Law of the Case

Trump shooter's phone and the problem of encryption

Former DOJ criminal prosecutor Alex Grant reacts to the news that the Trump attempted assassination investigation was hampered by the encryption on the shooter's phone. Alex laments that law enforcement is still dealing with this encryption issue, even after a judge issues a search warrant. This is eight years after the San Bernardino terrorist attack and a locked iPhone pitted the FBI against Apple. Alex also talks about how this was a recurring problem in serious criminal cases he investigated.

Extreme Textualism in Bump Stock Case

The Supreme Court struck down President Trump's executive action banning bump stocks, a device that allowed the Las Vegas shooter to convert a semi-automatic rifle into a functional machine gun. Former DOJ prosecutor Alex Grant explains how the six-person conservative majority's fidelity to textualism overrode the liberals' competing textual argument and defeated Congress's intent in passing the machine gun statute.

The Missing Jury Instruction that Will Upend the Trump Verdict on Appeal

Former DOJ criminal prosecutor Alex Grant explains how the jury instructions contained a fatal flaw that should lead to a reversal of the Trump verdict on appeal. The prosecution's burden of proof included showing that Trump acted willfully, and Judge Merchan completely failed to explain the legal meaning of willfully, which is very different from its everyday meaning. That's reversible error.

Way Too Long Closings and Dirty Tricks in Trump's Hush Money Trial

Former DOJ criminal prosecutor Alex Grant talks about a few things that were off kilter about the closing arguments in the hush money trial. The defense had no opportunity to respond and the prosecution went on for five hours, a test of endurance for the jury. And he talks about some typical dirty tricks the defense engaged in, and the conundrum that the prosecution faces in trying to respond to them.

The Intent Element at the Heart of Trump's Case

As Judge Merchan prepares to give the jury instructions in Trump's hush money trial, he is making a fateful decision on what the prosecution must prove about Trump's culpable state of mind. In this episode, former DOJ prosecutor Alex Grant breaks down this crucial issue that could lead to the nightmare scenario of a guilty verdict followed by a reversal on appeal if Judge Merchan gets this wrong. Alex explains that the New York false records statute requires the prosecution to meet the difficult standard of willfulness in order to convict Trump of the felonies charged in the indictment.

What the DA's Office is Just Now Learning about Michael Cohen

President Trump's motion to dismiss the New York hush money case for an alleged failure to disclose information about the star witness Michael Cohen revealed that the DA's office did not have the full story on Cohen when it indicted the case. The DA's office only received part of the documents it wanted from the federal prosecutors who had previously charged Cohen and had refused to charge Trump. It was only after Trump subpoenaed the U.S. Attorney's office that Trump--and the DA's office--got all the potential impeachment information on Cohen. Former 23-year DOJ criminal prosecutor Alex Grant explains why time pressure probably led the DA's office to take the risky step of charging the case and waiting to see what else there was that could damage Cohen's credibility.

Trump's Parallel Prosecutions and the No Quarterback Problem

Former DOJ prosecutor Alex Grant talks about why having four Trump prosecutions at the same time with no coordinated prosecution strategy is a problem. Alex explains that this is a departure from the DOJ playbook in big cases, and it may lead to the Stormy Daniels hush money case in New York state court being the only case going to verdict before the November election. Normally DOJ headquarters would be quarterbacking these cases. Alex discusses why there is a lack of strong leadership and why it matters.

What the Media Totally Missed on Trump Immunity Appeal

Former DOJ prosecutor Alex Grant explains what traditional media sources totally missed about the Supreme Court's decision to take Trump's presidential immunity appeal. He explains that there is another pending Supreme Court appeal that was already holding up the trial in the January 6 case. Alex discusses the work that the Supreme Court is going to have to do to distinguish a 1982 case, Nixon v Fitzgerald, that extended absolute presidential immunity from civil lawsuits. Finally, he talks about how the special counsel's prior tactical decisions made the Supreme Court's decision to accept the appeal virtually a foregone conclusion.

Fani Willis Disqualification Motion and How to Follow the Money

Former DOJ prosecutor Alex Grant is joined by special guest and former FBI profiler Julia Cowley to talk about the disqualification motion filed against Fani Willis in the Trump election interference case. In Part 1, Alex lays out the legal issues and the theory behind the motion, as well as his impressions of the strategy and professionalism of the DA's office in fighting this motion. In Part 2 (17:50), Alex and Julia talk about how you would investigate the facts behind the romantic relationship with the special prosecutor Nathan Wade and the alleged use of cash by Willis. They talk about how to follow the money and the cell tower evidence, and the limitations the defense is operating under in trying to conduct this investigation.

How the First Amendment limits (that's right) speech online

Without carrying the water for either side of the political divide, former DOJ prosecutor Alex Grant explains how the First Amendment actually works to stifle unfettered free speech online. The Supreme Court heard arguments on a Florida law that would prevent big companies like Facebook from censoring speech. The oral argument made it clear that the First Amendment rights of Facebook, i.e., the company's free speech rights, will probably doom any state law that prevents online companies from engaging in content moderation. Alex explains how the First Amendment can actually work against free speech values and how that is baked into the Constitution.