1 00:00:02,880 --> 00:00:07,600 Speaker 1: This is Bloomberg Law with June Grosse from Bloomberg Radio. 2 00:00:09,960 --> 00:00:14,280 Speaker 2: Venezuelan President Nicholas Maduro said he's asked Pope Leo the 3 00:00:14,360 --> 00:00:18,400 Speaker 2: fourteenth to help maintain peace in the South American country. 4 00:00:18,760 --> 00:00:23,119 Speaker 2: Maduro's comments come as the United States military continues to 5 00:00:23,200 --> 00:00:27,200 Speaker 2: strike alleged drug carrying boats in the waters off Venezuela, 6 00:00:27,640 --> 00:00:31,480 Speaker 2: in what President Donald Trump has declared an armed conflict 7 00:00:31,600 --> 00:00:32,839 Speaker 2: with cartels. 8 00:00:33,159 --> 00:00:37,159 Speaker 3: We're blowing the Venezuelan narco terrorists. We're blowing them the 9 00:00:37,159 --> 00:00:37,960 Speaker 3: hell out of the water. 10 00:00:38,200 --> 00:00:39,120 Speaker 4: Every time you see a. 11 00:00:39,120 --> 00:00:43,000 Speaker 5: Boat, thousands of people die from the cargo in that boat. 12 00:00:43,080 --> 00:00:44,400 Speaker 3: Thousands of people die. 13 00:00:45,280 --> 00:00:49,159 Speaker 2: The US military has carried out four deadly strikes in 14 00:00:49,200 --> 00:00:52,960 Speaker 2: the Caribbean since last month. The latest killed four people 15 00:00:53,040 --> 00:00:57,440 Speaker 2: on Friday. The Trump administration has told lawmakers the president 16 00:00:57,560 --> 00:01:02,800 Speaker 2: is treating drug traffickers as unlow combatants and military force 17 00:01:03,040 --> 00:01:07,440 Speaker 2: was required to combat them. That assertion of presidential war 18 00:01:07,560 --> 00:01:12,080 Speaker 2: powers sets the stage for expanded action and raises questions 19 00:01:12,120 --> 00:01:15,920 Speaker 2: about how far the administration will go without a sign 20 00:01:15,959 --> 00:01:19,720 Speaker 2: off from Congress. My guest is an expert on national 21 00:01:19,760 --> 00:01:23,440 Speaker 2: security and the law of armed conflict. Matthew Waxman, a 22 00:01:23,480 --> 00:01:27,960 Speaker 2: professor at Columbia Law School. Why has President Trump labeled 23 00:01:28,000 --> 00:01:32,640 Speaker 2: the drug runners as a foreign terrorist organization and call 24 00:01:32,760 --> 00:01:34,080 Speaker 2: them narco terrorists? 25 00:01:34,600 --> 00:01:36,840 Speaker 1: So, I think it makes sense to think about the 26 00:01:36,880 --> 00:01:42,959 Speaker 1: Trump administration's actions as an escalating series of legal moves. 27 00:01:43,640 --> 00:01:48,880 Speaker 1: It had designated some cartels as foreign terrorist organizations or 28 00:01:49,000 --> 00:01:56,480 Speaker 1: ftos that unlocks certain criminal law, immigration, and sanctions authorities. 29 00:01:57,000 --> 00:02:00,960 Speaker 1: It invoked an ancient law going back to seventeen ninety 30 00:02:01,000 --> 00:02:06,200 Speaker 1: eight that authorizes the swift removal from the United States 31 00:02:06,240 --> 00:02:10,440 Speaker 1: of enemy aliens quote enemy aliens as the term, and 32 00:02:10,480 --> 00:02:15,440 Speaker 1: it applied that to suspected members of Trend de Arragua. 33 00:02:15,840 --> 00:02:20,800 Speaker 1: It's used lethal force against Trend Dearragua drug vessels or 34 00:02:21,000 --> 00:02:25,959 Speaker 1: suspected vessels in the Caribbean, claiming that these were done 35 00:02:26,320 --> 00:02:31,160 Speaker 1: in self defense. And then, most dramatically of all, the 36 00:02:31,200 --> 00:02:37,880 Speaker 1: Trump administration has labeled its conflict with certain international drug 37 00:02:37,919 --> 00:02:42,239 Speaker 1: cartels as a quote armed conflict, which is a legal 38 00:02:42,320 --> 00:02:46,040 Speaker 1: state of war. And one of the most significant implications 39 00:02:46,200 --> 00:02:51,960 Speaker 1: of that declaration is that it would justify using lethal 40 00:02:52,040 --> 00:02:58,600 Speaker 1: force against cartel members, essentially treating them all as enemy soldiers. Now, 41 00:02:58,720 --> 00:03:02,160 Speaker 1: the Trump administration has provided very little information, so we 42 00:03:02,280 --> 00:03:06,120 Speaker 1: still don't really know how far the Trump administration is 43 00:03:06,680 --> 00:03:11,240 Speaker 1: stretching that theory. But the basic gist is that the 44 00:03:11,320 --> 00:03:15,000 Speaker 1: Trump administration is saying that the United States is, as 45 00:03:15,040 --> 00:03:18,880 Speaker 1: a legal matter, in a war with drug cartels, and 46 00:03:18,960 --> 00:03:23,480 Speaker 1: therefore it can target their members, just like the United 47 00:03:23,520 --> 00:03:25,680 Speaker 1: States could target enemy soldiers. 48 00:03:26,480 --> 00:03:29,480 Speaker 2: As far as saying this is being done in self defense, 49 00:03:29,880 --> 00:03:33,920 Speaker 2: Senator Ran Paul of Kentucky challenged that. He said the 50 00:03:34,040 --> 00:03:36,800 Speaker 2: US has the right to self defense, but argued that 51 00:03:36,880 --> 00:03:40,680 Speaker 2: right is not triggered by a speedboat twenty seven hundred 52 00:03:40,760 --> 00:03:44,280 Speaker 2: miles from the US alleged to have drugs and not 53 00:03:44,440 --> 00:03:50,000 Speaker 2: attacking US vessels. And Secretary Hegsith, when he described the 54 00:03:50,120 --> 00:03:54,640 Speaker 2: latest strike, said they were bringing drugs. So where is 55 00:03:54,680 --> 00:03:56,640 Speaker 2: the element of self defense here? 56 00:03:57,200 --> 00:03:57,400 Speaker 5: Yeah? 57 00:03:57,400 --> 00:04:01,840 Speaker 1: I think there are two problems with the self defense argument. 58 00:04:02,200 --> 00:04:04,880 Speaker 1: The first is that, as a legal matter, self defense 59 00:04:05,080 --> 00:04:09,640 Speaker 1: usually requires that either you've already been attacked or an 60 00:04:09,680 --> 00:04:14,880 Speaker 1: attack is imminent. Right, if a missile were headed towards 61 00:04:14,960 --> 00:04:19,200 Speaker 1: the United States or an enemy aircraft, you could take 62 00:04:19,240 --> 00:04:24,679 Speaker 1: some self defensive action when it was about to attack US. 63 00:04:24,960 --> 00:04:27,800 Speaker 1: But here we're talking about vessels that were far out 64 00:04:27,920 --> 00:04:33,000 Speaker 1: at the In fact, the Trump administration has even conceded 65 00:04:33,560 --> 00:04:37,279 Speaker 1: that they were distant from the United States. They could 66 00:04:37,279 --> 00:04:42,080 Speaker 1: have been interdicted, but the Trump administration decided to use 67 00:04:42,320 --> 00:04:47,080 Speaker 1: self defensive lethal force instead. I think a second problem 68 00:04:47,400 --> 00:04:53,120 Speaker 1: with claiming self defense is that usually it would require 69 00:04:53,520 --> 00:05:00,800 Speaker 1: that a violent attack be directed against the United States, 70 00:05:00,839 --> 00:05:04,600 Speaker 1: and it has to be essentially the use of military 71 00:05:04,720 --> 00:05:08,440 Speaker 1: violence against the United States. And here we're talking about 72 00:05:08,960 --> 00:05:14,240 Speaker 1: the infiltration of violent gangs. We're talking about the infiltration 73 00:05:14,600 --> 00:05:19,960 Speaker 1: of very, very dangerous narcotics. But that's different, that's a 74 00:05:20,080 --> 00:05:25,120 Speaker 1: very different kind of harm than the kind of kinetic 75 00:05:25,440 --> 00:05:29,600 Speaker 1: military violence that traditionally gives rise to a right of 76 00:05:29,600 --> 00:05:30,320 Speaker 1: self defense. 77 00:05:30,800 --> 00:05:33,960 Speaker 2: I mean, who would actually sue the United States in 78 00:05:34,000 --> 00:05:37,960 Speaker 2: this situation? Would anyone have standing to sue and say 79 00:05:38,120 --> 00:05:39,960 Speaker 2: these strikes are against the law? 80 00:05:40,560 --> 00:05:40,920 Speaker 4: Maybe? 81 00:05:41,000 --> 00:05:44,039 Speaker 1: I mean, this is a general challenge with international law 82 00:05:44,440 --> 00:05:49,760 Speaker 1: is that in most cases there is not some centralized 83 00:05:50,360 --> 00:05:56,080 Speaker 1: authoritative enforcement mechanism. International laws tends to be enforced in 84 00:05:56,160 --> 00:06:00,359 Speaker 1: this sort of a decentralized way, and often it's the 85 00:06:00,400 --> 00:06:06,720 Speaker 1: responsibility of states to hold other states responsible. It's possible 86 00:06:07,240 --> 00:06:12,520 Speaker 1: that there could be litigation here. I've heard chatter about, 87 00:06:12,560 --> 00:06:15,800 Speaker 1: for example, an international court getting involved. I think that 88 00:06:15,960 --> 00:06:20,440 Speaker 1: is very unlikely and would have virtually no effect at 89 00:06:20,480 --> 00:06:26,000 Speaker 1: all on US actions. It's possible that there might be 90 00:06:26,320 --> 00:06:29,440 Speaker 1: litigation here in the United States, but that's going to 91 00:06:29,440 --> 00:06:32,479 Speaker 1: be hard, especially because those who you might expect to 92 00:06:32,600 --> 00:06:35,719 Speaker 1: have a case against the United States are already dead. 93 00:06:36,240 --> 00:06:41,240 Speaker 1: I think where one might see some enforcement, and I 94 00:06:41,279 --> 00:06:44,880 Speaker 1: would put the word enforcement in quotes here is from 95 00:06:45,240 --> 00:06:50,119 Speaker 1: US partners and allies that international law tends to play 96 00:06:50,160 --> 00:06:55,839 Speaker 1: an important role in facilitating cooperation among states, and that 97 00:06:56,000 --> 00:06:59,920 Speaker 1: kind of cooperation is especially important to stemming the drug trade, 98 00:07:00,080 --> 00:07:03,960 Speaker 1: to promoting US interests in the hemisphere. And so one 99 00:07:03,960 --> 00:07:07,799 Speaker 1: thing I'll be watching for is the extent to which 100 00:07:08,160 --> 00:07:13,320 Speaker 1: partners and allies in the region and further abroad are 101 00:07:13,360 --> 00:07:18,320 Speaker 1: sort of pushing back and imposing some diplomatic or political 102 00:07:18,400 --> 00:07:21,920 Speaker 1: costs on what the United States is doing here. 103 00:07:22,360 --> 00:07:27,120 Speaker 2: Also, the Trump administration is bulking up in the Southern 104 00:07:27,320 --> 00:07:32,040 Speaker 2: Caribbean with at least eight warships, one nuclear submarine, more 105 00:07:32,080 --> 00:07:36,120 Speaker 2: than four thousand troops, fighter jets, drones, and surveillance plans. 106 00:07:36,360 --> 00:07:39,320 Speaker 2: It's been called the biggest US naval mobilization in Latin 107 00:07:39,360 --> 00:07:43,520 Speaker 2: America since the invasion of Panama in nineteen eighty nine, 108 00:07:43,640 --> 00:07:49,560 Speaker 2: and Corina Bloomberg sources. Trump has hinted that the US 109 00:07:49,640 --> 00:07:53,320 Speaker 2: is going to turn to interrupting the flow of drugs 110 00:07:53,400 --> 00:07:57,360 Speaker 2: on land in Venezuela. How much of a step up 111 00:07:57,440 --> 00:07:59,840 Speaker 2: is that and where do they get the authority for that? 112 00:08:00,720 --> 00:08:05,360 Speaker 1: Yeah, that would be a major escalation and would pose 113 00:08:05,680 --> 00:08:10,240 Speaker 1: additional legal problems. And it raises additional legal issues because 114 00:08:10,760 --> 00:08:15,560 Speaker 1: the United Nations Charter prohibits the use of military force 115 00:08:15,920 --> 00:08:20,240 Speaker 1: against the territorial integrity of UN member states. That's one 116 00:08:20,280 --> 00:08:25,360 Speaker 1: of the kind of bedrock ideas in the UN Charter. 117 00:08:26,160 --> 00:08:30,840 Speaker 1: And so unless another state consents to the use of 118 00:08:31,280 --> 00:08:34,840 Speaker 1: US military force on their territory, the United States would 119 00:08:34,880 --> 00:08:39,439 Speaker 1: need to sug justify doing so. And I suppose the 120 00:08:39,480 --> 00:08:45,440 Speaker 1: best theory, the best argument would be either that Venezuela 121 00:08:45,600 --> 00:08:50,600 Speaker 1: itself has attacked the United States. We haven't really seen 122 00:08:51,120 --> 00:08:54,720 Speaker 1: any evidence of that. In fact, I think the best 123 00:08:54,800 --> 00:08:58,680 Speaker 1: indication of what the intelligence community has been reporting is 124 00:08:58,720 --> 00:09:03,040 Speaker 1: that the Venezuela and government has not been directing attacks 125 00:09:03,120 --> 00:09:07,120 Speaker 1: against the United States. Another argument, though, might be that 126 00:09:07,440 --> 00:09:13,120 Speaker 1: the government of Venezuela has been unwilling or unable to 127 00:09:13,280 --> 00:09:17,440 Speaker 1: stem the flow of drugs from its own territory headed 128 00:09:17,480 --> 00:09:21,560 Speaker 1: towards the United States. I think that's probably what the 129 00:09:21,640 --> 00:09:25,199 Speaker 1: Trump administration would argue. There Again, you come back to 130 00:09:25,240 --> 00:09:29,520 Speaker 1: this problem though, that under international law there's a right 131 00:09:29,559 --> 00:09:35,199 Speaker 1: of self defense against military attacks, so called armed attacks, 132 00:09:35,280 --> 00:09:40,080 Speaker 1: but there isn't a right of self defense against other 133 00:09:40,320 --> 00:09:44,560 Speaker 1: kinds of harms. They could be environmental harms, they could 134 00:09:44,600 --> 00:09:50,079 Speaker 1: be dangerous drugs, they could be ransomware. There are lots 135 00:09:50,120 --> 00:09:55,880 Speaker 1: of harmful activities that cross borders. International law does not 136 00:09:56,040 --> 00:10:01,360 Speaker 1: recognize a right of armed self defense against those harms. 137 00:10:01,559 --> 00:10:05,640 Speaker 1: The right of self defense is really limited to armed attacks. 138 00:10:06,520 --> 00:10:08,920 Speaker 2: Where does it fit in or how does it complicate? 139 00:10:09,040 --> 00:10:13,599 Speaker 2: Matters that the Trump administration has called President Maduro and 140 00:10:13,720 --> 00:10:19,000 Speaker 2: narco terrorists whose orchestrated drug trafficking, and the US has 141 00:10:19,080 --> 00:10:23,640 Speaker 2: offered fifty million dollars for information leading to his arrest. 142 00:10:24,320 --> 00:10:24,560 Speaker 4: Yeah. 143 00:10:24,559 --> 00:10:28,720 Speaker 1: You know, one challenge here for lawyers and those who 144 00:10:28,760 --> 00:10:32,000 Speaker 1: are trying to analyze the situation is it's very hard 145 00:10:32,040 --> 00:10:38,640 Speaker 1: to distinguish between administration rhetoric and administration sort of public 146 00:10:38,679 --> 00:10:42,680 Speaker 1: posturing and its actual legal arguments. The administration has said 147 00:10:42,880 --> 00:10:47,520 Speaker 1: very very little about its legal theory. It's said very 148 00:10:47,559 --> 00:10:52,719 Speaker 1: little about the facts that would support its claims of 149 00:10:52,760 --> 00:10:56,160 Speaker 1: self defense that would underlie this claim that the United 150 00:10:56,160 --> 00:10:59,679 Speaker 1: States is engaged in an armed conflict. And until we 151 00:10:59,720 --> 00:11:03,640 Speaker 1: have more of those facts, until we have greater clarity 152 00:11:03,920 --> 00:11:07,920 Speaker 1: on what the Trump administration is arguing, it's very difficult 153 00:11:08,040 --> 00:11:10,960 Speaker 1: to draw much in the way of conclusions. I think 154 00:11:11,000 --> 00:11:15,000 Speaker 1: the Trump administration is making an error in not being 155 00:11:15,080 --> 00:11:20,240 Speaker 1: more forthcoming. I think it's incumbent on the United States 156 00:11:20,280 --> 00:11:24,960 Speaker 1: to make clear its legal justifications, especially when it comes 157 00:11:25,000 --> 00:11:30,920 Speaker 1: to military actions abroad, and I think it's undermining any 158 00:11:31,040 --> 00:11:36,800 Speaker 1: chance it has to try to persuade partners, allies, other states, 159 00:11:36,840 --> 00:11:40,560 Speaker 1: other actors of the legitimacy of its actions by being 160 00:11:40,840 --> 00:11:46,079 Speaker 1: so opaqued in its legal arguments, so opaqued in the 161 00:11:46,120 --> 00:11:49,760 Speaker 1: basic facts that it's basing its actions on. 162 00:11:50,200 --> 00:11:53,800 Speaker 2: Coming up next, where a linked memo fits in this 163 00:11:53,920 --> 00:11:59,400 Speaker 2: is Bloomberg. The US military has carried out four deadly 164 00:11:59,520 --> 00:12:04,439 Speaker 2: strikes against alleged drug carrying votes in the waters off Venezuela, 165 00:12:04,800 --> 00:12:09,000 Speaker 2: in what President Trump has declared an armed conflict with cartels. 166 00:12:09,320 --> 00:12:13,000 Speaker 2: The Trump administration has told lawmakers the President is treating 167 00:12:13,080 --> 00:12:18,360 Speaker 2: drug traffickers as unlawful combatants and military force was required 168 00:12:18,440 --> 00:12:22,120 Speaker 2: to combat them. I've been talking to Columbia Law School 169 00:12:22,120 --> 00:12:26,720 Speaker 2: professor Matthew Waxman. What's the import of that leaked memo 170 00:12:26,880 --> 00:12:30,200 Speaker 2: that the Trump administration sent to Congress saying that the 171 00:12:30,240 --> 00:12:34,840 Speaker 2: government had decided it was in a non international armed 172 00:12:34,960 --> 00:12:39,720 Speaker 2: conflict with the designated terrorist groups from Venezuela. 173 00:12:40,520 --> 00:12:45,360 Speaker 1: That, as far as I know, the most extensive explanation 174 00:12:45,679 --> 00:12:49,160 Speaker 1: of its legal arguments. And I think it's telling that 175 00:12:49,240 --> 00:12:52,080 Speaker 1: we only know about it because it was leaked and 176 00:12:52,120 --> 00:12:54,959 Speaker 1: then reported I leave first in the New York Times. 177 00:12:55,679 --> 00:12:58,480 Speaker 1: And that's an example of where I think it would 178 00:12:58,520 --> 00:13:04,199 Speaker 1: behoove the Trump administration to at least explain publicly its actions. 179 00:13:04,440 --> 00:13:07,800 Speaker 1: I think that's would not only be the smart thing 180 00:13:07,920 --> 00:13:11,240 Speaker 1: to do from a policy and legal standpoint, but I 181 00:13:11,280 --> 00:13:14,080 Speaker 1: think it's also the right thing to do in a 182 00:13:14,160 --> 00:13:19,600 Speaker 1: rule of law democracy. While I'm critical here of the 183 00:13:19,720 --> 00:13:23,960 Speaker 1: Trump Administration's legal claims, I don't want to cast any 184 00:13:24,040 --> 00:13:30,680 Speaker 1: doubt on the grave harms that narcotics trafficking is causing 185 00:13:30,760 --> 00:13:36,160 Speaker 1: here in the United States, untold numbers of death, violent crime, 186 00:13:37,080 --> 00:13:42,680 Speaker 1: and we are talking about narcotics traffickers who do reeld 187 00:13:42,800 --> 00:13:47,640 Speaker 1: violence in a very brutal way, not against the United 188 00:13:47,679 --> 00:13:54,239 Speaker 1: States government, but against individuals, and it is a problem 189 00:13:54,760 --> 00:13:58,160 Speaker 1: that is a tragic one. The Trump administration is right 190 00:13:58,880 --> 00:14:03,880 Speaker 1: to take very very aggressive actions to try to stem 191 00:14:04,280 --> 00:14:10,480 Speaker 1: the tide of narcotics trafficking, especially coming across our southern border. 192 00:14:10,960 --> 00:14:16,720 Speaker 1: But there are some deep legal problems, or at least 193 00:14:16,800 --> 00:14:21,640 Speaker 1: big question marks about some of the specific methods it's 194 00:14:21,680 --> 00:14:24,880 Speaker 1: been using and the way it's tried to justify them. 195 00:14:25,760 --> 00:14:29,840 Speaker 2: What do you think will come from Trump designating Antifa 196 00:14:30,000 --> 00:14:32,200 Speaker 2: as a major terrorist organization? 197 00:14:33,240 --> 00:14:36,360 Speaker 1: Well, that's different for a couple of reasons. One is 198 00:14:37,160 --> 00:14:41,359 Speaker 1: that's just not a thing in law. There are statutes 199 00:14:41,600 --> 00:14:46,520 Speaker 1: that create a designation of a foreign terrorist organization and 200 00:14:46,600 --> 00:14:51,800 Speaker 1: that carries some legal consequences. There is no parallel for 201 00:14:52,080 --> 00:14:57,680 Speaker 1: what one might label domestic terrorist organizations, and I think 202 00:14:57,760 --> 00:15:03,960 Speaker 1: the Antifa case shows one reason why, which is very 203 00:15:04,000 --> 00:15:10,520 Speaker 1: susceptible to politicization how one labels a domestic group or 204 00:15:10,760 --> 00:15:15,960 Speaker 1: a domestic political movement. And one thing that I think 205 00:15:16,000 --> 00:15:21,520 Speaker 1: would be especially damaging to the political process here within 206 00:15:21,600 --> 00:15:26,760 Speaker 1: the United States would be the use of terrorist designation 207 00:15:27,120 --> 00:15:31,840 Speaker 1: to try to go after political enemies. And I'm not 208 00:15:31,960 --> 00:15:36,280 Speaker 1: making a judgment here about Antifa and what it is 209 00:15:36,520 --> 00:15:39,160 Speaker 1: or isn't. I'm just saying that I think there are 210 00:15:39,200 --> 00:15:44,360 Speaker 1: good reasons why the United States government has created such 211 00:15:44,840 --> 00:15:49,920 Speaker 1: a category of foreign terrorist organizations but not taken a 212 00:15:50,040 --> 00:15:55,040 Speaker 1: parallel step in the past for domestic terrorist organizations. Are 213 00:15:55,120 --> 00:15:57,880 Speaker 1: so called domestic terrorist organizations. 214 00:15:58,200 --> 00:16:01,240 Speaker 2: Do you think that the president having broad latitude and 215 00:16:01,320 --> 00:16:06,920 Speaker 2: matters of national security and determining what that is would 216 00:16:06,960 --> 00:16:10,160 Speaker 2: play in here if this was somehow challenged. 217 00:16:10,480 --> 00:16:15,320 Speaker 1: I think it would. But you know, historically, the president 218 00:16:15,480 --> 00:16:21,640 Speaker 1: has had a lot of flexibility to determine threats to 219 00:16:22,400 --> 00:16:26,120 Speaker 1: the US national security, national defense, and I think there 220 00:16:26,120 --> 00:16:29,360 Speaker 1: are good reasons for that. The presidents of the United 221 00:16:29,400 --> 00:16:33,680 Speaker 1: States has the power of the agility to act quickly. 222 00:16:33,800 --> 00:16:39,200 Speaker 1: The president has access to valuable information to try to 223 00:16:39,280 --> 00:16:44,240 Speaker 1: make those kinds of assessments. But deferring to the executive 224 00:16:44,280 --> 00:16:47,520 Speaker 1: branch to the president on these kinds of matters has 225 00:16:47,680 --> 00:16:54,040 Speaker 1: always carried a big danger, which is the president might overreach, 226 00:16:54,680 --> 00:16:58,600 Speaker 1: the president might abuse those powers. And this has been 227 00:16:58,600 --> 00:17:02,640 Speaker 1: a challenge since the the birth of the republic. And 228 00:17:02,720 --> 00:17:06,200 Speaker 1: I think one thing we're seeing from the Trump administration 229 00:17:06,800 --> 00:17:12,600 Speaker 1: is really the worst kind of overreach across a range 230 00:17:12,840 --> 00:17:18,080 Speaker 1: of issues, and so I think it's calling into big 231 00:17:18,280 --> 00:17:22,680 Speaker 1: doubt whether the system of checks and balances that we've 232 00:17:22,720 --> 00:17:27,520 Speaker 1: relied on really are continuing to function in the Trump era. 233 00:17:28,200 --> 00:17:32,760 Speaker 2: That's a question that many have asked recently. Thanks so much, Matthew. 234 00:17:33,080 --> 00:17:37,399 Speaker 2: That's Professor Matthew Waxman of Columbia Law School, turning now 235 00:17:37,520 --> 00:17:41,040 Speaker 2: to other legal news. It's the most difficult decision a 236 00:17:41,080 --> 00:17:44,720 Speaker 2: criminal defendant has to make a trial, whether or not 237 00:17:44,800 --> 00:17:48,360 Speaker 2: to take the stand. And when a defendant does decide 238 00:17:48,400 --> 00:17:51,720 Speaker 2: to take the risk of testifying, how can his attorney 239 00:17:51,720 --> 00:17:55,840 Speaker 2: advise him during that testimony. That question was at the 240 00:17:55,880 --> 00:17:59,560 Speaker 2: heart of oral arguments before the Supreme Court on the 241 00:17:59,600 --> 00:18:03,840 Speaker 2: first the term. David Villarreal took the stand during his 242 00:18:03,880 --> 00:18:07,480 Speaker 2: trial for murdering his boyfriend. When there was an overnight 243 00:18:07,560 --> 00:18:12,160 Speaker 2: break in his testimony, the judge barred Villarrial's attorney from 244 00:18:12,200 --> 00:18:16,920 Speaker 2: discussing his testimony with him. Villarreal was convicted and sentenced 245 00:18:16,960 --> 00:18:20,760 Speaker 2: to sixty years, but he says that his constitutional right 246 00:18:20,840 --> 00:18:24,760 Speaker 2: to counsel was violated by the judge's order, and he's 247 00:18:24,800 --> 00:18:28,679 Speaker 2: asking the Supreme Court to overturn his conviction. During the 248 00:18:28,800 --> 00:18:33,080 Speaker 2: oral arguments, the justices questioned just what kind of broader 249 00:18:33,240 --> 00:18:37,119 Speaker 2: trial strategies a lawyer could talk to his client about 250 00:18:37,440 --> 00:18:41,720 Speaker 2: during an overnight break without crossing over into coaching the 251 00:18:41,800 --> 00:18:46,879 Speaker 2: client's testimony. Chief Justice John Roberts posed a hypothetical to 252 00:18:46,960 --> 00:18:50,119 Speaker 2: the lawyer for the State of Texas about a defendant 253 00:18:50,280 --> 00:18:54,560 Speaker 2: asking his attorney whether he should stop testifying about Fred 254 00:18:54,840 --> 00:18:56,240 Speaker 2: when he got back on the stand. 255 00:18:57,560 --> 00:19:00,680 Speaker 4: And I noticed every time I do that, jur number 256 00:19:00,680 --> 00:19:03,080 Speaker 4: eight gets a big frown and shakes his head. He 257 00:19:03,119 --> 00:19:05,080 Speaker 4: doesn't look to me like he likes the idea of 258 00:19:05,119 --> 00:19:08,280 Speaker 4: talking about Fred at all. So I think that's a 259 00:19:08,320 --> 00:19:11,840 Speaker 4: bad idea. Now talking about Fred was your idea? Do 260 00:19:11,880 --> 00:19:14,879 Speaker 4: you still think it's a good idea? Can the lawyer 261 00:19:15,160 --> 00:19:16,200 Speaker 4: respond to that question. 262 00:19:17,880 --> 00:19:20,199 Speaker 5: No, they you would have to tell them my mom 263 00:19:20,280 --> 00:19:22,200 Speaker 5: to a core order not to out to answer. 264 00:19:22,200 --> 00:19:24,240 Speaker 4: So at that point he tells the defendant, who's facing 265 00:19:24,280 --> 00:19:27,160 Speaker 4: a capital sentence, I'm not going to tell you. It's 266 00:19:27,160 --> 00:19:29,560 Speaker 4: a very simple thing. Don't talk about He's not saying 267 00:19:30,119 --> 00:19:33,800 Speaker 4: particular things, but let's stop talking about Fred whenever we can. 268 00:19:34,840 --> 00:19:38,680 Speaker 2: Just as Elena Kagan's hypothetical was more along the lines 269 00:19:38,720 --> 00:19:41,800 Speaker 2: of how the defendant performed during his testimony. 270 00:19:42,720 --> 00:19:47,000 Speaker 3: Do you think that counsel can say, listen, I've been 271 00:19:47,040 --> 00:19:51,840 Speaker 3: noticing that you've been mumbling, and you're also not making 272 00:19:52,000 --> 00:19:55,960 Speaker 3: eye contact with the questioner, And it would just be 273 00:19:56,080 --> 00:19:58,680 Speaker 3: a good idea if you stopped mumbling and made eye 274 00:19:58,680 --> 00:20:02,360 Speaker 3: contact the the lawyer do that and then overnight recess. 275 00:20:02,560 --> 00:20:06,320 Speaker 2: My guest is former Manhattan prosecutor and criminal defense attorney 276 00:20:06,400 --> 00:20:10,480 Speaker 2: Paul Callan of counsel at Edelman and Edelman. Paul tell 277 00:20:10,560 --> 00:20:12,000 Speaker 2: us about the facts here. 278 00:20:12,560 --> 00:20:17,360 Speaker 5: The defendant, David Villarreal, was a meth addict allegedly who 279 00:20:17,400 --> 00:20:20,760 Speaker 5: stabs his boyfriend to death, and he goes to trial, 280 00:20:21,520 --> 00:20:25,520 Speaker 5: and something happened in that trial, and it's something that's 281 00:20:25,680 --> 00:20:29,160 Speaker 5: very common in the trial of civil and criminal cases, 282 00:20:29,280 --> 00:20:33,200 Speaker 5: and that is he was on the witness stand testifying 283 00:20:33,800 --> 00:20:37,280 Speaker 5: and the judge decided to break for the day. It 284 00:20:37,359 --> 00:20:41,080 Speaker 5: was about one o'clock in the afternoon, and the judge 285 00:20:41,119 --> 00:20:44,800 Speaker 5: gave an instruction, which defense attorneys have said was a 286 00:20:44,840 --> 00:20:49,399 Speaker 5: limited instruction, which suggested that the defense attorney should not 287 00:20:49,800 --> 00:20:54,679 Speaker 5: discuss testimony overnight with his clients because he was on 288 00:20:54,720 --> 00:20:58,800 Speaker 5: the witness stand, and later on he's convicted, sentenced to 289 00:20:58,880 --> 00:21:02,120 Speaker 5: sixty years in prison, and now he's seeking to reverse 290 00:21:02,160 --> 00:21:06,200 Speaker 5: the case, saying that instruction impeded his right to consult 291 00:21:06,240 --> 00:21:08,640 Speaker 5: with counsel pursue to the sixth Amendment. 292 00:21:09,320 --> 00:21:11,440 Speaker 2: So there was a lot of talk during the oral 293 00:21:11,560 --> 00:21:16,640 Speaker 2: arguments about coaching your client, or somebody called it managing 294 00:21:16,840 --> 00:21:20,720 Speaker 2: your client's testimony. Is there a clear line between what's 295 00:21:20,800 --> 00:21:26,680 Speaker 2: permissible and what's impermissible when coaching a client or preparing 296 00:21:26,720 --> 00:21:28,840 Speaker 2: a client to testify. 297 00:21:29,560 --> 00:21:33,080 Speaker 5: Well, there's a line across and we call it subornation 298 00:21:33,359 --> 00:21:37,280 Speaker 5: of perjury if a lawyer goes too far in giving 299 00:21:37,320 --> 00:21:41,400 Speaker 5: advice to his client about how he should shape his testimony. 300 00:21:41,640 --> 00:21:45,399 Speaker 5: And so lawyers always have to deal with this situation 301 00:21:45,560 --> 00:21:49,600 Speaker 5: that they can't give advice that would constitute subornation of perjury. 302 00:21:50,000 --> 00:21:53,000 Speaker 5: Lawyers do, and it's their job to give a client 303 00:21:53,040 --> 00:21:56,200 Speaker 5: advice though about how to testify and a witness stand, 304 00:21:56,640 --> 00:21:59,920 Speaker 5: how to conduct himself on the witness stand, how to reactive. 305 00:22:00,040 --> 00:22:03,240 Speaker 5: There's an objection made in court all kinds of technical 306 00:22:03,280 --> 00:22:07,080 Speaker 5: aspects of testimony like that. Clearly lawyers are allowed to 307 00:22:07,080 --> 00:22:10,080 Speaker 5: give that kind of advice. But this is a situation 308 00:22:10,200 --> 00:22:11,919 Speaker 5: that comes up all the time in both civil and 309 00:22:11,960 --> 00:22:14,679 Speaker 5: criminal cases. When there's a recess in the case, the 310 00:22:14,760 --> 00:22:17,280 Speaker 5: client wants to talk to the lawyer how am I doing? 311 00:22:17,400 --> 00:22:19,720 Speaker 5: Am I doing okay on the witness stand, and the 312 00:22:19,800 --> 00:22:22,880 Speaker 5: lawyer wants to encourage them and say, yes, yes, you're 313 00:22:22,920 --> 00:22:26,080 Speaker 5: doing great, you know, or no, that was a stupid 314 00:22:26,119 --> 00:22:28,159 Speaker 5: answer you gave, you know, try to listen to the 315 00:22:28,240 --> 00:22:31,000 Speaker 5: questions that are being asked. So there are a variety 316 00:22:31,000 --> 00:22:35,480 Speaker 5: of ways that lawyers approach this thing, so the courts 317 00:22:35,520 --> 00:22:37,760 Speaker 5: really have gone back and forth on it. There are 318 00:22:38,119 --> 00:22:42,000 Speaker 5: some court decisions saying that during the course of testimony, 319 00:22:42,040 --> 00:22:46,080 Speaker 5: if there's a brief recess fifteen twenty minute recess, you 320 00:22:46,119 --> 00:22:48,720 Speaker 5: can talk to your client, but you shouldn't discuss testimony 321 00:22:48,880 --> 00:22:52,879 Speaker 5: during that time period. When there's a long adjournment like overnight, 322 00:22:53,520 --> 00:22:56,960 Speaker 5: then it gets really tricky because really most lawyers think 323 00:22:56,960 --> 00:23:01,160 Speaker 5: they shouldn't be discussing testimony with the client, But there 324 00:23:01,200 --> 00:23:03,800 Speaker 5: may be other things that have to be discussed. Should 325 00:23:03,840 --> 00:23:07,280 Speaker 5: I recommend a plead because the testimony is going so badly? 326 00:23:07,720 --> 00:23:10,679 Speaker 5: Should I tell the witness that if he's going to 327 00:23:10,720 --> 00:23:13,680 Speaker 5: stick with this kind of a story. We need another witness. 328 00:23:13,760 --> 00:23:15,680 Speaker 5: You know, maybe he's got a friend who was refusing 329 00:23:15,720 --> 00:23:18,119 Speaker 5: to testify, but now you say, you know, he's got 330 00:23:18,160 --> 00:23:20,560 Speaker 5: to come in and testify given the way your testimony 331 00:23:20,640 --> 00:23:24,080 Speaker 5: is going. So there's sort of an interreaction between testimony 332 00:23:24,760 --> 00:23:28,159 Speaker 5: and even testimony that you're not trying to shape, and 333 00:23:28,720 --> 00:23:31,239 Speaker 5: how it affects other aspects of the case as the 334 00:23:31,240 --> 00:23:35,120 Speaker 5: case proceeds. So this is a really tricky question for lawyers, 335 00:23:35,240 --> 00:23:37,919 Speaker 5: and this will be a closely watched case if the 336 00:23:37,960 --> 00:23:41,440 Speaker 5: Supreme Court hands down a clear decision on it. That 337 00:23:41,560 --> 00:23:44,160 Speaker 5: had been decisions in the past, but they've been sort 338 00:23:44,160 --> 00:23:46,800 Speaker 5: of vague, and they've kind of gone both ways in 339 00:23:46,880 --> 00:23:49,280 Speaker 5: terms of whether you can talk to a client while 340 00:23:49,280 --> 00:23:50,040 Speaker 5: he's on the stand. 341 00:23:50,560 --> 00:23:55,680 Speaker 2: Paul, the Justice has posed all kinds of hypotheticals of 342 00:23:55,720 --> 00:23:59,280 Speaker 2: what a lawyer might say to a client during an 343 00:23:59,320 --> 00:24:03,439 Speaker 2: extended and his testimony. Listen to the Chief Justice is 344 00:24:03,520 --> 00:24:05,880 Speaker 2: hypothetical and tell me what you think. 345 00:24:06,400 --> 00:24:10,600 Speaker 4: And the defendant says something like, counsel, you remember when 346 00:24:10,600 --> 00:24:13,240 Speaker 4: we were preparing for this, we both agreed we should 347 00:24:13,240 --> 00:24:15,800 Speaker 4: try to get the jury to focus on Fred and 348 00:24:15,840 --> 00:24:19,199 Speaker 4: whenever it's reasonable, I should mention Fred, and I've been 349 00:24:19,240 --> 00:24:21,480 Speaker 4: doing that, and I notice every time I do that, 350 00:24:21,840 --> 00:24:24,000 Speaker 4: you know, Jury number eight gets a big frown and 351 00:24:24,040 --> 00:24:26,280 Speaker 4: shakes his head. He doesn't look to me like he 352 00:24:26,440 --> 00:24:29,240 Speaker 4: likes the idea of talking about Fred at all. So 353 00:24:29,760 --> 00:24:32,520 Speaker 4: I think that's a bad idea. Now, talking about Fred 354 00:24:32,560 --> 00:24:36,160 Speaker 4: was your idea? Do you still think it's a good idea? 355 00:24:36,320 --> 00:24:38,280 Speaker 4: Can the lawyer respond to that question? 356 00:24:39,920 --> 00:24:42,600 Speaker 5: That's a tough one. That's a really tough one. And 357 00:24:42,800 --> 00:24:44,720 Speaker 5: as a matter of fact, that issue has come up 358 00:24:45,400 --> 00:24:48,160 Speaker 5: as these cases have been briefed by the various parties 359 00:24:48,200 --> 00:24:53,119 Speaker 5: because remember, the right to counsel in state cases only 360 00:24:53,200 --> 00:24:55,639 Speaker 5: really was reserved to the states as well as the 361 00:24:55,680 --> 00:24:58,880 Speaker 5: federal government in the fourteenth Amendment in the eighteen hundreds. 362 00:24:59,040 --> 00:25:02,760 Speaker 5: Before that time, the law was, it was all federal law, 363 00:25:02,840 --> 00:25:05,200 Speaker 5: and it was that you really could talk to your 364 00:25:05,280 --> 00:25:08,480 Speaker 5: client while he was on the witness stand. Now, sometimes 365 00:25:08,480 --> 00:25:10,239 Speaker 5: it was hard to do that because the clients were 366 00:25:10,320 --> 00:25:12,679 Speaker 5: kept in page in the middle of the courtroom, so 367 00:25:13,160 --> 00:25:15,720 Speaker 5: it would be very hard, you know, to send signals 368 00:25:15,760 --> 00:25:19,359 Speaker 5: to him during court recesses if he's you know, sitting 369 00:25:19,400 --> 00:25:22,159 Speaker 5: in a cell. Essentially that was a box in the 370 00:25:22,160 --> 00:25:24,440 Speaker 5: middle of the courtroom. That's how some colonial courts were 371 00:25:24,480 --> 00:25:28,560 Speaker 5: set up. So this really is an evolving case law. 372 00:25:28,760 --> 00:25:32,560 Speaker 5: After the Fourteenth Amendment applied the sixth Amendment to the States, 373 00:25:33,080 --> 00:25:37,040 Speaker 5: so and state courts and federal courts have gone in 374 00:25:37,080 --> 00:25:39,560 Speaker 5: different directions and a lot of respects on this. Some 375 00:25:39,600 --> 00:25:41,840 Speaker 5: of the state courts have said, it's okay, it's all right, 376 00:25:41,880 --> 00:25:44,200 Speaker 5: you have a constitucial right to confer with your client 377 00:25:44,240 --> 00:25:47,560 Speaker 5: at any point in time, and other courts have said, 378 00:25:47,600 --> 00:25:51,240 Speaker 5: no reasonable restrictions are acceptable with this. 379 00:25:51,440 --> 00:25:54,280 Speaker 2: Order of you know, you can talk to your client, 380 00:25:54,359 --> 00:25:57,880 Speaker 2: but you can't discuss directly discuss the testimony. And the 381 00:25:57,960 --> 00:26:02,840 Speaker 2: justices discussed this a lot because Yal's lawyer argued that 382 00:26:02,840 --> 00:26:06,600 Speaker 2: that no direct discussion of testimony rule is unworkable in 383 00:26:06,640 --> 00:26:09,520 Speaker 2: the real world because if you're discussing a plea agreement, 384 00:26:10,080 --> 00:26:13,560 Speaker 2: for example, because you think that your client did lousey 385 00:26:13,640 --> 00:26:16,119 Speaker 2: on the stand, and your client says, well, why should 386 00:26:16,160 --> 00:26:19,480 Speaker 2: I take a plea, that it's very hard to draw 387 00:26:19,600 --> 00:26:22,640 Speaker 2: a clear line in these cases. 388 00:26:23,480 --> 00:26:26,520 Speaker 5: Villaryal's lawyer made a very compelling argument in that regard 389 00:26:26,960 --> 00:26:30,399 Speaker 5: because so much of the client's testimony. I mean, if 390 00:26:30,400 --> 00:26:32,159 Speaker 5: you put a defendant on the witness stand in a 391 00:26:32,200 --> 00:26:36,040 Speaker 5: criminal case. His testimony is now the key evidence of 392 00:26:36,119 --> 00:26:40,520 Speaker 5: the entire case, and if it triggers problems, that may 393 00:26:40,720 --> 00:26:42,840 Speaker 5: cause you as a lawyer to have to go out 394 00:26:42,880 --> 00:26:46,200 Speaker 5: and get another witness or maybe bring in some kind 395 00:26:46,200 --> 00:26:49,880 Speaker 5: of an expert, because he's raised something about the impossibility 396 00:26:50,000 --> 00:26:52,880 Speaker 5: of how a bullet was fired or was aimed when 397 00:26:52,880 --> 00:26:55,200 Speaker 5: the murders shot was fired, or a stab wound it 398 00:26:55,240 --> 00:26:59,240 Speaker 5: would be in this case. Yeah, the testimony interacts, from 399 00:26:59,560 --> 00:27:02,520 Speaker 5: the legal standpoint, with all of the evidence in the case. 400 00:27:02,960 --> 00:27:06,600 Speaker 5: So you restrict the lawyer's ability to talk to the client. 401 00:27:07,000 --> 00:27:09,600 Speaker 5: You can't just keep it down to the testimony alone. 402 00:27:09,600 --> 00:27:12,320 Speaker 5: Everything interacts with everything else. That's what build in the 403 00:27:12,359 --> 00:27:15,840 Speaker 5: way his lawyers are arguing so that the conviction here 404 00:27:15,880 --> 00:27:16,680 Speaker 5: will be reversed. 405 00:27:17,240 --> 00:27:22,000 Speaker 2: Justice Elena Kagan asked this of Texas's lawyer. Do you 406 00:27:22,040 --> 00:27:25,160 Speaker 2: think that counsel can say, listen, I've been noticing that 407 00:27:25,200 --> 00:27:28,640 Speaker 2: you've been mumbling, and you're also not making eye contact 408 00:27:28,720 --> 00:27:31,120 Speaker 2: with the questioner, and it would just be a good 409 00:27:31,119 --> 00:27:34,680 Speaker 2: idea if you'd stop mumbling and made eye contact. Can 410 00:27:34,760 --> 00:27:37,800 Speaker 2: the lawyer do that in an overnight recess? And the 411 00:27:38,160 --> 00:27:41,600 Speaker 2: Texas's attorney said, no, I would consider that to be 412 00:27:41,760 --> 00:27:45,640 Speaker 2: coaching their testimony as far as how you present yourself 413 00:27:45,680 --> 00:27:49,040 Speaker 2: to the jury. Of course, he's arguing for Texas, so 414 00:27:49,760 --> 00:27:52,920 Speaker 2: his view is very limited about what should be said. 415 00:27:53,080 --> 00:27:55,160 Speaker 2: But do you think that that would be coaching. 416 00:27:55,800 --> 00:27:58,840 Speaker 5: Well, whether it's coaching or not, I don't know. It 417 00:27:58,920 --> 00:28:01,840 Speaker 5: probably is coaching, but in that kind of coaching is 418 00:28:01,880 --> 00:28:04,199 Speaker 5: exactly what you get hired to do as a lawyer, 419 00:28:04,680 --> 00:28:08,359 Speaker 5: to school your client in how he can present his 420 00:28:08,560 --> 00:28:12,240 Speaker 5: truthful testimony in the best way possible to the jury. 421 00:28:12,640 --> 00:28:17,840 Speaker 5: And I think most lawyers view this situation where a 422 00:28:17,880 --> 00:28:20,280 Speaker 5: client is on the witness stand that they will not 423 00:28:20,520 --> 00:28:25,280 Speaker 5: often hamper with the content of the testimony in their 424 00:28:25,320 --> 00:28:29,240 Speaker 5: discussions with the client, but they may say, listen, stop 425 00:28:29,320 --> 00:28:32,879 Speaker 5: looking down. It's making you look guilty. Look at a 426 00:28:32,920 --> 00:28:35,439 Speaker 5: guy who's asking you the question, and it's okay to 427 00:28:35,480 --> 00:28:37,919 Speaker 5: glance over at the jurors from time to time with 428 00:28:38,000 --> 00:28:40,480 Speaker 5: your head up. And I mean, this just has to 429 00:28:40,520 --> 00:28:44,840 Speaker 5: do with presentation of the testimony to the jury, as 430 00:28:44,840 --> 00:28:47,480 Speaker 5: opposed to the truth or falsity of the testimony. And 431 00:28:47,560 --> 00:28:50,920 Speaker 5: I think that's perfectly proper. That kind of instruction to 432 00:28:51,000 --> 00:28:52,600 Speaker 5: a client during testimony. 433 00:28:52,920 --> 00:28:55,800 Speaker 2: Of course, you can never tell for sure from oral 434 00:28:55,920 --> 00:28:59,360 Speaker 2: arguments how the justices will rule, but it seemed to 435 00:28:59,400 --> 00:29:03,840 Speaker 2: me like the defendant didn't have the votes here that 436 00:29:04,400 --> 00:29:08,320 Speaker 2: the majority of the justice is were skeptical that not 437 00:29:08,400 --> 00:29:12,240 Speaker 2: being able to talk to his counsel about his testimony 438 00:29:12,880 --> 00:29:17,120 Speaker 2: during the overnight break violated his constitutional rights. 439 00:29:17,680 --> 00:29:21,440 Speaker 5: Well, I'll tell you, And my suspicion is maybe they 440 00:29:21,680 --> 00:29:23,640 Speaker 5: just want to stay away from the whole thing, because 441 00:29:24,400 --> 00:29:27,520 Speaker 5: I suspect that the truth of the matter is there's 442 00:29:27,520 --> 00:29:30,600 Speaker 5: nobody in that room at night when the lawyer is 443 00:29:30,640 --> 00:29:35,800 Speaker 5: discussing the testimony with the client, and this rule is 444 00:29:35,840 --> 00:29:39,520 Speaker 5: a really hard rule to enforce. I suppose you might 445 00:29:39,560 --> 00:29:43,240 Speaker 5: have a lot more appeals in cases from defendants who 446 00:29:43,240 --> 00:29:46,200 Speaker 5: would say I was on the stand and I needed 447 00:29:46,240 --> 00:29:49,880 Speaker 5: advice and the lawyer refused to talk to me, and 448 00:29:50,480 --> 00:29:53,200 Speaker 5: that's why I've been convicted, you know what Philip Reality 449 00:29:53,160 --> 00:29:57,880 Speaker 5: is saying. So it's a touchy subject and it'll be 450 00:29:57,920 --> 00:29:59,840 Speaker 5: interesting to see how the court rules are this thing 451 00:30:00,120 --> 00:30:03,400 Speaker 5: case that trial lawyers across the country will be watching 452 00:30:03,640 --> 00:30:06,960 Speaker 5: very very carefully because there are lots of diffuse it 453 00:30:07,000 --> 00:30:10,160 Speaker 5: happens to the civil cases too. During depositions, you know, you're 454 00:30:10,560 --> 00:30:13,680 Speaker 5: you have a civil case and the guys being deposed 455 00:30:13,760 --> 00:30:16,240 Speaker 5: and then they wanted to take a break, and the 456 00:30:16,320 --> 00:30:18,440 Speaker 5: lawyer says, well, don't talk to him during the break. 457 00:30:18,480 --> 00:30:20,560 Speaker 5: And the lawyer says, well, you have no right to 458 00:30:20,680 --> 00:30:22,920 Speaker 5: restrict what I can say to my client during the break. 459 00:30:22,960 --> 00:30:26,560 Speaker 5: And I've seen fights among lawyers, oral arguments among lawyers 460 00:30:26,600 --> 00:30:29,600 Speaker 5: at depositions about this very subject. So this one will 461 00:30:29,640 --> 00:30:32,360 Speaker 5: spill over into civil practice as well. I think if 462 00:30:32,720 --> 00:30:36,400 Speaker 5: they make a definitive ruling on the issue, Paul, is it. 463 00:30:36,800 --> 00:30:39,400 Speaker 2: Is it an ethical rule that you shouldn't talk to 464 00:30:39,440 --> 00:30:43,120 Speaker 2: your client during, you know, a break in testimony. Is 465 00:30:43,160 --> 00:30:44,520 Speaker 2: there any real rule there? 466 00:30:45,680 --> 00:30:49,320 Speaker 5: There are no ethical rules about it, other than of course, 467 00:30:50,120 --> 00:30:55,120 Speaker 5: a lawyer cannot suborn perjury. So if you're giving the 468 00:30:55,240 --> 00:30:59,640 Speaker 5: client advice, you know he's serving, say self defense in 469 00:30:59,680 --> 00:31:02,560 Speaker 5: a case, and he tells you a story in which 470 00:31:02,960 --> 00:31:05,800 Speaker 5: he's not under threat from the person he killed at all, 471 00:31:06,560 --> 00:31:08,440 Speaker 5: and you say to him, well, you know it would 472 00:31:08,480 --> 00:31:11,760 Speaker 5: help if you thought he was trying to strangle you 473 00:31:11,840 --> 00:31:13,920 Speaker 5: when you pulled out the knife and started, you know, 474 00:31:13,960 --> 00:31:17,400 Speaker 5: stabbing him, Well, that would be unethical, your supporting perjury. 475 00:31:17,440 --> 00:31:20,120 Speaker 5: You're telling him tell a lie, say that you were 476 00:31:20,200 --> 00:31:22,560 Speaker 5: in fear of your life, that's why you killed him. 477 00:31:22,840 --> 00:31:25,240 Speaker 5: So you know, those are the only ethical rules that 478 00:31:25,280 --> 00:31:29,880 Speaker 5: apply in terms of shaping testimony. By saying, be more 479 00:31:29,960 --> 00:31:33,280 Speaker 5: polite when you're you know, you're yelling at the prosecutor. 480 00:31:33,360 --> 00:31:35,760 Speaker 5: Don't do that. It makes you look aggressive and bad. 481 00:31:36,080 --> 00:31:41,040 Speaker 5: I'm talking about stylistic questions and advice from the attorney, 482 00:31:41,680 --> 00:31:43,680 Speaker 5: you know. I think that's something that all lawyers do 483 00:31:43,800 --> 00:31:46,560 Speaker 5: to a certain extent with clients, and it's probably okay, 484 00:31:47,360 --> 00:31:49,480 Speaker 5: and matter of fact, the courts may like it because 485 00:31:49,880 --> 00:31:51,760 Speaker 5: if you get a long winded client, it won't give 486 00:31:51,760 --> 00:31:54,120 Speaker 5: you a straight answer to a question. A lot of 487 00:31:54,120 --> 00:31:57,360 Speaker 5: times the judges are quite happy if the client listens 488 00:31:57,400 --> 00:32:01,200 Speaker 5: carefully to the question and answers it succinctly, as opposed 489 00:32:01,240 --> 00:32:04,880 Speaker 5: to wandering around and telling all of these lengthy stories, which, 490 00:32:04,920 --> 00:32:08,480 Speaker 5: by the way, just open up new avenues across examination 491 00:32:08,600 --> 00:32:12,400 Speaker 5: for the prosecutor. You know, clients testifying is one of 492 00:32:12,440 --> 00:32:15,360 Speaker 5: the most complex issues of criminal law and always will be, 493 00:32:15,920 --> 00:32:16,280 Speaker 5: and I. 494 00:32:16,280 --> 00:32:21,200 Speaker 2: Believe only justice Katanji Brown Jackson was a criminal defense 495 00:32:21,320 --> 00:32:25,560 Speaker 2: lawyer who might have faced some of these problems. Justice 496 00:32:25,600 --> 00:32:29,720 Speaker 2: Sonya Sotomayor is the only other trial lawyer on the court, 497 00:32:29,880 --> 00:32:33,040 Speaker 2: and she was a Manhattan district attorney like you, Paul, 498 00:32:33,400 --> 00:32:36,480 Speaker 2: thanks so much for joining me today. That's former Manhattan 499 00:32:36,520 --> 00:32:40,560 Speaker 2: prosecutor and criminal defense attorney Paul Callen, and that's it 500 00:32:40,640 --> 00:32:43,240 Speaker 2: for this edition of The Bloomberg Law Show. Remember you 501 00:32:43,240 --> 00:32:45,680 Speaker 2: can always get the latest legal news on our Bloomberg 502 00:32:45,800 --> 00:32:49,400 Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify, 503 00:32:49,600 --> 00:32:54,640 Speaker 2: and at www dot Bloomberg dot com slash podcast Slash Law, 504 00:32:55,040 --> 00:32:57,640 Speaker 2: And remember to tune into The Bloomberg Law Show every 505 00:32:57,680 --> 00:33:01,160 Speaker 2: week night at ten pm Wall Street Time. I'm June 506 00:33:01,160 --> 00:33:08,280 Speaker 2: Grosso and you're listening to Bloomberg. Mhm.