1 00:00:03,200 --> 00:00:10,039 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,240 --> 00:00:13,600 Speaker 1: They have nothing as it relates to a case other 3 00:00:13,720 --> 00:00:17,400 Speaker 1: than I guess an overzealous attorney general who would destroy 4 00:00:17,480 --> 00:00:20,000 Speaker 1: all of New York business by going after transactions where 5 00:00:20,000 --> 00:00:20,960 Speaker 1: there are no victims. 6 00:00:21,440 --> 00:00:24,880 Speaker 2: Donald Trump's legal team kicked off its defense in New 7 00:00:25,000 --> 00:00:28,760 Speaker 2: York State's civil fraud trial with a return appearance by 8 00:00:28,800 --> 00:00:32,840 Speaker 2: his eldest son, Don Junior, who raved about his family's 9 00:00:32,880 --> 00:00:36,600 Speaker 2: real estate assets and called his father an artist with 10 00:00:36,760 --> 00:00:40,760 Speaker 2: real estate. For six weeks, New York Attorney General Letitia 11 00:00:40,880 --> 00:00:44,400 Speaker 2: James has presented her case alleging at the former president 12 00:00:44,920 --> 00:00:48,840 Speaker 2: inflated the value of his assets by billions of dollars 13 00:00:48,880 --> 00:00:52,040 Speaker 2: for more than a decade to do banks and insurers 14 00:00:52,080 --> 00:00:55,800 Speaker 2: into giving him better terms. Though Donald Trump Junior was 15 00:00:55,840 --> 00:00:59,360 Speaker 2: relaxed on the stand and joke with the judge unlike 16 00:00:59,400 --> 00:01:04,200 Speaker 2: his father, his testimony did echo his father's, illustrating a 17 00:01:04,319 --> 00:01:09,000 Speaker 2: central defense argument that the Trump properties are extremely valuable 18 00:01:09,200 --> 00:01:14,000 Speaker 2: and the company's annual financial statements, if anything, underrated them. 19 00:01:14,360 --> 00:01:17,959 Speaker 2: And outside the courthouse there was the familiar no harm, 20 00:01:18,080 --> 00:01:19,240 Speaker 2: no foul refrain. 21 00:01:20,640 --> 00:01:22,320 Speaker 1: But you guys have got to think about the precedent 22 00:01:22,319 --> 00:01:24,920 Speaker 1: that this case sets if an attorney general can years later, 23 00:01:25,560 --> 00:01:28,600 Speaker 1: after all parties of transactions are paid back in full 24 00:01:29,200 --> 00:01:31,840 Speaker 1: with interest, making hundreds of millions of dollars where they 25 00:01:31,880 --> 00:01:33,959 Speaker 1: have no complaint where they said they wouldn't have done 26 00:01:34,000 --> 00:01:38,200 Speaker 1: anything differently, where every witness, as it relates to my 27 00:01:38,280 --> 00:01:42,280 Speaker 1: brother and I, every witness that the Attorney General has called, 28 00:01:42,319 --> 00:01:44,399 Speaker 1: have said that my brother and I were not involved 29 00:01:44,440 --> 00:01:46,120 Speaker 1: in the statement of financial condition. 30 00:01:47,200 --> 00:01:50,560 Speaker 2: Joining me is former federal prosecutor Robert Mintz, a partner 31 00:01:50,600 --> 00:01:56,160 Speaker 2: maccarter and English. So Bob Don Junior waxed poetic about 32 00:01:56,200 --> 00:02:00,200 Speaker 2: his father's genius for real estate and the family's real 33 00:02:00,320 --> 00:02:04,000 Speaker 2: estate holdings. Why did the defense recall him? 34 00:02:04,480 --> 00:02:08,000 Speaker 3: I think Donald Trump Junior was attempting to present a 35 00:02:08,040 --> 00:02:13,200 Speaker 3: more relaxed, less contentious approach to the judge in their 36 00:02:13,240 --> 00:02:16,600 Speaker 3: defense case in chief, and what the judge allowed him 37 00:02:16,639 --> 00:02:20,960 Speaker 3: to do was to really paint a picture, literally of 38 00:02:21,080 --> 00:02:25,400 Speaker 3: the Trump organization. They showed glossy magazine type images of 39 00:02:25,440 --> 00:02:29,640 Speaker 3: the inturiers and exteriors of various Trump properties around the world, 40 00:02:29,960 --> 00:02:33,040 Speaker 3: and the judge, even when so far over the objection 41 00:02:33,639 --> 00:02:37,920 Speaker 3: of the State AG's office, who allowed Donald Trump Junior 42 00:02:38,200 --> 00:02:40,880 Speaker 3: to give a history of the Trump family going back 43 00:02:40,919 --> 00:02:43,760 Speaker 3: to the nineteen hundreds, to talk about how his great 44 00:02:43,800 --> 00:02:47,280 Speaker 3: grandfather had made a fortune during the Klondike Gold Rush, 45 00:02:47,320 --> 00:02:51,000 Speaker 3: and his grandfather had developed apartments in Brooklyn and Queens 46 00:02:51,280 --> 00:02:54,360 Speaker 3: and really, from the Trump defense standpoint, trying to set 47 00:02:54,400 --> 00:02:58,880 Speaker 3: the stage for just how the Trump organization began decades 48 00:02:58,960 --> 00:03:02,519 Speaker 3: ago and where where it was today and ultimately bringing 49 00:03:02,560 --> 00:03:06,320 Speaker 3: the case up to today's time, and pointing out that 50 00:03:06,400 --> 00:03:10,280 Speaker 3: his father was really a visionary, somebody who saw where 51 00:03:10,280 --> 00:03:13,440 Speaker 3: the real estate market was going in Manhattan long before 52 00:03:13,520 --> 00:03:16,800 Speaker 3: others could see it. And underlying all of that was 53 00:03:16,880 --> 00:03:20,640 Speaker 3: really an attempt to try to convince the judge or 54 00:03:20,680 --> 00:03:24,760 Speaker 3: perhaps the public, that Donald Trump is being misunderstood and 55 00:03:24,800 --> 00:03:28,160 Speaker 3: being unfairly treated here because he is more of a 56 00:03:28,280 --> 00:03:31,480 Speaker 3: visionary than he is a businessman, in the sense that 57 00:03:31,560 --> 00:03:34,280 Speaker 3: he is not someone who gets down to the nuts 58 00:03:34,280 --> 00:03:37,320 Speaker 3: and bolt of the financial filings. He is more of 59 00:03:37,360 --> 00:03:40,400 Speaker 3: a so called big preture person who is able to 60 00:03:40,440 --> 00:03:43,960 Speaker 3: identify real estate trends before anybody else and to develop 61 00:03:44,000 --> 00:03:45,600 Speaker 3: them for great financial gain. 62 00:03:46,240 --> 00:03:49,960 Speaker 2: So the Attorney General alleges that Trump's Los Angeles golf 63 00:03:49,960 --> 00:03:54,440 Speaker 2: course was overvalued by almost fifty million dollars. Donald Trump 64 00:03:54,560 --> 00:03:57,680 Speaker 2: Junior focused on the beauty of the course and the 65 00:03:57,760 --> 00:04:00,760 Speaker 2: views of the Pacific. But then the eight lawyers said, 66 00:04:00,760 --> 00:04:04,600 Speaker 2: didn't the eighteenth hole fall into the ocean? The thing 67 00:04:04,760 --> 00:04:10,000 Speaker 2: is the Trump say that valuations are subjective. But they're subjective, 68 00:04:10,280 --> 00:04:14,000 Speaker 2: and you know, a little puffery and then there's wildly 69 00:04:14,320 --> 00:04:15,840 Speaker 2: unconnected to reality. 70 00:04:16,600 --> 00:04:19,080 Speaker 3: Well, you're right. The heart of the Attorney General's lawsuit 71 00:04:19,120 --> 00:04:23,120 Speaker 3: are documents known as statements of financial conditions, which are 72 00:04:23,400 --> 00:04:26,920 Speaker 3: the balance sheet that the Trump organization used to demonstrate 73 00:04:27,000 --> 00:04:30,359 Speaker 3: the value of its properties and mister Trump's network so 74 00:04:30,400 --> 00:04:34,000 Speaker 3: they could obtain loans and insurance rates. And essentially, what 75 00:04:34,279 --> 00:04:37,880 Speaker 3: the AG's office has a legs here is that the 76 00:04:37,920 --> 00:04:42,000 Speaker 3: Trump organization inflated the value of the Trump properties in 77 00:04:42,080 --> 00:04:45,839 Speaker 3: order to do banks and ensures into giving them better terms, 78 00:04:46,240 --> 00:04:49,360 Speaker 3: reaping a two hundred and fifty million dollars gain in 79 00:04:49,560 --> 00:04:52,640 Speaker 3: illegal profit. According to the AG's office, the heart of 80 00:04:52,680 --> 00:04:57,680 Speaker 3: the Trump organization's defense is that these financial statements contain 81 00:04:57,800 --> 00:05:02,520 Speaker 3: a disclaimer that essentially as they're entirely worthless and that 82 00:05:02,600 --> 00:05:05,480 Speaker 3: no bank should rely upon them. And part of what's 83 00:05:05,520 --> 00:05:07,640 Speaker 3: gone on over and over again during the course of 84 00:05:07,640 --> 00:05:10,719 Speaker 3: this case, this has been argued multiple times for this judge, 85 00:05:10,720 --> 00:05:13,479 Speaker 3: and that actually has gone up on appeal twice, and 86 00:05:13,560 --> 00:05:16,440 Speaker 3: the judge has been affirmed. But the defense over and 87 00:05:16,440 --> 00:05:20,680 Speaker 3: over again is saying that these financial statements cannot be 88 00:05:20,760 --> 00:05:24,200 Speaker 3: relied upon. They were dealing with a sophisticated bank in 89 00:05:24,279 --> 00:05:27,880 Speaker 3: Deutsche Bank, and Deutsche Bank did its own due diligence 90 00:05:28,160 --> 00:05:31,839 Speaker 3: rather than relied upon these financial statements in making decisions 91 00:05:31,839 --> 00:05:34,640 Speaker 3: about whether or not to extend loans to the Trump organization. 92 00:05:35,279 --> 00:05:39,160 Speaker 2: And Trump keeps talking about, both inside the courtroom and 93 00:05:39,200 --> 00:05:42,880 Speaker 2: outside the courtroom, that disclaimer. He sort of presents it 94 00:05:42,920 --> 00:05:46,560 Speaker 2: as a get out of jail free card. The judge, 95 00:05:46,560 --> 00:05:50,200 Speaker 2: as you say, has rejected the disclaimer argument over and over. 96 00:05:51,240 --> 00:05:55,200 Speaker 2: Why do you think the defense keeps raising it? Do 97 00:05:55,279 --> 00:05:58,240 Speaker 2: you think it's more for the public than for the judge? 98 00:05:58,279 --> 00:05:59,680 Speaker 2: He said at one point, it's worthless. 99 00:06:00,480 --> 00:06:04,200 Speaker 3: The disclaimer defense, which is really at the heart of 100 00:06:04,240 --> 00:06:07,560 Speaker 3: the defense strategy here, is being played not only to 101 00:06:07,680 --> 00:06:10,960 Speaker 3: the court and ultimately on appeal, because that's where this 102 00:06:11,080 --> 00:06:13,840 Speaker 3: case is headed, but also to the court of public opinion. 103 00:06:14,360 --> 00:06:17,520 Speaker 3: And it's thankly what the Trump defense argues is that 104 00:06:17,560 --> 00:06:20,400 Speaker 3: this is the case with no victims and no injury. 105 00:06:20,800 --> 00:06:23,920 Speaker 3: They point out that Deutsche Bank was a sophisticated lender. 106 00:06:24,279 --> 00:06:27,159 Speaker 3: They are apparently going to put on Deutsche Bank witnesses 107 00:06:27,480 --> 00:06:29,919 Speaker 3: who will testify as to how eager they were to 108 00:06:30,040 --> 00:06:33,560 Speaker 3: lend money to the Trump organization. They will point out 109 00:06:33,680 --> 00:06:37,680 Speaker 3: that Deutsche Bank made millions of dollars from the loans 110 00:06:37,800 --> 00:06:40,360 Speaker 3: that they made to the Trump organization, that the Trump 111 00:06:40,440 --> 00:06:43,920 Speaker 3: organization never defaulted on any of these loans, never had 112 00:06:43,960 --> 00:06:48,160 Speaker 3: any late payments, And ultimately, the question here is whether 113 00:06:48,240 --> 00:06:50,680 Speaker 3: or not there is a victim, whether or not anybody 114 00:06:50,760 --> 00:06:54,200 Speaker 3: was harmed, or whether this was simply business as usual 115 00:06:54,320 --> 00:06:57,320 Speaker 3: in the real estate industry. That's the contention that this 116 00:06:57,440 --> 00:07:00,360 Speaker 3: judge has already rejected, but it will be an issue 117 00:07:00,360 --> 00:07:02,039 Speaker 3: that will go up on appeal at the end of 118 00:07:02,040 --> 00:07:02,520 Speaker 3: his case. 119 00:07:03,440 --> 00:07:06,599 Speaker 2: Central to the AG's case are the statements of financial 120 00:07:06,680 --> 00:07:11,440 Speaker 2: condition that Trump had his accountants sent to lenders that 121 00:07:11,560 --> 00:07:15,120 Speaker 2: detail his assets and their values, and the State of 122 00:07:15,120 --> 00:07:18,320 Speaker 2: New York alleges he inflated his net worth by as 123 00:07:18,400 --> 00:07:20,960 Speaker 2: much as three point six billion dollars a year to 124 00:07:21,000 --> 00:07:24,080 Speaker 2: get better terms on loans and insurance, so Now, when 125 00:07:24,120 --> 00:07:26,880 Speaker 2: Trump was on the stand, he acknowledged he had a 126 00:07:26,960 --> 00:07:32,640 Speaker 2: hand in preparing the financial statements, and Ivanka Trump said 127 00:07:32,680 --> 00:07:36,320 Speaker 2: that that was her father's signature on the financial statements. 128 00:07:36,960 --> 00:07:39,840 Speaker 2: Eric Trump said they were accurate, even though the judge 129 00:07:39,880 --> 00:07:43,800 Speaker 2: determined that they were fraudulent. So the ag has that 130 00:07:43,960 --> 00:07:45,480 Speaker 2: part of her case sewn up. 131 00:07:46,040 --> 00:07:46,240 Speaker 4: Yeah. 132 00:07:46,280 --> 00:07:48,560 Speaker 3: I think one of the problems with the defense case 133 00:07:49,040 --> 00:07:51,600 Speaker 3: is that it's a bit of a circular argument on 134 00:07:51,640 --> 00:07:56,080 Speaker 3: this point. What the Trump organization has argued is that 135 00:07:56,200 --> 00:08:00,680 Speaker 3: it relied on the professional advice of its accountants who 136 00:08:00,760 --> 00:08:05,400 Speaker 3: prepared those financial statements and signed those statements, in reliance 137 00:08:05,520 --> 00:08:09,440 Speaker 3: on the accountants submitting the information to them. When the 138 00:08:09,440 --> 00:08:11,760 Speaker 3: accounts took the stand, they said that they prepared the 139 00:08:11,760 --> 00:08:14,760 Speaker 3: statements based by information they got from the Trump organization. 140 00:08:15,320 --> 00:08:17,480 Speaker 3: And so it is, as I said, a bit of 141 00:08:17,480 --> 00:08:20,880 Speaker 3: a circular argument here, where the accounts are saying, we 142 00:08:20,920 --> 00:08:23,520 Speaker 3: did prepare those statements and present them to the upper 143 00:08:23,520 --> 00:08:28,240 Speaker 3: management of the Trump organization, the Trump organization executives Donald 144 00:08:28,240 --> 00:08:31,600 Speaker 3: Trump Junior and Eric Trump and former president travalse they 145 00:08:31,680 --> 00:08:34,560 Speaker 3: relied on the professional advice of those accountants. But then 146 00:08:34,600 --> 00:08:38,080 Speaker 3: the accountants testified during the trial that they created those 147 00:08:38,120 --> 00:08:41,959 Speaker 3: financial statements based by information that came from the Trump organization. 148 00:08:42,679 --> 00:08:44,560 Speaker 3: So at the end of the day, it's hard to 149 00:08:44,600 --> 00:08:48,640 Speaker 3: see here how this judge will not hold the Trump 150 00:08:48,679 --> 00:08:53,920 Speaker 3: executives responsible for making sure that the information in those 151 00:08:53,960 --> 00:08:59,160 Speaker 3: documents was materially accurate. And while there could be errors 152 00:08:59,200 --> 00:09:03,000 Speaker 3: in those documents, and to some extent, the significance of 153 00:09:03,080 --> 00:09:06,440 Speaker 3: those errors and the pervasiveness of them over the years 154 00:09:06,559 --> 00:09:09,040 Speaker 3: is something that I think the judge will take into 155 00:09:09,080 --> 00:09:12,280 Speaker 3: account ultimately in rendering a decision in this case. 156 00:09:12,960 --> 00:09:16,840 Speaker 2: And the judge has already found that fraud was committed, so. 157 00:09:16,880 --> 00:09:19,680 Speaker 3: Now the only issues that are left are a couple 158 00:09:19,679 --> 00:09:22,640 Speaker 3: of claims which go to whether or not there was 159 00:09:22,760 --> 00:09:26,480 Speaker 3: intentional fraud, and then ultimately what are the penalties that 160 00:09:26,520 --> 00:09:29,120 Speaker 3: will be imposed by the court, which could include a 161 00:09:29,120 --> 00:09:31,200 Speaker 3: fine of up to two hundred and fifty million dollars, 162 00:09:31,480 --> 00:09:35,120 Speaker 3: could include barring former President Trump and his sons and 163 00:09:35,160 --> 00:09:37,960 Speaker 3: the Trump organization from operating in the state of New York. 164 00:09:38,280 --> 00:09:41,120 Speaker 3: So the stakes are enormously high, but at this point, 165 00:09:41,200 --> 00:09:44,640 Speaker 3: the trial is all about the penalties essentially, not about 166 00:09:44,720 --> 00:09:45,520 Speaker 3: the liability. 167 00:09:45,559 --> 00:09:48,400 Speaker 2: See coming up next to the Bloomberg law show. I'll 168 00:09:48,440 --> 00:09:53,440 Speaker 2: continue this conversation with former federal prosecutor Robert Mintz. Does 169 00:09:53,440 --> 00:09:56,480 Speaker 2: the defense have its eye on an appeal rather than 170 00:09:56,480 --> 00:09:59,760 Speaker 2: the judge's decision? Here, I'm June Grasso, and you're listening 171 00:09:59,840 --> 00:10:03,559 Speaker 2: to Bloomberg. This week, Donald Trump's legal team kicked off 172 00:10:03,600 --> 00:10:07,440 Speaker 2: its defense in New York States civil fraud trial. I've 173 00:10:07,440 --> 00:10:11,480 Speaker 2: been talking to former federal prosecutor Robert Mintz. So when 174 00:10:11,520 --> 00:10:16,160 Speaker 2: Donald Trump was on the stand, it was a wild 175 00:10:16,240 --> 00:10:19,880 Speaker 2: day in the courtroom. I've never heard of a defendant 176 00:10:19,920 --> 00:10:22,440 Speaker 2: or anyone being on the stand and acting that way 177 00:10:22,480 --> 00:10:25,200 Speaker 2: toward the judge. You know. He would say things like, 178 00:10:25,720 --> 00:10:28,120 Speaker 2: this judge is not going to give me a good ruling, 179 00:10:28,120 --> 00:10:31,640 Speaker 2: this judge is against me. And he would ramble and 180 00:10:31,720 --> 00:10:34,320 Speaker 2: yes or no questions. He wouldn't answer with a yes 181 00:10:34,440 --> 00:10:37,600 Speaker 2: or no, And the judge asked the Trump attorneys to 182 00:10:37,840 --> 00:10:41,760 Speaker 2: try to get their client in line. It appears that 183 00:10:42,080 --> 00:10:46,040 Speaker 2: the defense is going to recall Donald Trump in its case. 184 00:10:46,640 --> 00:10:48,280 Speaker 2: What do you think the point of that would be? 185 00:10:49,240 --> 00:10:51,680 Speaker 3: Well, I think in bringing former president back to the 186 00:10:51,720 --> 00:10:55,160 Speaker 3: stand during the defense case, it gives the defense an 187 00:10:55,240 --> 00:11:02,000 Speaker 3: opportunity to present a more coherent and thematic defense through 188 00:11:02,040 --> 00:11:05,440 Speaker 3: the eyes of former President Trump. It will allow them 189 00:11:05,480 --> 00:11:11,000 Speaker 3: to basically present a scripted and rehearsed presentation where former 190 00:11:11,040 --> 00:11:15,760 Speaker 3: President Trump will be permitted on direct to basically answer 191 00:11:15,800 --> 00:11:18,400 Speaker 3: the questions that his own lawyers are presenting to him 192 00:11:18,679 --> 00:11:22,400 Speaker 3: and present, I think, a much less contentious view of 193 00:11:22,440 --> 00:11:25,760 Speaker 3: this case and paint a picture for the public and 194 00:11:25,800 --> 00:11:29,160 Speaker 3: to some extent, the judge of exactly what his role 195 00:11:29,520 --> 00:11:33,160 Speaker 3: was in this organization. And thankfully, I think at the 196 00:11:33,160 --> 00:11:35,679 Speaker 3: heart of the defense is that when you run an 197 00:11:35,760 --> 00:11:40,160 Speaker 3: organization like the Trump organization, with as many financial statements 198 00:11:40,240 --> 00:11:44,640 Speaker 3: and complicated financial deals involving real estate all over the world, 199 00:11:45,200 --> 00:11:48,120 Speaker 3: he cannot be expected to know the intricacies of all 200 00:11:48,200 --> 00:11:51,199 Speaker 3: these statements. And he has testified that he has made 201 00:11:51,360 --> 00:11:55,560 Speaker 3: suggestions about the valuations of various properties. But the Trump 202 00:11:55,559 --> 00:11:59,280 Speaker 3: defense is that they were just that suggestions, and ultimately 203 00:11:59,320 --> 00:12:02,679 Speaker 3: he relied on his accountants to give him acurate information. 204 00:12:03,720 --> 00:12:07,920 Speaker 2: So not only did Trump sort of egg the judge 205 00:12:07,960 --> 00:12:11,000 Speaker 2: on when he was testifying, and he's egged him on 206 00:12:11,120 --> 00:12:14,120 Speaker 2: by saying things, you know, in violation of the gag 207 00:12:14,280 --> 00:12:18,560 Speaker 2: order about his staff, but it seems like the attorneys also, 208 00:12:19,200 --> 00:12:23,920 Speaker 2: but his attorneys have also been very contentious and argumentative 209 00:12:24,080 --> 00:12:27,160 Speaker 2: with the judge. So it appears that they're making this 210 00:12:27,600 --> 00:12:30,720 Speaker 2: into an issue for appeal. But what does a judge 211 00:12:30,760 --> 00:12:33,760 Speaker 2: have to do for an impellate court to reverse a 212 00:12:33,840 --> 00:12:36,600 Speaker 2: decision of his I mean, how bad does it have 213 00:12:36,720 --> 00:12:37,960 Speaker 2: to get in the courtroom. 214 00:12:38,320 --> 00:12:40,079 Speaker 3: One of the things you're hearing a lot out of 215 00:12:40,120 --> 00:12:43,360 Speaker 3: the Trump defense team and from former President Trump himself 216 00:12:43,440 --> 00:12:46,920 Speaker 3: is that this judge is biased. And what it really 217 00:12:46,960 --> 00:12:51,280 Speaker 3: causes the question is if the judge simply rules against 218 00:12:51,320 --> 00:12:54,000 Speaker 3: you based on the evidence that he hears a trial, 219 00:12:54,240 --> 00:12:57,600 Speaker 3: that does not make him biased. The bias comes in 220 00:12:58,080 --> 00:13:01,839 Speaker 3: if the defense can demonstrate that this judge had prejudged 221 00:13:01,880 --> 00:13:05,240 Speaker 3: this case, that this judge had made other statements relating 222 00:13:05,280 --> 00:13:09,079 Speaker 3: to forever President Trump or to the Trump organization prior 223 00:13:09,120 --> 00:13:12,160 Speaker 3: to this case beginning, or that the judge was considering 224 00:13:12,280 --> 00:13:15,720 Speaker 3: evidence outside of what was presented at court in rendering 225 00:13:15,760 --> 00:13:18,719 Speaker 3: his decision. So I think what we're seeing here as 226 00:13:18,760 --> 00:13:21,679 Speaker 3: part of the defense strategy is that they have already 227 00:13:21,720 --> 00:13:25,400 Speaker 3: reached the conclusion that they are likely to lose not 228 00:13:25,520 --> 00:13:28,640 Speaker 3: only on the liability phase, which has already happened, but 229 00:13:28,679 --> 00:13:31,080 Speaker 3: they're also going to be hit with some very severe 230 00:13:31,120 --> 00:13:33,720 Speaker 3: penalties at the end of this case from this judge, 231 00:13:33,800 --> 00:13:36,920 Speaker 3: and they are already looking beyond the trial court to 232 00:13:36,960 --> 00:13:40,240 Speaker 3: the appeals court, trying to lay the groundwork for a 233 00:13:40,280 --> 00:13:44,160 Speaker 3: successful appeal. And part of a successful appeal sometimes is 234 00:13:44,160 --> 00:13:47,600 Speaker 3: to try to go the judge into doing something that 235 00:13:47,600 --> 00:13:50,520 Speaker 3: the Court of Appeals will decide is reversible error that 236 00:13:50,559 --> 00:13:53,640 Speaker 3: the judge will say something that he shouldn't have said, 237 00:13:53,760 --> 00:13:56,160 Speaker 3: or make a decision that he shouldn't have made, or 238 00:13:56,200 --> 00:13:59,760 Speaker 3: make some kind of impertinent comment that creates an air 239 00:14:00,040 --> 00:14:02,720 Speaker 3: of bias, and then ultimately that can be used to 240 00:14:02,720 --> 00:14:05,840 Speaker 3: try to reverse the results of the case when ultimately 241 00:14:05,880 --> 00:14:07,319 Speaker 3: this judge renders his decision. 242 00:14:07,960 --> 00:14:12,880 Speaker 2: So when former President Trump was in the courthouse, he 243 00:14:12,920 --> 00:14:16,880 Speaker 2: would hold these I call them mini press conferences outside 244 00:14:17,120 --> 00:14:20,680 Speaker 2: the courtroom talking about how unfair the case was, talking 245 00:14:20,720 --> 00:14:24,200 Speaker 2: about you know, the disclaimers, et cetera, et cetera. And 246 00:14:24,800 --> 00:14:30,040 Speaker 2: also the Attorney General, Letitia James, would go outside and 247 00:14:30,080 --> 00:14:33,000 Speaker 2: give a statement to the media. This is another thing 248 00:14:33,000 --> 00:14:35,840 Speaker 2: that stands out, these statements in the middle of the 249 00:14:35,960 --> 00:14:39,360 Speaker 2: trial as very different from most cases. 250 00:14:39,600 --> 00:14:43,640 Speaker 3: This is clearly a case that we've really never seen before. 251 00:14:44,240 --> 00:14:47,600 Speaker 3: The rules that you typically see enforced in any court 252 00:14:47,680 --> 00:14:51,000 Speaker 3: room in this country have really been relaxed in this case. 253 00:14:51,200 --> 00:14:54,880 Speaker 3: The general proposition that underlies any case, whether it be 254 00:14:54,920 --> 00:14:58,680 Speaker 3: civil or criminal, in this country is that the litigants 255 00:14:58,840 --> 00:15:01,800 Speaker 3: are to litigate their case case in the courtroom, that 256 00:15:01,920 --> 00:15:04,760 Speaker 3: statements serving made in the courtroom, that the record is 257 00:15:04,760 --> 00:15:07,960 Speaker 3: created in the courtroom, and the judge will typically draw 258 00:15:08,120 --> 00:15:12,080 Speaker 3: a pretty bright line on that and not allow defense 259 00:15:12,160 --> 00:15:16,200 Speaker 3: lawyers or defendants or prosecutors to try their case in 260 00:15:16,240 --> 00:15:19,080 Speaker 3: the court of public opinion. So it is very unusual 261 00:15:19,120 --> 00:15:23,960 Speaker 3: to see these statements being made by defense lawyers and prosecutors, 262 00:15:24,040 --> 00:15:27,560 Speaker 3: and the defendants themselves making these statements during the course 263 00:15:27,600 --> 00:15:31,200 Speaker 3: of the trial. But again, this is an unusual case 264 00:15:31,600 --> 00:15:35,360 Speaker 3: with unusual issues and unusual parties, And so I think 265 00:15:35,400 --> 00:15:37,640 Speaker 3: we're seeing a case that is being tried in a 266 00:15:37,680 --> 00:15:41,080 Speaker 3: way that we've never really seen before. And what the 267 00:15:41,160 --> 00:15:44,160 Speaker 3: judge is trying to do here, I think, is to 268 00:15:44,200 --> 00:15:48,080 Speaker 3: try to make a decision that ultimately will stand up 269 00:15:48,080 --> 00:15:50,960 Speaker 3: on appeal whatever he ultimately decides, and not give the 270 00:15:51,000 --> 00:15:54,960 Speaker 3: defense grounds try to reverse ultimately the decision in this case. 271 00:15:55,880 --> 00:16:00,640 Speaker 2: If one of Trump's criminal trials goes forward while he's 272 00:16:00,640 --> 00:16:04,400 Speaker 2: still campaigning for the presidency. Will the trial judge be 273 00:16:04,640 --> 00:16:09,040 Speaker 2: able to control him at least in the courtroom, especially 274 00:16:09,080 --> 00:16:12,200 Speaker 2: because there'll be a jury present unlike this case. 275 00:16:12,800 --> 00:16:12,960 Speaker 1: Yeah. 276 00:16:13,000 --> 00:16:14,840 Speaker 3: I mean, you raise a good point, And every judge 277 00:16:14,880 --> 00:16:17,520 Speaker 3: is different. Every judge is given a certain amount of 278 00:16:17,600 --> 00:16:21,280 Speaker 3: latitude as to how they want to run their courtroom. 279 00:16:21,680 --> 00:16:25,280 Speaker 3: So some judges will let defense lawyers get away with 280 00:16:25,360 --> 00:16:28,920 Speaker 3: a lot more than other judges. Again, the eye is 281 00:16:28,960 --> 00:16:31,800 Speaker 3: always towards doing it in a way that's fair and 282 00:16:31,840 --> 00:16:35,080 Speaker 3: that does not unduly hamper the defense or the prosecution 283 00:16:35,480 --> 00:16:38,320 Speaker 3: in a way that creates an issue on appeal. But 284 00:16:38,400 --> 00:16:41,080 Speaker 3: the focus is always more on the defense than the 285 00:16:41,120 --> 00:16:44,400 Speaker 3: prosecution for purposes of appeal. And so I think in 286 00:16:44,440 --> 00:16:47,600 Speaker 3: this case, we're seeing this judge give former President Trump 287 00:16:47,680 --> 00:16:50,280 Speaker 3: on the defense team wide latitude to tell their side 288 00:16:50,320 --> 00:16:53,320 Speaker 3: of the story and even give sort of an infomercial 289 00:16:53,320 --> 00:16:55,760 Speaker 3: about the Trump organization during the course of the trial. 290 00:16:56,000 --> 00:16:59,640 Speaker 3: In the criminal trials, other judges may decide to handle 291 00:16:59,640 --> 00:17:03,280 Speaker 3: the case differently and to try to draw brighter lines 292 00:17:03,320 --> 00:17:07,040 Speaker 3: and enforce rules more rigorously in terms of what they're 293 00:17:07,080 --> 00:17:11,000 Speaker 3: going to allow defense lawyers and defendants to stay outside 294 00:17:11,040 --> 00:17:13,879 Speaker 3: of the courtroom. One of the challenges for any of 295 00:17:13,920 --> 00:17:17,800 Speaker 3: the judges handling the upcoming criminal trials in terms of 296 00:17:18,000 --> 00:17:21,440 Speaker 3: setting rules and limiting the statements that could be made 297 00:17:21,480 --> 00:17:24,120 Speaker 3: outside of the courtroom is that a judge can only 298 00:17:24,280 --> 00:17:28,040 Speaker 3: enforce those roles ultimately by holding a witness in contempt 299 00:17:28,080 --> 00:17:31,080 Speaker 3: if that means finding the witness or potentially jailing the 300 00:17:31,119 --> 00:17:35,639 Speaker 3: witness if a defendant directly violates a judge's ruling on 301 00:17:35,680 --> 00:17:39,840 Speaker 3: a repeated basis. The challenge here for these judges is 302 00:17:39,840 --> 00:17:43,000 Speaker 3: that while they may impose fines, putting for our President 303 00:17:43,000 --> 00:17:46,240 Speaker 3: Trump in jail during the tendency of a trial is 304 00:17:46,280 --> 00:17:49,359 Speaker 3: going to be extremely difficult for them to do, and 305 00:17:49,440 --> 00:17:52,520 Speaker 3: so ultimately one of the tools in the arsenal of 306 00:17:52,640 --> 00:17:55,400 Speaker 3: judges in order to try to rein in what may 307 00:17:55,440 --> 00:17:58,520 Speaker 3: be perceived as it had really defendant is likely not 308 00:17:58,600 --> 00:18:01,120 Speaker 3: available to them during these So I think we're going 309 00:18:01,160 --> 00:18:04,119 Speaker 3: to see judges trying to walk a very fine line 310 00:18:04,480 --> 00:18:07,200 Speaker 3: trying to make sure that they don't let their courtroom 311 00:18:07,440 --> 00:18:10,119 Speaker 3: get out of control. That's something that every judge is 312 00:18:10,200 --> 00:18:13,639 Speaker 3: very mindful of. They are the ones who control their courtroom, 313 00:18:13,800 --> 00:18:16,000 Speaker 3: and you don't want to have a prosecutor or a 314 00:18:16,040 --> 00:18:20,040 Speaker 3: defense lawyer or a defendant run a muck in your courtroom. Remember, 315 00:18:20,119 --> 00:18:22,960 Speaker 3: these will be jury trials, unlike the trial that's going 316 00:18:23,040 --> 00:18:26,399 Speaker 3: on in New York now with the AG's office, and 317 00:18:26,480 --> 00:18:30,040 Speaker 3: so how a judge handles his or her courtroom in 318 00:18:30,040 --> 00:18:32,720 Speaker 3: front of those jurors is going to be critical. The 319 00:18:32,840 --> 00:18:36,520 Speaker 3: judge is the final word on all of the legal rulings, 320 00:18:36,680 --> 00:18:39,320 Speaker 3: and in order to show command of the courtroom, a 321 00:18:39,440 --> 00:18:43,520 Speaker 3: judge has to control the defense, has to control the prosecutors, 322 00:18:43,560 --> 00:18:45,960 Speaker 3: has to control the defendants. It's going to be very 323 00:18:46,000 --> 00:18:50,080 Speaker 3: interesting to see how each of these judges handle that challenge. 324 00:18:49,640 --> 00:18:52,080 Speaker 2: And a challenge it will be. Thanks so much, Bob. 325 00:18:52,640 --> 00:18:55,800 Speaker 2: That's Robert Men's a partner met Carter in English. Coming 326 00:18:55,880 --> 00:19:00,320 Speaker 2: up next on the Bloomberg Law Show, robocalls targeting thesevoters 327 00:19:00,359 --> 00:19:04,119 Speaker 2: with misinformation may turn out to be legal in Michigan. 328 00:19:04,520 --> 00:19:08,159 Speaker 2: I'm June Gross. When you're listening to Bloomberg mailman, voting. 329 00:19:08,040 --> 00:19:11,040 Speaker 5: Sounds great, but did you know that if you vote 330 00:19:11,040 --> 00:19:13,800 Speaker 5: by mail, your personal information will be part of the 331 00:19:13,960 --> 00:19:16,960 Speaker 5: public database that will be used by police to starts, 332 00:19:17,000 --> 00:19:19,919 Speaker 5: to track down bold warrant and to use our credits 333 00:19:19,960 --> 00:19:22,440 Speaker 5: our companies to collect outstanding debts. 334 00:19:22,480 --> 00:19:26,720 Speaker 2: About twelve thousand residents of Detroit got that robo call 335 00:19:26,800 --> 00:19:30,879 Speaker 2: in twenty twenty, falsely claiming that police, creditors and the 336 00:19:30,960 --> 00:19:35,320 Speaker 2: CDC could use mail in voting data to issue warrants, 337 00:19:35,359 --> 00:19:39,760 Speaker 2: collect on debts, and push mandatory vaccines. It was part 338 00:19:39,800 --> 00:19:44,520 Speaker 2: of a campaign of misinformation by Republican operatives Jack Berkman 339 00:19:44,680 --> 00:19:48,760 Speaker 2: and Jacob Wall to deter black Detroiters from voting in 340 00:19:48,760 --> 00:19:53,000 Speaker 2: the twenty twenty presidential election. The Michigan Attorney General filed 341 00:19:53,119 --> 00:19:58,240 Speaker 2: charges against them, including felony voter intimidation, but Berkman and 342 00:19:58,320 --> 00:20:02,520 Speaker 2: Wall are asking the Michigan's Supreme Court to toss those charges, 343 00:20:02,840 --> 00:20:06,280 Speaker 2: claiming the US Constitution gives them the right to put 344 00:20:06,320 --> 00:20:10,160 Speaker 2: out those misleading robo calls. Joining me is First Amendment 345 00:20:10,240 --> 00:20:14,320 Speaker 2: expert Eugene Volik, a professor at UCLA Law School, is 346 00:20:14,359 --> 00:20:18,480 Speaker 2: this conflict the role of the state to protect voters 347 00:20:18,600 --> 00:20:24,760 Speaker 2: from intimidation and the Constitution's protections for speech political speech? 348 00:20:25,320 --> 00:20:27,760 Speaker 2: Is this at the heart of a lot of US 349 00:20:27,800 --> 00:20:28,800 Speaker 2: election laws. 350 00:20:29,240 --> 00:20:33,280 Speaker 4: Depends what you mean by intimidation, So there's no doubt 351 00:20:33,400 --> 00:20:37,560 Speaker 4: that trying to intimidate voters by threatening violence against them 352 00:20:38,160 --> 00:20:41,000 Speaker 4: is a crime, and there's no First Amendment defense for 353 00:20:41,200 --> 00:20:45,240 Speaker 4: threats of violence. On the other hand, courts have generally 354 00:20:45,280 --> 00:20:49,399 Speaker 4: been quite skeptical, especially in recent years, of attempts to 355 00:20:49,520 --> 00:20:53,880 Speaker 4: police false statements in election campaigns. So there have been 356 00:20:53,960 --> 00:20:59,119 Speaker 4: laws that ban knowingly full statements in election campaigns outright lies, 357 00:20:59,160 --> 00:21:02,439 Speaker 4: and the courts still struck down those laws, chiefly because 358 00:21:02,440 --> 00:21:05,960 Speaker 4: they basically put too much power in the government's hands 359 00:21:06,000 --> 00:21:08,359 Speaker 4: to decide what is true and what is false in 360 00:21:08,400 --> 00:21:11,320 Speaker 4: an election campaign, with too much risk of kind of 361 00:21:11,359 --> 00:21:15,960 Speaker 4: political enforcement. And part of the problem with the law 362 00:21:16,080 --> 00:21:19,520 Speaker 4: in this case is that, at least in the government's 363 00:21:19,600 --> 00:21:24,920 Speaker 4: understanding of it, it applies to basically trying to get 364 00:21:24,920 --> 00:21:28,480 Speaker 4: people not to vote or to vote differently through either 365 00:21:28,720 --> 00:21:34,320 Speaker 4: possibly misleading statements about possible risks to them, or perhaps 366 00:21:34,520 --> 00:21:38,160 Speaker 4: times the government's just any statements that essentially use fear 367 00:21:38,200 --> 00:21:42,400 Speaker 4: in order to change people's votes. That's a very broad category, 368 00:21:42,560 --> 00:21:46,480 Speaker 4: especially given that the statute here talks about attempt by 369 00:21:46,520 --> 00:21:49,919 Speaker 4: means of menace or other corrupt means or device to 370 00:21:50,200 --> 00:21:53,840 Speaker 4: influence and elector's vote. So it looks like under the 371 00:21:53,880 --> 00:21:58,320 Speaker 4: government's theory, if there was a message sent out as saying, 372 00:21:58,520 --> 00:22:03,919 Speaker 4: if you vote for Trump, he's going to send your 373 00:22:04,000 --> 00:22:07,320 Speaker 4: children off to some war. Let's say that's an attempt 374 00:22:07,320 --> 00:22:11,240 Speaker 4: to use fear, it's possibly an attempt to use misleading statements. 375 00:22:11,280 --> 00:22:13,200 Speaker 4: He's going to do that. How do we know he's 376 00:22:13,240 --> 00:22:16,800 Speaker 4: going to do that? So generally speaking, most courts would 377 00:22:16,800 --> 00:22:19,560 Speaker 4: say that's not something you can police for that the 378 00:22:19,600 --> 00:22:23,200 Speaker 4: government can police for in elections. And yet, under the 379 00:22:23,800 --> 00:22:27,280 Speaker 4: state's theory in this case, it's possible that the law 380 00:22:27,400 --> 00:22:28,600 Speaker 4: is as broad as that. 381 00:22:29,240 --> 00:22:32,119 Speaker 2: During your World arguments, the Michigan Deputy so Listener General 382 00:22:32,160 --> 00:22:37,040 Speaker 2: said the law only prohibits false statements about the voting process, 383 00:22:37,160 --> 00:22:41,240 Speaker 2: the procedures of voting, and not those that impact which 384 00:22:41,359 --> 00:22:44,879 Speaker 2: candidates get support. So you think that the law is 385 00:22:44,960 --> 00:22:46,000 Speaker 2: much broader than. 386 00:22:45,840 --> 00:22:48,680 Speaker 4: That, Well, let's look at what the statute says. It 387 00:22:48,720 --> 00:22:51,440 Speaker 4: says a person shall not attempt, by means of bribery, 388 00:22:51,800 --> 00:22:55,600 Speaker 4: that's not an issue here, menace or other corrupt means 389 00:22:55,720 --> 00:22:59,960 Speaker 4: or device, either directly or indirectly, to influence an elector 390 00:23:00,119 --> 00:23:02,960 Speaker 4: that means voter in giving his or her vote, or 391 00:23:03,000 --> 00:23:06,120 Speaker 4: to deter the elector from or interrupt the elector in 392 00:23:06,200 --> 00:23:08,800 Speaker 4: giving his or her vote at any election held in 393 00:23:08,840 --> 00:23:12,880 Speaker 4: this state. Nothing there says this only has to do 394 00:23:13,359 --> 00:23:16,720 Speaker 4: with all statements about the mechanics of voting, or in 395 00:23:16,760 --> 00:23:20,280 Speaker 4: this case, about the dangers of voting, such as claims 396 00:23:20,320 --> 00:23:22,760 Speaker 4: that if you vote by mail, the government will do 397 00:23:22,840 --> 00:23:25,640 Speaker 4: bad things to you. There's no limitation there to these 398 00:23:25,640 --> 00:23:29,679 Speaker 4: statements about mechanics of voting. It covers any state that seeks, 399 00:23:29,720 --> 00:23:33,200 Speaker 4: either directly or indirectly to influence an elector in giving 400 00:23:33,240 --> 00:23:35,760 Speaker 4: his or her vote, so that is, to stay in 401 00:23:35,920 --> 00:23:39,120 Speaker 4: perhaps voting for one side rather than another side. If 402 00:23:39,160 --> 00:23:42,360 Speaker 4: the statute were limited to false statements about the mechanics 403 00:23:42,400 --> 00:23:45,960 Speaker 4: of voting, in the sense of false statements that about 404 00:23:46,000 --> 00:23:48,840 Speaker 4: where to go or when to go, or the exact 405 00:23:48,880 --> 00:23:52,680 Speaker 4: mechanisms for voting, I do think that would be constitutional 406 00:23:52,760 --> 00:23:55,520 Speaker 4: precisely because it would be very narrow. But there is 407 00:23:55,560 --> 00:23:58,000 Speaker 4: no such limitation in the statute. And of course, in 408 00:23:58,040 --> 00:24:02,040 Speaker 4: this particular case, the statement it's weren't about how to vote. 409 00:24:02,160 --> 00:24:05,240 Speaker 4: The statements were claimed that if you vote by mail, 410 00:24:05,720 --> 00:24:08,320 Speaker 4: then the government will have all this information about you 411 00:24:08,359 --> 00:24:13,400 Speaker 4: that it will misuse. That's moving away from statements about 412 00:24:13,440 --> 00:24:16,680 Speaker 4: the mechanics of voting. And moving to statements about alleged 413 00:24:16,760 --> 00:24:20,879 Speaker 4: possible government misconduct in the future. But in any event, 414 00:24:21,280 --> 00:24:25,719 Speaker 4: courts generally read statutes as they are written. Sometimes they 415 00:24:25,760 --> 00:24:29,760 Speaker 4: impose narrowing constructions that are justified by the text. But 416 00:24:29,960 --> 00:24:33,080 Speaker 4: here the text doesn't seem to have anything in it 417 00:24:33,640 --> 00:24:36,480 Speaker 4: like the limitation onto the mechanics of voting that the 418 00:24:36,480 --> 00:24:37,639 Speaker 4: state government was urging. 419 00:24:38,400 --> 00:24:42,080 Speaker 2: And so some of the things the justices questioned. One 420 00:24:42,240 --> 00:24:45,800 Speaker 2: justice question, Justice Welch, what about the scenario of the 421 00:24:45,880 --> 00:24:49,320 Speaker 2: millions of mailers we get? What if someone says, don't vote, 422 00:24:49,320 --> 00:24:54,040 Speaker 2: they're all crooks? And another Justice, David Viviano, wondered whether 423 00:24:54,200 --> 00:24:57,080 Speaker 2: the statue could be used to charge someone like Trump 424 00:24:57,160 --> 00:25:01,840 Speaker 2: over his frequent statements that the absentie voting process is rigged. 425 00:25:02,520 --> 00:25:05,399 Speaker 2: So does it seem like the justices were keying in 426 00:25:05,440 --> 00:25:06,280 Speaker 2: to what you just said? 427 00:25:07,240 --> 00:25:07,440 Speaker 5: Right? 428 00:25:07,600 --> 00:25:09,800 Speaker 4: I think the justices are worried that the statute in 429 00:25:09,840 --> 00:25:13,680 Speaker 4: its face is very broad and indeed claims don't vote 430 00:25:13,680 --> 00:25:17,879 Speaker 4: by absentee, the absentee process is rigged. Under the government's theory, 431 00:25:17,920 --> 00:25:20,000 Speaker 4: they may not be menacing in the sense that they 432 00:25:20,000 --> 00:25:23,199 Speaker 4: don't have the element of possible threat that the government 433 00:25:23,240 --> 00:25:25,960 Speaker 4: will do something to you, but under the government theory, 434 00:25:26,119 --> 00:25:28,840 Speaker 4: that would be a corrupt means or device because it 435 00:25:28,840 --> 00:25:32,800 Speaker 4: would be misleading or outright falls. So I think the 436 00:25:33,080 --> 00:25:37,080 Speaker 4: justices are recognizing that the statute has written quite broadly. 437 00:25:37,480 --> 00:25:41,360 Speaker 4: It may well be that a narrower statute would be constitutional. 438 00:25:41,560 --> 00:25:43,639 Speaker 4: It may well be that there's a narrower statute that 439 00:25:43,680 --> 00:25:47,520 Speaker 4: would be both constitutional and broad enough to cover the 440 00:25:47,680 --> 00:25:51,119 Speaker 4: speech of these particular defendants, But I'm not sure that 441 00:25:51,240 --> 00:25:54,440 Speaker 4: this statute is one such. I think the statute could 442 00:25:54,440 --> 00:25:57,680 Speaker 4: be read quite narrowly as saying menace is threat of violence, 443 00:25:58,000 --> 00:26:01,520 Speaker 4: and corrupt means or device is some thing like versions 444 00:26:01,560 --> 00:26:04,560 Speaker 4: of bribery or extortion or some such. If it's read 445 00:26:04,560 --> 00:26:07,920 Speaker 4: that narrowly, then there wouldn't be a constitutional problem with it. 446 00:26:08,080 --> 00:26:10,920 Speaker 4: But also the same time, the defendants wouldn't be covered 447 00:26:10,960 --> 00:26:15,480 Speaker 4: by the statute. But its corrupt means includes misleading statements, 448 00:26:15,520 --> 00:26:18,880 Speaker 4: and menace means kind of indirect threat that one day 449 00:26:18,920 --> 00:26:22,080 Speaker 4: that the government might do something bad to you if 450 00:26:22,119 --> 00:26:25,280 Speaker 4: you vote, or if you vote a particular way. Then 451 00:26:25,400 --> 00:26:30,240 Speaker 4: it becomes really potentially very broad and probably unconstitutionally overbroad. 452 00:26:30,840 --> 00:26:33,480 Speaker 2: So I want to hit your take on Judge Richard Bernstein, 453 00:26:33,920 --> 00:26:35,760 Speaker 2: who seemed to be one of the justices who was 454 00:26:36,160 --> 00:26:40,360 Speaker 2: promoting the state side, said, basically, the whole idea here 455 00:26:40,520 --> 00:26:43,040 Speaker 2: was that the goal what they did was to interfere 456 00:26:43,080 --> 00:26:46,720 Speaker 2: and cause confusion about the process and procedure. And that 457 00:26:46,880 --> 00:26:50,320 Speaker 2: means all the Attorney General is basically arguing is that 458 00:26:50,400 --> 00:26:52,919 Speaker 2: you can say whatever you want, if you want the 459 00:26:52,960 --> 00:26:55,600 Speaker 2: way you want, but if you knowingly engage in a 460 00:26:55,680 --> 00:26:59,720 Speaker 2: process that endangered the integrity of the voting procedure, that's 461 00:27:00,440 --> 00:27:01,199 Speaker 2: that's the question. 462 00:27:01,840 --> 00:27:06,160 Speaker 4: Well, it's hard to evaluate that without knowing what endangers 463 00:27:06,200 --> 00:27:09,560 Speaker 4: the integrity of the voting procedure. Means that's not part 464 00:27:09,600 --> 00:27:13,200 Speaker 4: of the statute. But if you want to graft that limitation, 465 00:27:13,280 --> 00:27:15,560 Speaker 4: the question is how much of a limitation is it. 466 00:27:15,880 --> 00:27:19,359 Speaker 4: For example, some people do argue that any attempts to 467 00:27:19,440 --> 00:27:23,880 Speaker 4: mislead the voters and especially to lie to voters, not 468 00:27:24,000 --> 00:27:27,679 Speaker 4: just about what happens if you vote by mail, but 469 00:27:27,760 --> 00:27:30,800 Speaker 4: also what happens if some candidates is elected or something 470 00:27:30,920 --> 00:27:35,000 Speaker 4: like that would be an interference with the integrity of elections. 471 00:27:35,119 --> 00:27:36,959 Speaker 4: That's the basis for a lot of these laws that 472 00:27:37,080 --> 00:27:40,359 Speaker 4: try to ban lize in election campaigns and the courts 473 00:27:40,359 --> 00:27:44,120 Speaker 4: have generally struck them down. Now, again, if this has 474 00:27:44,200 --> 00:27:48,280 Speaker 4: to do with just information about the mechanics of voting, 475 00:27:48,520 --> 00:27:50,680 Speaker 4: that you can interfere with the integrity of the voting 476 00:27:50,680 --> 00:27:54,280 Speaker 4: process by saying to people, oh, you need to vote, 477 00:27:54,480 --> 00:27:56,800 Speaker 4: You can vote until ten in the evening. Whereas it 478 00:27:56,840 --> 00:27:58,920 Speaker 4: turns out that the polls and you know this, that 479 00:27:59,000 --> 00:28:02,680 Speaker 4: the polls close itself. That again would be a narrow 480 00:28:02,800 --> 00:28:05,560 Speaker 4: enough statute. I just don't see that limitation in the 481 00:28:05,600 --> 00:28:08,920 Speaker 4: text of the statute. And what's more, that may be 482 00:28:09,080 --> 00:28:12,640 Speaker 4: too narrow to get these defendants convicted. On the other hand, 483 00:28:12,720 --> 00:28:16,760 Speaker 4: if you're saying, well, under the statute, you can't mislead 484 00:28:16,840 --> 00:28:20,920 Speaker 4: people into thinking that the government might misuse information about 485 00:28:20,960 --> 00:28:24,800 Speaker 4: your voting. But it's okay to mislead people into thinking 486 00:28:24,840 --> 00:28:27,200 Speaker 4: that if you elect some candidate he will do some 487 00:28:27,680 --> 00:28:31,320 Speaker 4: bad things things that may not even be constitutionally empowered 488 00:28:31,359 --> 00:28:35,359 Speaker 4: to do. Then that's a strange distinction that doesn't seem 489 00:28:35,400 --> 00:28:38,480 Speaker 4: to be covered on the text of the statute. Note again, 490 00:28:38,520 --> 00:28:41,880 Speaker 4: the statute doesn't just talk about attempts to keep people 491 00:28:41,920 --> 00:28:46,360 Speaker 4: from voting. It also equally prohibits attempts to influence an 492 00:28:46,400 --> 00:28:50,120 Speaker 4: elector in giving his or her vote. So that includes 493 00:28:50,160 --> 00:28:52,720 Speaker 4: attempts to just get people to vote for one candidate 494 00:28:52,800 --> 00:28:55,520 Speaker 4: rather than another. Those seem to have little to do 495 00:28:55,600 --> 00:28:57,880 Speaker 4: with that distinction that the Justice suggested. 496 00:28:58,760 --> 00:29:03,800 Speaker 2: So a similar prohibition on bribery, intimidation, and corrupt interference 497 00:29:03,880 --> 00:29:07,480 Speaker 2: with voting has existed in New York since before the 498 00:29:07,520 --> 00:29:12,120 Speaker 2: country's founding. So is it likely that the New York 499 00:29:12,240 --> 00:29:15,280 Speaker 2: law is not as broad as the Michigan law. 500 00:29:15,680 --> 00:29:17,680 Speaker 4: Yeah, I'm sorry I can't speak to the New York 501 00:29:17,720 --> 00:29:21,160 Speaker 4: law just because I haven't read it. But again, there's 502 00:29:21,200 --> 00:29:24,520 Speaker 4: nothing odd about the government saying you can't attempt by 503 00:29:24,560 --> 00:29:27,600 Speaker 4: means of bribery, menace, or corrupt means or device to 504 00:29:27,680 --> 00:29:31,120 Speaker 4: do things. Bribery is, in general a crime. There's no 505 00:29:31,160 --> 00:29:35,440 Speaker 4: First Amendment problem. Menace, if read to mean true threats 506 00:29:35,440 --> 00:29:39,000 Speaker 4: of illegal conduct, is also punishable. There's an exceptions the 507 00:29:39,000 --> 00:29:42,080 Speaker 4: First Amendment, and again corrupt means or device. If you 508 00:29:42,120 --> 00:29:45,000 Speaker 4: think of corruptions the way we normally think of corruptions, 509 00:29:45,000 --> 00:29:49,480 Speaker 4: such as bribery or possibly extortion and the like, there's 510 00:29:49,480 --> 00:29:53,040 Speaker 4: no problem punishing that. The question is how broadly those 511 00:29:53,120 --> 00:29:56,880 Speaker 4: terms are read. If they're read, for example, if corrupt 512 00:29:56,880 --> 00:30:02,880 Speaker 4: means or device is read to include false or misleading statements, 513 00:30:03,440 --> 00:30:06,920 Speaker 4: in this case misleading predictions about what the government will 514 00:30:07,000 --> 00:30:10,760 Speaker 4: do will supposedly do. That makes the statute much broader. 515 00:30:10,760 --> 00:30:13,440 Speaker 4: So you can imagine exactly the same statute in a 516 00:30:13,440 --> 00:30:16,560 Speaker 4: different state that there's no constitutional problem with because it's 517 00:30:16,600 --> 00:30:18,880 Speaker 4: been read very narrowly. I can't speak to whether New 518 00:30:18,960 --> 00:30:21,479 Speaker 4: York is like that. But the problem here isn't just 519 00:30:21,560 --> 00:30:24,600 Speaker 4: with the text of the statute. It's a combination of 520 00:30:24,640 --> 00:30:27,320 Speaker 4: the text of the statute with the way that the 521 00:30:27,360 --> 00:30:29,120 Speaker 4: government is broadly interpreting it. 522 00:30:29,400 --> 00:30:32,680 Speaker 2: Are there a lot of challenges to laws against robo calls? 523 00:30:33,480 --> 00:30:36,920 Speaker 4: Well, you know, a lot depends on the particular law. 524 00:30:36,960 --> 00:30:40,000 Speaker 4: First of all, to my knowledge in the political context, 525 00:30:40,000 --> 00:30:42,120 Speaker 4: that there's not a vast number of suchel though that 526 00:30:42,240 --> 00:30:45,400 Speaker 4: probably are some. But when you would talk about laws 527 00:30:45,440 --> 00:30:48,880 Speaker 4: against robo calls, we have to distinguish what kind of 528 00:30:48,960 --> 00:30:51,360 Speaker 4: laws they are. So, for example, there are certainly called 529 00:30:51,480 --> 00:30:56,720 Speaker 4: that limit commercial unwanted phone calls, or you can imagine 530 00:30:56,760 --> 00:31:01,560 Speaker 4: a content neutral law that says that you can't call 531 00:31:01,800 --> 00:31:04,360 Speaker 4: people who are on the do not Call list. Not 532 00:31:04,480 --> 00:31:07,600 Speaker 4: much of a problem generally speaking. It may restrict your speech, 533 00:31:07,640 --> 00:31:09,800 Speaker 4: but nobody is a right to press their ideas and 534 00:31:09,840 --> 00:31:12,800 Speaker 4: an unwilling listener in that kind of way. This law 535 00:31:12,960 --> 00:31:15,680 Speaker 4: is not actually a law that's about robo calls. It's 536 00:31:15,720 --> 00:31:19,520 Speaker 4: not limited to robo calls. There's nothing about that. Rather, 537 00:31:19,800 --> 00:31:22,120 Speaker 4: it is a law that, as the government is interpreting, 538 00:31:22,160 --> 00:31:26,360 Speaker 4: it is prohibiting speech with that conveys certain messages, messages 539 00:31:26,400 --> 00:31:29,920 Speaker 4: that the government views as misleading. That does raise more 540 00:31:29,920 --> 00:31:31,880 Speaker 4: of an issue, and again it makes it a lot 541 00:31:31,960 --> 00:31:36,400 Speaker 4: more like those laws that I mentioned earlier in various 542 00:31:36,440 --> 00:31:40,280 Speaker 4: states that ban not just misleading but knowingly false statements 543 00:31:40,280 --> 00:31:43,720 Speaker 4: in election campaigns that have been challenged and have been 544 00:31:43,720 --> 00:31:47,200 Speaker 4: struck down as giving the government too much power to 545 00:31:47,360 --> 00:31:51,520 Speaker 4: affect elections by claiming certain kinds of statements are false. 546 00:31:51,800 --> 00:31:53,520 Speaker 2: I hope you'll come back when we find out how 547 00:31:53,520 --> 00:31:57,840 Speaker 2: the Michigan Supreme Court rules in this case. Thanks so much, Eugene. 548 00:31:57,960 --> 00:32:01,640 Speaker 2: That's Professor Eugene Volok of you Yely Law School.