Biden and Trump special counsel investigations; FTX founder can’t stop talking — TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
Elie Honig joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss polarizing comments made by the jury foreperson in Trump’s Georgia election fraud probe, Merrick Garland’s Senate committee hearing, and statements that could impair Sam Bankman-Fried’s defense.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[00:00:10]
Hello and welcome to True Crime Daily's The Sidebar, taking you inside the courtrooms of high profile and notorious cases from across the country. I'm your host, Joshua Ritter. I'm a criminal defense lawyer based in Los Angeles and previously an LA County prosecutor for nearly a decade. You can find me at JoshuaRitter.com. We are recording this on Thursday, March 2nd, 2023.
In this week's episode, the possible ramifications from public statements made by the jury foreperson in Trump's election interference probe, as well as the attorney general facing partisan pressure as special counsel investigations continue into classified documents found in the possession of President Biden and former President Donald Trump.
And finally, the continued public statements made by FTX Founder Sam Bankman-Fried and the possible repercussions as he awaits trial. Today, we are excited to be joined by Elie Honig, a former federal prosecutor, legal commentator and senior legal analyst for CNN. Elie, welcome.
Elie Honig:
[00:01:11]
Thanks for having me, Josh. We are never at a loss for legal news. This week has been, I don't know, is it more busy than normal? I'll say slightly more busy than normal.
Joshua Ritter:
[00:01:22]
I think slightly more busy, especially when you've got the stuff that we're going to talk about. Plus, some other cases we've been following pretty closely are now coming to a head. But we're excited to have you on, especially to talk about these cases because I want to talk about what you've been up to recently, not the least of which being your new book, Untouchable, How People Get Away with It.
I've got my copy. It's excellent, extremely timely, giving the cases that we're going to talk about and the subjects and the people in those cases. So please tell us a little bit about what you've been up to about the book. I know it's out. I know people can find it on Amazon or wherever they get their books. What else do you have stirring in the pot?
Elie Honig:
[00:02:01]
Well, so in addition to my sort of daily duties with CNN, this is my second book now, Untouchable, which came out a few weeks ago. So I'm still out there sort of, you know, doing the PR for that. It's gotten a great reception. I appreciate what you said about it. We got really good critical reviews.
And yeah, you know, the news keeps evolving in a way that keeps this book timely. We talk about potential prosecutions of Donald Trump. Will they happen? Is it too late? What missteps have prosecutors already made to this point and can they correct them? I also have a brand-new season of my podcast, Up Against the Mob. Season 2 debuts this week. The episode came out on Wednesday. So I guess yesterday, as we're recording this.
And what I do in this season, the first season I interviewed all different people who I used to work with and maybe against in the mob world. There's an interview with a cooperator who used to be part of the mob. There's an interview with an FBI agent who went undercover. I did one episode with a legendary defense lawyer, a guy named Murray Richman, who represents all sorts of mobsters and celebrities. So that was sort of season 1.
Season 2, we are telling one whole story of basically a crazy case that I worked that involved the Genovese family's effort to take over a colonialized, whatever you want to call, Springfield, Massachusetts. And I won't give away too many twists and turns, but I will just tell you that there is a lot of bloodshed, a lot of intrigue, a lot of betrayal. And just when you think you've hit the sort of, oh my God finisher, there's another turn and another button on it. So there's seven episodes. Episode 1 is out now, and they'll come out every week.
Joshua Ritter:
[00:03:39]
I love that. You've left us with plenty of intrigue, so we will definitely have to check it out. But you did an excellent kind of dovetail into the first case that we're going to talk about today, which is out of Fulton County, Georgia. The foreperson and the grand jury convened to determine possible election interference committed by former President Trump, made waves after making media statements which appeared to telegraph the panel's findings.
In a slew of print and TV interviews, the jury foreperson, Emily Kohrs, publicly stated that the jurors had recommended charges for several involved individuals. Though she didn't mention any individuals by name, she strongly implied that Trump himself could be one of the parties to face charges. When Khors was asked directly about the former president's possible charges, she said, "You're not going to be shocked. It's not rocket science".
The jury was convened to explore allegations of election interference dating back to 2021 after Trump allegedly made a call to the Georgia Secretary of State pleading the official to "find 11,780 votes", which would have been the number of votes needed for Trump to seal the State of Georgia. While the jurors delivered their final report on the findings in January of this year, only a portion of the details of the report were publicly released this month.
After the release of the report, jurors were not explicitly barred from talking publicly so long as their statements remained relevant only to the released excerpts and no details of their deliberations were made public. Many are now criticizing Khor's statements as prejudicial and possibly undermining the future of the case and the public's perception of objectivity. Trump himself made comments, of course, regarding the foreperson statement, citing them as evidence of "an illegal kangaroo court and the continuation of the greatest witch hunt of all time".
Elie, I know you've been following this story very closely. Jump right in. How big of a disaster is all of this?
Elie Honig:
[00:05:36]
It's a problem I'm not sure it would rise to the level of major disaster. First of all, I have been very critical of this foreperson. I've been critical of the Fulton County DA in several respects. I think that her publicity tour is going to create a headache for prosecutors. I am quite certain that if Donald Trump is indicted, this will become the basis for a motion to dismiss.
Ultimately, I don't think that motion will prevail, first of all, because we're talking about a special grand jury here. This is not the actual grand jury that can indict. This is just a grand jury that's giving an advisory opinion which the DA is free to take or leave.
Joshua Ritter:
[00:06:10]
Sorry to interrupt you, but explain that, because that is a nuance that a lot of people have kind of missed in the news. Yeah.
Elie Honig:
[00:06:15]
So ordinarily, when a prosecutor wants to charge a case, you have to go to a grand jury. And a grand jury technically has the power to indict. Although, I will say candidly, as a former prosecutor and Josh, you know this, it's just a tool of the prosecutor. I don't mean that there's nothing nefarious about that. It's a completely one-sided proceeding and that's how it's supposed to be. So it's not as if you have some truly independent entity making a hard examination of the facts here. They basically just spit back at the prosecutors, whatever the prosecutors give to them.
But this was a "special grand jury", which is it is a provision under Georgia law that says in certain circumstances, you can impanel a special grand jury. And the DA went to judges and got permission to do this. And all they did was, well, they investigated. That's very important. And they've issued this report, but it's not binding on anyone and it's not an indictment. So the DA still has to take this.
And I think that level of separation may really help the DA here because the argument will be, well, you can't say the indictment was tainted because this person was only over here on the special grand jury. The other thing is, the harm would be that this grand jury, that the technical harm would be that this grand juror is infecting and prejudicing the potential jury pool. But as you know, there are all sorts of procedures in place during jury selection where you will weed out anyone who has been unduly influenced.
Now, let me give the bad news for anyone who's hoping for a Trump indictment out of Fulton County. This DA, I believe, has crossed the line. You know, you said the key word, Georgia law says, first of all, grand jurors aren't supposed to talk to anybody, ever. I mean, it is anathema to me, the notion of a grand juror out there spilling the beans when the judge, by the way, has said most of this report has to remain under seal to be out there yapping about it is a terrible idea.
Technically, the line that she's not allowed to cross is she cannot discuss. And you said this word, deliberations, deliberations. And I've seen some people trying to clean it up for the DA say, well, she didn't really get into deliberations. Oh, yes, she did. And here's what she said. First of all, she said she was asked about Trump in one of the interviews and she said, well, we talked about him a lot in the room. And then she went into her usual, I mean, how is we talked about him a lot in the jury room, not a deliberation.
She also talked about specific witnesses by name. And she said what the jury thought of them, how the jury assessed their credibility. Again, you really have to be splitting hairs quite finely to think that's not deliberations. Now, again, I don't think it's going to be fatal, but it's going to be a headache. And the bigger picture problem, I think, is that this grand juror has completely undermined the notion of the fair, impartial, serious grand jury.
I mean, the whole reason I believe that the DA impaneled this special grand jury is to give her cover. nd I don't mean that in a negative way but is to be able to say to the public, look, we presented our evidence to this very serious, very careful, independent, deliberative body, and they came back and reviewed the evidence carefully and they recommended that I indict whoever.
Now, all anyone's going to ever think of with this grand jury is that woman, Emily Khors, and just how unserious she is and how much she seemed to delight in what they had done. And I just want, one other thing that that jumped out at me that I think some people have missed. She said a couple of things that are problematic to me in terms of the prosecutor's conduct. Look, it's not the prosecutor's fault this woman went on a publicity tour. They didn't have the ability to stop her, and I'm sure they hated it.
She pointed out two things that jumped out at me. One, in one of the interviews, she says, kind of casually, oh, yeah, we were reading newspaper coverage of this case in the grand jury room every day. The prosecutors saw it and they said it was okay, but we just had to keep an open mind. That's crazy. That is a misstep by prosecutors. Look, it's a little bit of an artificial exercise.
I mean, Josh, you know, from dealing with juries and grand juries, but you always instruct juries and grand juries you are to avoid press coverage. What judges always tell juries, if you're flipping through the channels and you see something about this come on TV, change the channel, turn off the TV. If you see something in the news, it's different now with social media. But if you see something in the newspaper, throw out that section of the paper. And now, you have, not only were the grand jurors looking at media, but the prosecutor said, yeah, it's okay, just keep an open mind. That's not good prosecutorial practice.
The other thing is, this Emily Khors seemed to be really fixated on who was funny. I don't know why she kept talking about how this witness was hilarious. This guy was so funny. And she thought it was really funny that she had sworn in as the foreperson, one witness, on a SpongeBob. I think it was Popsicle stick. I guess she held out a popsicle stick, and the guy put his hand, I don't know. And she said, oh, because we had just had an ice cream party with the DAs. And I went, what?
Now, look, it's quite possible that the DA just said, all right, guys, you've been here all week. We've stayed late Tuesday night. As some thanks, here's a box of ice cream. Stupid ice cream treat. Who cares? And not an ice cream party, you know, like with balloons and streamers and hats.
Joshua Ritter:
[00:11:17]
With hats and noisemakers.
Elie Honig:
[00:11:19]
Yeah, exactly. But again, it really undermines the notion, the public perception of a neutral grand jury --
Joshua Ritter:
[00:11:27]
Seriousness.
Elie Honig:
[00:11:28]
Seriousness. It makes it look like this grand jury was simply a tool of the prosecutor. So I think she did quite a bit of damage, even if it's not going to necessarily tank the entire case.
Joshua Ritter:
[00:11:40]
Yeah, I agree with everything you're saying. And I just wanted to kind of flesh out a couple of points that you made, but that I think the only way this says it is that it wasn't an actually indicting grand jury. And that the Georgia -- if they want to come back in and say, okay, now we're sitting our actual indicting grand jury, it's a whole new group of people. They're totally tasked in a different way, different foreperson, different instructions, everything else, none of that is connected. This was just kind of an investigative grand jury. Then it begs the question, why'd you do it in the first place? It's kind of meaningless.
But they can kind of say, no, we're doing a do over here. We get a mulligan and we're doing it the right way again. But the problem is, she dropped such a hot mess in the middle of this whole thing when you're talking about the highest stakes ever. You're talking about the possible indictment of a former sitting president. This should be handled with the utmost seriousness. And we're going to get into some other instances of f possible investigations into presidents and former presidents where there have been some missteps.
And that's the problem, is that these things need to be handled so carefully and by very serious people that when you get an Emily Khors type character, who I don't think anybody was all that critical of the fact that she did interviews, though I agree with you, you would have thought they would have instructed them, just please keep your mouth shut till this whole thing is done.
Elie Honig:
[00:13:08]
Yeah. Of course.
Joshua Ritter:
[00:13:09]
But it doesn't sound like she actually did something per se wrong by doing the interviews. Now, you make an excellent point of some of the things she said in those interviews, kind of went a little bit too behind the curtain into the deliberation room. And I agree with you on that. But more than anything, it was her demeanor during these interviews. It was like a game to her and the whole thing started to look very trivial.
And then that plays into Donald Trump's kind of ongoing thing, that this is a witch hunt. And look at this joke of a circus that they're putting on trying to get me. And I think it just, I don't know where things go. And that's my question for you is where do you think things go from here? But my view is that wherever they go from here, the stink of what just happened here is going to continue to follow it.
Elie Honig:
[00:13:59]
Yeah, look, the image of Emily Khors' preening and giggling on TV will stick with this case. And there's just no way around that. Opponents of a Trump, people who do not believe Trump or do not want Trump to be indicted will never let that be forgotten. And it just, as you said, the whole purpose of a special grand jury is to lend legitimacy and gravitas to this. And now it's done the exact opposite.
I do think it remains quite likely that Fani Willis will indict. But I have a whole chapter about this in my book. It's really important that people understand that an indictment does not vindicate or solve anything. An indictment is the start of a case, and there are people out there who are on indictment watch. And the moment there's an indictment, they're going to pop the bubbly and have a ticker tape parade. And there's other people who the moment there's an indictment, are going to be infuriated.
My advice to both of those camps is take a breath, because an indictment is the start of a case. And turning this case in particular into a conviction is going to be a very long, very steep, rocky uphill climb for the DA, starting with the fact that there's a constitutional question about whether a local elected county level DA even has the constitutional authority to bring an indictment for anything touching on a federal office or the presidency. There's a debate about whether Trump's conduct did or did not touch on the presidency.
But the first thing that's going to have to happen is that they're going to go, Trump's lawyers, are going to go right to federal court and ask, A, the federal courts to take over the case, which is a thing that can happen, and B, to throw it out. And even if you do get to a jury, you're not talking about a jury trial until 2024, I mean, at least. And what's going to be happening in 2024? Donald Trump's going to be in the middle of a primary, likely the favorite, maybe the presumptive nominee. It's already going to be hard enough.
Everyone goes, well in Fulton County, Trump's unpopular, right? And I actually researched this in my book. The vote in Fulton County was 72 percent for Biden, but 26 percent voted for Trump in Fulton County. Very Blue County. Mathematically, 26 percent Trump voters mean you are 90, I forgot, I have the number in my book. I think it's 96 percent likely to have at least one Trump voter on your juror. I think it's 86 percent to have two, 70 something to have three.
Joshua Ritter:
[00:16:10]
It's a good point. Yeah.
Elie Honig:
[00:16:12]
And not only that, let me just one more point on this, Josh, is you're also getting to a point where both Merrick Garland and Fani Willis have allowed so much time to lapse. We're two plus years out, two years and two months out now that you lose that imperative, you lose that feeling of urgency. And I have friends who lean liberal, who don't like Donald Trump, who have said, two different people have said to me, , one colleague and one non colleague friend, have said to me in the last couple of weeks like, it just feels like it's over already. Like it just feels like it's digging up old scores to indict him now on January 6th. Or you know, the hush money payments to Stormy Daniels, that was six and a half years ago. So yeah, at a certain point, I feel like the moment has passed and I think there's a chance we could already be there.
Joshua Ritter:
[00:16:58]
Yeah, I agree with you. Certainly the news cycle seemed to have run its course on it. And I think by the time if this does start to actually work its way through the judicial system with the timing of the elections and everything else, it's just going to become a purely political issue. And the merits of it, whether they exist or not, are going to become take a second chair to just the politics of the whole thing.
Elie Honig:
[00:17:24]
Yeah. No, I think that's exactly right. You can't separate the two. Yeah.
Joshua Ritter:
[00:17:27]
You mentioned Merrick Garland. So let's move to Washington, D.C. where Attorney General Merrick Garland came under fire during a Senate committee hearing Wednesday, March 1st, where Garland faced questioning regarding a range of topics ignited by the ongoing investigations into Joe Biden and former President Trump.
His appearance came mere weeks after the appointment of a special counsel to investigate classified documents found in President Joe Biden's possession from his time in the Obama administration. The special counsel investigation will run concurrently with the ongoing investigations into the discovery of classified documents recovered from Donald Trump's Mar-a-Lago estate.
Garland has maintained that the appointment of special counsel investigations into both matters emphasizes the DOJ's commitment to impartial accountability to delicate investigations. However, the attorney general faced scrutiny in his Senate committee hearing with accusations of partisan bias as he fielded questions regarding everything from the investigation into Hunter Biden to the drug crisis.
Though Garland maintains final authority over the special counsel decisions, the counsels themselves had the ability to bring whatever cases they see fit. The counsels are also entirely funded by the DOJ and are entitled to office space and the autonomy to appoint their own prosecutors. Elie, break this down for us if you could. What is this all about? Why appoint these special counsels? Where does this come from? What is the real reason that you think Garland is doing this?
Elie Honig:
[00:18:52]
Yeah. So well let me talk first of all, about the hearing yesterday. I have been and remain quite critical of Merrick Garland in several respects that I have. The final chapter in my book is entitled Waiting for Garland. I'm not impressed by his prosecutorial tactics approach or spine, frankly.
But I do need to say two very important things in favor of Merrick Garland. He has restored DOJ's integrity and independence, and I think there's plenty of fair criticism of Merrick Garland but the guy hasn't lied to us. And you should say, you know, you might be thinking, okay, he's the AG. He's not supposed to lie. The last guy did. Bill Barr sure did. That's the subject of my first book., Did lie to us many times over.
And Merrick Garland has remained stubbornly, doggedly, not even nonpolitical. I actually argue in the book not only is he not political, he's actually afraid to do something, even if it's necessary, if it might look political. So I think the accusations you saw yesterday coming from Ted Cruz and Josh Hawley that Merrick Garland had weaponized the DOJ are utterly preposterous.
Merrick Garland has done the opposite, I think. I think Merrick Garland has defanged DOJ with, you know, with regard to both political parties. He's not brought a substantial indictment of anybody in any position of power. I mean, I'm putting you on the spot, but there's no answer here, Josh. I've asked my friends this who defend Merrick Garland. I know you're not necessarily a defender.
Name for me the single most powerful person of any type who Merrick Garland in his two years as attorney general, including all the US attorneys offices, all 10,000 plus federal prosecutors, what's the single biggest player who Merrick Garland has indicted for anything? Political player? No. Zero. It's a blank set. Not even a rep or a state. Whatever. Someone said to me, the lieutenant governor or a candidate for lieutenant governor of New York. I said, okay, if that's the answer, then there's your answer.
Okay. So Merrick Garland has now appointed special counsel Jack Smith, looking at Donald Trump, both on Mar-a-Lago documents in January 6th and then Robert Hur to investigate Joe Biden on the documents. I think it was the right move in both cases to appoint special counsel. In Trump's case, I think it came way too late. I don't know why he wouldn't have appointed the special counsel right away.
The reason under the DOJ rules, you can appoint a special counsel where there are extraordinary circumstances or a conflict of interest. And here I think it's quite clear. Conflict of interest is you're investigating Donald Trump as Joe Biden's AG. Donald Trump is running against Joe Biden in 2024 and just ran against him. And Joe Biden, the conflict of interest is he's the president. We're investigating him. He appointed me the AG. So I think it was the right move.
Now, people sometimes say like, well, but what's special about special counsel? The answer is that there's a bit more independence. A special counsel has all the powers that any US attorney, any federal prosecutor would have to investigate, indict, try cases. A special counsel, the regulations say the attorney general, the special counsel is not subject to the day-to-day supervision of the AG. Basically, what's going to happen is both special counsels are going to at some point make recommendations to Merrick Garland, indict or don't indict.
Merrick Garland then, under the law, has to give those recommendations "great weight", but he can overrule them. If he does overrule them, by the way, Garland then has to file a report with Congress saying, I overruled the special counsel on such and such. They wanted to indict such and such. I did not, or vice versa. So there's a bit more transparency there. You listed some of the other institutional factors that provide insulation for special counsel.
What's clear to me is Jack Smith has picked up the pace. He's moving much more quickly, more aggressively. We've seen more targeted, high-level subpoenas in the now four months since Jack Smith took over than we had in the preceding year and change that Merrick Garland was in charge. I genuinely don't know where Jack Smith comes out on January 6th. I think it's difficult for Garland politically, even though there's obvious differences in the two document cases between Biden and Trump. I think it's very difficult to say yes, we are indicting Donald Trump on documents, but not Joe Biden. Even though there's differences, it's a tough one.
Joshua Ritter:
[00:23:03]
That's what was going to be my question for you is that it appeared to a lot of people, I'm not the one inventing this idea. But when they started to discover documents at Biden's, you know, in his garage next to his car or wherever else they're finding it, that that just kind of, you know, did away with whatever they were going to do with the Mar-a-Lago stuff. Because, again, it starts to become a political creature rather than a law and crime type question at this point. And now it's like there's no way you can indict Trump on that and not touch Biden on that without everybody pulling out their hair and losing their minds.
Elie Honig:
[00:23:37]
I think that's right. I wrote a column where I made an analogy to offsetting penalties in football. Like, you know what I mean? Like if one side, you know, they throw an 80 yard touchdown, but the defense had one fingernail over the line. That's a bad example. Sorry. If one side had a fingernail over a line and the other side picks up the quarterback and slams it to the ground, one penalty is much worse than the other, but they're going to cancel each other out. And I think that's what happens here.
And people go, well, but there's so many differences. Trump had more documents and Trump potentially obstructed. Biden was somewhat cooperative. They weren't exactly accurate in their public statements. But and I get it, I get why intellectually we can list on paper the differences. And those differences might again, on paper mean the difference between criminal and non-criminal but this stuff's not played out on paper. And I do not see how Merrick Garland pulls the trigger on or gets wide enough public acceptance for giving my own boss a pass on a documents case, but indicting, seeking to lock up the other guy on what's also at bottom again with differences, but at bottom a documents case.
Joshua Ritter:
[00:24:44]
Yeah, nuance be damned at that point. People are only going to go see the absolute optics of it. I wanted to go one last thing on this. Back to a point you made about Garland and how you feel that he's, you know, kind of removed the politics from DOJ. I'm curious what you think, though, about the actual execution of a warrant on Mar-a-Lago, because that's where I think, you know, when that first happened, it's almost like it set the world on fire because everybody went, oh, my God.
And then to have at the end of that it be all about these documents rather than submarine secrets and everything else that people were speculating that it was. Do you think that that was a misstep that that created? I'm not saying that it made it him political, but did it give ammunition to people to portray him and paint him as political because he used such a intrusive. Listen, you know, there could have been far less intrusive ways that they could have accomplished that, but the execution of a warrant has now become the raid. Do you think that was a misstep?
Elie Honig:
[00:25:51]
I don't think it was a misstep. I actually think it was a justified move. Of course, it's going to give -- I'm sure Merrick Garland was well aware he would be giving political fodder. And for that reason, they really took steps to do this in a low key way. Right. They did it when Trump wasn't there. They didn't alert the media. We didn't find out about it until after it was done. They didn't take the door off its hinges or anything like that. I think they were very cautious about that.
But the key is DOJ had given Trump's team many, many chances to do it the easy way. First, they negotiated informally. They got some of the documents back, but not all. Then they used a subpoena, which is a legal requirement that you turn over the documents which Trump's team turned over documents and said, that's all we have. Turned out to be false.
So I think that it was justified at that point. I think there's no other way you can go in there and ensure that yourself that you're getting all the documents. Of course, it has provided political fodder, and that's the balance that Garland has to strike. But I actually do not fault Garland for going in there in a search warrant, given the extensive efforts DOJ and the FBI had made to do this by the easy way first.
Joshua Ritter:
[00:27:00]
Fair enough. Fair enough. All right. Moving to our last case, This is out of the or being handled by the Southern District of New York.
Elie Honig:
[00:27:08]
My old office. yes, sir.
Joshua Ritter:
[00:27:09]
Your old office. What you're very familiar with. As he awaits trial on a number of charges alleging financial crimes, FTX Founder, Sam Bankman-Fried continues attempts to defend himself in the court of public opinion. This likely comes at the detriment of his legal defense as he conducts interviews with anyone willing to listen.
Bankman-Fried faces a possible life sentence for the orchestration of what's been dubbed one of the largest financial frauds in history. Weeks before his arrest, the FTX founder gave an interview to a crypto blog intimating that political donations made by Fried were intentionally made difficult to track. The statement was seized upon by prosecutors who charged Bankman-Fried with criminal counts, including wire fraud and conspiracy to make unlawful political contributions.
Aside from public interviews, Bankman-Fried has continued communication with FTX employees, leading to new bail restrictions which prohibit his contact with past and current employees. In total, Bankman-Fried faces a total of 12 criminal charges, which could place him in jail for life. His trial is slated to begin in October of this year.
Elie, first, I want to talk about, if you could explain for listeners about how bail works in the federal system, because he was put on this ridiculously high. Well, I don't know if you want to call it ridiculous. It was an extremely high bail of $250 million, which he's out on, but he did not actually post $250 million. Explain to us how that works and then explain to us why is the judge allowing this conduct on his part to continue?
Elie Honig:
[00:28:44]
So well, the conduct meaning the public statements?
Joshua Ritter:
[00:28:46]
Yeah.
Elie Honig:
[00:28:47]
Yeah. So, first of all, when it comes to bail, anytime someone gets arrested federally, the prosecutor has to decide, am I going to ask the judge to lock this guy up pending trial or am I going to agree to let this person out? And there's only two factors that you can argue. One is danger to the community. The prosecutors did not argue that with Sam Bankman-Fried. He's not a danger.
The second one is risk of flight. And that would have been the concern. This guy has all sorts of money. He was overseas when or, you know, in a foreign country when we pick them up. He's got unknown assets and resources and there's a chance he could flee. But prosecutors did not make that argument. They reached an agreement with Sam Bankman-Fried's lawyers with which the court approved to basically let him stay in a private prison. He's basically staying under, I think he's at his parents' house I believe, under heavy supervision. He has to check in. He has to, you know, all these things that we call pretrial conditions.
There's some argument that he should have been locked up, but the parties here agreed to leave him out. He hasn't fled. I mean, if he does flee, that's going to sure be egg on everyone's face but there is definitely inequity in this. I was involved in bail reform, very successful bail reform here in the State of New Jersey. There's been a less successful version across the river in New York. But I'm a believer in basing bail only on risk, not on money.
And this is an example of how rich people can post bail that poorer people could never dream of. He has not actually posted $250 million. It is a secured posting, meaning basically that you sign over the rights to various properties, homes, et cetera. It can be friends or family that do that. And then if he flees, this is the disincentive. If he flees, the government can seize all those properties.
Joshua Ritter:
[00:30:23]
Which is still pretty breathtaking that he was able to cobble together $250 million worth of properties that they were able to put up as surety for this bond. But go ahead.
Elie Honig:
[00:30:33]
Yeah, it's a great question how exactly he managed to put that all together. It's not the judge's responsibility or power to shut up Sam Bankman-Fried. That's up to his lawyers and him. He has done no good for himself. It's similar to Donald Trump. Well, in some ways, it's similar to Donald Trump, where if you think about what if I was the lawyer for this person. Every day, I would say, please, just shut up. Just stop. Just be quiet. You cannot do any good for yourself.
Trump may be a little different because if he ever goes to a jury trial and he's got political fans there, that could help him. Sam Bankman-Fried's not really in the same position. I am sure that if I was representing Sam Bankman-Fried, my number one piece of advice to him would be shut up. But as you know, Josh, all a lawyer can do is advise and recommend. You can't force someone to shut up.
Judge Kaplan, who I actually appeared in front of, tried one case in front of but had a whole bunch of cases in front of. He has this case now. I guess under extreme circumstances, he could put on a gag order, but I don't think it's at that level. He's mostly just hurting himself. He's not undermining the process or the judge or the prosecution, really.
I should note Judge Kaplan is a very sharp judge. He is a fearless judge. And there is a perception out there that judges often just sort of go along with prosecutors. There's some truth to it. It's a little overstated. But Judge Kaplan, oh no. He almost seems to enjoy poking prosecutors and sort of reminding us that we're not in charge. So he is a bold judge. He also has a great BSometer. So he doesn't take BS from defendants either. So it will be really interesting to see.
The last point I want to make on this is this is a great example of how quickly DOJ is capable of moving. This is a complex case. This is a financial fraud case. It took weeks. They had Sam Bankman-Fried indicted in a matter of weeks. And so when people say, well, these investigations, speaking of Garland, they take time. You have to dot your Is and cross. No, no, no. I mean, yes, you have to be careful.
But if DOJ believes it has a case to be made and the case is urgent, I have seen them. I'm sure you have seen them move with remarkable speed. Yet here we are Garland and now special counsel are puttering along. So it undermines this whole notion of Garland as the reliable slow tortoise who's going to get there. I mean, maybe he will get there, but I think it's too late, so yeah.
Joshua Ritter:
[00:32:53]
Right, right. One last point on this. Former FTX head of engineering, Nishad Singh, pled guilty to criminal fraud charges earlier this week, February 28th. Is this now the walls closing in? I mean, listen, I don't know if this man had much of a defense beforehand. It sounds like this was one of those frauds that was just being covered up in no way whatsoever. But tell us how the -- this has been my experience on the outside dealing with federal investigations. But it's all of your friends begin to fall and then the only one left standing is the one who is in the middle of that investigation, being Sam Bankman-Fried here.
Elie Honig:
[00:33:34]
And this is not like a group of grizzled mobsters who have this code where we, you know, there's no omerta here. It's probably like flipping pancakes with -- these are young, rich, elitist type people. It's quite clear that several of Sam Bankman-Fried's closest former business partners and friends and I think girlfriend even have flipped on him.
To a large extent, that will help prosecutors. They'll present the testimony in the way that we always present cooperator testimony. This is a person who was part of the fraud, has now admitted his or her liability, is facing punishment and is hoping to help themselves by providing useful information. But there will be the standard defense attacks that you see on any cooperator that this person is incentivized to lie or stretch the truth or just help the government by telling them whatever they want to hear.
So cooperators are usually a valuable resource for prosecutors and can help depending on, you know, there's great cooperators and there's terrible cooperators and but the good ones done right. And my old office, I will say that we're pretty good at this in the SDNY can really make a case for you.
Joshua Ritter:
[00:34:42]
Yeah, absolutely. And we will continue to watch this case. I think it's a fascinating case. I actually hope and I think it will end up in a trial because with the amount of exposure that this man is looking at, I think it absolutely will. And it's going to be one of those you got to be a little bit of a legal nerd to be as interested in it as I am. But I do find it fascinating because you're considering just the incredible amount of fraud and the very smart people who were putting a lot of money into this man's hands. And he was just blowing it, it sounds like. Elie, thank you so much for coming on this week. Where can people find out more about you?
Elie Honig:
[00:35:18]
You know, you can watch me on CNN. I'm on Twitter and Instagram as @ElieHonig, E-L-I-E-H-O-N-I-G. Because I have this unusual name, I don't have to worry about John Smith number six, underscore six or something. I'm the only Elie Honig you will find on any social media. I feel confident in saying that.
Joshua Ritter:
[00:35:34]
Fantastic. We will check it out. And I'm your host, Josh Ritter. You can find me on Instagram and Twitter at @JoshuaRitterESQ. You can find our Sidebar episodes wherever you get your podcasts. And we want to hear from you. If you've got questions or comments you'd like us to address, tweet us your questions with the hashtag #TCDSidebar. And thank you for joining us at the True Crime Daily Sidebar.
