This week, Elie answers questions from you, our listeners.
He breaks down some of your most pressing legal questions and curiosities as we embark on 2025 and a new Trump administration. Could Elon Musk be nominated for Speaker of the House? Could ABC News have actually won the defamation suit Trump brought against the network? Elie also unpacks the charges against Luigi Mangione for the killing of the UnitedHealthcare CEO and speculates if Trump will follow through on threats to go after Jack Smith and Liz Cheney after taking office.
Keep your questions coming to letters@cafe.com.
Continue reading below for a transcript of the Q&A episode, edited for clarity:
Hey everyone, Elie here, wishing you a happy Friday and a happy New Year. You know how every week I say love to hear your thoughts, questions, and comments, and to send them into letters@cafe.com? Well, this week we thought we’d take a time out and answer some of your questions. I really do love to hear from you all, so we’re going to take time out and answer five questions that I think are fun and interesting.
Q: If Speaker of the House, Mike Johnson, is ousted and House Republicans nominate Elon Musk to take the gavel, can such nomination pass constitutional muster?
Okay, let’s start with this one. Mark writes, “If Speaker of the House, Mike Johnson is ousted and House Republicans nominate Elon Musk to take the gavel, can such nomination pass constitutional muster?” Okay, so first of all, Musk is almost certainly not going to become Speaker of the House. It looks like Mike Johnson has the support that he needs, but this kind of scenario does come up from time to time, so two things.
First of all, you do not have to be a member of the House of Representatives in order to be Speaker of the House. You may remember there was some speculation, could Donald Trump become Speaker a year or two ago? He even said something like, “Oh, I might be interested.” Never happened, probably wasn’t going to happen. Elon Musk is not going to happen, but it could happen theoretically, there’s no legal bar to it.
But the second question that Mark raises is Elon Musk is not a natural-born U.S. citizen, he was born in South Africa. And so what do you do? Because the Speaker of the House is in the line of succession to the presidency. We don’t know the answer, that’s the only real answer, but I suspect the answer is he could serve as Speaker of the House. But if, God forbid, we were in a scenario where we lost the President and vice president, and it came to the Speaker of the House, I do not think he would then be eligible to become president. I think he would be skipped.
By the way, I pulled up the line of succession, which is always amusing to me, I guess as a nerd, interesting to look at, and it goes, VP of course is first in line. Do you say second in line? It feels like VP should be second, but I guess VP is first in line of succession. So it goes VP, then Speaker of the House, then President Pro Tem of the Senate.
By the way, there’s a constitutional question about whether those two legislative branch officials, Speaker of the House and President Pro Tem of the Senate actually are properly constitutionally in the line of succession to the President. We haven’t thankfully ever gotten there, but if we did, that could be an interesting constitutional question. And then after that, you get into all the agency heads, the secretaries.
The thing I always like about this is it kind of is a straight-up ranking of the prestige and coolness of the various agencies here. I’ll just zipped through it. Here’s how it goes. From number four down to 18, Secretary of State, Treasury, Defense, the AG, Department of Justice, Interior, Agriculture, Commerce, Labor, HHS, HUD, Transportation, Energy, Education, Veterans Affairs, and finally, Homeland Security. I think Homeland Security is probably last because it’s the newest and most recent of the agencies. They probably just tacked it on. But it is an acknowledgement that number four, State, is a little more prestigious than let’s say number 16, Education, no offense, Education. I look at AG, AG’s fourth on that list. It goes State, Treasury, Defense, AG. Fair enough, fair enough. Okay. Anyway, Mark, thank you for your question.
Q: Given the outlandish lawsuits being pursued by Trump and his allies, why hasn’t the media fought back by counter suing? We know that counter suits seem to have some success against Trump, for example, Hillary Clinton and E. Jean Carroll. Meanwhile, do you feel the ABC lawsuit, the defamation lawsuit, was actually winnable?
Moving on to our next listener, we have an email from April, lovely name, month of my birth. I’m turning 50 in April, this April, 2025, by the way. April writes, “Hi there. Given the outlandish lawsuits being pursued by Trump and his allies, why hasn’t the media fought back by counter suing? We know that counter suits seem to have some success against Trump, for example, Hillary Clinton and E. Jean Carroll.” April also writes, “Meanwhile, do you feel the ABC lawsuit, the defamation lawsuit, was actually winnable?”
Okay, so let’s break this down. When April is talking about counter suits, I think what you’re talking about here, April, is defamation suits. E. Jean Carroll brought and won two lawsuits, really, where juries found that Donald Trump had defamed her. That he had made false statements knowingly or with intentional recklessness as to their falsity. And recovered huge verdicts, $5 million in the first one, which was just upheld on appeal, $83 million on the second one, which is still pending appeal. So yes, people have had some success suing Donald Trump for defamation.
You can’t just sue Donald Trump for saying outrageous things, but if you can prove that he made knowingly false statements that were damaging, that’s what defamation is. And by the way, he’s not protected from that while he’s president. He is protected from, for the most part, for the criminal cases, but the civil actions, by and large, remain wide open. And most of that is a result of the Paula Jones lawsuit against Bill Clinton years ago, which the Supreme Court said, “It’s a civil suit, it can proceed.”
There also, as April alludes to, have been sanctions against Donald Trump for bringing frivolous lawsuits. One example that comes to mind, Donald Trump brought a ridiculous lawsuit that was thrown out against Hillary Clinton and the DNC, and various people involved in the Russia investigation. That was tossed, and the judge awarded attorney’s fees. The judge said, “Donald Trump, you brought such a ridiculous lawsuit, now you have to pay all their attorney’s fees.” I actually, little preview, for my book, I spoke to a guy named Igor Danchenko. He’s one of the guys who was charged by John Durham, and he went to trial and was acquitted. It’s a ridiculous charge.
Danchenko gave me really remarkable and fascinating insight, and at the end, Danchenko said, “Donald Trump owes me 20 grand.” He does, because Danchenko was one of the people who Donald Trump sued in that case against Hillary Clinton and the DNC. It was thrown out and the judge said, “Now you have to pay everyone’s attorney’s fees.” So Donald Trump owes this guy 20 grand. And Danchenko said to me, “I have no idea how I would even begin to collect that.” Yes, that’s another way that Donald Trump can be held accountable.
Now, with regard to the ABC lawsuit, this is the libel defamation lawsuit that Donald Trump brought against ABC because George Stephanopoulos repeatedly said on one broadcast that Donald Trump had been found to have raped E. Jean Carroll. It was actually an interview with Nancy Mace and Stephanopoulos kept asking her about the fact that Trump had been found liable for rape. Was this winnable? I don’t know. I think it probably would’ve been winnable by Donald Trump. It would’ve depended on the jury because here’s what happened.
The E. Jean Carroll jury was asked the first question, if you look at the jury questionnaire, it says, “Do you find Donald Trump liable for rape?” And the jury checked no. The next question said, “Do you find Donald Trump liable for sexual assault?” And the jury checked yes. So basically what the jury found is, and I’ll just say it bluntly, under New York law, that there had not been genital penetration. That Donald Trump had not penetrated E. Jean Carroll with his penis. That’s why they said no on rape, but that there had been other manual digital hand penetration. Sorry, this is graphic, but this is necessary to explain it, and that’s why they said yes on sexual assault. So technically, if you look at the jury form, the jury found no, he did not “rape” E. Jean Carroll.
I think what ABC’s defense would be is that the judge in the case, Lewis Kaplan, a federal judge in the SDNY, who I appeared in front of a million times, tried a case in front of… Judge Kaplan did say on the record something to the effect of, “Well, while the jury found that E. Jean Carroll was not raped, they found she was sexually assaulted. And in our common parlance, the way we use those terms, that’s essentially what we would now consider rape.” So the judge made a comment that could support characterizing it as rape, but the jury technically did not find that Donald Trump had raped E. Jean Carroll. So I think that would be an interesting call, it was defamation for George Stephanopoulos to say the word rape, we won’t know what a jury will do because ABC chose to settle that case.
Q: When the Supreme Court determines that it improvidently granted a case, how does that differ from when the court determines lack of standing? And why the heck would they grant a writ of certiorari and then decide there’s no standing or they shouldn’t have taken the case? Shouldn’t they make that determination before they accept the case?
Okay, next up we have an email from listener Jay. Jay writes, “When the Supreme Court determines that it improvidently granted a case, how does that differ from when the court determines lack of standing?” And then Jay writes, “And why the heck would they grant a writ of certiorari and then decide there’s no standing or they shouldn’t have taken the case? Shouldn’t they make that determination before they accept the case?”
Okay, great question, Jay. There is this thing that the Supreme Court will do sometimes called improvidently granted, where they will say, “Yes, we’re going to hear a case.” And they only hear a very minuscule amount of the cases brought to them, usually two, 3%. They grant cert, they say, “We’ll take the case.” And then months later or whatever, they say, “Actually, we should not have granted cert. It was improvidently granted, we kind of screwed up.” Usually what the Supreme Court does is say, “Well, there was some changed circumstance. Something changed between when we took it a few months ago and now, and that’s why.”
The Supreme Court actually did this in a very important case that came down a few months ago, relating to EMTALA, the Emergency Medical Treatment and Labor Act, relating to abortion care, whether it must be given to women in life-saving scenarios or more broadly. It involved the conflict between an Idaho state law and a federal law, and the Supreme Court ducked it. They said, “Oh, improvidently granted, we shouldn’t have taken the case.” They struggled to articulate what had changed between when they took the case and when they decided not to. But they do do that sometimes.
Now, that’s a little different from standing, as Jay asks. Standing means you’ve brought a lawsuit, plaintiff, but you’re not a person who has recognizable legal injury. An example of where a lot of cases got thrown out by the Supreme Court and others on lack of standing was in the Donald Trump challenges to the 2020 election results. A lot of those cases got thrown out because it was just some hack or just someone who had no interest in particular in the case, or wasn’t able to show any type of legal injury. So there’s a subtle difference there.
Q: Can you explain the terrorism charges against Luigi Mangione?
Okay, fourth question comes from Daisy. And Daisy writes, “Happy Holidays. Can you explain the terrorism charges against Luigi Mangione?” Okay. And then Daisy asks about whether they should apply to his alleged actions. Luigi Mangione is charged two separate places. He was charged federally by the SDNY with a bunch of federal charges that essentially relate to interstate stalking, or using interstate means like the internet and phones and that kind of thing, in order to stalk. To track someone across state lines and then commit a murder. There’s also related federal gun charges. Let’s put those aside for a moment because there’s a separate set of state charges, and I think that’s what Daisy is really talking about here.
So under New York state la, Mangione also has been charged by the Manhattan DA, by Alvin Bragg. Now, under New York State law, any intentional murder is going to start off as a second degree murder, just the intentional killing of another human being, 15 year minimum, life with parole max. In order to bump it up to a first degree murder, you have to show some enhancement. There’s a list of various enhancements. If the crime involved torture, if the victim was a witness in a trial, was a judge, was a police officer, et cetera.
The enhancement that Alvin Bragg’s office has used here is the terrorism enhancement, and here’s how New York law defines terrorism. It can be any of these three things. One, if the intent was to intimidate or coerce a civilian population. Two, if the intent was to influence the policy of a unit of government by intimidation or coercion. And then three, to affect the conduct of a unit of government by murder, assassination, or kidnapping. I guess two and three are probably out because it wasn’t really aimed at a unit of the government. Although I guess maybe you could argue Mangione was trying to get the government to pass new laws about healthcare or some ridiculous thing because of the way he targeted this healthcare CEO. But the one that Alvin Bragg has used is the first one, the intent to intimidate or coerce a civilian population.
Alvin Bragg said in his press conference, “Well, he did this right out in the open, right in the middle of Manhattan with the intent to terrorize the people of New York City.” Will Bragg be able to show that? I don’t know. I’m not so sure. I mean, it’ll get into Mangione’s intent. It seems Mangione’s intent, crazy as it was, was more to make a statement about healthcare policy than I want to terrorize the people of New York City, but we’ll see what’s in the evidence. But important to keep in mind, even if for some reason Bragg cannot show the first degree, cannot show the terrorism enhancement, he still does have that second degree in the case. It’s a lesser included charge. It’s a fallback. Obviously Mangione committed the crime. Obviously it was intentional. I don’t think he has much of any defense to that, so we’ll see how this one plays out.
Q: I think Trump’s threats are empty. I’m not a defense attorney, but I assume any defense against January 6th committee members or DOJ lawyers like Jack Smith, relating to Trump investigations, would allow the defendants to introduce at trial all the evidence implicating Donald Trump in the insurrection. How would these cases play out?
Okay, our final email of the day comes from Michael, and Michael writes under the subject line, “Trump’s threats.” Michael writes, “I think Trump’s threats are empty. I’m not a defense attorney, but I assume any defense against January 6th committee members or DOJ lawyers like Jack Smith, relating to Trump investigations, would allow the defendants to introduce at trial all the evidence implicating Donald Trump in the insurrection. How would these cases play out?” This, to me, is the single most important thing that I will be watching for, and I assume many of you will be watching for, when the new administration comes in, when Trump becomes president in a few weeks. When Pam Bondi, I think she’ll get confirmed as AG. Do they actually go after Jack Smith? Do they actually go after Liz Cheney?
God, I hope not, let me start with that. I wrote a brief a few weeks ago in the CAFE Brief and in my New York Magazine column, on how outrageous it would be if that is done against Liz Cheney. And I said that because Congress, one of the House-controlled committees issued this whole ridiculous report about January 6th, where they refer a criminal investigation of Liz Cheney to DOJ, which is ridiculous because they can’t even articulate any crime she committed. They said, “Oh, she coordinated with a witness, with Cassidy Hutchinson,” which by the way, not a crime, not remotely a crime. I hope that that kind of bullshit gets snuffed out immediately. I hope that Pam Bondi and Todd Blanche, my former colleague at the SDNY, have no interest in that and refuse to do it.
There’s no crime that Liz Cheney or Cassidy Hutchinson committed. There’s no crime I can see that Jack Smith committed. As much as I’ve been sharply critical of Jack Smith’s practices as a prosecutor, he did not do anything remotely approaching a crime. I think it’s an outrage if any of them or even investigated. And by the way, it’s one thing to say, “Well, they’re not going to get charged.” I don’t think any of them will get charged. God, I hope not. They certainly haven’t done anything that would justify a charge.
But even if DOJ opens up investigations of them, that is outrageous. That is an incredible burden on these people. It’s a financial burden. You have to hire lawyers. It will ruin reputations. And so I really hope that Pam Bondi, Todd Blanche, and the others who will be running DOJ are not interested in doing that. Do not open up criminal investigations. God help us, do not empower special counsel to go after Jack Smith or Liz Cheney, or Andy McCabe or anyone down the line.
Look, there’s nothing anyone can do to prevent it other than calling it out at this point, as I’ve done and will continue to do. We are in wait and see mode. I do believe we have enough guardrails in place that ultimately will not allow that kind of effort to succeed. But a big question is really, will the effort even be made in the first place? I hope not. Let’s hope not. We will see. To me, it’s the biggest single question as we head into 2025.
Great questions from all of you. I promise you, if you keep writing in, we will keep doing this from time to time. Again, it is great to hear from all of you. So April and Jay, and Daisy, and Michael, and Mark who wrote in, thank you for your letters. Everyone else, feel free to send them in to letters@cafe.com, and I promise we’ll do our best to get to all of them.
Happy New Year, everyone. Wishing you the best in 2025.
Elie
