{"id":142834,"date":"2026-01-28T17:23:00","date_gmt":"2026-01-29T01:23:00","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/01\/28\/tom-goldstein-called-governments-bluff-and-now-jeffrey-toobin-has-to-litigate-it\/"},"modified":"2026-01-28T17:23:00","modified_gmt":"2026-01-29T01:23:00","slug":"tom-goldstein-called-governments-bluff-and-now-jeffrey-toobin-has-to-litigate-it","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/01\/28\/tom-goldstein-called-governments-bluff-and-now-jeffrey-toobin-has-to-litigate-it\/","title":{"rendered":"Tom Goldstein Called Government\u2019s Bluff And Now Jeffrey Toobin Has To Litigate It"},"content":{"rendered":"

Tom Goldstein\u2019s life was almost a TV show<\/a>. Now, with his wild<\/a> trial is in its second week, the drama just unveiled a First Amendment subplot.<\/p>\n

As Politico\u2019s Josh Gerstein flagged<\/a>, the government apparently subpoenaed Jeffrey Toobin and fact-checker Rudy Lee seeking testimony about their December New York Times Magazine<\/em> article<\/a> about the SCOTUSblog founder-turned-defendant. Toobin and Lee, through Ballard Spahr, moved to quash.<\/p>\n

The motion<\/a> makes the straightforward case that dragging journalists onto the stand accomplishes nothing beyond chilling future journalism. Which, to be fair, probably suits this Department of Justice just fine. The DOJ is already raiding reporters\u2019 homes<\/a>, so courtroom testimony is comparatively mild.<\/p>\n

But it\u2019s still unnecessary and constitutionally dubious.<\/p>\n

Why did Goldstein sit down for an on-the-record interview while facing trial? It didn\u2019t seem like a wise decision, but anyone who read the original indictment knows wise decisions might not be Goldstein\u2019s strong suit. Earlier this month, the government tried to admit Toobin\u2019s article into evidence because it contains statements, attributed to Goldstein, relevant to the Justice Department\u2019s false statements charges. Which, again, is why it\u2019s ill-advised to give news interviews while facing trial. <\/p>\n

Goldstein argued, correctly, that the quotes in the article amount to inadmissible hearsay and are, in any event, irrelevant given the government\u2019s assertion that it already has all the evidence it needs to prove its case. When the Times Magazine<\/em> piece dropped on December 28, Goldstein\u2019s whole Rounders II: Mike\u2019s Relapse<\/em> saga was already a matter of public record.<\/p>\n

And then \u2014 unable to quit while he was ahead \u2014 \u201cDefendant thus argued that, because of these potential hearsay issues and the Confrontation Clause, \u2018[i]f the government wishes to present Mr. Toobin\u2019s statements as evidence, it must call Mr. Toobin to the stand\u2019 so that Defendant could cross-examine him.\u201d<\/p>\n

The court took Goldstein up on this, stating at the hearing \u201ca fair question about whether the reporter should simply be called, and the government both have the obligation of getting the evidence in that way and also giving Mr. Goldstein the chance to cross-examine that witness.\u201d And the government apparently wasn\u2019t actually bluffing, firing off the requisite subpoenas.<\/p>\n

And now Toobin and Lee have to litigate this.<\/p>\n

The motion to quash raises legitimate concerns about press freedom. While the law in the Fourth Circuit doesn\u2019t set up a formal First Amendment privilege for the journalists, the Circuit has recognized the need to consider \u201cinterests outside<\/em> of the scope of a recognized privilege.\u201d Judge Wilkinson observed one such significant interest in an earlier opinion, noting that \u201creporters facing the prospect of becoming prosecution witnesses if they report a defendant\u2019s statement may think twice about conducting exclusive interviews.\u201d The Second Circuit likewise noted that making journalists \u201cappear to be an investigative arm of the judicial system\u201d undermines the press\u2019s independence.<\/p>\n

While the free press concerns rightly take precedence, don\u2019t sleep on the sheer irrelevance of these requests. What\u2019s in the article that the government doesn\u2019t already have? Other than Toobin\u2019s link to our podcast<\/a>, of course.<\/p>\n

\n

Indeed, the government\u2019s redacted version of the Article includes, inter alia<\/em>, photographs of Defendant, ECF No. 327-2 at 4, 11, 15, Defendant\u2019s descriptions of unnamed other poker players\u2019 demeanor, id. <\/em>at 10 (\u201cThey\u2019re not chatting.\u201d), and a parenthetical aside about a celebrity who stopped by one of Defendant\u2019s poker games in Beverly Hills, id. <\/em>at 14 (\u201cAl Pacino came by to watch, but he didn\u2019t play.\u201d) It is not clear how any of that material could be relevant to the government\u2019s case or whether the government seeks to question the Journalists on these points.<\/p>\n<\/blockquote>\n

This case certainly doesn\u2019t turn on whether Al Pacino showed up or not. <\/p>\n

If anything, the motion notes that the material the government seeks to admit could undermine<\/em> its case:<\/p>\n

\n

As to the mortgage fraud counts\u2026 \u201cthe essential elements of [that] crime\u2026 clearly requir[e] the jury to convict [defendant] only if he acted with the specific intent to influence the bank\u2019s<\/em> action on his loan.\u201d\u2026 Yet the government has sought to admit into evidence Defendant\u2019s statement in the Article that he omitted information on the mortgage applications \u201cbecause he wanted to keep that debt secret from [his wife], as he had kept her in the dark about most of his poker activity.\u201d\u2026 The Journalists\u2019 testimony on that point would therefore amount to evidence that Goldstein potentially lacked<\/em> the specific intent necessary to convict him under 18 U.S.C. \u00a7 1014.<\/p>\n<\/blockquote>\n

Which seems stupid for a prosecution, but this DOJ has been playing on tilt since the beginning of the administration.<\/p>\n

(Motion to quash on the next page\u2026)<\/em><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n<\/p>\n

The post Tom Goldstein Called Government\u2019s Bluff And Now Jeffrey Toobin Has To Litigate It<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"<\/figure>\n

Tom Goldstein\u2019s life was almost a TV show<\/a>. Now, with his wild<\/a> trial is in its second week, the drama just unveiled a First Amendment subplot.<\/p>\n

As Politico\u2019s Josh Gerstein flagged<\/a>, the government apparently subpoenaed Jeffrey Toobin and fact-checker Rudy Lee seeking testimony about their December New York Times Magazine<\/em> article<\/a> about the SCOTUSblog founder-turned-defendant. Toobin and Lee, through Ballard Spahr, moved to quash.<\/p>\n

The motion<\/a> makes the straightforward case that dragging journalists onto the stand accomplishes nothing beyond chilling future journalism. Which, to be fair, probably suits this Department of Justice just fine. The DOJ is already raiding reporters\u2019 homes<\/a>, so courtroom testimony is comparatively mild.<\/p>\n

But it\u2019s still unnecessary and constitutionally dubious.<\/p>\n

Why did Goldstein sit down for an on-the-record interview while facing trial? It didn\u2019t seem like a wise decision, but anyone who read the original indictment knows wise decisions might not be Goldstein\u2019s strong suit. Earlier this month, the government tried to admit Toobin\u2019s article into evidence because it contains statements, attributed to Goldstein, relevant to the Justice Department\u2019s false statements charges. Which, again, is why it\u2019s ill-advised to give news interviews while facing trial. <\/p>\n

Goldstein argued, correctly, that the quotes in the article amount to inadmissible hearsay and are, in any event, irrelevant given the government\u2019s assertion that it already has all the evidence it needs to prove its case. When the Times Magazine<\/em> piece dropped on December 28, Goldstein\u2019s whole Rounders II: Mike\u2019s Relapse<\/em> saga was already a matter of public record.<\/p>\n

And then \u2014 unable to quit while he was ahead \u2014 \u201cDefendant thus argued that, because of these potential hearsay issues and the Confrontation Clause, \u2018[i]f the government wishes to present Mr. Toobin\u2019s statements as evidence, it must call Mr. Toobin to the stand\u2019 so that Defendant could cross-examine him.\u201d<\/p>\n

The court took Goldstein up on this, stating at the hearing \u201ca fair question about whether the reporter should simply be called, and the government both have the obligation of getting the evidence in that way and also giving Mr. Goldstein the chance to cross-examine that witness.\u201d And the government apparently wasn\u2019t actually bluffing, firing off the requisite subpoenas.<\/p>\n

And now Toobin and Lee have to litigate this.<\/p>\n

The motion to quash raises legitimate concerns about press freedom. While the law in the Fourth Circuit doesn\u2019t set up a formal First Amendment privilege for the journalists, the Circuit has recognized the need to consider \u201cinterests outside<\/em> of the scope of a recognized privilege.\u201d Judge Wilkinson observed one such significant interest in an earlier opinion, noting that \u201creporters facing the prospect of becoming prosecution witnesses if they report a defendant\u2019s statement may think twice about conducting exclusive interviews.\u201d The Second Circuit likewise noted that making journalists \u201cappear to be an investigative arm of the judicial system\u201d undermines the press\u2019s independence.<\/p>\n

While the free press concerns rightly take precedence, don\u2019t sleep on the sheer irrelevance of these requests. What\u2019s in the article that the government doesn\u2019t already have? Other than Toobin\u2019s link to our podcast<\/a>, of course.<\/p>\n

\n

Indeed, the government\u2019s redacted version of the Article includes, inter alia<\/em>, photographs of Defendant, ECF No. 327-2 at 4, 11, 15, Defendant\u2019s descriptions of unnamed other poker players\u2019 demeanor, id. <\/em>at 10 (\u201cThey\u2019re not chatting.\u201d), and a parenthetical aside about a celebrity who stopped by one of Defendant\u2019s poker games in Beverly Hills, id. <\/em>at 14 (\u201cAl Pacino came by to watch, but he didn\u2019t play.\u201d) It is not clear how any of that material could be relevant to the government\u2019s case or whether the government seeks to question the Journalists on these points.<\/p>\n<\/blockquote>\n

This case certainly doesn\u2019t turn on whether Al Pacino showed up or not. <\/p>\n

If anything, the motion notes that the material the government seeks to admit could undermine<\/em> its case:<\/p>\n

\n

As to the mortgage fraud counts\u2026 \u201cthe essential elements of [that] crime\u2026 clearly requir[e] the jury to convict [defendant] only if he acted with the specific intent to influence the bank\u2019s<\/em> action on his loan.\u201d\u2026 Yet the government has sought to admit into evidence Defendant\u2019s statement in the Article that he omitted information on the mortgage applications \u201cbecause he wanted to keep that debt secret from [his wife], as he had kept her in the dark about most of his poker activity.\u201d\u2026 The Journalists\u2019 testimony on that point would therefore amount to evidence that Goldstein potentially lacked<\/em> the specific intent necessary to convict him under 18 U.S.C. \u00a7 1014.<\/p>\n<\/blockquote>\n

Which seems stupid for a prosecution, but this DOJ has been playing on tilt since the beginning of the administration.<\/p>\n

(Motion to quash on the next page\u2026)<\/em><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

1<\/strong> 2<\/a>Next \u00bb<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Tom Goldstein\u2019s life was almost a TV show. Now, with his wild trial is in its second week, the drama just unveiled a First Amendment subplot. As Politico\u2019s Josh Gerstein flagged, the government apparently subpoenaed Jeffrey Toobin and fact-checker Rudy Lee seeking testimony about their December New York Times Magazine article about the SCOTUSblog founder-turned-defendant. […]<\/p>\n","protected":false},"author":3,"featured_media":142835,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-142834","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/01\/Headshot-300x200-mP9oQO.jpg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/142834","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=142834"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/142834\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/142835"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=142834"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=142834"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=142834"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}