was dismissed a month ago after Pirro's office admitted that the pool was not damaged by this guy on his bike ride who reached in to touch the floating debris as the epoxy coating floated off the bottom of the pool. She admitted that the pool was damaged because the contractor screwed it up. Or she doesn't admit that he didn't pull it off, but she admits in writing that the damage, nothing he did caused the government to have... extra expense. And he actually says he didn't pull the liner off at all. But the only issue after this dismissal was whether it would be dismissed with or without prejudice, because if it's without prejudice, the government can refile at any time. And. Typically, Speaker 7 (10:18) a dismissal at this stage would be without prejudice, right? But here you have the president of the United States publicly threatening to fire Pirro for dismissing the case, declaring that Hearn is clearly guilty because he's a big player in Act Blue, a disgraceful fundraising scam, and is represented by a Trump deranged sleazebag, political hack lawyer Norm Eisen and crew, a group that uses charity for political purposes, which is, to the best of my knowledge, illegal Speaker 7 (10:50) Sorry, reading Trump's statement causes my brain to throttle my spinal cord. Anyway, the prosecutors talked about dismissal without prejudice because, you know, maybe they'll discover new evidence when the pool guys take a third try at defacing this national monument. Right. Speaker 2 (11:05) It's still a mess. Yeah. Speaker 7 (11:08) It's October. But look. The much more likely outcome, as Judge Edelman knew, is that Trump will fire Pirro after the election and Todd Blanch will find somebody else to charge Hearn again, the same way he found someone else to charge Jim Comey with posting a picture of seashells after the false statements case against him fell apart. So here's what Judge Edelman said. Because the government's legitimate interest in maintaining the possibility of a future prosecution seems so marginal, and because of the extraordinary possibility that Mr. Hearn will nonetheless face a meritless, politically motivated prosecution, the court has an obligation to protect him from the uncertainty that a dismissal without prejudice entails, and from what, objectively, would be harassment. Speaker 2 (11:55) Yeah, this is a lot of very frank language from what is essentially a state court judge. Although, look, D.C. does occupy this weird liminal space. It's not a state and it's not a city within any state. So you have the U.S. attorney controlling what are effectively state prosecutions. Do you think that is why this judge in this order was especially candid about the reality? I Speaker 7 (12:19) think that could be part of it. But personally. I also read this as a function of Judge Edelman's personality. I mean, this is a guy who was nominated to the federal bench in D.C. twice, once by Barack Obama, once by Joe Biden. He is qualified to serve on the federal bench. But both of his nominations failed after Republicans painted him as this. Crazy liberal. And now he's watching criminals and grifters and morons who are insane, like all get the same job that he was passed over for. You know, like he's got nothing to lose. He's got nothing to prove. Like, why should he pull his punches? Yeah, Speaker 2 (12:56) that. That makes total sense. Okay. Well, congratulations to Davey Hearn. Well-deserved victory. And we are going to take a quick ad break and be right back with the Law & Chaos doofus of the day, unless you are a subscriber at patreon.com slash lawandchaospod or lawandchaospod.com, in which case, no ads for you. Not today, not ever. Speaker 2 (13:17) you Speaker 2 (13:32) And we are back, just in time for the Law and Chaos Doofus of the Day. And Andrew, I know I've broken your brain a lot today, but this one's going Speaker 7 (13:41) to do Speaker 2 (13:41) it. Speaker 7 (13:41) Are Speaker 2 (13:41) you ready? Speaker 7 (13:42) I mean, after that reanimated AI manslaughter, I think I am ready for anything. Hit Speaker 2 (13:50) me. Okay. Let me read you a bit from this Wall Street Journal report by Philip Wegman and Sadie Gurman. For nearly two years, the Justice Department has made it a priority to investigate people who previously investigated President Trump. Now it is reaching back into history to consider whether prosecutors mistreated an earlier Republican president, Richard Nixon. The department is reviewing whether the special prosecutor's office that investigated the famed Watergate break-in committed misconduct, according to people familiar with the matter, more than half a century after that scandal led to Nixon's resignation. Jeff Shepard, a former Nixon aide turned Watergate historian and revisionist, recently gave a two-hour presentation at Justice Department headquarters that laid out his theory that the deep state took Nixon down. The title of his 78-page slide deck, Watergate as Lawfare. Speaker 7 (14:40) I was not ready. Liz, why do you do this to me? Nixon, they are rehabilitating f***ing Richard Nixon. I mean... Doesn't Donald Trump rehabilitate Richard Nixon every single day by breaking 100 laws before lunchtime? I mean, what? Fulminations aside, what is the point of this exercise? Speaker 2 (14:59) Well, the article says that Trump often asks his aides why Nixon resigned instead of sticking it out. Speaker 7 (15:04) Why? Because it. In the 1970s, at least some Republicans had at least some sense of decency or shame or both, and they told Nixon they were going to impeach him if he didn't leave voluntarily. Well, Speaker 2 (15:18) Larry Hogan's daddy is dead, so... And look, I don't mean to be glib about it. You're right. Republicans are the ones that got rid of Nixon and Republicans have refused to get rid of Trump. And that's funny, but it's true. In Speaker 7 (15:31) precisely the same way. Right. Like Democrats got rid of Nixon. A handful of Republicans came along, but we needed that handful in order to make the impeachment threat