WEBVTT - Chaos in the Criminal Courts 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:06.160 --> 0:00:09.880 COVID nineteen has lawyers navigating all kinds of issues in 0:00:09.880 --> 0:00:12.840 the criminal justice system, from not being able to confer 0:00:12.920 --> 0:00:17.040 adequately with their clients to potentially skewed jury pools. Judges 0:00:17.079 --> 0:00:21.160 are routinely delaying cases as they confront an evolving situation 0:00:21.280 --> 0:00:24.920 and novel questions. Joining me is Bloomberg Law editor Jordan 0:00:25.040 --> 0:00:28.080 Ruben Jordan to put this into context, tell us about 0:00:28.080 --> 0:00:32.599 the case of Jose Javier Rivera Bernard Sure. So this 0:00:32.680 --> 0:00:35.360 is a case where a defendant is in a situation 0:00:35.400 --> 0:00:38.879 that has become a somewhat common and illustrative of what 0:00:38.960 --> 0:00:43.080 decendants are facing in this COVID nineteen era. So this 0:00:43.159 --> 0:00:46.280 is a case where the defendant is facing federal drug charges, 0:00:46.360 --> 0:00:50.960 serious charges. He's detained pre trial, and he's facing a 0:00:51.000 --> 0:00:55.760 dilemma of do I ops for a virtual hearing or 0:00:55.840 --> 0:00:59.279 do I still wait longer in jail until I can 0:00:59.320 --> 0:01:02.880 get a real hearing. Now, his lawyer is raising the 0:01:02.920 --> 0:01:05.920 issue that he doesn't want a virtual hearing because he 0:01:06.000 --> 0:01:10.399 can't properly challenge the credibility of government witnesses, and so 0:01:10.720 --> 0:01:13.440 it's his dilemma because he can either get a hearing 0:01:13.480 --> 0:01:15.840 that's really, in his view, a half measure of what 0:01:16.120 --> 0:01:19.360 he's entitled to. On the other hand, though he's sitting 0:01:19.720 --> 0:01:23.639 locked up in a place where is really not safe 0:01:23.680 --> 0:01:26.840 to be in jail decays because of the coronavirus. We 0:01:26.959 --> 0:01:31.680 hear a lot about defendants being released or getting deals 0:01:32.160 --> 0:01:35.880 to get out of prison because of COVID. In this case, RIVERA. 0:01:35.920 --> 0:01:40.440 Bernard is in the Metropolitan Correction Center. Isn't there any 0:01:40.480 --> 0:01:44.160 way for him to get released prior to his hearing. 0:01:44.920 --> 0:01:47.520 It's possible for a defendant in general to get that 0:01:47.600 --> 0:01:50.880 kind of release, and we have seen some defendants getting released, 0:01:50.880 --> 0:01:53.560 but the reality is that it's just not as many 0:01:53.600 --> 0:01:57.840 people getting released as defense attorneys would want. And so 0:01:58.240 --> 0:02:00.840 the reality is there is this situation where a fair 0:02:01.000 --> 0:02:04.720 amount of people are sitting in jail, detained pre trial, 0:02:05.160 --> 0:02:10.480 awaiting trial, and they're essentially sitting ducks exposed to the coronavirus. 0:02:10.480 --> 0:02:12.920 And it's not just an issue in the jails of 0:02:13.560 --> 0:02:17.760 the defendants who are exposed to this, it's the correctional 0:02:17.800 --> 0:02:20.880 officers who are going out into the community as well. 0:02:20.880 --> 0:02:23.320 And so you can see how this becomes a problem really, 0:02:23.360 --> 0:02:26.600 not just inside the prisons but outside as well. And 0:02:26.720 --> 0:02:31.000 is this a problem in prisons across the country, is 0:02:31.040 --> 0:02:34.399 it more so in big cities. Well, it's sort of. 0:02:34.919 --> 0:02:37.880 It's similar to the way that we're seeing different reactions 0:02:37.919 --> 0:02:40.000 to how the virus is playing out across the country. 0:02:40.080 --> 0:02:43.760 It's somewhat true in the criminal justice system, but on 0:02:43.840 --> 0:02:46.959 the whole when it comes to the coronavirus across the board, 0:02:47.000 --> 0:02:50.440 really the prisoner jails is just simply the worst place 0:02:50.480 --> 0:02:52.840 to be. It's up there with nursing homes. Those are 0:02:52.840 --> 0:02:56.560 really two of the institutions where we've seen the coronavirus 0:02:56.880 --> 0:03:00.320 make its hardest hits. And so really just by the sign, 0:03:00.440 --> 0:03:03.200 it's almost if you are designing a place where a 0:03:03.320 --> 0:03:06.360 virus like that could thrive, a prisoner at jail would 0:03:06.400 --> 0:03:09.720 be what someone would want to design. Really, So you 0:03:09.840 --> 0:03:14.400 talked to a lawyer, Michael Diamonds, the uniformer prosecutor, and 0:03:14.400 --> 0:03:17.640 he said, courts are overwhelmed. They don't know how to react. 0:03:18.000 --> 0:03:21.200 The tried and true method is keep everyone in jail 0:03:21.360 --> 0:03:24.440 and we'll sort it out. So is he saying that 0:03:24.600 --> 0:03:28.200 it's the exception rather than the rule that people are 0:03:28.240 --> 0:03:32.840 getting released because of COVID. I think that's definitely right, 0:03:33.000 --> 0:03:36.440 because it's a situation where the courts are faced with 0:03:36.520 --> 0:03:39.200 really in no good choice of they have these cases 0:03:39.200 --> 0:03:41.240 that they want to move along. They have people that 0:03:41.320 --> 0:03:45.640 are detained, sometimes on very serious crimes, homicides, things like that, 0:03:45.720 --> 0:03:48.760 and so obviously every defense attorney wants to get their 0:03:48.840 --> 0:03:52.360 client out, but it's not always that simple, and so 0:03:52.960 --> 0:03:55.880 it really is a matter of in a situation like this, 0:03:56.240 --> 0:03:59.560 like in general, in the criminal justice system, when push 0:03:59.600 --> 0:04:02.440 comes to job, it's usually the defendant who winds up 0:04:02.920 --> 0:04:06.080 staying the pained. At least that's how the defense attorneys 0:04:06.080 --> 0:04:10.440 are seeing the situation. I was struck because one defense 0:04:10.480 --> 0:04:13.120 attorney you talked to said that instead of working on 0:04:13.160 --> 0:04:18.360 the case, all they're doing seven is making bail applications 0:04:18.360 --> 0:04:21.919 and compassionate release applications and not really getting to you know, 0:04:21.920 --> 0:04:25.440 the nitty gritty. Well, that's right. I mean, the system 0:04:25.440 --> 0:04:27.640 itself is kind of at a standstill. So it's not 0:04:27.680 --> 0:04:30.479 like cases are moving along anyway, at least not in 0:04:30.480 --> 0:04:33.240 the way that people want them to. And so if 0:04:33.279 --> 0:04:35.640 you're an attorney and you have a client who's detained 0:04:35.640 --> 0:04:39.440 pre trial, really that's your main job is trying to 0:04:39.600 --> 0:04:42.440 get them out. And again that's something that's true even 0:04:42.480 --> 0:04:45.440 in quote unquote normal times, But just like in every 0:04:45.440 --> 0:04:49.640 other aspect of life, the pandemic has exacerbated that and 0:04:49.800 --> 0:04:52.360 brought it even more to the forefront of what people 0:04:52.360 --> 0:04:57.880 are focusing on. Looking at this through Rivera Bernard's case, 0:04:58.520 --> 0:05:02.400 his lawyer said the it's difficult to prepare for cases 0:05:02.520 --> 0:05:07.160 because he can't communicate with him adequately. It's very limited. 0:05:07.160 --> 0:05:09.320 I didn't realize it was that limited. The amount of 0:05:09.360 --> 0:05:13.320 time they can communicate with their lawyers. Tell us about that. Again, 0:05:13.400 --> 0:05:16.480 this is something that is different in different facilities across 0:05:16.520 --> 0:05:19.000 the country. But if you have a jail it's in 0:05:19.120 --> 0:05:22.960 lockdown because of COVID, then that means in turn that 0:05:23.000 --> 0:05:25.640 a lawyer really can't get in there to communicate with 0:05:25.680 --> 0:05:29.000 their client. And so sometimes you can communicate by phone, 0:05:29.040 --> 0:05:32.040 but when you're talking about really important issues and really 0:05:32.080 --> 0:05:36.559 serious discussions, clients not necessarily going to feel comfortable talking 0:05:36.560 --> 0:05:39.800 about that over the phone. And if you have luminous 0:05:39.920 --> 0:05:43.240 documents and evidence to review with a client, forget about it. 0:05:43.320 --> 0:05:45.640 That's not going to happen in any meaningful way. And 0:05:45.720 --> 0:05:48.120 so at the same time as these trials are being 0:05:48.120 --> 0:05:53.359 pushed off essentially indefinitely, it's almost impossible to meaningfully prepare 0:05:53.400 --> 0:05:55.880 for them at the same time, and so you're seeing 0:05:55.880 --> 0:05:59.280 that two different degrees across the country. But if you're 0:05:59.320 --> 0:06:02.440 in an air aware there's a really serious COVID situation, 0:06:02.800 --> 0:06:05.680 that's just going to be compounding the issue because the 0:06:05.720 --> 0:06:07.760 trial is going to get delayed and it's something that 0:06:07.839 --> 0:06:12.279 you can't even really meaningfully be prepared for, and it's 0:06:12.279 --> 0:06:16.840 really difficult to establish a relationship with your client in 0:06:16.880 --> 0:06:20.520 these kinds of circumstances. Sure, so, even if it's a 0:06:21.279 --> 0:06:23.720 case that you had going into the pandemic and it's 0:06:23.760 --> 0:06:27.240 still going on, that's challenging enough. But a lot of 0:06:27.279 --> 0:06:30.120 times lawyers are coming into a cage new maybe there's 0:06:30.120 --> 0:06:32.920 a new lawyer that needs to be introduced for whatever reason, 0:06:32.920 --> 0:06:36.280 and so in a normal situation, a lawyer might actually 0:06:36.320 --> 0:06:39.720 meet their client in person at least eventually. But now 0:06:40.120 --> 0:06:43.640 when these relationships are starting over the phone like any 0:06:43.680 --> 0:06:46.360 other relationship, it's not going to be the same as 0:06:46.400 --> 0:06:48.880 it is when you can actually see someone in person. 0:06:48.960 --> 0:06:51.600 So that's just yet another layer to this that makes 0:06:51.600 --> 0:06:54.640 it difficult just to carry on the normal life of 0:06:54.640 --> 0:06:57.960 a case that we would see in normal times, also 0:06:58.040 --> 0:07:01.800 investigating a case before where the trial actually happens, where 0:07:01.839 --> 0:07:05.239 you have to talk to witnesses and you know, see 0:07:05.279 --> 0:07:08.599 how your case lays out, and how do they investigate 0:07:09.000 --> 0:07:12.360 during COVID Sure, And I think that point is important 0:07:12.400 --> 0:07:15.320 because it's important to point out that this isn't just 0:07:15.400 --> 0:07:19.120 an issue where the defense side is suffering. Prosecutions are 0:07:19.120 --> 0:07:22.360 having issues too, including in the first instance, being able 0:07:22.400 --> 0:07:26.200 to conduct investigations and prepare witnesses and victims and things 0:07:26.200 --> 0:07:29.640 of that nature. And so obviously you can't just walk 0:07:29.720 --> 0:07:31.400 up to someone on the street like you put in 0:07:31.440 --> 0:07:34.720 normal times. It's tough to travel among the different states 0:07:34.720 --> 0:07:38.120 and especially out of the country these days, like which 0:07:38.160 --> 0:07:42.040 is necessary, and investigations both on the prosecution side and 0:07:42.240 --> 0:07:44.760 on the defense side after a charge is brought, and 0:07:44.840 --> 0:07:49.280 so really it's it's really just a complete breakdown of 0:07:49.360 --> 0:07:52.000 the system on all sides, and it just is not 0:07:52.120 --> 0:07:55.240 functioning like it normally would, including things that you take 0:07:55.240 --> 0:07:58.000 for granted, like just being able to walk down the 0:07:58.000 --> 0:08:02.520 street and fastitudes. Are there any trials actually going on 0:08:02.760 --> 0:08:05.360 right now that you know of across the country, state 0:08:05.440 --> 0:08:09.640 or federal. So it's interesting and this mirrors what we're 0:08:09.680 --> 0:08:14.280 seeing in different states coronavirus responses across the country. We've 0:08:14.320 --> 0:08:18.000 seen some trials start up, but then as cases go up, 0:08:18.240 --> 0:08:21.400 they're shutting them down. We're seeing this mirroring the general 0:08:21.440 --> 0:08:25.040 states reopening. We're seeing some states try to opt for 0:08:25.200 --> 0:08:29.000 virtual proceedings, which create their own issues. And so we 0:08:29.080 --> 0:08:32.280 have seen some movement trying to get trials started in 0:08:32.320 --> 0:08:36.560 cases where in areas where the coronavirus has been less 0:08:36.600 --> 0:08:39.920 impactful in the area. But on the whole, these things 0:08:39.920 --> 0:08:42.280 just aren't happening, and if they are, they're not happening 0:08:42.280 --> 0:08:45.360 in the way that people want them to. Several lawyers 0:08:45.360 --> 0:08:49.079 who talked about the difficulty of holding a trial. If 0:08:49.080 --> 0:08:51.640 you did decide to hold a trial, you know, how 0:08:51.640 --> 0:08:55.440 would you keep six feet away from everyone so much 0:08:55.600 --> 0:08:57.680 is in the face of someone. How would you be 0:08:57.720 --> 0:09:01.680 able to cross examine someone was wearing a mask. Have 0:09:01.800 --> 0:09:05.680 any courts dealt with this yet? Well, courts have dealt 0:09:05.720 --> 0:09:08.840 with it um but people aren't sure that any court 0:09:08.840 --> 0:09:11.000 has dealt with it in exactly the best way. And 0:09:11.040 --> 0:09:13.560 that's not to say that there's a good answer out there, 0:09:13.600 --> 0:09:16.560 and it really raises all these issues of little things 0:09:16.600 --> 0:09:19.120 again that we would take for granted in normal times. 0:09:19.320 --> 0:09:21.440 I mean, if you picture a client, if you picture 0:09:21.440 --> 0:09:23.320 a trial in your mind, and you think of a 0:09:23.440 --> 0:09:26.240 lawyer and a defendant sitting at a table, or a 0:09:26.280 --> 0:09:30.240 prosecutor and their witness sitting at their own prosecution table, 0:09:30.520 --> 0:09:32.680 the image in your mind is of a lawyer with 0:09:32.720 --> 0:09:35.640 their hand over the client's shoulder and their whispering back 0:09:35.679 --> 0:09:37.440 and forth to one another. But if you have to 0:09:37.440 --> 0:09:40.040 stay six ft apart, something as simple as being able 0:09:40.080 --> 0:09:43.120 to communicate in court during a trial in a time 0:09:43.200 --> 0:09:45.920 sensitive manner, that's not something you can do if everyone's 0:09:46.120 --> 0:09:50.520 abiding by social distancing restrictions. So something as seemingly small 0:09:50.559 --> 0:09:53.480 as that becomes a huge issue. And so something you 0:09:53.480 --> 0:09:56.480 mentioned too, like cross examining with a mask done. It 0:09:56.520 --> 0:09:58.679 all comes down to credibility. And so if you're not 0:09:58.760 --> 0:10:02.240 able to cease somebody and interact with them in that way, 0:10:02.520 --> 0:10:05.520 then it really just changes the whole tenner of the process. 0:10:05.640 --> 0:10:08.439 Is it New York? There's one court system that's using 0:10:09.000 --> 0:10:12.160 closed circuit phones to for the lawyers to talk to 0:10:12.160 --> 0:10:15.320 their clients. Sure, and this is an example of just 0:10:15.400 --> 0:10:18.280 different courts trying to adapt to the situation as best 0:10:18.320 --> 0:10:21.120 they can. One example that I came across was in 0:10:21.520 --> 0:10:24.440 the Southern District of New York, which covers Manhattan, to 0:10:24.679 --> 0:10:27.760 address the problem that I just mentioned, they have a 0:10:27.800 --> 0:10:31.200 situation where there's a closed circuit phone where a client 0:10:31.280 --> 0:10:32.839 can be on one end and a lawyer to be 0:10:32.920 --> 0:10:36.080 on one end, just on opposite sides of the same table, 0:10:36.120 --> 0:10:39.559 and they're whispering into their respective phones. And so it's 0:10:39.600 --> 0:10:42.559 a situation that, again it's perhaps not ideal for everybody, 0:10:42.600 --> 0:10:45.240 but it might be better than the alternative of not 0:10:45.320 --> 0:10:49.080 being able to really communicate in real time otherwise. And 0:10:49.120 --> 0:10:51.840 one lawyer you spoke to said, what probably would end 0:10:51.920 --> 0:10:54.480 up happening is you just say, forget the six feet 0:10:54.720 --> 0:10:57.200 between you and your client, and you just close the 0:10:57.200 --> 0:11:00.280 gap and go for it, right, And that's the problem. 0:11:00.280 --> 0:11:02.679 And again it's stuff we're seeing all over the country 0:11:02.679 --> 0:11:05.160 and all aspects of life, but just apply here now 0:11:05.480 --> 0:11:08.000 to the court system. When push comes to shove, you know, 0:11:08.080 --> 0:11:10.520 different people are going to react differently, and so if 0:11:10.520 --> 0:11:14.040 you're a lawyer and you're taking your job seriously, are 0:11:14.040 --> 0:11:16.360 and it's a situation where you think it's really important 0:11:16.400 --> 0:11:19.520 to communicate with your clients, but you have to reach 0:11:19.640 --> 0:11:22.080 this six foot rule. You know, different people are going 0:11:22.080 --> 0:11:24.480 to react to that differently. Some people are going to 0:11:24.559 --> 0:11:27.560 maybe hold back and maybe that winds up harming their case. 0:11:28.000 --> 0:11:29.920 Some people are gonna not hold back, and maybe that 0:11:29.960 --> 0:11:32.360 winds up harming their health. So we can see how 0:11:32.360 --> 0:11:35.240 this is just a situation that's evolving and does not 0:11:35.400 --> 0:11:39.439 have any great answers, and there's really just no end 0:11:39.480 --> 0:11:41.520 to it in sight, because we're seeing cases go up 0:11:41.520 --> 0:11:44.400 and go back down, just as with every other aspect 0:11:44.480 --> 0:11:48.120 of life. Have any lawyers told you I'm not going 0:11:48.160 --> 0:11:51.520 to take any extensions any more. Extensions I just can't 0:11:51.880 --> 0:11:54.080 because my case has reached a point where I need 0:11:54.120 --> 0:11:58.080 to move forward. One notable example of that came from 0:11:58.480 --> 0:12:01.200 Los Angeles County. The public defender there who I spoke to, 0:12:01.280 --> 0:12:04.000 Ricardo Garcia, has said that, you know, courts are just 0:12:04.080 --> 0:12:06.480 kicking the can down the road and they can't take 0:12:06.520 --> 0:12:09.680 it anymore. And so it's a situation that mirrors I 0:12:09.720 --> 0:12:12.680 think a lot of lawyer's attitudes across the country. The 0:12:12.760 --> 0:12:15.920 problem is that the question is whether you can actually 0:12:16.000 --> 0:12:20.160 do something about that, because courts are issuing these blanket orders, 0:12:20.240 --> 0:12:23.880 delaying these trials essentially indefinitely, but piece by piece, so 0:12:23.920 --> 0:12:27.240 there'll be a month extension followed by another month extension, 0:12:27.559 --> 0:12:30.000 just because really, I think courts are buying time, just 0:12:30.080 --> 0:12:33.240 like every other elected official is when people just don't 0:12:33.280 --> 0:12:35.760 really know what to do, and so it's easier to 0:12:35.840 --> 0:12:38.320 take it piece by piece when people just don't know 0:12:38.360 --> 0:12:41.440 what's going to happen the next day, and so we're 0:12:41.480 --> 0:12:45.400 not seeing a ton of challenges to this, and when 0:12:45.400 --> 0:12:47.760 we are seeing challenges, I don't think lawyers think they're 0:12:47.800 --> 0:12:50.880 necessarily going to be successful in this because courts are 0:12:50.880 --> 0:12:54.319 going to defer to the emergency. I wonder if this 0:12:54.400 --> 0:12:59.079 means in some sense this gives the defense an advantage 0:12:59.520 --> 0:13:03.439 in the witnesses may not want to come in and testify, 0:13:03.520 --> 0:13:06.280 and victims may not want to come in and testify, 0:13:06.320 --> 0:13:09.439 and prosecutors may have a hard time just putting their 0:13:09.480 --> 0:13:13.240 case together. So that's definitely a concern that comes up 0:13:13.280 --> 0:13:16.760 in when I spoke to some prosecutors. In the same 0:13:16.840 --> 0:13:20.920 way that defense lawyers are worrying about their clients, prosecutors 0:13:20.960 --> 0:13:24.680 are worrying about essentially their clients, which are the witnesses 0:13:24.720 --> 0:13:27.400 and the victims that they're trying to bring the court 0:13:27.480 --> 0:13:30.560 to make their case. And so everyone really has the 0:13:30.640 --> 0:13:33.160 same concerns these days and so and so you have 0:13:33.240 --> 0:13:35.760 to think about your health as well. That's just one 0:13:35.760 --> 0:13:38.840 of the many challenges that being faith here and trying 0:13:38.840 --> 0:13:43.000 to put these trials together. Thanks Jordan's that's Jordan Reuben 0:13:43.040 --> 0:13:48.000 Bloomberg Law Editor. Just a month ago, President Trump said 0:13:48.080 --> 0:13:52.600 this about the litigation over subpoenas for his financial records. 0:13:52.640 --> 0:13:56.160 Were basically starting all over again, sending everything back down 0:13:56.160 --> 0:13:58.240 to the lower courts, and to start all over again. 0:13:58.640 --> 0:14:01.480 Today Trump could say this ame thing about the congressional 0:14:01.520 --> 0:14:05.320 subpoenas for the testimony of former White House Counsel Don McGann. 0:14:05.679 --> 0:14:08.320 Despite a victory for Democrats at the d C. Circuit 0:14:08.400 --> 0:14:11.560 Court of Appeals, the fight over McGahan's testimony is going 0:14:11.679 --> 0:14:14.120 back to the lower court judge who ruled on in 0:14:14.200 --> 0:14:17.520 November of last year. Joining me is Harold Krant, a 0:14:17.520 --> 0:14:21.080 professor at the Chicago Kent College of Law. This goes 0:14:21.280 --> 0:14:25.960 way back to April of last year. So just remind 0:14:26.080 --> 0:14:30.080 us why they wanted to subpoena Don McGann. Don McGann 0:14:30.080 --> 0:14:33.480 served as White House counsel for President Trump, and he 0:14:33.560 --> 0:14:37.600 was critical figure in the Russian investigation. By all accounts, 0:14:37.680 --> 0:14:42.680 he was there at President Trump's elbow during the firing 0:14:42.880 --> 0:14:47.840 of FBI Comey and at Trump's alleged efforts to get 0:14:47.920 --> 0:14:50.960 Mueller fired as a special investigator to look into the 0:14:51.040 --> 0:14:55.960 Russia investigation. He cooperated with the special investigation, but then 0:14:56.040 --> 0:15:00.280 when the House decided to subpoena him, the president New 0:15:00.320 --> 0:15:05.960 Council decided to intervene and forbid him from complying with subpoena, 0:15:06.440 --> 0:15:09.440 arguing that as a close advisor to the president, he 0:15:09.520 --> 0:15:11.880 was immune from any kind of reach of the House 0:15:12.200 --> 0:15:15.920 in its effort to get investigation to corroborate the alleged 0:15:15.920 --> 0:15:19.400 obstruction of justice charges against President Trump. This was an 0:15:19.400 --> 0:15:22.520 on bank hearing of nine judges on the d C. 0:15:22.760 --> 0:15:25.560 Circuit Court of Appeals. Tell Us about the seven to 0:15:25.640 --> 0:15:29.280 two ruling, The depicially is important in terms of the 0:15:29.320 --> 0:15:33.560 broad strokes that it paints as to build legitimacy of 0:15:33.760 --> 0:15:38.600 a corrational interest in obtaining information in the president's possession. 0:15:38.760 --> 0:15:41.800 The argument had been that courts should never get involved 0:15:42.040 --> 0:15:45.200 in these kind of subpoena fights over information, because of 0:15:45.200 --> 0:15:48.040 course that would be a kind of a forced umpire 0:15:48.160 --> 0:15:51.560 and they would have to decide that rule for one 0:15:51.560 --> 0:15:53.320 branch or the other, and they'll be better to let 0:15:53.320 --> 0:15:56.000 the two branches fight it out, and sometimes the two 0:15:56.040 --> 0:15:58.960 branches to fight it out successfully over what type of 0:15:59.040 --> 0:16:02.520 information to bulge. In the lower court case, the court 0:16:02.560 --> 0:16:06.320 had held that courts are not permitted under our constitution 0:16:06.760 --> 0:16:10.680 to sit in this kind of inter branch dispute between 0:16:10.720 --> 0:16:15.200 Congress and the presidency. That would not be appropriate under 0:16:15.200 --> 0:16:17.840 our system of separation of powers for the courts to 0:16:17.920 --> 0:16:21.800 make that kind of rule. The armand Court has upheld 0:16:22.040 --> 0:16:25.040 not only the congressional interest in getting this information to 0:16:25.200 --> 0:16:28.680 investigate in a possible impeachment, but has held that the 0:16:28.680 --> 0:16:32.880 courts are indeed the proper place to enforce a subpoena 0:16:33.200 --> 0:16:37.400 because Congress has a tangible interest in getting this kind 0:16:37.440 --> 0:16:40.160 of information. But the case is not over, because it's 0:16:40.160 --> 0:16:43.880 going to go back and McGann can still claim that 0:16:43.920 --> 0:16:48.120 the information he had because of his work for President 0:16:48.120 --> 0:16:52.320 Trump is privileged. There's a long time recognition of executive privilege, 0:16:52.640 --> 0:16:54.960 and he will probably make some other claims as well. 0:16:55.120 --> 0:16:58.600 So the principle is very important here that the almand 0:16:58.640 --> 0:17:01.640 Court maintained. But it's unlikely that we're going to see 0:17:01.720 --> 0:17:05.439 McGann's testimony anytime soon. Let's talk a little bit about 0:17:05.480 --> 0:17:09.479 the tone of the majority opinion. The judge wrote that 0:17:09.480 --> 0:17:14.119 Trump had taken an unprecedented categorical direction and that the 0:17:14.119 --> 0:17:21.359 Trump administration's disregard for constitutional obligations likely explains the infrequency 0:17:21.400 --> 0:17:25.280 of subpoena enforcement lawsuits such as the present one. Tell 0:17:25.359 --> 0:17:28.440 us what she was getting at there, Well, what the 0:17:28.480 --> 0:17:33.040 Court was suggesting is that the reason why the branches 0:17:33.160 --> 0:17:36.720 had been able to reach some kind of accommodation or 0:17:36.760 --> 0:17:40.680 reconciliation of fights over information we passed was because they 0:17:40.800 --> 0:17:44.080 believed in working together ultimately. Yes they each had their side, 0:17:44.200 --> 0:17:46.760 Yes they had their differences, but they all believed that 0:17:46.840 --> 0:17:50.640 there was a fundamental role for each in governing the country. 0:17:50.920 --> 0:17:53.760 And what the Court is reacting to was that there 0:17:54.000 --> 0:17:57.760 has been a sort of manifest lack of respect for 0:17:57.880 --> 0:18:00.760 Congress that has been exhibited by our chiefs Ecutive, and 0:18:00.800 --> 0:18:03.879 that you expect the two branches to come to an 0:18:03.920 --> 0:18:07.640 agreement when one side here the President is so dismissive 0:18:07.720 --> 0:18:11.200 of and detigrates the authority of Congress that under those 0:18:11.320 --> 0:18:14.959 kinds of unique situations, it's even more appropriate for the 0:18:14.960 --> 0:18:18.240 courts to step in and act as the arbiter. The 0:18:18.280 --> 0:18:21.920 majority opinion sided the Supreme Court opinion on the congressional 0:18:21.960 --> 0:18:27.120 subpoenas for Trump's financial records sixteen times. How much reliance 0:18:27.560 --> 0:18:31.520 was there on that decision In fun Strokes, the opinion 0:18:31.600 --> 0:18:34.560 is sort of like a reflection or parallel to the 0:18:34.600 --> 0:18:37.639 Supreme Court's decision in the major's case having to do 0:18:37.720 --> 0:18:40.959 with Trump's taxes, because in both cases, what the Court 0:18:41.000 --> 0:18:45.040 held was that the claims of absolute immunity from suit 0:18:45.160 --> 0:18:48.560 by the executive branch, that those claims are too broad, 0:18:48.800 --> 0:18:53.399 and that that kind of executive hegemony is anathetical to 0:18:53.520 --> 0:18:56.760 the structure of our constitution. It did say, however, in 0:18:56.800 --> 0:18:59.920 both cases, that there could be legitimate reasons for either 0:19:00.280 --> 0:19:03.160 contesting the effort to get taxes in the one case 0:19:03.200 --> 0:19:06.360 by Congress in the other case, the effort to intrude 0:19:06.400 --> 0:19:11.000 into executive privilege by asking God to demanding questions about 0:19:11.040 --> 0:19:13.639 his relationship with President Trump on the other. But in 0:19:13.720 --> 0:19:17.640 broad structure, both courts reject the claim of broad immunity 0:19:17.680 --> 0:19:21.679 by President Trump's administration and say that's not how we 0:19:21.800 --> 0:19:24.960 understand the way the Constitution is meant to be structured, 0:19:25.200 --> 0:19:28.480 and rather their need for one branch to conform or 0:19:28.480 --> 0:19:32.160 accommodate to the legitimate claims of the other branch at times, 0:19:32.320 --> 0:19:35.520 and that both of these were such cases where accommodation 0:19:35.680 --> 0:19:40.040 is required under the Constitution. Two Republican appointees were in 0:19:40.040 --> 0:19:44.320 descent here, and how did they distinguish the Supreme Court's 0:19:44.359 --> 0:19:49.119 opinions In dissent, They look to a different line of 0:19:49.200 --> 0:19:53.640 cases um involving the ability of Congress to go into 0:19:53.680 --> 0:19:57.480 court to sue, and there's been a string of opinions 0:19:57.520 --> 0:20:01.719 that has limited the ability of individual members of Congress 0:20:01.760 --> 0:20:05.679 to go into court to contestant injuries suffered by the 0:20:05.880 --> 0:20:09.800 entire Congress. So they made parallel arguments and said, this 0:20:09.880 --> 0:20:14.879 is really simply the Democrats in the House, not the 0:20:15.119 --> 0:20:18.880 entire House, that is going into court for some kind 0:20:18.920 --> 0:20:24.199 of injury. They shouldn't be allowed to use the authority 0:20:24.320 --> 0:20:26.800 or the majesty of the U. S. Court system to 0:20:26.960 --> 0:20:30.040 get what it is an essence of political victory. And 0:20:30.080 --> 0:20:34.040 the majority, however, rejected that and said this is not 0:20:34.160 --> 0:20:37.840 the interest of a single or limited part of the legislature. 0:20:37.920 --> 0:20:42.639 This is an entire legitimate House effort to get information 0:20:42.760 --> 0:20:47.800 pursued into its constitutional responsibilities under the impeachment clause. So 0:20:47.840 --> 0:20:50.879 this is not just like three members of the legislature 0:20:51.080 --> 0:20:53.520 who feel like their vote has been diluted. This is 0:20:53.560 --> 0:20:58.919 an institutional injury to the House of Representatives itself and 0:20:59.000 --> 0:21:04.560 when an exercising constitutional responsibilities under the impeachment couse. I 0:21:04.640 --> 0:21:09.000 found it interesting that Trump's position was that Congress has 0:21:09.080 --> 0:21:12.040 other tools available, and one of those tools was shutting 0:21:12.080 --> 0:21:15.960 down the government. How did the court react to shut 0:21:15.960 --> 0:21:19.360 down the government to enforce these subpoenas well. I mean, 0:21:19.880 --> 0:21:23.480 what the Court has said is that you know there are, yes, 0:21:23.560 --> 0:21:28.840 there are political ways to fight over information in subpoenas um. 0:21:28.880 --> 0:21:31.840 But at the same time there is there is this 0:21:31.920 --> 0:21:34.840 kind of brinkmanship is not required on the constitution, that 0:21:34.880 --> 0:21:39.719 there's a history of enforcement of subpoenas and the fact 0:21:39.760 --> 0:21:44.600 that the president administration has disdained for the operation of 0:21:44.920 --> 0:21:47.439 the House of Representative is not a reason for course 0:21:47.480 --> 0:21:51.640 to forbear from deciding this important case. Again, I don't 0:21:51.680 --> 0:21:55.080 think we can seem against testimony anytime soon. But the 0:21:55.119 --> 0:21:58.359 principle that The fact that a close advisor is not 0:21:58.560 --> 0:22:02.840 totally immune from from complying with the congressional subpoena when 0:22:02.840 --> 0:22:05.119 the congressional subpoena is looking into the wrong during an 0:22:05.119 --> 0:22:09.320 executive branch is a very important principle that was reinforced 0:22:09.320 --> 0:22:13.119 by the court. So they sent this back to the 0:22:13.119 --> 0:22:15.960 lower court, and the lower court judge had written this 0:22:16.359 --> 0:22:20.200 very strong opinion where she said presidents are not kings. 0:22:20.840 --> 0:22:23.640 What kinds of questions are left for the lower court 0:22:23.720 --> 0:22:28.159 to decide. There's a technical question about whether the way 0:22:28.160 --> 0:22:32.480 to force compliance with the subpoena is through an action, 0:22:32.880 --> 0:22:36.639 a judicial action, or whether first it's whether to a 0:22:36.760 --> 0:22:41.520 refer a refusal to comply with subpoena to prosecutors to 0:22:41.880 --> 0:22:44.879 lodge a contempt action. So this is a route. Do 0:22:44.880 --> 0:22:47.200 you go through a criminal contempt action or do you 0:22:47.359 --> 0:22:52.800 instead have a sort of declaratory judgment to require compliance 0:22:52.840 --> 0:22:56.119 with the subpoena. I think the Mbard Court clearly indicated 0:22:56.160 --> 0:22:58.240 that their view on this. They didn't decide it, but 0:22:58.280 --> 0:23:01.280 their view on this is that this kind of judicial 0:23:01.280 --> 0:23:03.720 action is totally appropriate and you don't want to have 0:23:03.840 --> 0:23:08.360 to rely upon a criminal contempt motion for relatively obvious reasons, 0:23:08.400 --> 0:23:12.400 because since the executive branch is in charge of prosecution, 0:23:12.640 --> 0:23:15.439 you're not likely to get any kind of prosecutory of 0:23:15.440 --> 0:23:18.440 contempt or when it's the executive branch fighting with the 0:23:18.560 --> 0:23:21.679 legislative branch. So that one is is even odd that 0:23:22.160 --> 0:23:24.680