WEBVTT - The Strategy at the Second Trump Impeachment Trial 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:07.960 --> 0:00:11.879 Former President Donald Trump faces his second impeachment trial next 0:00:11.880 --> 0:00:15.720 week on accusations that he incited a harrowing siege at 0:00:15.720 --> 0:00:19.760 the US Capital on January six, when his supporters overran 0:00:19.840 --> 0:00:23.360 the police and violently stormed the building. Joining me as 0:00:23.400 --> 0:00:28.000 former federal prosecutor Elie Honig, what do the legal briefs 0:00:28.040 --> 0:00:31.680 tell you about the strategies at trial, so that the 0:00:31.760 --> 0:00:35.000 legal briefs are really revealing. First of all, from the 0:00:35.000 --> 0:00:38.720 interview of the so called prosecution here the House impeachment managers, 0:00:39.159 --> 0:00:43.640 they are taking a very aggressive, I think appropriately aggressive tack. 0:00:44.120 --> 0:00:47.080 They are not going around the margins of the First 0:00:47.120 --> 0:00:50.720 Amendment or the constitutionality issues. They are just coming straight 0:00:50.720 --> 0:00:53.720 out and saying this is utterly unacceptable. This is the 0:00:53.840 --> 0:00:57.640 core of what impeachment is about. This was an attempted insurrection. 0:00:57.680 --> 0:01:00.200 This was a violation by the president on an other 0:01:00.320 --> 0:01:04.000 branch of our government. And they are coming out swinging 0:01:04.480 --> 0:01:07.520 the defense brief. When we finally saw it was a 0:01:07.560 --> 0:01:11.759 different type of creature. It was tenderly shoddy work product. 0:01:11.760 --> 0:01:14.000 It was poorly written, poorly reasoned. It was a mess. 0:01:14.040 --> 0:01:16.000 It was hard to follow it. They seem to use 0:01:16.040 --> 0:01:19.679 this strange format that lawyers sometimes used when they're responding 0:01:19.720 --> 0:01:23.360 to interrogatories, and the civil caates very formalistic, and we 0:01:23.440 --> 0:01:26.560 hereby admit that the Constitution exists, but we deny everything 0:01:26.560 --> 0:01:29.160 else that you say. But the gist of the arguments 0:01:29.200 --> 0:01:33.800 are this sort of mishmash of the constitutional defense that 0:01:34.000 --> 0:01:38.080 it's unconstitutional to try a former official, which I think 0:01:38.720 --> 0:01:41.080 is not a strong argument. It's an argument we don't 0:01:41.120 --> 0:01:43.080 know the answer, but I think the better weight of 0:01:43.120 --> 0:01:45.880 the evidence and laws. On the other side, they argue 0:01:45.959 --> 0:01:50.720 First Amendment protections, which I think is misguided in several respects. 0:01:50.800 --> 0:01:54.400 And notably they don't take the big lie off the table. 0:01:54.560 --> 0:01:57.000 They minced words a bit about this false idea of 0:01:57.080 --> 0:02:00.520 election fraud, but they say something to the effect of, well, 0:02:00.560 --> 0:02:03.080 there's not enough evidence either way, who can tell? And 0:02:03.200 --> 0:02:06.200 we deny that Donald Trump live when he put forth 0:02:06.360 --> 0:02:09.400 the election fraud theory. I think that's potentially very fraud 0:02:09.600 --> 0:02:12.920 for the lawyers and for Donald Trump's defense. How much 0:02:13.080 --> 0:02:17.160 does the case depend on the House managers being able 0:02:17.200 --> 0:02:22.200 to prove that His speech on February six insided the 0:02:22.320 --> 0:02:26.239 violence that followed, So that is a key component of 0:02:26.360 --> 0:02:28.760 the case that they'll be making. I do think it's 0:02:28.760 --> 0:02:31.560 important to note that the House Impeachment managers have intentionally 0:02:31.680 --> 0:02:35.040 framed their argument is not just January six, but everything 0:02:35.040 --> 0:02:37.880 that led up to it. They past this, I think smartly, 0:02:38.320 --> 0:02:42.640 as a longer term, ongoing, sort of prolonged, coordinated effort 0:02:42.680 --> 0:02:45.280 by Donald Trump and those around him. They don't name names, 0:02:45.280 --> 0:02:48.680 but Rudy Giuliani and Bo Brooks and Donald Trump Jr. 0:02:48.720 --> 0:02:51.880 And Sidney Powell and others to spread and sort of 0:02:52.160 --> 0:02:56.639 amplify and activate this election fraud lie. And I think 0:02:56.680 --> 0:02:59.440 what they point to is January six as sort of 0:02:59.520 --> 0:03:02.040 the tipping point. And look, Donald Trump's words that day 0:03:02.040 --> 0:03:03.840 are very important, and you do want to be able 0:03:03.880 --> 0:03:05.440 to show as much of a connection as you can 0:03:05.520 --> 0:03:08.560 between his words that crowd and their actions. And I 0:03:08.600 --> 0:03:11.280 think that will lie in his actual words to the crowd, 0:03:11.560 --> 0:03:14.440 the crowd's actual reactions. There are more and more videos 0:03:14.480 --> 0:03:16.840 now of that coming out of the crowd saying yeah, 0:03:17.240 --> 0:03:19.720 what he said, Store in the Capitol, Store in the Capitol. 0:03:20.120 --> 0:03:22.560 Just Security just published some of these videos the other day, 0:03:22.800 --> 0:03:26.480 and Donald Trump's reaction afterwards, when he was generally positive 0:03:26.520 --> 0:03:29.400 and praised the crowd who just ransacked the Capitol. I 0:03:29.440 --> 0:03:32.080 think that's the heart of the case. Is the strongest 0:03:32.280 --> 0:03:38.160 argument the defense makes the process argument, because that would 0:03:38.160 --> 0:03:42.240 allow the Republicans who don't want to impeach Donald Trump 0:03:42.960 --> 0:03:46.440 to say it wasn't based on what happened, It wasn't 0:03:46.480 --> 0:03:50.320 based on what he did. We just can't impeach a 0:03:50.480 --> 0:03:54.680 president who's no longer in office. Exactly. Yes, I think 0:03:54.720 --> 0:03:57.160 it's not necessarily the strongest on the merits, but it's 0:03:57.240 --> 0:04:00.840 politically the most expedient for exactly those reasons. Look, it's 0:04:00.840 --> 0:04:03.120 gonna be hard for any Republican who votes not guilty, 0:04:03.160 --> 0:04:06.320 even if they're from a safe red state seat. They're 0:04:06.320 --> 0:04:09.200 going to have to go back and some significant percentage 0:04:09.200 --> 0:04:11.520 of their constituency is going to say, how could you 0:04:11.560 --> 0:04:14.480 be okay with what happened on January six? That all 0:04:14.680 --> 0:04:18.520 ramp of the constitutional procedural question will enable those senators 0:04:18.560 --> 0:04:22.039 to say, no, no, no, I was not okay with that. However, 0:04:22.320 --> 0:04:25.159 I believe that it's unconstitutional to try a former official. 0:04:25.160 --> 0:04:27.920 I really doubt many of them actually believe that. By 0:04:28.000 --> 0:04:29.720 the way, I mean, how could it be that a 0:04:29.760 --> 0:04:32.000 president could do anything he wants in those last few 0:04:32.040 --> 0:04:36.159 days or weeks and have zero consequence. I suspect if 0:04:36.160 --> 0:04:39.440 the party affiliations were flipped here, as often happens in impeachment, 0:04:39.520 --> 0:04:42.240 and the positions of not just the Republicans, but potentially 0:04:42.240 --> 0:04:45.120 Democrats as well would be flipped as well. A lot 0:04:45.160 --> 0:04:47.880 of legal experts look at one thing the defense did 0:04:47.960 --> 0:04:50.479 and say this is a bad move, and that is 0:04:50.560 --> 0:04:54.600 that Trump denies the allegation that his claims that he 0:04:54.680 --> 0:04:57.880 won the election were false, so they don't make an 0:04:57.880 --> 0:05:03.919 outright argument that the action was stolen. But that inference 0:05:04.000 --> 0:05:08.080 is there if this were a real criminal trial that 0:05:08.200 --> 0:05:10.640 might distract a jury. What is it going to have 0:05:10.680 --> 0:05:14.000 any effect on these senators? You're exactly right that in 0:05:14.040 --> 0:05:18.280 a real trial, like criminal trial, that defense would be irrelevant. 0:05:18.440 --> 0:05:21.479 It doesn't matter if the election was stolen or not. 0:05:21.680 --> 0:05:24.279 It was not, but even if it was, it does 0:05:24.320 --> 0:05:26.880 not permit you to go inside a riot or engage 0:05:26.880 --> 0:05:30.599 another criminality. So it would probably, I believe, be excluded. 0:05:30.640 --> 0:05:32.159 I think a judge would keep it out of a 0:05:32.200 --> 0:05:34.680 criminal trial. I also don't think it's going to help 0:05:34.720 --> 0:05:38.560 in terms of persuading or allowing senators the political cover 0:05:38.680 --> 0:05:41.240 to vote not guilty. I suspect the reason those lawyers 0:05:41.279 --> 0:05:43.839 kept it in there is sort of as a concession 0:05:43.880 --> 0:05:46.960 to their very difficult client, Donald Trump. I mean the 0:05:47.000 --> 0:05:50.040 reporting is the reason Trump's first legal team all resigned, 0:05:50.040 --> 0:05:52.240 several of them, by the way, where dj Department of 0:05:52.279 --> 0:05:55.160 Justice alums, one of whom was an ethics expert, is 0:05:55.200 --> 0:05:57.279 because they refused to make that argument or even to 0:05:57.680 --> 0:06:00.200 hedge it the way his new lawyers did. And so 0:06:00.240 --> 0:06:02.640 I think his new lawyers came in and they've tried 0:06:02.680 --> 0:06:04.440 to be lawyerly about it and have a lot of 0:06:04.440 --> 0:06:07.360 double in trical negatives and said, you can't not disprove this, 0:06:07.800 --> 0:06:10.360 therefore we deny it. But I think it's an irresponsible 0:06:10.440 --> 0:06:12.679 argument to make, and I think it will hurt Donald 0:06:12.720 --> 0:06:15.200 Trump's cause if they make it really on the floor 0:06:15.240 --> 0:06:17.680 of the Senate. What's your take on the First Amendment 0:06:17.800 --> 0:06:21.840 argument is a persuasive at all? I think it's misplaced. Again, 0:06:21.880 --> 0:06:24.120 it may sound good, it may give some political cover 0:06:24.400 --> 0:06:26.919 to some of the senators who intend to vote not guilty. 0:06:26.960 --> 0:06:29.520 But the first thing that's so important to understand, the 0:06:29.520 --> 0:06:31.960 First Amendment can be a defense in a criminal case. 0:06:31.960 --> 0:06:34.920 But we're not in the criminal world here. This is impeachment. 0:06:34.960 --> 0:06:37.960 And John Berman, who's the CNN anchor, I think, made 0:06:37.960 --> 0:06:39.840 the exact right point this morning. I have to give 0:06:39.880 --> 0:06:42.640 him credit because I'm gonna steal it perbade him. He said, 0:06:43.040 --> 0:06:45.640 if a president stood up and said, I hereby a 0:06:45.760 --> 0:06:48.360 spouse the Nazi Party, I am a member of the 0:06:48.440 --> 0:06:51.440 Nazi Party and I believe in all of their beliefs 0:06:51.440 --> 0:06:54.479 and thought systems, Well, guess what not a crime to 0:06:54.560 --> 0:06:58.200 do that? Protected by the First Amendment as well. However, 0:06:58.560 --> 0:07:02.359 impeachable you It would have to be impeachable. So the 0:07:02.400 --> 0:07:05.880 First Amendment is not really applicable to impeachment. If you 0:07:05.880 --> 0:07:08.359 think about it that way, there could be statements that 0:07:08.400 --> 0:07:11.120 are First Amendment protected that you could not be prosecuted for, 0:07:11.240 --> 0:07:14.560 but that are absolutely impeachable. Now look, it gives them 0:07:14.560 --> 0:07:18.040 a framework, though, to wrap themselves in the Constitution. If 0:07:18.080 --> 0:07:21.440 this was a criminal case, they could absolutely defend him 0:07:21.440 --> 0:07:24.080 by saying this his First Amendment protected speech. And I 0:07:24.080 --> 0:07:26.240 think the better argument is that it's not. The First 0:07:26.280 --> 0:07:29.400 Amendment does not blanket protect all speech. You'll hear people 0:07:29.440 --> 0:07:31.800 out there saying, but Brandenburg, but Brandenburg. Is this old 0:07:31.840 --> 0:07:34.880 Supreme Court decision from over fifty years ago. But that 0:07:34.920 --> 0:07:37.680 decision does not say you can say anything you want, 0:07:37.720 --> 0:07:40.160 and it's never a prime. That decision says you can 0:07:40.160 --> 0:07:43.600 say a lot, but you cannot directly intend or say 0:07:43.600 --> 0:07:48.120 something that has a natural effect of imminently causing violent 0:07:48.200 --> 0:07:50.400 or criminal action. And I think there's an argument that 0:07:50.480 --> 0:07:53.240 his speech here across that line. You mentioned that this 0:07:53.360 --> 0:07:57.880 defense brief is not as well formed and there are typos. 0:07:58.000 --> 0:08:00.400 People have made a lot of the fact that on 0:08:00.440 --> 0:08:03.840 the first page United States Senate there's a typo there, 0:08:04.400 --> 0:08:07.560 which it's hard to understand in these days of autocorrect. 0:08:07.600 --> 0:08:12.320 But does that indicate anything about the trial team itself 0:08:12.560 --> 0:08:15.480 or does that just indicate that they had to put 0:08:15.480 --> 0:08:18.240 this together pretty fast. I do think it says something 0:08:18.240 --> 0:08:20.600 about the child team. I will make a little bit 0:08:20.640 --> 0:08:22.440 of an excuse from the funny thing is that the 0:08:22.800 --> 0:08:25.880 scariest typos are the ones that auto correct would not catch. 0:08:26.360 --> 0:08:28.720 What they did was instead of United States, there are 0:08:28.840 --> 0:08:31.320 United States U, N I T E. S. But selcheck 0:08:31.360 --> 0:08:33.840 would not catch that because unites is a word, So 0:08:34.240 --> 0:08:36.880 we don't worry about that, right. But no, Look, I 0:08:36.880 --> 0:08:40.079 think it was a sloppy enough product, and I think 0:08:40.120 --> 0:08:43.040 it was a product that showed so little fought and 0:08:43.160 --> 0:08:46.319 consistency that it looks I've seen it worse. I'm not 0:08:46.360 --> 0:08:48.560 gonna say it's it's the worst filing I've ever seen, 0:08:48.559 --> 0:08:51.320 but it's shoddy and it's not at the level that 0:08:51.640 --> 0:08:54.679 a true top shelf attorney, even with just forty eight 0:08:54.720 --> 0:08:57.079 hours you would put something together. Even if you wanted 0:08:57.120 --> 0:09:00.800 your brief to be very brief, very concise, very summary 0:09:00.920 --> 0:09:03.040 in nature, I think you would still do it in 0:09:03.040 --> 0:09:06.559 a way that was more convincing, more coherent, and better structure. 0:09:06.600 --> 0:09:10.400 Their structure is bizarre. They break out these different number 0:09:10.440 --> 0:09:13.400 of accusations that are tied to nothing in the articles 0:09:13.400 --> 0:09:16.240 of impeachment, and then they sort of very formalistically, we 0:09:16.600 --> 0:09:21.040 hereby and whereun to deny and admit this. It's a confusing, 0:09:21.520 --> 0:09:25.760 messy document and it doesn't bode well for how straightforward 0:09:25.840 --> 0:09:30.160 and digestible their presentations will be next week. We understand 0:09:30.280 --> 0:09:35.400 that the house managers have compiled footage of what happened 0:09:35.559 --> 0:09:38.840 his speech, the reactions in the crowd. As you mentioned 0:09:38.920 --> 0:09:43.679 that compilation that was put together by just Security, do 0:09:43.720 --> 0:09:47.360 you think that that is really effective in this kind 0:09:47.400 --> 0:09:50.520 of a setting. Not only do I think it's effective, 0:09:50.520 --> 0:09:52.800 I think it's the most effective thing they can do. 0:09:53.000 --> 0:09:56.120 I mean, look, their task to have some impeachment managers 0:09:56.200 --> 0:09:58.040 is going to be to remind people and to to 0:09:58.160 --> 0:10:00.520 really hit him in the gut, as we would say, 0:10:00.600 --> 0:10:05.040 to appeal viscerally to just how bad, scary and dangerous 0:10:05.120 --> 0:10:07.559 this was. And the reality is that I think we're 0:10:07.559 --> 0:10:10.559 all experiencing human memory is remarkably short. Here we are 0:10:11.040 --> 0:10:13.160 three and change weeks out from the event, and it's 0:10:13.200 --> 0:10:16.680 already receding a little bit in terms of just how 0:10:16.720 --> 0:10:20.800 immediate and dangerous itself. And to me, it's much more 0:10:21.360 --> 0:10:24.439 resonant to show a video what was happening inside the 0:10:24.480 --> 0:10:27.640 capital than to have some member of Congress, state an 0:10:27.640 --> 0:10:31.400 elect turn make an impassioned twenty minute speech, show me 0:10:31.440 --> 0:10:34.520 a two minute video any day over that, And I 0:10:34.559 --> 0:10:37.240 think they need to really make their case, hit quickly 0:10:37.280 --> 0:10:40.480 and hit hard, and I think those videos are the 0:10:40.520 --> 0:10:44.000 best way to do that. The last trial, we had 0:10:44.000 --> 0:10:47.640 the Republicans in charge of the Senate. This trial, the 0:10:47.679 --> 0:10:50.800 Democrats are in charge, so they're going to be able 0:10:50.880 --> 0:10:54.400 to decide what the trial is going to be like, 0:10:54.760 --> 0:10:58.760 do you think that they should call witnesses. Yeah, that's 0:10:58.760 --> 0:11:01.200 a that's an important difference doing last year and this year. 0:11:02.200 --> 0:11:05.880 The trick with calling witnesses is is keeping it from 0:11:05.880 --> 0:11:09.600 spiraling into a never ending proceeding. I mean, there's dozen 0:11:09.760 --> 0:11:12.199 hundreds of people who witnessed what happened in the capital. 0:11:12.679 --> 0:11:14.480 If you are going to call witnesses, I think you 0:11:14.559 --> 0:11:17.040 probably should, but you need to be very careful and selective. 0:11:17.200 --> 0:11:21.800 There's also a risk of appearing emotionally exploitative, right. I mean, look, 0:11:21.800 --> 0:11:23.920 you want to drive home the horrors of what happened. 0:11:23.960 --> 0:11:27.280 You want to focus attention on Officer Brian Sicknik, who 0:11:27.320 --> 0:11:30.320 was murderer inside that building. But there also is a 0:11:30.360 --> 0:11:34.360 way to overdo it and look like you're being not 0:11:34.480 --> 0:11:39.120 fully respectful to the people who suffered. Um. So, for example, 0:11:39.120 --> 0:11:41.800 if they call his grieving family members, I don't know 0:11:42.160 --> 0:11:44.839 that maybe a little bit much, but I think you 0:11:44.880 --> 0:11:47.480 want to call some basic witnesses to to explain what 0:11:47.600 --> 0:11:50.880 happened on that day, perhaps some congressional staffers who can 0:11:50.920 --> 0:11:53.400 really bring it to light. Um, I think you should. 0:11:53.440 --> 0:11:55.720 They should consider calling people who can testify about Donald 0:11:55.760 --> 0:11:58.400 Trump's state of mind that day, people who were with 0:11:58.679 --> 0:12:01.600 or speaking with a privy to how he was reacting 0:12:01.760 --> 0:12:04.839 to what was going on. So I think the trick 0:12:04.960 --> 0:12:07.600 is is sort of calibrating your case and calling a 0:12:07.600 --> 0:12:10.080 handful of witnesses, but not turning it into a saga. 0:12:10.120 --> 0:12:13.000 I mean, in the Bill Clinton case, the negotiated agreement, 0:12:13.040 --> 0:12:16.319 what they called three I think three or four witnesses total, 0:12:16.480 --> 0:12:18.840 So you know, maybe a few more than that, But 0:12:18.880 --> 0:12:21.000 you don't want to get into dozens of witnesses here. 0:12:21.320 --> 0:12:23.600 What about one of the rioters. There's been a lot 0:12:23.640 --> 0:12:27.520 of press that Jacob Chesney, you know, the so called 0:12:27.600 --> 0:12:31.440 q and On Shaman, is willing to testify. I would 0:12:31.520 --> 0:12:33.400 not do that at all if I was in charge 0:12:33.400 --> 0:12:34.800 of putting this case on. First of all, if you 0:12:34.840 --> 0:12:37.840 call a witness, you sort of own that person and 0:12:38.320 --> 0:12:41.040 that becomes your witness, like it or not. Second of all, 0:12:41.120 --> 0:12:44.080 it would become a circus to call some of these folks. Third, 0:12:44.160 --> 0:12:46.559 you have what you need from them, You can do 0:12:46.640 --> 0:12:49.040 that without cauling them into the well of the Senate 0:12:49.200 --> 0:12:51.400 by playing the many videos that are out there, if 0:12:51.400 --> 0:12:54.360 people saying fight for Trump, or if by even using 0:12:54.559 --> 0:12:57.240 the statements that their lawyers have made, or the legal 0:12:57.320 --> 0:12:59.880 filings that they're that their lawyers have put in saying 0:13:00.040 --> 0:13:03.320 my client did this because he or she believed Donald 0:13:03.320 --> 0:13:05.480 Trump asked him to or called on him to do it. 0:13:05.640 --> 0:13:07.760 That's good enough. That makes the point, and that keeps 0:13:07.760 --> 0:13:11.520 it from becoming assert Now, one of the defense attorneys 0:13:11.559 --> 0:13:15.240 has said that at least some of the supporters planned 0:13:15.360 --> 0:13:20.719 their attack in advance. If they can prove that, does 0:13:20.760 --> 0:13:24.480 that help their case. I don't see how it does, 0:13:24.800 --> 0:13:28.559 because the argument is not that Donald Trump just just 0:13:28.800 --> 0:13:32.319 you know, dropped in out of nowhere on January six, um. 0:13:32.559 --> 0:13:35.280 The argument that the inficial managers are making is this 0:13:35.360 --> 0:13:37.880 was several weeks in the making. And so if there's 0:13:37.920 --> 0:13:42.200 evidence that some of these people who rioted were planning 0:13:42.240 --> 0:13:45.920 in late December or mid December or January three, you go, 0:13:46.040 --> 0:13:48.080 of course they were, because this is what Donald Trump 0:13:48.160 --> 0:13:51.120 and his people were working on inciting for weeks. And 0:13:51.160 --> 0:13:53.880 by the way, even if there was pre planning that 0:13:53.960 --> 0:13:55.920 had nothing to do with Donald Trump, you're still not 0:13:56.040 --> 0:13:58.360 allowed to go in and sort of set off that 0:13:58.440 --> 0:14:02.360 power powder keag. So I don't see that being as 0:14:02.480 --> 0:14:04.840 quite as persuasive a point as I think some of 0:14:04.880 --> 0:14:08.160 these defenders of Donald Trump and UM and others seem 0:14:08.200 --> 0:14:12.920 to think so. Now it seems almost a foregone conclusion 0:14:12.960 --> 0:14:15.240 that they will not be able to get the number 0:14:15.280 --> 0:14:19.280 of Republican Senators they need to convict. But what would 0:14:19.320 --> 0:14:23.840 you say is the best move they could make to 0:14:23.960 --> 0:14:29.920 convince some of those reluctant senators to convict. Yeah, I 0:14:29.920 --> 0:14:33.560 still think it's it's more possible than many think that 0:14:33.560 --> 0:14:36.240 that they do get seventeen Republicans to join with all 0:14:36.280 --> 0:14:39.360 fifty Democrats and convicted. I think enough of them, even 0:14:39.360 --> 0:14:42.040 those who voted the forty five who voted last week 0:14:42.080 --> 0:14:44.640 on Senator Rampaul's motion, several of them have come forward 0:14:44.640 --> 0:14:47.160 publicly and made clear they said, my vote there was 0:14:47.200 --> 0:14:49.560 to hear the constitutional issue and debate it. But that 0:14:49.640 --> 0:14:51.760 does not mean I'm committed to vote one way or 0:14:51.760 --> 0:14:55.080 another on the ultimate guilt or non guilt of Donald Trump. 0:14:55.120 --> 0:14:57.640 John Thune said that, Rob Portman said that, and I 0:14:57.640 --> 0:14:59.760 think others are in the same same point of view. 0:15:00.080 --> 0:15:02.520 I think the best thing that the impeachment managers can 0:15:02.560 --> 0:15:06.080 do is appeal not even directly to the senators, but 0:15:06.320 --> 0:15:09.000 to the American public, Because do I think there are 0:15:09.000 --> 0:15:11.760 senators on the fence who can be persuaded by just 0:15:12.200 --> 0:15:15.040 the force of the evidence in the chamber. I don't know, 0:15:15.160 --> 0:15:18.080 maybe maybe a few, maybe only at the margins. But 0:15:18.600 --> 0:15:22.880 if those senators start hearing receiving blots of emails or 0:15:22.880 --> 0:15:26.000 tweets from their constituents, or start seeing public opinion polling 0:15:26.320 --> 0:15:29.680 showing that X percentage of their constituents are in favor 0:15:29.720 --> 0:15:33.000 of an of a conviction, that I think can move 0:15:33.040 --> 0:15:38.760 the needle on the most number of Republican or Democratic senators. 0:15:38.760 --> 0:15:41.400 So if I'm the impeatiment managers, I'm trying to really 0:15:42.000 --> 0:15:45.400 aim my case at the American public, and, like I 0:15:45.400 --> 0:15:47.080 said before, to to hit him in the gut and 0:15:47.120 --> 0:15:48.960 to be really visceral in the way I do this. 0:15:49.360 --> 0:15:54.440 Thanks Ellie. That's former federal prosecutor Ellie Honig. A case 0:15:54.480 --> 0:15:57.560 involving Donald Trump's use of his personal Twitter account for 0:15:57.600 --> 0:16:01.000 official business is now pending before the Supreme Court. It 0:16:01.080 --> 0:16:03.560 revolves around a ruling from the Second Circuit Court of 0:16:03.600 --> 0:16:06.880 Appeals that found Trump's use of the at real Donald 0:16:06.880 --> 0:16:10.880 Trump platform for official business created a public forum entitled 0:16:10.880 --> 0:16:14.000 to first amend the Protection and that Trump violated the 0:16:14.040 --> 0:16:17.560 Constitution when he blocked followers who were critical of him. 0:16:17.600 --> 0:16:20.000 The Justice Department and the Twitter uses who sued the 0:16:20.040 --> 0:16:23.240 president agree the case is now moot since Trump is 0:16:23.280 --> 0:16:26.680 out of office and has been banned from social media platforms. 0:16:26.720 --> 0:16:29.120 But how to get rid of it? The case presents 0:16:29.160 --> 0:16:33.080 the Justice is with a doctrinal puzzle. Joining me is 0:16:33.160 --> 0:16:37.200 Robin Efron, a professor at Brooklyn Law School. So start 0:16:37.320 --> 0:16:41.680 by just telling us briefly about the ruling by the 0:16:41.760 --> 0:16:45.200 Second Circuit. So the Second Circuit had to rule on 0:16:45.280 --> 0:16:49.080 this issue of whether or not Trump, when he was 0:16:49.120 --> 0:16:54.280 tweeting in his capacity as president, was allowed to block 0:16:54.640 --> 0:16:58.080 people on Twitter, right the way that you can block 0:16:58.160 --> 0:17:00.680 people if you're just an ordinary Twitter user and you 0:17:00.680 --> 0:17:03.560 want to block people from your account. Either was a 0:17:03.680 --> 0:17:07.159 question of whether or not Trumps, who was using his 0:17:07.240 --> 0:17:10.000 Twitter account, you know, at real Donald Trump as president, 0:17:10.000 --> 0:17:13.800 whether he could block people. And the Second Circuit said no, 0:17:14.160 --> 0:17:17.560 he couldn't that the you know, Twitter was essentially a 0:17:17.640 --> 0:17:22.240 public forum in that capacity, and so there were First 0:17:22.240 --> 0:17:26.679 Amendment implications in Trump blocking people from Twitter when he 0:17:26.760 --> 0:17:29.200 was tweeting under that account. So that was the Second 0:17:29.240 --> 0:17:33.600 Circuit ruling um and of course things changed very quickly, 0:17:34.080 --> 0:17:37.520 both with regard to Donald Trump and Twitter, and then 0:17:37.600 --> 0:17:40.840 of course Donald Trump and his position as president of 0:17:40.880 --> 0:17:45.240 the United States. So an average person would say, Okay, 0:17:45.440 --> 0:17:49.000 this isn't a controversy anymore, you know, just dismiss it. 0:17:49.160 --> 0:17:53.600 What's the problem. Well, the problem is that, you know, 0:17:53.640 --> 0:17:58.560 the courts are there serving two purposes. So one and 0:17:58.640 --> 0:18:02.160 this is the primary purpose of the courts, and one 0:18:02.440 --> 0:18:06.720 that the courts take quite seriously under the Constitution, that 0:18:07.000 --> 0:18:11.400 is your role in resolving live controversy. So if there 0:18:11.480 --> 0:18:15.159 is an actual dispute between parties, courts are there to 0:18:15.440 --> 0:18:19.439 resolve that. They're there to give an answer right, who 0:18:19.560 --> 0:18:23.320 is right, who is wrong, who is liable, who is responsible? 0:18:23.920 --> 0:18:26.280 And then you know it's part of that courts are 0:18:26.320 --> 0:18:29.840 there to make sure that the party who is not 0:18:30.000 --> 0:18:33.920 at fault yet a remedy. So the remedies that parties 0:18:34.000 --> 0:18:39.320 asked for are usually money, which is damages. For an 0:18:39.320 --> 0:18:42.720 equitable remedy, you know, an equitable remedy would be something 0:18:42.760 --> 0:18:46.000 like an injunction in which a court tells the party, no, 0:18:46.320 --> 0:18:48.960 you can't do that anymore. Right, So here it would 0:18:48.960 --> 0:18:52.399 be saying no, Donald Trump as president, who can't block 0:18:52.480 --> 0:18:55.600 people on Twitter anymore. That's one rule of the court, 0:18:55.680 --> 0:18:58.879 so that they're there to dissolve, to resolve live controversies. 0:18:59.359 --> 0:19:02.359 You know. The the role of the court, which is 0:19:03.240 --> 0:19:06.800 sort of secondary to that, is that they are there 0:19:06.840 --> 0:19:10.439 to make pronouncements on the law. Right, So when it 0:19:10.480 --> 0:19:14.080 comes to things like common law or interpretation of the 0:19:14.119 --> 0:19:18.240 Constitution or statute, courts are there not just to sort 0:19:18.280 --> 0:19:21.320 of issue a decision and say what the remedy is. 0:19:21.600 --> 0:19:24.879 But there's a reason that they write opinions because those 0:19:24.920 --> 0:19:27.480 opinions are then going to form the basis of the 0:19:27.560 --> 0:19:30.840 law going forward. And so one of the things that 0:19:30.880 --> 0:19:33.840 we rely on courts to do is to provide reasoning 0:19:33.920 --> 0:19:37.880 for their decisions that the decision itself and the reasoning 0:19:37.920 --> 0:19:41.200 will form the basis for what other courts do going forward. 0:19:41.840 --> 0:19:45.639 So the Second Circuit is an appellate court. It's the 0:19:45.720 --> 0:19:48.840 federal court that here's appeals that come out of the 0:19:48.840 --> 0:19:53.440 federal courts in New York, Connecticut, Vermont, and so anything 0:19:53.640 --> 0:19:56.760 that the Second Circuit says is going to be binding 0:19:57.119 --> 0:20:02.640 on federal courts hearing decision and in federal district courts 0:20:02.640 --> 0:20:04.879 coming out of those states. And it's also going to 0:20:04.960 --> 0:20:08.200 be considered persuasive authority to other courts, right, so the 0:20:08.280 --> 0:20:11.000 state courts that might be hearing these questions, or to 0:20:11.320 --> 0:20:14.280 other federal courts. And as it turns out, you know, 0:20:14.400 --> 0:20:17.480 all the federal courts of the skills are equal, they're 0:20:17.480 --> 0:20:21.440 all very important, but there are some circuits that are 0:20:21.480 --> 0:20:26.200 considered particularly influential. So the Second Circuit is one of them. 0:20:26.520 --> 0:20:29.400 You know, an opinion coming out of the Second Circuit 0:20:30.000 --> 0:20:33.360 is going to carry a lot of weights. So one 0:20:33.400 --> 0:20:35.360 of the things that's going on here is that when 0:20:35.359 --> 0:20:39.080 a court is issuing an opinion, it is resolving a 0:20:39.119 --> 0:20:42.080 lot of controversy, but it's also laying the groundwork for 0:20:42.160 --> 0:20:45.120 what is going to go forward. But it's not binding 0:20:45.240 --> 0:20:48.000 on the whole country. Other courts that are outside of 0:20:48.040 --> 0:20:51.960 that jurisdiction are free to come to their own conclusions. 0:20:51.960 --> 0:20:55.160 But every time you have a federal Court of Appeals 0:20:55.200 --> 0:20:59.240 issuing a decision and giving its reasoning, that really sets 0:20:59.240 --> 0:21:01.960 the path for how other courts are going to look 0:21:01.960 --> 0:21:04.720 at things and act upon things. And certainly it's going 0:21:04.760 --> 0:21:09.120 to be binding precedent for everything within that court's jurisdiction 0:21:09.280 --> 0:21:12.840 until another court comes along and comes to a different decision. 0:21:14.720 --> 0:21:19.080 So then why not just leave the Second Circuit's decision 0:21:19.240 --> 0:21:22.359 as is, because you don't know how the Supreme Court 0:21:22.520 --> 0:21:26.360 would have ruled on the issue and pretend that there 0:21:26.480 --> 0:21:29.479 was no appeal, you know. I think the thing that 0:21:29.760 --> 0:21:32.760 is important to keep in mind is that even if 0:21:32.800 --> 0:21:36.440 we wipe away sort of all of the controversy around 0:21:36.520 --> 0:21:40.399 this particular case and how politically heated it is, the 0:21:40.520 --> 0:21:45.959 US Supreme Court is a court of very limited jurisdiction, right, 0:21:46.200 --> 0:21:50.359 and they hear very few cases per year. So for 0:21:50.600 --> 0:21:55.359 most cases in the United States, they end well before 0:21:55.400 --> 0:21:57.840 the Supreme Court, right. So we can think even of 0:21:57.960 --> 0:22:00.919 state courts where the states the Preme Court is the 0:22:01.000 --> 0:22:04.280 highest authority in that state. A lot of those decisions 0:22:04.280 --> 0:22:06.639 of state law couldn't even go to the U. S. 0:22:06.640 --> 0:22:10.480 Supreme Court if people wanted them to. Now in federal court. 0:22:10.880 --> 0:22:15.359