Also, on the Epstein issue, I'm really concerned with the incentivizes created by the damages (settlements?) against the banks.

However badly they may have behaved the likely responses by banks will probably be some combination of:

1) Hear no evil, see no evil (make sure they can never be said to have knowledge of bad client behavior).

2) Refuse to serve any client the moment there is a wiff of controversy or aspersions.

I'm particularly concerned about #2. IMO the demands imposed by KYC laws and related liabilities have already imposed huge costs on the third world by increasing costs of remittances (you can't just give anyone with a cell phone an account) and facilitated the rise of Bitcoin and other evasions that make ransomware far more possible and reduce control over the financial system.

Worse than this it creates the very real possibility that mere suspicion can impose financial death sentences and potentially risks real harm to our ability to access and share information. For instance, even if pornhub and onlyfans police their content to the best of their ability there are always threats of lawsuit for facilitation because they can't be perfect (and maybe even device manufacturers who implement privacy). Will banks shy away from accepting such clients?

And even if you don't see that as a problem in itself the human desire for porn won't disappear and the last thing you want is to push it all into less regulated countries paid with Bitcoin creating the perfect place for child abusers to hide amoungst all the normal transactions.

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That's an interesting point on #2; I hadn't thought of it that way.

But I do feel the horse might already be out of the barn on that (as you allude to, referencing KYC, AML, etc.).

The banks could have fought it. The fact that they settled—and settled for large amounts—makes me wonder if they were afraid of certain stuff coming out. Remember that there's an information disparity; they know what's in their bad documents, and we on the outside don't.

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The horse may be out of the barn but it could always leave the farm ;-). Generally speaking, I think the increasing tendency to force private companies to do the work of enforcing the law (be it pharmacies/drug manufacturers catching pill mills or financial rules) is very dangerous. Even when we can't see the direct harm, we've built a system of protections over centuries against government abuse which don't apply and these companies lack the incentivizes to and powers of investigation the government has.

Good point on the banks being afraid of what might come out though they may just be paying to avoid the PR of a long trial putting their name and Epstein's together. However, I don't think that necessarily tells us what they are afraid of or ameliorates my fears re: 2.

I'm skeptical they have documents showing the bank president or board had direct knowledge. So what might they show?

a) They show that either there were a bunch of transactions that were unusual or, with the benefit of hindsight, will seem like they should have raised red flags to a jury.

b) Some level of knowledge/reason to suspect by executives/management at lower levels.

But both a/b bring us back to the question of what you do as the board/president? And I fear that's bucket 1 or 2 again.

c) It's not their own conduct they fear will be revealed but they are afraid that in answering discovery they will reveal transactions or other information of wealthy and powerful clients (who then might either cease their buisness or might be applying other pressure).

However, option c seems almost as bad in itself. I don't think it's desierable to create a kind of backdoor to potentially access embarrassing records of clients by suing the bank itself. And again to avoid such a situation in the future the bank again faces similar incentives to drop clients that face a stunning accusation).

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Jan 24·edited Jan 24Liked by David Lat

I found the remarks on the 14th amendment issue pretty spot on. Though what probably did the work finally convincing me that (however much I wish SCOTUS would disqualify) Trump didn't engage in insurrection in the sense of the 14th was the amici curie brief that pointed to the sense of insurrection in the 1861 militia act as requiring a disruption great enough that law could no longer be enforced via normal judicial proceedings.

However, I think you were spot on with the objection about the questions by Congress being no different than those by a reporter. The idea that one should never try to be evasive in such a situation is patently ridiculous. Their error was being evasive on an issue their own support wanted answers about. They could have evaded congress's questions all day if they'd managed to address the concerns of their power base.

And WTF was with the claim that it's absurd to say that whether or not calling for the genocide of Jews violates the code of conduct depends on context? Maybe he thinks it shouldn't but having read through a fair bit of the codes it absolutely does.

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I see your point on the university presidents. As I tried to suggest to both David and Reg Brown (see earlier post linked below), the presidents' testimony was accurate, they aren't supposed to lie under oath, and the old "hindsight is 20/20" saying might apply here. So I think this was a much tougher situation than many realize.


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Yes, I very much appreciated that point you made with Brown. That's the kind of insight that makes me subscribe. Thanks.

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Jan 24Liked by David Lat

Thanks for doing this episode. I confess it has become difficult to take much of what Boies very seriously anymore after his godawful behavior in several of his representations (particularly Theranos and Harvey). I know that is not fully logical on my part. But I just lost so much respect for him and I can’t completely separate those feelings from my prior huge respect for him (particularly when he allied with Ted Olsen on same-sex marriage). I could go on.

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You're not alone in feeling this way. Feel free to suggest questions or topics I can raise with him in part two, which is when we'll focus on his overall career—including career missteps and regrets.

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Jan 24Liked by David Lat

I will think it through and try to collect my thoughts for further questions.

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Jan 25·edited Jan 25

Ok it did not take me too long to think through. I understand the desire to want money and power (personally, I understand wanting money more than power, but that could just be because I am an introvert).

HOWEVER, I do not remotely understand the ability to trade my soul, my core ethics, or my self respect in order to attain money or power. It is just not in my nature. Perhaps that makes me a bad lawyer (I hope not), because I am not willing to do ANYTHING to help my client; only things within my own ethics. Otherwise, I would do a silent (or noisily, if required) withdrawal.

My question for David would simply be, after all the admiration you gained and money you earned doing thoughtful, high profile and worthwhile representation, HOW IN THE FUCK DID YOU DECIDE IT WAS OK TO TRY TO DESTROY THE LIVES AND REPUTATIONS OF UPRIGHT WHISTLEBLOWERS (THERANOS EMPLOYEES) OR VICTIMS (WEINSTEIN VICTIMS) in the name of “doing your duty” representing clients as a lawyer. It makes me ill.

That might not be a helpful framing for any followup conversation you have with Mr. Boies. But I just don’t understand why he didn’t stop at the top of his reputational game, enjoy the satisfaction of a career well pursued, and lend his skills to non-evil pursuits.

Oh yeah and how did he think it was remotely reasonable to serve both as a BoD member and legal (and untethered) attack dog for Theranos at the same time? The actual answer is that there is no good answer. And lawyers who have sworn the oath should NEVER try to destroy vulnerable innocents under the umbrella of zealous representation.

Sorry for the rant. I doubt it was helpful.

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The role of the president in protecting the nation is unique. We cannot rationally consider whether the president's actions or inaction require his disqualification under the Fourteenth Amendment the way we would for most other people. The mere size of any mere disturbance is irrelevant. The story of the Manchurian Candidate comes to mind.

The evidence that Trump caused and encouraged the attacks on the capitol and the threats to Vice President Pence included what Trump knew, tweeted and failed to do about the attacks and threats that flowed from Trump's own statements to his followers. “The President” was required to “take” appropriate “measures” to “suppress” the “insurrection, domestic violence, unlawful combination, or conspiracy” on January 6. 10 U.S.C. § 253. At the very least, “the President” was required to “immediately order the insurgents to disperse and retire peaceably [ ] within a limited time.” 10 U.S.C. § 254. Instead, for hours, Trump expressly and publicly encouraged and allowed his supporters to try to extend Trump's occupation of the Office of the President by brute force and violence.

Trump summoned his most fanatical supporters to the capital for January 6 with a call for a day that "will be wild!" Trump organized his fanatics on January 6 into a massive mob and directed them to the capitol. Trump actually planned to lead his supporters when they marched on the capitol. Trump angrily urged his supporters (that day, in particular) to "fight like hell!" When Trump's fanatics did literally fight like hell (at the capitol) Trump did nothing to stop them. The mob that Trump expressly and openly summoned, organized and directed openly and violently attacked the capitol in broad daylight with Trump watching, specifically, to extend Trump's occupation of the Office of the President and to prevent the actual president from executing the duties of the Office of the President. The mere fact things did not turn out as bad as they could have should not protect Trump from the conclusion that he "engaged in insurrection or rebellion against the" U.S. or gave "aid or comfort to the enemies thereof." Protecting Trump now will only endanger the U.S. more later. That is the so-called precedent we should be concerned with setting.

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It’s well worth keeping in mind that “insurrection” is far from the only disqualifying action addressed by the Fourteenth Amendment. Trump must be disqualified if he “engaged in insurrection or rebellion against the” United States or gave “aid or comfort to the enemies thereof.” The plain language of the Fourteenth Amendment makes abundantly clear that it’s egregiously myopic to see the circumstances of the Civil War as controlling on (or even particularly relevant to) the understanding of what actions might require the disqualification of a former president. To identify actions that might require the disqualification of a former president, we should and must consider what the Framers of the original Constitution wrote and how they construed it.

The Constitution, itself, emphasized that “[t]he President” and “Vice President” must “be removed from Office on Impeachment for, and Conviction of” any “high Crimes and Misdemeanors.” A federal statute (the Sedition Act of 1798) then specifically defined “high misdemeanor.”

if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty, and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanor.

It is well understood that one of the people most directly affected and concerned by the Sedition Act was the Vice President of the United States, Thomas Jefferson. Not only was Jefferson then the Vice President, but he also was at least surreptitiously supporting his own campaign for the presidency by attacking the administration of President John Adams. And Jefferson had done the same earlier when he was the Secretary of State for George Washington, again at least surreptitiously supporting his own campaign for the presidency.

As president, Jefferson pulled every string he could to have his own Vice President, Aaron Burr, tried for and convicted of treason.

It’s also worth considering the implications of Fries’ Rebellion in 1799. If Trump cannot be disqualified from office for what he did, how could two justices of the U.S. Supreme Court (James Iredell and Samuel Chase) in two separate proceedings conclude that they could sentence one or more men to be hanged for conduct that was far less directly threatening to the capital, the country and the Constitution?

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