Shownotes Transcript
Hey folks, Preet here. As you know, Stay Tuned with Preet isn't the only podcast we produce here at CAFE. I also co-host the CAFE Insider podcast with my friend, former U.S. Attorney Joyce Vance. Now, we're excited to launch a second weekly episode of CAFE Insider, hosted by CAFE contributor and former Assistant U.S. Attorney Ellie Honig.
Each week, Ellie will be joined by Cafe contributors like Joyce, Asha Rangappa, Barb McQuaid, and Rachel Barkow, as well as other guests. Now we're bringing you a special look into today's episode. First, Ellie responds to criticism of his latest Cafe note about the unsealing of Jack Smith's brief in the January 6th prosecution of former President Donald Trump. I want to note something here.
One of the things we try to do here at CAFE is to foster good faith debate on important issues. I will not always agree with Ellie or our other contributors, nor will you. I don't expect you to always agree with me either. And that is often the point. I will say, I've been so impressed by the deep level of engagement that our listeners continually show. You write us thought-provoking letters and help make our programming stronger. So please keep at it as we tackle the challenges our country faces together.
In the episode excerpt that follows, Ellie will also be joined by Westchester County District Attorney Mimi Rocha to discuss the criminal and civil cases against rapper Sean Combs, or as most of you know him, P. Diddy. I hope you find it valuable, and as always, write to us at lettersatcafe.com with your questions, comments, and suggestions. Now, on to the show.
First of all, as many of you probably know, my most recent cafe note criticized special counsel Jack Smith's brief in the Trump election interference prosecution. Preet and Joyce talked about it. I'm going to talk briefly about it before we get going. And then later, I'll be joined by my good friend.
the Westchester County District Attorney, Mimi Rocha. We will discuss the many legal troubles faced by Sean Combs, or as he's known to many, and in the indictment, Diddy or P. Diddy. Last month, of course, Combs was charged by federal prosecutors in the Southern District of New York, where Mimi and I both used to work together. So here we go. Those of you who listen to the podcast know that every week there comes a moment when I say, send me your thoughts, questions, and comments to letters at cafe.com.
Well, listeners, this week you certainly have sent your thoughts, questions, and comments to lettersatcafe.com. And what I'm going to do now is read a bunch of them. We got a lot. I really do love to hear from you. I say that every week. It's not just boilerplate. Because when you're on this side of it, when I do the podcast or write the piece, I'm usually in an empty room talking into a microphone or typing into my computer. And I do want to hear what people think. And it's much more constructive conversation.
to get your letters, which as we'll see in a moment, are thoughtful and substantive, even if they disagree, as opposed to seeing stuff on, name your social media outlet, Twitter. So I do love to hear from our viewers. It's really good to just hear your voices, not physically, but to read your actual words and thoughts. Helps me know what you're thinking. And there's some really good feedback, which we'll get to in a moment. The other thing is, of course, I listened to Preet and Joyce talking about my piece in the Cafe Insider episode the other day.
Let me put in a plug for CAFE, if I can. Self-promoting for all of us. This is why you subscribe to CAFE and CAFE Insider. If you want to hear constructive, high-level, fair-minded agreement and disagreement at times, this is what we do. You know, people use this phrase, oh, legal nerds. Like, we really are legal nerds. If you wanted to know what our text chains are like, me and Joyce and Preet have a text chain. Me and Joyce and Barb have a text chain. There's every combination you can think of. And this is the stuff we talk about. Hey,
Do you think USA manual section 9.855 can be reconciled with such and such? I mean, this is actually what we talk about. And if you get a glimpse inside that process, that's what we're trying to bring to you on the Insider. So as Preet and Joyce said, we all know, love, and respect each other. I definitely agree with some of what they said. I think they made some very well-made and well-taken points. I definitely disagree with some of what they said. That's how this all goes. Okay, let's get on to your letters. I love these.
By the way, nothing makes me laugh more than a well-done insult of me. And we'll get to a few of these. I don't like sort of blunt, boring insults, but some of these are really good. And I'm going to give you credit. Okay. Got an email from Chris who writes, and this, here we go. I swear sometimes Ellie's hot takes are like reading the New York times pitch bot. Chris, that's good. I like that made me laugh when I read that, but Chris writes this, I'm going to cut to sort of the core of it. He writes,
I'm sure following every rule to a T will feel like vindication for Ellie when Trump tears down American democracy brick by brick in a second term. Other viewers and listeners, a lot of you voiced a similar sentiment. David writes, this is Donald Trump we're talking about here. He must be defeated. Your high-mindedness is, in my view,
And then just one more. There's a lot of these along these lines, but an email from Diane. Diane writes this. I always enjoy reading your articles. Thank you. You are right. This was a provocative read regarding Jack Smith's enthusiasm. But don't you understand that we're trying to catch a witch? So same sentiment there from those three listeners and many others.
Let me say about this argument, I have absolute respect for this argument. I disagree with it, but it's so honest. What these folks are all saying is, yes, Jack Smith bent the rules or maybe Jack Smith bent the rules, but we're okay with it, given the greater good in the view of these viewers and listeners.
given the greater good of taking down Donald Trump. I disagree with that. I disagree with the political use or justification of Jack Smith's bending of the rules. But I think this argument is intellectually honest and it saves the arguer from having to
engage in some contortions in gymnastics to try to justify what Jack Smith has done as 100% pure and good. Okay, the next major response that people had to my brief is articulated nicely by a listener named Marla, who writes, the primary reason this is happening so close to the election is, all caps, DELAY.
D-E-L-A-Y, caused by SCOTUS and the Trump defense team. A lot of other listeners voiced the same idea. The delay is really on Donald Trump. The reason this is happening so close to the election, it's Donald Trump's fault. He's the one who dragged this up to the Supreme Court.
I disagree on this, respectfully. Let's just sort of do a calculus of the delay. I think the longstanding, tired, and at this point tiresome debate about did Merrick Garland take too long to appoint Jack Smith? Did DOJ collectively take too long?
That's over. I mean, it's over because here we are in October of 2024. There is no federal trial. Any federal trial that might happen is still many months off. I've been writing for Cafe since back in 2022 that Merrick Garland had already taken too much time. Even if we take the blame game out of it, when you're just doing the ledger, the math on it, the first two and a half plus years out of the available four years, you're
were taken up by DOJ getting around to charging this case. Now, since then, what Donald Trump has done is successfully, like it or not, and I have my criticisms of the immunity decision, but successfully,
argued and vindicated a constitutional right of his. There are all sorts of criticisms of this case. I share some of those voiced by Pree and Joyce. I think the test the Supreme Court developed and articulated is confusing and vague and overbroad. That said, here we are. Like the immunity decision or not, and I think there are merits and demerits to it, it is now the law. And so I say we need to think about it this way. Let's
pull the Donald Trumpiness of it all out of it. Sometimes that helps clarify the mind a little bit. If you have a criminal defendant who the Justice Department is looking to take away from his family and lock up, I'm not being dramatic. That is what's happening here. His liberty is at stake. Any criminal defendant, not veering into Donald Trump again, and that criminal defendant raises a constitutional defense that any reasonable, decent, constitutionally competent lawyer would raise and wins,
You can't then point at that defendant and say, how dare you? You're delaying. And like the Supreme Court's decision or not, again, that's what Donald Trump did here. He raised an argument that any competent defense lawyer would make, immunity, and he won. And it's unfair and it goes against the way our system works to say, how dare you take the time to vindicate a constitutional right? And by the way,
That should have been factored into the whole DOJ time assessment here. I'm no rocket scientist. I don't get everything right. But I was writing for CAFE and in my book back in 2022 that Merrick Garland had already taken too long to charge. He didn't charge until mid-late 2023 because you had to factor in. Of course, there was going to be an immunity challenge. You don't have to be a constitutional scholar to see that. Of course, it's going to take some time. There's also this accusation from some of our
listeners that the Supreme Court itself dragged its feet. It's just not true. The Supreme Court handled this case substantially more quickly than they handled almost any other case. Sure, they did not expedite it to the wishes of Jack Smith, but
but not expediting quite as much as Jack Smith wanted is not the same thing as delay. Okay, third and final major point that our listeners raised is that this was procedurally normal. And Preet and Joyce argued this as well. I do disagree with them on this, as we'll see in a moment.
A listener named Peter wrote in that for Jack Smith not to submit the brief would go against the Supreme Court's request. A listener named Ellen wrote what Ellie fails to understand is that the Supreme Court asked for this both in time and in ruling. So a lot of our listeners seem to say this is exactly what the Supreme Court said to do. This is normal. It's just not.
It's just not. The Supreme Court does not say flip the normal rules of criminal procedure on their head. The way it works is the prosecutor indicts, then the defendant decides if he wants to bring a motion to dismiss or any other motion. If there is a motion to dismiss, how is that going to be shaped and crafted? Is it going to be narrow, broad? Is he going to try to knock out certain charges but not others? And then after that,
the prosecutor responds. It's the way cases are done. You can talk to any cafe contributor who will tell you that that is how every case works. Now, the argument here, which I understand is, I sort of agree. I agree the Supreme Court gave Jack Smith and Judge Chutkin and Donald Trump's team a confusing mess of a standard. I don't understand why that
translates into, therefore, you should reverse the rules of procedure. And that's what really got me here. That's what really stands out to me as Jack Smith and Judge Chutkan going out of their way to change ordinary procedure. Judge Chutkan even said at one point it was a procedurally irregular request to do this. And then, of course, she let Jack Smith do it. And that, to me, is the biggest issue. Why would Jack Smith be so hellbent? I don't so much mind that he asked for a quadruple length brief. Fine. Fine.
but why would he be so hell-bent on going first? One of our listeners, Cynthia, writes, I'd love to see you recommend what should have been done and what should be corrected instead of just giving up. Well, I'm not giving up, but let me take the first part of that. Here's the way I think it should have played out, the same way every other case plays out. You go into court, the judge goes, here we are, defense, your motion's gonna be due.
whatever, four, six, eight weeks out. How long do you need? Okay, I'll give you that. Maybe I'll give you a little less. After that, prosecution, you submit your brief. Four, six, eight weeks. How long do you need? Maybe I'll give you what you asked for. Maybe a little less. That's the way it works. But the problem if that happened for Jack Smith is then his response would not have been due until after the election. And they flipped it. Joyce makes an interesting argument. Well, Donald Trump had already made his motion to dismiss way back when, when he made his immunity motion. That doesn't stand up to me.
Because Donald Trump said, his team said at the appearance in front of Judge Chuck and on September 6th, we're reconsidering our immunity motion. We are thinking of bringing a narrower motion. It's up to them. And I know you say, well, of course he was going to challenge the whole thing. Maybe. But guess what? The defendant's the one who gets to define his motion. Instead, what Jack Smith and Judge Chuck and said is, hush, you quiet defendant. You don't tell us what your defense motion is. We're going to just guess first.
that it's as broad as possible. And then after Jack Smith writes this 165-page brief, then you tell us what your motion is. It's backwards. It's a contortion. And that, to me, sticks out as something that raises very serious questions. I just had to read a couple other things that I found amusing. There's a couple kind of lame put-downs, but I'll read you the good ones. Another listener named—it's either DK Orders or D Quarters, I can't quite tell—writes,
"I often enjoy Ellie's contrary spunkiness." That's a great turn of phrase. Nice job, I like that. I think it's pretty apt.
And then someone writes this. This is a listener named David. He wrote, while I don't always agree with you, almost never when, as with today's, you start with the disclaimer that some will disagree with your point, exclamation point, and a little smiley face. True, I did do a little disclaimer before last week's piece. I said, I know a lot of you are probably not going to like this. And so let me just conclude on that note. One thing that I promise you and that I think you know if you've been listening or reading my stuff for the last, gosh, I don't even know what it's been, five years, I guess, now with Cafe, probably more, is that I've been
is that I'll always tell you the truth about how I feel, that I don't do politics. You all know how I feel about Donald Trump. You all know how I feel about the indictments against him. For all the pieces I've written about criticizing Jack Smith or Fannie Willis, there have been 10 times more criticizing Donald Trump. That said, I don't do politics. I don't root for either side. And I am maybe to a fault a prosecutorial purist.
It's the way I was raised, and it's what I brought to this job from my first book that I wrote about Bill Barr, Hatchet Man, how Bill Barr broke the prosecutor's code and corrupted the Justice Department. On through to any prosecutor, I'm going to be exceedingly critical of any prosecutor because I take that very, very seriously. It's not to suggest others don't, but...
That to me is a sore point that I will never hesitate to point out, whether it's Bill Barr or Jeff Sessions or John Durham, or whether it's Fonny Willis or Jack Smith or Letitia James. They're not all the same. They're not all equal. But the fact that one side may be worse than the other doesn't mean you don't point out the shortcomings and the failings of the other.
I'll say it again. Thank you for your thoughts, questions, and comments. As you can see, I truly do enjoy hearing them. Send us more. Send us about anything. We will do some of these on air. It's great to hear from you. Thanks for your very intelligent and interesting and sometimes funny thoughts. I appreciate it.
Okay, so now we are on to the main episode. And this week, we've got a fascinating case that we're going to bring you inside. My guest is the perfect guest, always the perfect guest, but especially for this case, my former SDNY colleague and good friend, Mimi Rocha.
who you all know. Do I need to introduce you to people? Mimi, of course, is a longtime federal prosecutor at the SDNY and is currently the Westchester County District Attorney. Mimi, it's great to see you. Great to be on with you, Ali. Always good to talk with a former colleague, fellow friend.
And just want to say a little disclaimer, I guess, here that I am currently the Westchester DA, but really my expertise for this case that I'll be talking about and hopefully bringing to the conversation comes from my almost 17 years as a federal prosecutor in the sex trafficking cases that I worked on.
So just wanted to say that. And also that, like you, I only know what I'm reading in the public record about the case we're about to talk about. No inside info on this one. At the moment, you only have one defendant, Sean Combs. They may add some, which I guess we can talk about, but it's an unusual, even with the expansion that you talked about, the way the prosecutors have, I think, effectively expanded the
from beyond the mob world, this is semi-new ground in terms of the way that they're using recall. I think it'll stand up legally, but there's a challenge associated with it. It definitely is a challenge, but I see more of a benefit because I think that one of the positives of using racketeering statute here...
And the purpose of the racketeering statute in any context, but more novel-y here, is that you can tell a story. And yes, you can do that with conspiracy statute to some degree. But the story that this indictment
already, and we can get to what we see possibly coming down the road, but already seems to be telling is these were not isolated incidents. The charges here charge incidents that were a pattern
And a practice, which is part of what you need to prove, essentially, for racketeering, a pattern. You have to have a certain number of acts within a certain amount of time of each other. You know, they have to relate to each other in a certain way. And again, going back to this idea that racketeering enterprise has a common purpose, right?
And these acts, you might only be able to look at a little bit in retrospect, which is why you're allowed to bring in older conduct. Because it may be that it's not until later that you see this pattern and that prosecutors say, hey, that thing that this person did every couple of years, every couple of months, whatever conduct we're talking about, we now see that as in furtherance of this pattern.
common purpose. And I think this indictment is starting to tell that story in one important way is that it keeps talking about the people who helped facilitate, allegedly, what Combs was doing. Yeah, I think that's exactly right. And I think that's exactly how prosecutors want to convey this to the jury, that this wasn't just one guy. He had all sorts of runners and
collaborators, and we'll see. I mean, do you have any sense, any guess as to whether others will be charged here? It definitely stood out to me in reading the indictment that it doesn't only use consistently, frequently words about co-conspirators and others involved in the enterprise, but specifically mentions types of people who were allegedly doing that.
It's employees of Combs businesses, including high-ranking supervisors, security staff, personal assistants, and household staff.
who acted as Combs' intermediaries, too, and then details some of the acts that they allegedly did to help facilitate the sex trafficking enterprise. And that is more specific than they needed to be. They could have just said others did acts. It's helpful both in terms of specificity, but I think it's also a
I think, sending a signal, essentially, maybe not even a signal, a bullhorn to others of now's your time to come forward and talk to us. And, you know, you are witnesses, whether you knew it or not. And they will have to differentiate, they, the prosecutors and investigators, in terms of who knew what when and whether they have culpability or whether they are just
And that is a complicated process. And so they probably want to get people involved
getting lawyers and coming forward and talking to them. That's exactly how I read it as well. Some of these folks who help Sean Combs, the key is going to be knowledge. Did they know what they were doing? Did they understand? You know, if you're just given a package and you're in a personal assistant told, bring this over to such and such address, and that's all you know, you're going to be a witness, but not necessarily a defendant. But if you are involved in bribing people, threatening people, transporting guns, drugs, you definitely will be liable. And I don't see it. I would be really surprised given the
the specific allegations in here about what some of these other handlers did, if Sean Combs ends up being the only person ever indicted around this case. One other point about that, because I think your initial question was, are there going to be other people charged? And I think the short answer is, we don't know. There may be, could be under seal, could be on complaint.
But more likely, you know, and this is slightly speculative, so I want to be careful, but you may know someone's conduct, but you may not know their level of knowledge.
And once you know that, that can help you decide whether they need charges, whether they need some kind of immunity, whether they need a cooperation agreement. I mean, they're all different. It may not be, it may, but it may not be that we see additional people charged, but it may be that there are other people very relevant to these serious charges. Yeah, I think that's the likely outcome. So just so people can follow along with the indictment, this is a three count indictment.
Count one is racketeering, which we've been talking about. And what we will call the predicates, meaning the sub crimes that make this racketeering are basically every crime in the book. I mean, kidnapping, arson, bribery, witness tampering, forced labor, sex trafficking, transportation for sexual purposes, possession with intent to distribute drugs.
So it's a very broad racketeering count. That's count one. Count two then is sex trafficking by force, fraud, or coercion, which is sort of encapsulated in the RICO. And then count three is transportation and interstate commerce across the state line to engage in prostitution. The thing I do want to drive home, people say, what's he looking at here?
There's the maximum here is life, but maximums almost never come into play other than in murder cases or career criminal type cases. But the minimum here, the 15 year minimum, when there's a minimum in a case, that's what really drives action. That's what really scares people. It's a 15 year minimum. Can you talk a little bit about that and the significance of it and why there is a 15 year minimum? Yeah. I mean, there are several federal statutes, gun statutes, sex trafficking statutes that
and narcotics statutes mostly that have mandatory minimums. And that means that unless there is some escape hatch,
which can be really only in very few forms, like a cooperation agreement or a safety valve if we're in the narcotics area, the judge has to give at least that number. And for sex trafficking, there are two ways to get to that mandatory minimum of 15 years for prosecutors to charge it. One is if it involves a minor under the age of 16,
And the second is if it involves force, fraud, or coercion. And they have certainly alleged that. The latter only at this point. The latter. Yeah. In the racketeering and...
in the actual sex trafficking count, substantive count itself. So let's talk about the indictment itself. And I'll just come right in and ask you, if you were writing or approving of this indictment, would you have included the stuff about freak-offs, capital F, capital O, according to the indictment, and the thousand bottles of lube? Would you have included those details in the indictment? So on the one hand, I think...
It can make it feel a little headlining and, you know, that this is really just to get people's attention. But the truth is, when you're doing these kinds of cases, and I've encountered this a lot, you do have to both say, prove and charge things that are really uncomfortable.
to talk about. I mean, people don't go around talking about, you know, someone, I'm just going to say it because it's in the indictment, masturbating while watching, you know, women with male sex workers. It's just not something that is comfortable for people to talk about. And so I think that the details, first of all, make it
real, make it more, you know, again, they're telling a story. I also think details like that can be very important and corroborative in terms of evidence. Yes, it may also grab headlines and it's the thing that people have sort of most latched onto in a way because maybe it's the most comfortable thing to talk about. It's easier to sort of laugh about
a thousand bottles of baby oil than it is to talk about the other thing I just mentioned, right? But it also can be evidence because if they took the trouble of seizing these bottles of baby oil, it is so reported publicly. And then they're also referenced in the indictment that certain people, we just talked about this a minute ago, certain types of people, the workers,
were responsible for putting those bottles in certain rooms ahead of time. And so it may seem trivial, but it's kind of an important piece of evidence that they're going to try to prove and use. And I'm simplifying it. There's more to it. But these people were part of the enterprise. They were essential. It's not the only thing that they're alleging they did. But
It is clearly one of them and something that seems to be relatively easy to prove because they have the bottles in his room and then they end up in the other room. And I'm assuming they'll have some kind of evidence of how they got from one to the other and who did that. And those are the kind of people, again, that they want to talk to.
Yeah, I think it plays as a mixed bag for prosecutors. And I think I would have included this as the prosecutors did. You know, it generates the headlines, which is fine. I don't think that's anyone's purpose. But in a weird way, just the freak-offs and the lube...
or understates, I guess I should say, the seriousness of the charges because it's not just about sexual preclusion. There's nothing illegal about... I don't want to speak on behalf of all freak-offs, but there's nothing illegal about having wild sexual appetites and having lube. There is very much something illegal about...
threatening, abusing, physically abusing women and men about drugs, about arson, about kidnapping, all that stuff. So all the focus on the freak-offs and the lube, if you watch just the late night shows and even some of the more serious coverage, that's where so much of the focus is. And that sort of leads to a second point you made, which is when you're talking about these things as a prosecutor, trying them. The case that I talked about, we tried five defendants. So there was
this was a long, long, difficult trial where there was all sorts of stuff that the puritanical side of us doesn't like to talk about, but it's part of the facts of the case. It proves the case and jurors are grownups just like us, thankfully. And, and they took it well, as long as, you know, as long as you present it in a business like manner, obviously you don't, you know, you don't overdo it, but it's a complication of a case like this.
Thank you for listening. To hear the full analysis and never miss future episodes of Cafe Insider, become a member by heading to cafe.com slash insider pod. That's cafe.com slash insider pod. And we're back with Canva Presents Secret Sounds Work Edition. Caller, guess this sound. Mouse click. So close. That's actually publishing a website with Canva Docs. Next caller.
Definitely a mouse click. Nice try. It was sorting 100 sticky notes with a Canva whiteboard. We also would have accepted resizing a Canva video into 10 different sizes. What? No way. Yes way. One click can go a long way. Love your work at Canva.com.