Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: They have nothing as it relates to a case other
Speaker 1: than I guess an overzealous attorney general who would destroy
Speaker 1: all of New York business by going after transactions where
Speaker 1: there are no victims.
Speaker 2: Donald Trump's legal team kicked off its defense in New
Speaker 2: York State's civil fraud trial with a return appearance by
Speaker 2: his eldest son, Don Junior, who raved about his family's
Speaker 2: real estate assets and called his father an artist with
Speaker 2: real estate. For six weeks, New York Attorney General Letitia
Speaker 2: James has presented her case alleging at the former president
Speaker 2: inflated the value of his assets by billions of dollars
Speaker 2: for more than a decade to do banks and insurers
Speaker 2: into giving him better terms. Though Donald Trump Junior was
Speaker 2: relaxed on the stand and joke with the judge unlike
Speaker 2: his father, his testimony did echo his father's, illustrating a
Speaker 2: central defense argument that the Trump properties are extremely valuable
Speaker 2: and the company's annual financial statements, if anything, underrated them.
Speaker 2: And outside the courthouse there was the familiar no harm,
Speaker 2: no foul refrain.
Speaker 1: But you guys have got to think about the precedent
Speaker 1: that this case sets if an attorney general can years later,
Speaker 1: after all parties of transactions are paid back in full
Speaker 1: with interest, making hundreds of millions of dollars where they
Speaker 1: have no complaint where they said they wouldn't have done
Speaker 1: anything differently, where every witness, as it relates to my
Speaker 1: brother and I, every witness that the Attorney General has called,
Speaker 1: have said that my brother and I were not involved
Speaker 1: in the statement of financial condition.
Speaker 2: Joining me is former federal prosecutor Robert Mintz, a partner
Speaker 2: maccarter and English. So Bob Don Junior waxed poetic about
Speaker 2: his father's genius for real estate and the family's real
Speaker 2: estate holdings. Why did the defense recall him?
Speaker 3: I think Donald Trump Junior was attempting to present a
Speaker 3: more relaxed, less contentious approach to the judge in their
Speaker 3: defense case in chief, and what the judge allowed him
Speaker 3: to do was to really paint a picture, literally of
Speaker 3: the Trump organization. They showed glossy magazine type images of
Speaker 3: the inturiers and exteriors of various Trump properties around the world,
Speaker 3: and the judge, even when so far over the objection
Speaker 3: of the State AG's office, who allowed Donald Trump Junior
Speaker 3: to give a history of the Trump family going back
Speaker 3: to the nineteen hundreds, to talk about how his great
Speaker 3: grandfather had made a fortune during the Klondike Gold Rush,
Speaker 3: and his grandfather had developed apartments in Brooklyn and Queens
Speaker 3: and really, from the Trump defense standpoint, trying to set
Speaker 3: the stage for just how the Trump organization began decades
Speaker 3: ago and where where it was today and ultimately bringing
Speaker 3: the case up to today's time, and pointing out that
Speaker 3: his father was really a visionary, somebody who saw where
Speaker 3: the real estate market was going in Manhattan long before
Speaker 3: others could see it. And underlying all of that was
Speaker 3: really an attempt to try to convince the judge or
Speaker 3: perhaps the public, that Donald Trump is being misunderstood and
Speaker 3: being unfairly treated here because he is more of a
Speaker 3: visionary than he is a businessman, in the sense that
Speaker 3: he is not someone who gets down to the nuts
Speaker 3: and bolt of the financial filings. He is more of
Speaker 3: a so called big preture person who is able to
Speaker 3: identify real estate trends before anybody else and to develop
Speaker 3: them for great financial gain.
Speaker 2: So the Attorney General alleges that Trump's Los Angeles golf
Speaker 2: course was overvalued by almost fifty million dollars. Donald Trump
Speaker 2: Junior focused on the beauty of the course and the
Speaker 2: views of the Pacific. But then the eight lawyers said,
Speaker 2: didn't the eighteenth hole fall into the ocean? The thing
Speaker 2: is the Trump say that valuations are subjective. But they're subjective,
Speaker 2: and you know, a little puffery and then there's wildly
Speaker 2: unconnected to reality.
Speaker 3: Well, you're right. The heart of the Attorney General's lawsuit
Speaker 3: are documents known as statements of financial conditions, which are
Speaker 3: the balance sheet that the Trump organization used to demonstrate
Speaker 3: the value of its properties and mister Trump's network so
Speaker 3: they could obtain loans and insurance rates. And essentially, what
Speaker 3: the AG's office has a legs here is that the
Speaker 3: Trump organization inflated the value of the Trump properties in
Speaker 3: order to do banks and ensures into giving them better terms,
Speaker 3: reaping a two hundred and fifty million dollars gain in
Speaker 3: illegal profit. According to the AG's office, the heart of
Speaker 3: the Trump organization's defense is that these financial statements contain
Speaker 3: a disclaimer that essentially as they're entirely worthless and that
Speaker 3: no bank should rely upon them. And part of what's
Speaker 3: gone on over and over again during the course of
Speaker 3: this case, this has been argued multiple times for this judge,
Speaker 3: and that actually has gone up on appeal twice, and
Speaker 3: the judge has been affirmed. But the defense over and
Speaker 3: over again is saying that these financial statements cannot be
Speaker 3: relied upon. They were dealing with a sophisticated bank in
Speaker 3: Deutsche Bank, and Deutsche Bank did its own due diligence
Speaker 3: rather than relied upon these financial statements in making decisions
Speaker 3: about whether or not to extend loans to the Trump organization.
Speaker 2: And Trump keeps talking about, both inside the courtroom and
Speaker 2: outside the courtroom, that disclaimer. He sort of presents it
Speaker 2: as a get out of jail free card. The judge,
Speaker 2: as you say, has rejected the disclaimer argument over and over.
Speaker 2: Why do you think the defense keeps raising it? Do
Speaker 2: you think it's more for the public than for the judge?
Speaker 2: He said at one point, it's worthless.
Speaker 3: The disclaimer defense, which is really at the heart of
Speaker 3: the defense strategy here, is being played not only to
Speaker 3: the court and ultimately on appeal, because that's where this
Speaker 3: case is headed, but also to the court of public opinion.
Speaker 3: And it's thankly what the Trump defense argues is that
Speaker 3: this is the case with no victims and no injury.
Speaker 3: They point out that Deutsche Bank was a sophisticated lender.
Speaker 3: They are apparently going to put on Deutsche Bank witnesses
Speaker 3: who will testify as to how eager they were to
Speaker 3: lend money to the Trump organization. They will point out
Speaker 3: that Deutsche Bank made millions of dollars from the loans
Speaker 3: that they made to the Trump organization, that the Trump
Speaker 3: organization never defaulted on any of these loans, never had
Speaker 3: any late payments, And ultimately, the question here is whether
Speaker 3: or not there is a victim, whether or not anybody
Speaker 3: was harmed, or whether this was simply business as usual
Speaker 3: in the real estate industry. That's the contention that this
Speaker 3: judge has already rejected, but it will be an issue
Speaker 3: that will go up on appeal at the end of
Speaker 3: his case.
Speaker 2: Central to the AG's case are the statements of financial
Speaker 2: condition that Trump had his accountants sent to lenders that
Speaker 2: detail his assets and their values, and the State of
Speaker 2: New York alleges he inflated his net worth by as
Speaker 2: much as three point six billion dollars a year to
Speaker 2: get better terms on loans and insurance, so Now, when
Speaker 2: Trump was on the stand, he acknowledged he had a
Speaker 2: hand in preparing the financial statements, and Ivanka Trump said
Speaker 2: that that was her father's signature on the financial statements.
Speaker 2: Eric Trump said they were accurate, even though the judge
Speaker 2: determined that they were fraudulent. So the ag has that
Speaker 2: part of her case sewn up.
Speaker 4: Yeah.
Speaker 3: I think one of the problems with the defense case
Speaker 3: is that it's a bit of a circular argument on
Speaker 3: this point. What the Trump organization has argued is that
Speaker 3: it relied on the professional advice of its accountants who
Speaker 3: prepared those financial statements and signed those statements, in reliance
Speaker 3: on the accountants submitting the information to them. When the
Speaker 3: accounts took the stand, they said that they prepared the
Speaker 3: statements based by information they got from the Trump organization.
Speaker 3: And so it is, as I said, a bit of
Speaker 3: a circular argument here, where the accounts are saying, we
Speaker 3: did prepare those statements and present them to the upper
Speaker 3: management of the Trump organization, the Trump organization executives Donald
Speaker 3: Trump Junior and Eric Trump and former president travalse they
Speaker 3: relied on the professional advice of those accountants. But then
Speaker 3: the accountants testified during the trial that they created those
Speaker 3: financial statements based by information that came from the Trump organization.
Speaker 3: So at the end of the day, it's hard to
Speaker 3: see here how this judge will not hold the Trump
Speaker 3: executives responsible for making sure that the information in those
Speaker 3: documents was materially accurate. And while there could be errors
Speaker 3: in those documents, and to some extent, the significance of
Speaker 3: those errors and the pervasiveness of them over the years
Speaker 3: is something that I think the judge will take into
Speaker 3: account ultimately in rendering a decision in this case.
Speaker 2: And the judge has already found that fraud was committed, so.
Speaker 3: Now the only issues that are left are a couple
Speaker 3: of claims which go to whether or not there was
Speaker 3: intentional fraud, and then ultimately what are the penalties that
Speaker 3: will be imposed by the court, which could include a
Speaker 3: fine of up to two hundred and fifty million dollars,
Speaker 3: could include barring former President Trump and his sons and
Speaker 3: the Trump organization from operating in the state of New York.
Speaker 3: So the stakes are enormously high, but at this point,
Speaker 3: the trial is all about the penalties essentially, not about
Speaker 3: the liability.
Speaker 2: See coming up next to the Bloomberg law show. I'll
Speaker 2: continue this conversation with former federal prosecutor Robert Mintz. Does
Speaker 2: the defense have its eye on an appeal rather than
Speaker 2: the judge's decision? Here, I'm June Grasso, and you're listening
Speaker 2: to Bloomberg. This week, Donald Trump's legal team kicked off
Speaker 2: its defense in New York States civil fraud trial. I've
Speaker 2: been talking to former federal prosecutor Robert Mintz. So when
Speaker 2: Donald Trump was on the stand, it was a wild
Speaker 2: day in the courtroom. I've never heard of a defendant
Speaker 2: or anyone being on the stand and acting that way
Speaker 2: toward the judge. You know. He would say things like,
Speaker 2: this judge is not going to give me a good ruling,
Speaker 2: this judge is against me. And he would ramble and
Speaker 2: yes or no questions. He wouldn't answer with a yes
Speaker 2: or no, And the judge asked the Trump attorneys to
Speaker 2: try to get their client in line. It appears that
Speaker 2: the defense is going to recall Donald Trump in its case.
Speaker 2: What do you think the point of that would be?
Speaker 3: Well, I think in bringing former president back to the
Speaker 3: stand during the defense case, it gives the defense an
Speaker 3: opportunity to present a more coherent and thematic defense through
Speaker 3: the eyes of former President Trump. It will allow them
Speaker 3: to basically present a scripted and rehearsed presentation where former
Speaker 3: President Trump will be permitted on direct to basically answer
Speaker 3: the questions that his own lawyers are presenting to him
Speaker 3: and present, I think, a much less contentious view of
Speaker 3: this case and paint a picture for the public and
Speaker 3: to some extent, the judge of exactly what his role
Speaker 3: was in this organization. And thankfully, I think at the
Speaker 3: heart of the defense is that when you run an
Speaker 3: organization like the Trump organization, with as many financial statements
Speaker 3: and complicated financial deals involving real estate all over the world,
Speaker 3: he cannot be expected to know the intricacies of all
Speaker 3: these statements. And he has testified that he has made
Speaker 3: suggestions about the valuations of various properties. But the Trump
Speaker 3: defense is that they were just that suggestions, and ultimately
Speaker 3: he relied on his accountants to give him acurate information.
Speaker 2: So not only did Trump sort of egg the judge
Speaker 2: on when he was testifying, and he's egged him on
Speaker 2: by saying things, you know, in violation of the gag
Speaker 2: order about his staff, but it seems like the attorneys also,
Speaker 2: but his attorneys have also been very contentious and argumentative
Speaker 2: with the judge. So it appears that they're making this
Speaker 2: into an issue for appeal. But what does a judge
Speaker 2: have to do for an impellate court to reverse a
Speaker 2: decision of his I mean, how bad does it have
Speaker 2: to get in the courtroom.
Speaker 3: One of the things you're hearing a lot out of
Speaker 3: the Trump defense team and from former President Trump himself
Speaker 3: is that this judge is biased. And what it really
Speaker 3: causes the question is if the judge simply rules against
Speaker 3: you based on the evidence that he hears a trial,
Speaker 3: that does not make him biased. The bias comes in
Speaker 3: if the defense can demonstrate that this judge had prejudged
Speaker 3: this case, that this judge had made other statements relating
Speaker 3: to forever President Trump or to the Trump organization prior
Speaker 3: to this case beginning, or that the judge was considering
Speaker 3: evidence outside of what was presented at court in rendering
Speaker 3: his decision. So I think what we're seeing here as
Speaker 3: part of the defense strategy is that they have already
Speaker 3: reached the conclusion that they are likely to lose not
Speaker 3: only on the liability phase, which has already happened, but
Speaker 3: they're also going to be hit with some very severe
Speaker 3: penalties at the end of this case from this judge,
Speaker 3: and they are already looking beyond the trial court to
Speaker 3: the appeals court, trying to lay the groundwork for a
Speaker 3: successful appeal. And part of a successful appeal sometimes is
Speaker 3: to try to go the judge into doing something that
Speaker 3: the Court of Appeals will decide is reversible error that
Speaker 3: the judge will say something that he shouldn't have said,
Speaker 3: or make a decision that he shouldn't have made, or
Speaker 3: make some kind of impertinent comment that creates an air
Speaker 3: of bias, and then ultimately that can be used to
Speaker 3: try to reverse the results of the case when ultimately
Speaker 3: this judge renders his decision.
Speaker 2: So when former President Trump was in the courthouse, he
Speaker 2: would hold these I call them mini press conferences outside
Speaker 2: the courtroom talking about how unfair the case was, talking
Speaker 2: about you know, the disclaimers, et cetera, et cetera. And
Speaker 2: also the Attorney General, Letitia James, would go outside and
Speaker 2: give a statement to the media. This is another thing
Speaker 2: that stands out, these statements in the middle of the
Speaker 2: trial as very different from most cases.
Speaker 3: This is clearly a case that we've really never seen before.
Speaker 3: The rules that you typically see enforced in any court
Speaker 3: room in this country have really been relaxed in this case.
Speaker 3: The general proposition that underlies any case, whether it be
Speaker 3: civil or criminal, in this country is that the litigants
Speaker 3: are to litigate their case case in the courtroom, that
Speaker 3: statements serving made in the courtroom, that the record is
Speaker 3: created in the courtroom, and the judge will typically draw
Speaker 3: a pretty bright line on that and not allow defense
Speaker 3: lawyers or defendants or prosecutors to try their case in
Speaker 3: the court of public opinion. So it is very unusual
Speaker 3: to see these statements being made by defense lawyers and prosecutors,
Speaker 3: and the defendants themselves making these statements during the course
Speaker 3: of the trial. But again, this is an unusual case
Speaker 3: with unusual issues and unusual parties, And so I think
Speaker 3: we're seeing a case that is being tried in a
Speaker 3: way that we've never really seen before. And what the
Speaker 3: judge is trying to do here, I think, is to
Speaker 3: try to make a decision that ultimately will stand up
Speaker 3: on appeal whatever he ultimately decides, and not give the
Speaker 3: defense grounds try to reverse ultimately the decision in this case.
Speaker 2: If one of Trump's criminal trials goes forward while he's
Speaker 2: still campaigning for the presidency. Will the trial judge be
Speaker 2: able to control him at least in the courtroom, especially
Speaker 2: because there'll be a jury present unlike this case.
Speaker 1: Yeah.
Speaker 3: I mean, you raise a good point, And every judge
Speaker 3: is different. Every judge is given a certain amount of
Speaker 3: latitude as to how they want to run their courtroom.
Speaker 3: So some judges will let defense lawyers get away with
Speaker 3: a lot more than other judges. Again, the eye is
Speaker 3: always towards doing it in a way that's fair and
Speaker 3: that does not unduly hamper the defense or the prosecution
Speaker 3: in a way that creates an issue on appeal. But
Speaker 3: the focus is always more on the defense than the
Speaker 3: prosecution for purposes of appeal. And so I think in
Speaker 3: this case, we're seeing this judge give former President Trump
Speaker 3: on the defense team wide latitude to tell their side
Speaker 3: of the story and even give sort of an infomercial
Speaker 3: about the Trump organization during the course of the trial.
Speaker 3: In the criminal trials, other judges may decide to handle
Speaker 3: the case differently and to try to draw brighter lines
Speaker 3: and enforce rules more rigorously in terms of what they're
Speaker 3: going to allow defense lawyers and defendants to stay outside
Speaker 3: of the courtroom. One of the challenges for any of
Speaker 3: the judges handling the upcoming criminal trials in terms of
Speaker 3: setting rules and limiting the statements that could be made
Speaker 3: outside of the courtroom is that a judge can only
Speaker 3: enforce those roles ultimately by holding a witness in contempt
Speaker 3: if that means finding the witness or potentially jailing the
Speaker 3: witness if a defendant directly violates a judge's ruling on
Speaker 3: a repeated basis. The challenge here for these judges is
Speaker 3: that while they may impose fines, putting for our President
Speaker 3: Trump in jail during the tendency of a trial is
Speaker 3: going to be extremely difficult for them to do, and
Speaker 3: so ultimately one of the tools in the arsenal of
Speaker 3: judges in order to try to rein in what may
Speaker 3: be perceived as it had really defendant is likely not
Speaker 3: available to them during these So I think we're going
Speaker 3: to see judges trying to walk a very fine line
Speaker 3: trying to make sure that they don't let their courtroom
Speaker 3: get out of control. That's something that every judge is
Speaker 3: very mindful of. They are the ones who control their courtroom,
Speaker 3: and you don't want to have a prosecutor or a
Speaker 3: defense lawyer or a defendant run a muck in your courtroom. Remember,
Speaker 3: these will be jury trials, unlike the trial that's going
Speaker 3: on in New York now with the AG's office, and
Speaker 3: so how a judge handles his or her courtroom in
Speaker 3: front of those jurors is going to be critical. The
Speaker 3: judge is the final word on all of the legal rulings,
Speaker 3: and in order to show command of the courtroom, a
Speaker 3: judge has to control the defense, has to control the prosecutors,
Speaker 3: has to control the defendants. It's going to be very
Speaker 3: interesting to see how each of these judges handle that challenge.
Speaker 2: And a challenge it will be. Thanks so much, Bob.
Speaker 2: That's Robert Men's a partner met Carter in English. Coming
Speaker 2: up next on the Bloomberg Law Show, robocalls targeting thesevoters
Speaker 2: with misinformation may turn out to be legal in Michigan.
Speaker 2: I'm June Gross. When you're listening to Bloomberg mailman, voting.
Speaker 5: Sounds great, but did you know that if you vote
Speaker 5: by mail, your personal information will be part of the
Speaker 5: public database that will be used by police to starts,
Speaker 5: to track down bold warrant and to use our credits
Speaker 5: our companies to collect outstanding debts.
Speaker 2: About twelve thousand residents of Detroit got that robo call
Speaker 2: in twenty twenty, falsely claiming that police, creditors and the
Speaker 2: CDC could use mail in voting data to issue warrants,
Speaker 2: collect on debts, and push mandatory vaccines. It was part
Speaker 2: of a campaign of misinformation by Republican operatives Jack Berkman
Speaker 2: and Jacob Wall to deter black Detroiters from voting in
Speaker 2: the twenty twenty presidential election. The Michigan Attorney General filed
Speaker 2: charges against them, including felony voter intimidation, but Berkman and
Speaker 2: Wall are asking the Michigan's Supreme Court to toss those charges,
Speaker 2: claiming the US Constitution gives them the right to put
Speaker 2: out those misleading robo calls. Joining me is First Amendment
Speaker 2: expert Eugene Volik, a professor at UCLA Law School, is
Speaker 2: this conflict the role of the state to protect voters
Speaker 2: from intimidation and the Constitution's protections for speech political speech?
Speaker 2: Is this at the heart of a lot of US
Speaker 2: election laws.
Speaker 4: Depends what you mean by intimidation, So there's no doubt
Speaker 4: that trying to intimidate voters by threatening violence against them
Speaker 4: is a crime, and there's no First Amendment defense for
Speaker 4: threats of violence. On the other hand, courts have generally
Speaker 4: been quite skeptical, especially in recent years, of attempts to
Speaker 4: police false statements in election campaigns. So there have been
Speaker 4: laws that ban knowingly full statements in election campaigns outright lies,
Speaker 4: and the courts still struck down those laws, chiefly because
Speaker 4: they basically put too much power in the government's hands
Speaker 4: to decide what is true and what is false in
Speaker 4: an election campaign, with too much risk of kind of
Speaker 4: political enforcement. And part of the problem with the law
Speaker 4: in this case is that, at least in the government's
Speaker 4: understanding of it, it applies to basically trying to get
Speaker 4: people not to vote or to vote differently through either
Speaker 4: possibly misleading statements about possible risks to them, or perhaps
Speaker 4: times the government's just any statements that essentially use fear
Speaker 4: in order to change people's votes. That's a very broad category,
Speaker 4: especially given that the statute here talks about attempt by
Speaker 4: means of menace or other corrupt means or device to
Speaker 4: influence and elector's vote. So it looks like under the
Speaker 4: government's theory, if there was a message sent out as saying,
Speaker 4: if you vote for Trump, he's going to send your
Speaker 4: children off to some war. Let's say that's an attempt
Speaker 4: to use fear, it's possibly an attempt to use misleading statements.
Speaker 4: He's going to do that. How do we know he's
Speaker 4: going to do that? So generally speaking, most courts would
Speaker 4: say that's not something you can police for that the
Speaker 4: government can police for in elections. And yet, under the
Speaker 4: state's theory in this case, it's possible that the law
Speaker 4: is as broad as that.
Speaker 2: During your World arguments, the Michigan Deputy so Listener General
Speaker 2: said the law only prohibits false statements about the voting process,
Speaker 2: the procedures of voting, and not those that impact which
Speaker 2: candidates get support. So you think that the law is
Speaker 2: much broader than.
Speaker 4: That, Well, let's look at what the statute says. It
Speaker 4: says a person shall not attempt, by means of bribery,
Speaker 4: that's not an issue here, menace or other corrupt means
Speaker 4: or device, either directly or indirectly, to influence an elector
Speaker 4: that means voter in giving his or her vote, or
Speaker 4: to deter the elector from or interrupt the elector in
Speaker 4: giving his or her vote at any election held in
Speaker 4: this state. Nothing there says this only has to do
Speaker 4: with all statements about the mechanics of voting, or in
Speaker 4: this case, about the dangers of voting, such as claims
Speaker 4: that if you vote by mail, the government will do
Speaker 4: bad things to you. There's no limitation there to these
Speaker 4: statements about mechanics of voting. It covers any state that seeks,
Speaker 4: either directly or indirectly to influence an elector in giving
Speaker 4: his or her vote, so that is, to stay in
Speaker 4: perhaps voting for one side rather than another side. If
Speaker 4: the statute were limited to false statements about the mechanics
Speaker 4: of voting, in the sense of false statements that about
Speaker 4: where to go or when to go, or the exact
Speaker 4: mechanisms for voting, I do think that would be constitutional
Speaker 4: precisely because it would be very narrow. But there is
Speaker 4: no such limitation in the statute. And of course, in
Speaker 4: this particular case, the statement it's weren't about how to vote.
Speaker 4: The statements were claimed that if you vote by mail,
Speaker 4: then the government will have all this information about you
Speaker 4: that it will misuse. That's moving away from statements about
Speaker 4: the mechanics of voting. And moving to statements about alleged
Speaker 4: possible government misconduct in the future. But in any event,
Speaker 4: courts generally read statutes as they are written. Sometimes they
Speaker 4: impose narrowing constructions that are justified by the text. But
Speaker 4: here the text doesn't seem to have anything in it
Speaker 4: like the limitation onto the mechanics of voting that the
Speaker 4: state government was urging.
Speaker 2: And so some of the things the justices questioned. One
Speaker 2: justice question, Justice Welch, what about the scenario of the
Speaker 2: millions of mailers we get? What if someone says, don't vote,
Speaker 2: they're all crooks? And another Justice, David Viviano, wondered whether
Speaker 2: the statue could be used to charge someone like Trump
Speaker 2: over his frequent statements that the absentie voting process is rigged.
Speaker 2: So does it seem like the justices were keying in
Speaker 2: to what you just said?
Speaker 5: Right?
Speaker 4: I think the justices are worried that the statute in
Speaker 4: its face is very broad and indeed claims don't vote
Speaker 4: by absentee, the absentee process is rigged. Under the government's theory,
Speaker 4: they may not be menacing in the sense that they
Speaker 4: don't have the element of possible threat that the government
Speaker 4: will do something to you, but under the government theory,
Speaker 4: that would be a corrupt means or device because it
Speaker 4: would be misleading or outright falls. So I think the
Speaker 4: justices are recognizing that the statute has written quite broadly.
Speaker 4: It may well be that a narrower statute would be constitutional.
Speaker 4: It may well be that there's a narrower statute that
Speaker 4: would be both constitutional and broad enough to cover the
Speaker 4: speech of these particular defendants, But I'm not sure that
Speaker 4: this statute is one such. I think the statute could
Speaker 4: be read quite narrowly as saying menace is threat of violence,
Speaker 4: and corrupt means or device is some thing like versions
Speaker 4: of bribery or extortion or some such. If it's read
Speaker 4: that narrowly, then there wouldn't be a constitutional problem with it.
Speaker 4: But also the same time, the defendants wouldn't be covered
Speaker 4: by the statute. But its corrupt means includes misleading statements,
Speaker 4: and menace means kind of indirect threat that one day
Speaker 4: that the government might do something bad to you if
Speaker 4: you vote, or if you vote a particular way. Then
Speaker 4: it becomes really potentially very broad and probably unconstitutionally overbroad.
Speaker 2: So I want to hit your take on Judge Richard Bernstein,
Speaker 2: who seemed to be one of the justices who was
Speaker 2: promoting the state side, said, basically, the whole idea here
Speaker 2: was that the goal what they did was to interfere
Speaker 2: and cause confusion about the process and procedure. And that
Speaker 2: means all the Attorney General is basically arguing is that
Speaker 2: you can say whatever you want, if you want the
Speaker 2: way you want, but if you knowingly engage in a
Speaker 2: process that endangered the integrity of the voting procedure, that's
Speaker 2: that's the question.
Speaker 4: Well, it's hard to evaluate that without knowing what endangers
Speaker 4: the integrity of the voting procedure. Means that's not part
Speaker 4: of the statute. But if you want to graft that limitation,
Speaker 4: the question is how much of a limitation is it.
Speaker 4: For example, some people do argue that any attempts to
Speaker 4: mislead the voters and especially to lie to voters, not
Speaker 4: just about what happens if you vote by mail, but
Speaker 4: also what happens if some candidates is elected or something
Speaker 4: like that would be an interference with the integrity of elections.
Speaker 4: That's the basis for a lot of these laws that
Speaker 4: try to ban lize in election campaigns and the courts
Speaker 4: have generally struck them down. Now, again, if this has
Speaker 4: to do with just information about the mechanics of voting,
Speaker 4: that you can interfere with the integrity of the voting
Speaker 4: process by saying to people, oh, you need to vote,
Speaker 4: You can vote until ten in the evening. Whereas it
Speaker 4: turns out that the polls and you know this, that
Speaker 4: the polls close itself. That again would be a narrow
Speaker 4: enough statute. I just don't see that limitation in the
Speaker 4: text of the statute. And what's more, that may be
Speaker 4: too narrow to get these defendants convicted. On the other hand,
Speaker 4: if you're saying, well, under the statute, you can't mislead
Speaker 4: people into thinking that the government might misuse information about
Speaker 4: your voting. But it's okay to mislead people into thinking
Speaker 4: that if you elect some candidate he will do some
Speaker 4: bad things things that may not even be constitutionally empowered
Speaker 4: to do. Then that's a strange distinction that doesn't seem
Speaker 4: to be covered on the text of the statute. Note again,
Speaker 4: the statute doesn't just talk about attempts to keep people
Speaker 4: from voting. It also equally prohibits attempts to influence an
Speaker 4: elector in giving his or her vote. So that includes
Speaker 4: attempts to just get people to vote for one candidate
Speaker 4: rather than another. Those seem to have little to do
Speaker 4: with that distinction that the Justice suggested.
Speaker 2: So a similar prohibition on bribery, intimidation, and corrupt interference
Speaker 2: with voting has existed in New York since before the
Speaker 2: country's founding. So is it likely that the New York
Speaker 2: law is not as broad as the Michigan law.
Speaker 4: Yeah, I'm sorry I can't speak to the New York
Speaker 4: law just because I haven't read it. But again, there's
Speaker 4: nothing odd about the government saying you can't attempt by
Speaker 4: means of bribery, menace, or corrupt means or device to
Speaker 4: do things. Bribery is, in general a crime. There's no
Speaker 4: First Amendment problem. Menace, if read to mean true threats
Speaker 4: of illegal conduct, is also punishable. There's an exceptions the
Speaker 4: First Amendment, and again corrupt means or device. If you
Speaker 4: think of corruptions the way we normally think of corruptions,
Speaker 4: such as bribery or possibly extortion and the like, there's
Speaker 4: no problem punishing that. The question is how broadly those
Speaker 4: terms are read. If they're read, for example, if corrupt
Speaker 4: means or device is read to include false or misleading statements,
Speaker 4: in this case misleading predictions about what the government will
Speaker 4: do will supposedly do. That makes the statute much broader.
Speaker 4: So you can imagine exactly the same statute in a
Speaker 4: different state that there's no constitutional problem with because it's
Speaker 4: been read very narrowly. I can't speak to whether New
Speaker 4: York is like that. But the problem here isn't just
Speaker 4: with the text of the statute. It's a combination of
Speaker 4: the text of the statute with the way that the
Speaker 4: government is broadly interpreting it.
Speaker 2: Are there a lot of challenges to laws against robo calls?
Speaker 4: Well, you know, a lot depends on the particular law.
Speaker 4: First of all, to my knowledge in the political context,
Speaker 4: that there's not a vast number of suchel though that
Speaker 4: probably are some. But when you would talk about laws
Speaker 4: against robo calls, we have to distinguish what kind of
Speaker 4: laws they are. So, for example, there are certainly called
Speaker 4: that limit commercial unwanted phone calls, or you can imagine
Speaker 4: a content neutral law that says that you can't call
Speaker 4: people who are on the do not Call list. Not
Speaker 4: much of a problem generally speaking. It may restrict your speech,
Speaker 4: but nobody is a right to press their ideas and
Speaker 4: an unwilling listener in that kind of way. This law
Speaker 4: is not actually a law that's about robo calls. It's
Speaker 4: not limited to robo calls. There's nothing about that. Rather,
Speaker 4: it is a law that, as the government is interpreting,
Speaker 4: it is prohibiting speech with that conveys certain messages, messages
Speaker 4: that the government views as misleading. That does raise more
Speaker 4: of an issue, and again it makes it a lot
Speaker 4: more like those laws that I mentioned earlier in various
Speaker 4: states that ban not just misleading but knowingly false statements
Speaker 4: in election campaigns that have been challenged and have been
Speaker 4: struck down as giving the government too much power to
Speaker 4: affect elections by claiming certain kinds of statements are false.
Speaker 2: I hope you'll come back when we find out how
Speaker 2: the Michigan Supreme Court rules in this case. Thanks so much, Eugene.
Speaker 2: That's Professor Eugene Volok of you Yely Law School.