1 00:00:03,200 --> 00:00:08,719 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,720 --> 00:00:13,640 Speaker 1: The case before the Supreme Court is about a challenge 3 00:00:13,640 --> 00:00:16,759 Speaker 1: to the powers of the SEC to bring legal actions 4 00:00:16,800 --> 00:00:20,880 Speaker 1: in house, and it's another example of the conservative justices 5 00:00:21,120 --> 00:00:25,720 Speaker 1: targeting the administrative state. During the oral arguments, Chief Justice 6 00:00:25,840 --> 00:00:30,120 Speaker 1: John Roberts expressed concerns over the power of federal regulators. 7 00:00:30,800 --> 00:00:36,640 Speaker 2: The extent of impact of government agencies on daily life 8 00:00:36,720 --> 00:00:42,480 Speaker 2: today is enormously more significant than it was fifty years ago. 9 00:00:43,440 --> 00:00:46,920 Speaker 1: The Jocracy case could strip the SEC of a key 10 00:00:47,080 --> 00:00:52,279 Speaker 1: enforcement tool, and Conservative justices like Brett Cavanaugh suggested that 11 00:00:52,400 --> 00:00:56,320 Speaker 1: people accused of fraud by the SEC have a constitutional 12 00:00:56,400 --> 00:00:59,200 Speaker 1: right to have their cases decided by a jury in 13 00:00:59,320 --> 00:01:03,400 Speaker 1: federal courts instead of by the SEC's in house administrative 14 00:01:03,440 --> 00:01:04,120 Speaker 1: law judges. 15 00:01:04,840 --> 00:01:10,000 Speaker 3: That seems problematic to say the government can deprive you 16 00:01:10,080 --> 00:01:15,080 Speaker 3: of your property, your money, substantial sums in a tribunal 17 00:01:15,959 --> 00:01:20,160 Speaker 3: that is at least perceived as not being impartial. 18 00:01:20,400 --> 00:01:22,680 Speaker 1: A change in the law by the Court here could 19 00:01:22,720 --> 00:01:27,840 Speaker 1: have effects far beyond the SEC, because roughly two dozen agencies, 20 00:01:28,000 --> 00:01:31,959 Speaker 1: including the EPA, the CFTC, and the Federal Trade Commission, 21 00:01:32,319 --> 00:01:37,120 Speaker 1: have similar enforcement schemes, as Liberal Justice Sonya Sotomayor pointed 22 00:01:37,160 --> 00:01:40,400 Speaker 1: out to Jocasy's attorney Michael McCulloch. 23 00:01:40,280 --> 00:01:48,400 Speaker 4: All of those agencies we'll have to go to court. Correct, Well, 24 00:01:48,720 --> 00:01:53,320 Speaker 4: you are, all of their proceedings are now nullified unto 25 00:01:53,360 --> 00:01:53,960 Speaker 4: your theory. 26 00:01:54,080 --> 00:01:57,720 Speaker 1: And Liberal Justice Elena Kagan pointed to a nineteen seventy 27 00:01:57,800 --> 00:02:01,960 Speaker 1: seven Supreme Court ruling at La Roofing, telling McCulloch it 28 00:02:02,120 --> 00:02:04,440 Speaker 1: settled the issue and there was no right to a 29 00:02:04,560 --> 00:02:05,880 Speaker 1: jury trial here. 30 00:02:05,920 --> 00:02:09,240 Speaker 4: In a case where Congress has given an agency the 31 00:02:09,320 --> 00:02:14,520 Speaker 4: power to enforce something and the agency is bringing the charge, 32 00:02:14,520 --> 00:02:18,600 Speaker 4: if you will that you know that that's just not 33 00:02:19,360 --> 00:02:20,679 Speaker 4: it's that's settled. 34 00:02:21,080 --> 00:02:23,840 Speaker 1: Well, it's settled only to the extent no one's brought 35 00:02:23,840 --> 00:02:27,600 Speaker 1: it up and forced this issue since Atlas Roofing in his. 36 00:02:27,760 --> 00:02:34,919 Speaker 4: Chorea is contact. Nobody has had the you know, kutzpa 37 00:02:35,000 --> 00:02:38,959 Speaker 4: to quote my people to bring it up since Atlas Roofing. 38 00:02:39,800 --> 00:02:42,399 Speaker 1: My guest is Harold Krent, a professor at the Chicago 39 00:02:42,480 --> 00:02:46,800 Speaker 1: Kent College of Law. How this involves George Jarcasy, a 40 00:02:46,840 --> 00:02:50,880 Speaker 1: former hedge fund manager and conservative radio host, and the 41 00:02:50,919 --> 00:02:54,600 Speaker 1: SEC found that he had committed securities fraud in twenty 42 00:02:54,680 --> 00:02:59,320 Speaker 1: thirteen for misleading investors. Hell tell us about the case 43 00:02:59,520 --> 00:03:01,120 Speaker 1: and what's at stake here. 44 00:03:01,919 --> 00:03:06,280 Speaker 5: This started ten years ago and the variety of challenges 45 00:03:06,720 --> 00:03:12,680 Speaker 5: against the SEC proceedings, and finally, after first losing in 46 00:03:12,720 --> 00:03:15,359 Speaker 5: the DC Circuit, he tried and found more success in 47 00:03:15,480 --> 00:03:19,240 Speaker 5: the Fifth Circuit, and the Fifth Circuit decided on three 48 00:03:19,280 --> 00:03:24,359 Speaker 5: distinct constitutional violations. First that there was a non delegation 49 00:03:24,520 --> 00:03:28,359 Speaker 5: violation in the fact that Congress had not given sufficient 50 00:03:28,400 --> 00:03:31,240 Speaker 5: guidance to the Security Change Commission about whether to bring 51 00:03:31,760 --> 00:03:35,320 Speaker 5: a security fraud action before an alj as opposed to 52 00:03:35,680 --> 00:03:39,120 Speaker 5: in front of a court. And second, that the SEC 53 00:03:39,400 --> 00:03:44,200 Speaker 5: proceedings weren't constitutionally constructed because the administer of law judges 54 00:03:44,360 --> 00:03:47,200 Speaker 5: in the Security is a Change Commission are protected from 55 00:03:47,200 --> 00:03:52,000 Speaker 5: that will removal and thus violate Article two. And the 56 00:03:52,320 --> 00:03:56,440 Speaker 5: third problem was that the fraud charges that the SEC 57 00:03:56,520 --> 00:04:02,080 Speaker 5: successfully brought against Charc echoed those of fraud cases at 58 00:04:02,080 --> 00:04:05,000 Speaker 5: common law and that therefore that duct should have been 59 00:04:05,000 --> 00:04:09,440 Speaker 5: granted a jury trial. If the Supreme Court decides all 60 00:04:09,480 --> 00:04:13,200 Speaker 5: three issues against the SEC, they would have enormous ramifications 61 00:04:13,240 --> 00:04:16,599 Speaker 5: on the administrative state. That's not likely after listening to 62 00:04:16,640 --> 00:04:20,680 Speaker 5: the oral argument, but nonetheless, the consequence of dramatic and 63 00:04:20,839 --> 00:04:25,200 Speaker 5: briefly they are that almost every particular individual or firm 64 00:04:25,240 --> 00:04:27,839 Speaker 5: performed agency, many at least, would have the right to 65 00:04:27,880 --> 00:04:29,800 Speaker 5: a jury trial and not have to go before an 66 00:04:29,800 --> 00:04:33,040 Speaker 5: administrative tribunalism is currently the case. That would be one 67 00:04:33,080 --> 00:04:36,720 Speaker 5: fundamental change. The second would be that all administrative law 68 00:04:36,800 --> 00:04:39,680 Speaker 5: judges would have to be subject there outwill removal, which 69 00:04:39,720 --> 00:04:45,800 Speaker 5: would undermine the independence, ironically of these administrative determinations. And third, 70 00:04:46,080 --> 00:04:50,240 Speaker 5: there would be some kind reinvigoration of the non delegation doctrine, 71 00:04:50,240 --> 00:04:55,120 Speaker 5: which was mimit Congress's ability to delegate issues for administry 72 00:04:55,120 --> 00:05:00,400 Speaker 5: of agencies to resolve. So very consequential case, very usual 73 00:05:00,440 --> 00:05:03,440 Speaker 5: what happened at oral arguments or the stakes couldn't be higher. 74 00:05:03,760 --> 00:05:06,719 Speaker 1: So, now, before we go into the oral arguments, explain 75 00:05:06,839 --> 00:05:10,799 Speaker 1: the difference between an administrative law judge and a federal 76 00:05:10,839 --> 00:05:13,680 Speaker 1: district court judge known as an Article three judge, and 77 00:05:13,760 --> 00:05:16,839 Speaker 1: the difference in the proceedings in the different forums. 78 00:05:17,240 --> 00:05:20,800 Speaker 5: So the two different tracks of litigation when the government 79 00:05:20,960 --> 00:05:24,400 Speaker 5: is involved. The first would be before an Article three 80 00:05:24,480 --> 00:05:28,479 Speaker 5: judge in a federal trial court, and those proceedings are 81 00:05:28,800 --> 00:05:31,599 Speaker 5: very similar to anything one would see on TV in 82 00:05:31,720 --> 00:05:35,080 Speaker 5: terms of having rules of evidence. You'd have a judge 83 00:05:35,080 --> 00:05:39,680 Speaker 5: who is protected from any kind of diminution and salary 84 00:05:39,839 --> 00:05:45,440 Speaker 5: or removal. You'd have attorneys for both sides arguing subject 85 00:05:45,480 --> 00:05:49,080 Speaker 5: to delineated rules, and at times you'd have a jury 86 00:05:49,080 --> 00:05:52,960 Speaker 5: trial as well if there were money damages at stake. 87 00:05:53,560 --> 00:05:57,680 Speaker 5: In contrast, in a typical administrative proceeding, of which there 88 00:05:57,720 --> 00:06:01,240 Speaker 5: are hundreds of thousands a year, you would have an 89 00:06:01,240 --> 00:06:05,400 Speaker 5: Administry of Law judge who is appointed by the agency 90 00:06:06,000 --> 00:06:09,080 Speaker 5: and is subject to remove by the agency, but at 91 00:06:09,160 --> 00:06:13,599 Speaker 5: least currently only for some kind of misconduct. The proceeding 92 00:06:13,600 --> 00:06:16,400 Speaker 5: would go before this Administry of Law judge. The rules 93 00:06:16,400 --> 00:06:19,760 Speaker 5: of evidence would be much more flexible, in other words, 94 00:06:19,839 --> 00:06:23,159 Speaker 5: more information could be submitted. In addition, there would be 95 00:06:23,160 --> 00:06:25,960 Speaker 5: no jury, and so the case would first go before 96 00:06:25,960 --> 00:06:28,680 Speaker 5: the Ministry of Law judge, but then can be appealed 97 00:06:28,720 --> 00:06:32,440 Speaker 5: to the administrative agency itself in this case the Securities 98 00:06:32,440 --> 00:06:35,640 Speaker 5: and Exchange Commission, and of course those are political actors. 99 00:06:36,040 --> 00:06:39,120 Speaker 5: But then only after these Securities and Exchange Commission would 100 00:06:39,160 --> 00:06:42,440 Speaker 5: make a decision, then judicial review would be opened up 101 00:06:43,000 --> 00:06:47,800 Speaker 5: and a court would determine whether the agency reasonably acted 102 00:06:48,240 --> 00:06:52,640 Speaker 5: in terms of deciding upon a fine or discouragement, as 103 00:06:52,680 --> 00:06:57,039 Speaker 5: indeed both happened in this case. So they're very different tracks. 104 00:06:57,240 --> 00:07:01,400 Speaker 5: There's judicial involvement in both of them. One the judiciary 105 00:07:02,000 --> 00:07:05,600 Speaker 5: has a review function over the agency and cancy agency 106 00:07:05,680 --> 00:07:08,440 Speaker 5: some difference in how it conducts the proceedings, and the 107 00:07:08,520 --> 00:07:13,160 Speaker 5: other it's much more protective of individual rights and the 108 00:07:13,280 --> 00:07:16,160 Speaker 5: individual would have the ability to have a jury check 109 00:07:16,280 --> 00:07:20,680 Speaker 5: upon any kind of zeal or overreaching by the government 110 00:07:20,720 --> 00:07:21,880 Speaker 5: and bringing these charges. 111 00:07:22,840 --> 00:07:23,000 Speaker 4: Now. 112 00:07:23,120 --> 00:07:27,800 Speaker 1: Jocasy contends that defendants in SEC cases have a constitutional 113 00:07:27,880 --> 00:07:30,600 Speaker 1: right to make their case to a federal jury, and 114 00:07:30,680 --> 00:07:35,720 Speaker 1: the oral arguments focused almost entirely on that one issue 115 00:07:35,720 --> 00:07:39,280 Speaker 1: on the Seventh Amendment, which provides that in suits at 116 00:07:39,280 --> 00:07:42,640 Speaker 1: common law, the right of trial by jury shall be preserved. 117 00:07:43,120 --> 00:07:46,560 Speaker 1: So tell us about the argument over the Seventh Amendment. 118 00:07:46,960 --> 00:07:49,240 Speaker 5: Well before the argument of the amendment. What I think 119 00:07:49,360 --> 00:07:52,560 Speaker 5: is extraordinary about this case is the two other very 120 00:07:52,600 --> 00:07:57,760 Speaker 5: significant constitutional arguments that we discussed were hardly mentioned it 121 00:07:57,800 --> 00:08:01,000 Speaker 5: all during oral argument and or argumently in almost two hours. 122 00:08:01,040 --> 00:08:03,200 Speaker 5: And so the question is why, And I don't know 123 00:08:03,240 --> 00:08:07,400 Speaker 5: the answer. You only speculate that either the justices were 124 00:08:07,480 --> 00:08:11,200 Speaker 5: convinced that the other two arguments were not very weighty 125 00:08:11,480 --> 00:08:15,040 Speaker 5: and therefore they knew what the result would be, or 126 00:08:15,200 --> 00:08:18,080 Speaker 5: they might have decided that they were going to throw 127 00:08:18,160 --> 00:08:21,440 Speaker 5: this case out on the Seventh Amendment grounds anyway, and 128 00:08:21,480 --> 00:08:24,000 Speaker 5: so they didn't have to decide either the non delegation 129 00:08:24,360 --> 00:08:28,760 Speaker 5: argument or the alga removability issue. But it is extremely 130 00:08:29,440 --> 00:08:34,439 Speaker 5: unusual for the Court to ignore two very important constitutional 131 00:08:34,520 --> 00:08:37,800 Speaker 5: challenges in a case of this nature, So that to 132 00:08:37,840 --> 00:08:40,560 Speaker 5: me is the biggest mystery of this case. But turning 133 00:08:40,600 --> 00:08:44,640 Speaker 5: to the difficult question about the Seventh Amendment, the question 134 00:08:44,720 --> 00:08:49,720 Speaker 5: is how broad the Seventh Amendment should be construed to extend. 135 00:08:50,040 --> 00:08:53,040 Speaker 5: On the one hand, an individual has a right to 136 00:08:53,080 --> 00:08:56,000 Speaker 5: a jury trial, but the courts for one hundred and 137 00:08:56,000 --> 00:09:00,160 Speaker 5: fifty years, if not more, have said that the very 138 00:09:00,240 --> 00:09:03,000 Speaker 5: trial right does not exist if there is a public 139 00:09:03,080 --> 00:09:06,600 Speaker 5: right involved, And so much of the argument discussed from 140 00:09:06,600 --> 00:09:10,640 Speaker 5: different perspectives what is a public right? And the Supreme 141 00:09:10,640 --> 00:09:13,959 Speaker 5: Court held fifty years ago in a case called Atlas Roofings, 142 00:09:14,160 --> 00:09:17,040 Speaker 5: that a public right would include not only issues between 143 00:09:17,120 --> 00:09:22,240 Speaker 5: individuals and the government directly, such as taxes and claims 144 00:09:22,280 --> 00:09:26,679 Speaker 5: like social security benefits, but also would include anything under 145 00:09:26,840 --> 00:09:32,040 Speaker 5: a comprehensive congressional scheme that was devised in order to 146 00:09:32,080 --> 00:09:36,439 Speaker 5: protect the public. So in that case, Congress had created 147 00:09:36,440 --> 00:09:42,120 Speaker 5: a mechanism to allow a federal agency OOSHA, to inspect 148 00:09:42,120 --> 00:09:47,520 Speaker 5: workplaces and find individual companies for failure to maintain a 149 00:09:47,600 --> 00:09:52,240 Speaker 5: healthy workplace. And then the court said, yes, these kinds 150 00:09:52,240 --> 00:09:55,960 Speaker 5: of finds are a little bit like negligence claims or 151 00:09:56,240 --> 00:09:59,520 Speaker 5: wantful death claims that could be launched against employers. But 152 00:09:59,640 --> 00:10:03,040 Speaker 5: when the government brings such an action, it does so 153 00:10:03,480 --> 00:10:06,000 Speaker 5: for a different purpose. It brings the action to protect 154 00:10:06,000 --> 00:10:10,080 Speaker 5: the public and to try to prevent these kind of 155 00:10:10,120 --> 00:10:14,520 Speaker 5: workplace accidents. And therefore, in light of this unique public nature, 156 00:10:14,600 --> 00:10:16,599 Speaker 5: there is no right to a jury trial, and that 157 00:10:16,679 --> 00:10:20,240 Speaker 5: therefore the government can recover fines even outside of the 158 00:10:20,400 --> 00:10:24,480 Speaker 5: jury context. So this is the precedent that the government 159 00:10:24,520 --> 00:10:28,880 Speaker 5: relied upon, and it has been cited in lots of 160 00:10:28,920 --> 00:10:34,240 Speaker 5: cases since involving finding immigration proceedings, in customs proceedings and 161 00:10:34,280 --> 00:10:37,680 Speaker 5: so forth. So the stakes are very high in this case, 162 00:10:37,720 --> 00:10:41,200 Speaker 5: and indeed, much of the argument was talking about line drawing. 163 00:10:41,600 --> 00:10:46,920 Speaker 5: What is to distinguish the fraud claim under the Securities 164 00:10:46,960 --> 00:10:52,640 Speaker 5: Act in the Jerxi case from a case involving taxes, 165 00:10:53,040 --> 00:10:55,800 Speaker 5: involving customs duties and so forth. 166 00:10:55,960 --> 00:10:58,400 Speaker 1: Coming up next, we'll talk about what the decision might 167 00:10:58,480 --> 00:11:01,280 Speaker 1: look like. I'm June gram So when you're listening to Bloomberg, 168 00:11:01,840 --> 00:11:04,199 Speaker 1: I've been talking to Professor Harold Krant to the Chicago 169 00:11:04,320 --> 00:11:08,160 Speaker 1: Kent College of Law about Supreme Court oral arguments this 170 00:11:08,240 --> 00:11:11,160 Speaker 1: week over a challenge to the power of the sec 171 00:11:11,320 --> 00:11:15,520 Speaker 1: to bring legal actions in house. The Conservative Justice is 172 00:11:16,000 --> 00:11:18,800 Speaker 1: seem to be very concerned about the right to a 173 00:11:18,920 --> 00:11:22,520 Speaker 1: jury in this case, and it struck me as a 174 00:11:22,559 --> 00:11:26,640 Speaker 1: bit odd because jury trial isn't something they've historically cared 175 00:11:26,679 --> 00:11:30,439 Speaker 1: about very much, right, They've always pushed forced arbitration they have. 176 00:11:30,679 --> 00:11:34,440 Speaker 5: I mean, certainly, it's true. And what is clear out 177 00:11:34,440 --> 00:11:38,280 Speaker 5: of this discussion is that they have circled back to 178 00:11:38,880 --> 00:11:43,199 Speaker 5: the importance in seventeen ninety one of the ratification of 179 00:11:43,240 --> 00:11:46,960 Speaker 5: the Seventh Amendment to think that this is a hallmark 180 00:11:47,160 --> 00:11:51,960 Speaker 5: right that should be preserved by any individual, not only 181 00:11:52,000 --> 00:11:55,720 Speaker 5: if they're litigating against another company or another individual, but 182 00:11:55,760 --> 00:12:00,600 Speaker 5: also when they're litigating against the government itself. And that's 183 00:12:00,720 --> 00:12:04,520 Speaker 5: not how we've recognized that right in the last seventy 184 00:12:04,559 --> 00:12:07,679 Speaker 5: five years. So the Court is I think using this 185 00:12:07,760 --> 00:12:11,880 Speaker 5: now is a lever to try to either cut down 186 00:12:12,320 --> 00:12:16,640 Speaker 5: or diminish the power of these administrative agencies that operate 187 00:12:16,679 --> 00:12:20,800 Speaker 5: in so many sectors of our lives, from transportation into immigration, 188 00:12:21,400 --> 00:12:26,080 Speaker 5: to workplace safety, to environmental safety, and so much more. 189 00:12:26,400 --> 00:12:29,560 Speaker 5: And so by focusing on the Seventh Amendment in a 190 00:12:29,600 --> 00:12:34,080 Speaker 5: way that they haven't before, they will effectively force agencies 191 00:12:34,120 --> 00:12:38,240 Speaker 5: to go to court to collect penalties, and that will 192 00:12:38,280 --> 00:12:40,200 Speaker 5: slow down the administrative process. 193 00:12:41,040 --> 00:12:45,360 Speaker 1: Justice is Elena Kagan and Katanji Brown Jackson said that 194 00:12:45,440 --> 00:12:49,640 Speaker 1: the at Liss ruling settled the issue here, So would 195 00:12:49,720 --> 00:12:54,599 Speaker 1: the Court have to overrule that nineteen seventy seven precedent 196 00:12:54,960 --> 00:12:57,280 Speaker 1: in order to rule for jocracy here. 197 00:12:57,960 --> 00:13:00,959 Speaker 5: Likely they would do so, at least in substance, if 198 00:13:00,960 --> 00:13:04,319 Speaker 5: not inform I mean. Chief Justice Roberts himself said, well, 199 00:13:04,600 --> 00:13:07,280 Speaker 5: you know that pathless was fifty years ago, and we've 200 00:13:07,280 --> 00:13:09,839 Speaker 5: seen a lot of that's happened in the last fifty years, 201 00:13:09,920 --> 00:13:13,960 Speaker 5: including the increasing power of administrative agencies. So it's time 202 00:13:13,960 --> 00:13:16,480 Speaker 5: for us to take a good look back at it 203 00:13:16,600 --> 00:13:19,160 Speaker 5: to see if it makes sense today. And to be fair, 204 00:13:19,480 --> 00:13:23,320 Speaker 5: some of the more conservative justices, particularly Justice Barrett, was 205 00:13:23,400 --> 00:13:27,280 Speaker 5: struggling to figure out a limiting principle about how you 206 00:13:27,280 --> 00:13:30,960 Speaker 5: could make the determination of when the Seventh Amendment right 207 00:13:31,000 --> 00:13:33,720 Speaker 5: would be triggered. For instance, is it just because there's 208 00:13:33,720 --> 00:13:37,240 Speaker 5: a civil penalty that would be at least one easily 209 00:13:37,280 --> 00:13:41,439 Speaker 5: administrable remedy to say, as opposed to say a discooragement 210 00:13:41,520 --> 00:13:44,560 Speaker 5: penalty or something else, or a cease and desist order. 211 00:13:44,760 --> 00:13:47,920 Speaker 5: So is that line important? So there was at least 212 00:13:47,920 --> 00:13:51,439 Speaker 5: some kind of wrangling amongst some of the conservative justices, 213 00:13:51,880 --> 00:13:55,200 Speaker 5: not Justice Alito, not Justice Thomas, but the others about 214 00:13:55,240 --> 00:13:59,120 Speaker 5: this kind of line drawing. Is if they extend the 215 00:13:59,320 --> 00:14:02,960 Speaker 5: Seventh Amend, how far will the extension be? And at 216 00:14:03,040 --> 00:14:08,200 Speaker 5: least they were concerned that a literal interpretation of what 217 00:14:08,280 --> 00:14:11,280 Speaker 5: Darshi was arguing might extend very far. 218 00:14:11,320 --> 00:14:17,319 Speaker 1: Indeed, the Assistants Elicitor General said the government was protecting 219 00:14:17,320 --> 00:14:20,280 Speaker 1: the rights of the public generally, and when the public's 220 00:14:20,360 --> 00:14:22,680 Speaker 1: rights are at issue, the right to a jury trial 221 00:14:23,200 --> 00:14:26,560 Speaker 1: guaranteed by the Seventh Amendment in suits that common law 222 00:14:26,640 --> 00:14:30,120 Speaker 1: did not apply. Do you agree or disagree that the 223 00:14:30,120 --> 00:14:32,760 Speaker 1: Seventh Amendment applies to this situation. 224 00:14:33,240 --> 00:14:35,720 Speaker 5: I think that the President is extremely strong that the 225 00:14:35,720 --> 00:14:40,600 Speaker 5: Seventh Amendment does not apply when Congress allows individuals to 226 00:14:40,680 --> 00:14:43,920 Speaker 5: sue each other before a federal form. That's where the 227 00:14:44,160 --> 00:14:47,360 Speaker 5: interest and concern of the Seventh Amendment should be at 228 00:14:47,360 --> 00:14:49,920 Speaker 5: its strongest. And those are the examples I think the 229 00:14:49,920 --> 00:14:52,840 Speaker 5: Court should be focusing on. But I don't think the 230 00:14:52,880 --> 00:14:56,400 Speaker 5: Court is correct to be concerned about is when the 231 00:14:56,840 --> 00:15:00,280 Speaker 5: actual challenges not between two private entities, but the between 232 00:15:00,280 --> 00:15:04,120 Speaker 5: a private entity and the federal government itself. That's really 233 00:15:04,120 --> 00:15:07,400 Speaker 5: the essence of what a public right is. That's what 234 00:15:07,680 --> 00:15:10,600 Speaker 5: Justice Scotias said years ago, and that should be the 235 00:15:10,640 --> 00:15:13,160 Speaker 5: focus here. And so in this case, when we have 236 00:15:13,840 --> 00:15:18,120 Speaker 5: the government saying that we're not suing on behalf of 237 00:15:18,120 --> 00:15:22,320 Speaker 5: a private party. We're suing because you have rattled confidence 238 00:15:22,360 --> 00:15:26,840 Speaker 5: in the securities markets, that's absolutely permissible, and the jury 239 00:15:26,880 --> 00:15:29,160 Speaker 5: trial right and the serf of Amendment should not be triggered. 240 00:15:29,360 --> 00:15:30,640 Speaker 1: How do you think they're going to rule? Is it 241 00:15:30,640 --> 00:15:32,640 Speaker 1: going to be a six ' to three ruling, whatever 242 00:15:32,680 --> 00:15:33,080 Speaker 1: it is. 243 00:15:33,680 --> 00:15:36,840 Speaker 5: You know, again, it's so difficult to judge from in 244 00:15:36,880 --> 00:15:39,000 Speaker 5: our a argument. How of course finally going to come 245 00:15:39,040 --> 00:15:42,200 Speaker 5: out but I would guess that they will try to 246 00:15:42,320 --> 00:15:46,840 Speaker 5: articulate a fuzzy line, but a line that is more 247 00:15:47,160 --> 00:15:52,160 Speaker 5: restrictive of Congress's ability really to determine what kind of 248 00:15:52,800 --> 00:15:55,920 Speaker 5: suits can be presented before administrative agencies. I doubt they 249 00:15:55,960 --> 00:15:59,520 Speaker 5: will go as far as to say that Congress can't 250 00:16:00,000 --> 00:16:02,840 Speaker 5: allow such suits to go before, but they'll probably talk 251 00:16:02,920 --> 00:16:08,160 Speaker 5: about Congress is limited when the suit is either in 252 00:16:08,200 --> 00:16:12,800 Speaker 5: all respects similar or echoes or derivative of a common 253 00:16:12,880 --> 00:16:14,760 Speaker 5: law right. So what the court we'll want to do 254 00:16:14,840 --> 00:16:18,200 Speaker 5: is say, use the touchstone of a common law right 255 00:16:18,600 --> 00:16:19,880 Speaker 5: and say, if you have the right to have a 256 00:16:19,920 --> 00:16:24,040 Speaker 5: jury trial in a similar case in seventeen ninety one 257 00:16:24,120 --> 00:16:28,880 Speaker 5: and a court to Westminster, then Congress cannot effectively deprive 258 00:16:28,960 --> 00:16:31,880 Speaker 5: you of that right by calling it something else, by 259 00:16:32,000 --> 00:16:35,720 Speaker 5: changing it slightly and vesting it before an administrative agency. 260 00:16:35,880 --> 00:16:37,400 Speaker 5: That'd be my educated guess. 261 00:16:37,680 --> 00:16:42,400 Speaker 1: Let's talk about the ramifications of a decision against the SEC. Here. 262 00:16:42,840 --> 00:16:46,840 Speaker 1: For example, will the decision affect the Federal Trade Commission, 263 00:16:47,040 --> 00:16:50,160 Speaker 1: which uses in house judges as well. 264 00:16:50,320 --> 00:16:54,960 Speaker 5: The decision is likely to affect Federal Trade Commission. It 265 00:16:55,040 --> 00:17:00,200 Speaker 5: may affect OSHA, It may affect the customs duties ends 266 00:17:00,240 --> 00:17:03,200 Speaker 5: on the exact test for how to determine whether this 267 00:17:03,760 --> 00:17:08,280 Speaker 5: particular right of action brought by the government is similar 268 00:17:08,480 --> 00:17:12,720 Speaker 5: to the suited common law in seventeen ninety one. I mean, 269 00:17:12,760 --> 00:17:16,640 Speaker 5: that is a very archaic way of understanding what Congress 270 00:17:16,680 --> 00:17:18,760 Speaker 5: can do and can't do in terms of deciding where 271 00:17:18,880 --> 00:17:22,760 Speaker 5: these particular claims can be brought. But I think that's 272 00:17:22,800 --> 00:17:26,399 Speaker 5: where the court is headed. And that was the concern 273 00:17:26,440 --> 00:17:30,240 Speaker 5: that was recognized by counsel for Darsi that depending upon 274 00:17:30,320 --> 00:17:34,920 Speaker 5: the line drawing, the case may either have a modest 275 00:17:35,359 --> 00:17:41,119 Speaker 5: impact or a tremendous impact. And so even if the court, 276 00:17:41,280 --> 00:17:45,240 Speaker 5: as it seems, will lean towards DARKSI, the real question 277 00:17:45,480 --> 00:17:50,000 Speaker 5: is how broad the decision and that's something they wrestled 278 00:17:50,000 --> 00:17:53,000 Speaker 5: at it. And indeed, just as Sodhamoyor said, look, this 279 00:17:53,080 --> 00:17:56,800 Speaker 5: is a big issue. Neither side has litigated how broad 280 00:17:57,160 --> 00:18:00,359 Speaker 5: the impact will be of a decision if we strike 281 00:18:00,440 --> 00:18:03,679 Speaker 5: down the claim in this case. Shouldn't we have more 282 00:18:04,320 --> 00:18:07,720 Speaker 5: briefing on the issue in recognition of how important it was, 283 00:18:07,800 --> 00:18:09,800 Speaker 5: And I doubt they we'll do that, But I mean 284 00:18:09,880 --> 00:18:13,159 Speaker 5: her point was, you know, we're just reaching in a 285 00:18:13,240 --> 00:18:16,560 Speaker 5: darker we don't know exactly how broad of an impact 286 00:18:17,080 --> 00:18:18,560 Speaker 5: a room for darcy would have. 287 00:18:19,400 --> 00:18:22,080 Speaker 1: This is part of a Supreme Court term that could 288 00:18:22,080 --> 00:18:26,880 Speaker 1: have broad implications for federal regulators. The justices heard arguments 289 00:18:26,920 --> 00:18:30,879 Speaker 1: in October over whether the Consumer Financial Protection Bureau's funding 290 00:18:30,920 --> 00:18:34,720 Speaker 1: system is constitutional, and in January it will consider whether 291 00:18:34,760 --> 00:18:38,439 Speaker 1: to overturn the Chevron doctrine, which is a precedent that 292 00:18:38,560 --> 00:18:44,960 Speaker 1: gives agencies leeway when they interpret ambiguous congressional commands. Why 293 00:18:45,000 --> 00:18:49,280 Speaker 1: this focus and do you think federal regulators should be 294 00:18:49,440 --> 00:18:51,439 Speaker 1: afraid of what's going to happen this term? 295 00:18:52,080 --> 00:18:55,080 Speaker 5: Well, it's plain that the focus has arisen from a 296 00:18:55,200 --> 00:18:58,400 Speaker 5: deep distrust of the administrative state, and the Court has 297 00:18:58,480 --> 00:19:01,560 Speaker 5: signaled in a variety of cases is that it wants 298 00:19:01,600 --> 00:19:04,720 Speaker 5: to pair down the size of government, and it thinks 299 00:19:04,760 --> 00:19:08,720 Speaker 5: Congress has gone too far in an empowering administrative agencies 300 00:19:08,720 --> 00:19:13,960 Speaker 5: with the ability to investigate and to proceed against mostly 301 00:19:14,040 --> 00:19:18,720 Speaker 5: companies who violate the regulations that these agencies have promulgated 302 00:19:18,800 --> 00:19:23,680 Speaker 5: in order to enforce a congressional mission. And so these cases, 303 00:19:23,920 --> 00:19:28,680 Speaker 5: together with the appointments cases and removal cases that the 304 00:19:28,720 --> 00:19:33,080 Speaker 5: Court previously has articulated, is trying to take another look 305 00:19:33,320 --> 00:19:37,600 Speaker 5: at how broadly administrative agencies have influence over our lives. 306 00:19:37,840 --> 00:19:41,000 Speaker 5: But that being said, I think that the Court is 307 00:19:41,320 --> 00:19:44,200 Speaker 5: proceeding probably a little more slowly now than it thought 308 00:19:44,200 --> 00:19:47,440 Speaker 5: it might two years ago. My guess is that they 309 00:19:47,480 --> 00:19:52,199 Speaker 5: will take some steps to curve the power of administrative agencies. 310 00:19:52,440 --> 00:19:55,520 Speaker 5: But by ignoring the non delegation argument today, for instance, 311 00:19:55,760 --> 00:19:59,399 Speaker 5: they have bypassed an opportunity that would really stick a 312 00:19:59,440 --> 00:20:04,040 Speaker 5: stake in the most administrative agencies directly, because that could 313 00:20:04,040 --> 00:20:08,359 Speaker 5: have had an incredibly dramatic impact upon administer of agencies 314 00:20:08,400 --> 00:20:12,000 Speaker 5: had they held that Congress has to be incredibly clear 315 00:20:12,359 --> 00:20:16,800 Speaker 5: before an agency can't exercise any power whatsoever. Indeed, because 316 00:20:16,840 --> 00:20:19,640 Speaker 5: the question in this case was so minor, they had 317 00:20:19,640 --> 00:20:22,840 Speaker 5: to do with whether the agency could use the judgment 318 00:20:22,880 --> 00:20:26,879 Speaker 5: to decide whether to bring a fraud case before an 319 00:20:26,960 --> 00:20:30,520 Speaker 5: Article three judge or before an agency. And the argument 320 00:20:30,560 --> 00:20:33,760 Speaker 5: that the Fifth Circuit bought was because Congress didn't give 321 00:20:33,800 --> 00:20:37,520 Speaker 5: any guidance as to inform the agency's choices to which 322 00:20:37,640 --> 00:20:42,080 Speaker 5: route to take, that itself violated the Constitution. A decision 323 00:20:42,080 --> 00:20:45,720 Speaker 5: to uphold that understanding of the non delegation doctrine we 324 00:20:45,840 --> 00:20:49,160 Speaker 5: have done far more to dismantle this administrative state than 325 00:20:49,240 --> 00:20:52,400 Speaker 5: with the self of the amendment issue that the court 326 00:20:52,480 --> 00:20:56,520 Speaker 5: spent two hours on that oral argument. So yes, they 327 00:20:56,560 --> 00:21:00,399 Speaker 5: are thinking about curving the power of the administrative state, 328 00:21:00,880 --> 00:21:04,719 Speaker 5: but they're doing so not in a as aggressive manner 329 00:21:05,160 --> 00:21:07,840 Speaker 5: as they might have if they had just seized upon 330 00:21:07,920 --> 00:21:11,040 Speaker 5: the non delegation doctrine as a lever in which to 331 00:21:11,040 --> 00:21:12,159 Speaker 5: accomplish that result. 332 00:21:12,520 --> 00:21:15,200 Speaker 1: We'll see how these decisions come out. Thanks so much, Hal. 333 00:21:15,480 --> 00:21:18,240 Speaker 1: That's Professor Harold Krant of the Chicago Kent College of 334 00:21:18,320 --> 00:21:22,800 Speaker 1: Law coming up the racketeering trial of a famous rapper. 335 00:21:23,119 --> 00:21:25,960 Speaker 1: I'm June Grasso. When you're listening to Bloomberg, who is 336 00:21:26,040 --> 00:21:29,680 Speaker 1: Grammy winning rapper Young Thug. Is he the ruthless leader 337 00:21:29,720 --> 00:21:33,639 Speaker 1: of a violent street gang that terrorized Atlanta neighborhoods. Or 338 00:21:33,720 --> 00:21:37,199 Speaker 1: is he an inspiring success who pulled himself out of 339 00:21:37,280 --> 00:21:41,080 Speaker 1: poverty to stardom. Those are the competing narratives presented by 340 00:21:41,080 --> 00:21:44,240 Speaker 1: the prosecution of the defense as the rapper's trial got 341 00:21:44,320 --> 00:21:48,879 Speaker 1: underway this week. Young Thug, whose given name is Jeffrey Williams, 342 00:21:49,280 --> 00:21:52,560 Speaker 1: is charged in a sprawling indictment that accuses him in 343 00:21:52,600 --> 00:21:56,760 Speaker 1: more than two dozen others of conspiring to violate Georgia's 344 00:21:56,760 --> 00:22:00,520 Speaker 1: anti racketeering law. He's also charged with gang, drug and 345 00:22:00,560 --> 00:22:03,360 Speaker 1: gun crimes and a standing trial with five of the 346 00:22:03,400 --> 00:22:06,640 Speaker 1: others and dotted with him. Joining me is former US 347 00:22:06,720 --> 00:22:09,440 Speaker 1: Attorney for the Middle District of Georgia, M Michael Moore 348 00:22:10,040 --> 00:22:14,119 Speaker 1: Apartment Moore Hall. Even before the opening statements, there have 349 00:22:14,160 --> 00:22:18,000 Speaker 1: been almost ten months of jury selection in courtroom drama. 350 00:22:18,560 --> 00:22:22,919 Speaker 1: It started with twenty eight alleged street gang members as defendants. 351 00:22:22,920 --> 00:22:26,440 Speaker 1: The trial is down to six. Do all these months 352 00:22:26,480 --> 00:22:29,679 Speaker 1: of problems have any impact on the trial? 353 00:22:30,200 --> 00:22:32,880 Speaker 6: Well, I think it could, And I mean we started 354 00:22:32,880 --> 00:22:37,160 Speaker 6: with an extraordinarily long jury selection, and you know, trying 355 00:22:37,200 --> 00:22:39,160 Speaker 6: not only to find people who may not have some 356 00:22:39,680 --> 00:22:43,800 Speaker 6: familiarity with the case, but some famility with witnesses and otherwise, 357 00:22:43,800 --> 00:22:46,359 Speaker 6: but also folks who may just have the time to 358 00:22:46,600 --> 00:22:49,199 Speaker 6: sit for this long in a trial like this, it 359 00:22:49,200 --> 00:22:51,639 Speaker 6: can be difficult. And so I think that started the 360 00:22:51,680 --> 00:22:54,360 Speaker 6: case off with some problems. And then you've seen other 361 00:22:54,440 --> 00:22:56,720 Speaker 6: issues that have come up, with some issues with some 362 00:22:56,760 --> 00:22:58,520 Speaker 6: of the lawyers and things that have happened in the 363 00:22:58,520 --> 00:23:00,480 Speaker 6: court room and whether or out there have been rents, 364 00:23:00,480 --> 00:23:03,240 Speaker 6: and you know, it's been a little bit of a circus, 365 00:23:03,400 --> 00:23:06,199 Speaker 6: I think at this point and may continue through the 366 00:23:06,280 --> 00:23:07,359 Speaker 6: duration of presentation. 367 00:23:07,760 --> 00:23:11,080 Speaker 1: Tell us about the Rico indictment, about the case, what 368 00:23:11,200 --> 00:23:12,639 Speaker 1: the prosecution is charging. 369 00:23:13,320 --> 00:23:18,679 Speaker 6: RICO really deals with racketeer influenced corrupt organizations, and if 370 00:23:18,720 --> 00:23:21,080 Speaker 6: you think about it, maybe in Layman's term, that's really 371 00:23:21,160 --> 00:23:24,080 Speaker 6: talking about things like organized crime. And so you saw 372 00:23:24,119 --> 00:23:27,720 Speaker 6: some RICO cases that is going after these organizations the 373 00:23:27,800 --> 00:23:30,800 Speaker 6: mob basically where they would try to take down the 374 00:23:30,840 --> 00:23:35,199 Speaker 6: mob leader by essentially attributing the bad conduct of his 375 00:23:35,359 --> 00:23:38,199 Speaker 6: underlings to him. In other words, they didn't have to 376 00:23:38,240 --> 00:23:42,399 Speaker 6: find the mafia don pulled the trigger. They could actually 377 00:23:42,440 --> 00:23:44,720 Speaker 6: have a murder committed by somebody else, but they could 378 00:23:44,840 --> 00:23:47,080 Speaker 6: talk about this was a goal and an effort of 379 00:23:47,119 --> 00:23:50,680 Speaker 6: this criminal enterprise to either obtain money or property, and 380 00:23:51,000 --> 00:23:53,680 Speaker 6: that's how they went after the organization. Recently, you've seen 381 00:23:53,760 --> 00:23:57,359 Speaker 6: RICO cases used not only in drug cases and drug 382 00:23:57,359 --> 00:24:00,760 Speaker 6: conspiracy type cases, but also there was one relatively well 383 00:24:00,840 --> 00:24:03,600 Speaker 6: known case in Atlanta where a RICO case was used 384 00:24:03,640 --> 00:24:07,000 Speaker 6: involving public schools and the cheating scandal that went on 385 00:24:07,080 --> 00:24:09,679 Speaker 6: some of those people. I think indications may've got some 386 00:24:09,720 --> 00:24:12,800 Speaker 6: of them reversed that some certainly were convicted, And probably 387 00:24:12,800 --> 00:24:14,440 Speaker 6: the most famous one right now that we're hearing about 388 00:24:14,520 --> 00:24:17,720 Speaker 6: is a Trump campaign. But it's a prosecutor's dream really 389 00:24:17,760 --> 00:24:21,800 Speaker 6: because it allows them to basically paint everybody with the 390 00:24:21,880 --> 00:24:25,320 Speaker 6: negative brush, and so they can bring in a lot 391 00:24:25,320 --> 00:24:28,440 Speaker 6: of evidence. They get to attribute all the bad conduct 392 00:24:28,560 --> 00:24:31,159 Speaker 6: of your Code defendment to you if you're a defendant, 393 00:24:31,200 --> 00:24:34,200 Speaker 6: and it's more of a I guess the case involving 394 00:24:34,280 --> 00:24:37,400 Speaker 6: either directions to do wrong or involvement to do wrong, 395 00:24:37,480 --> 00:24:40,159 Speaker 6: or sometimes just knowledge of people who are doing wrong. 396 00:24:40,359 --> 00:24:41,879 Speaker 6: All that evidence gets to come in, and at the 397 00:24:41,960 --> 00:24:43,879 Speaker 6: end of the day, the prosecution has the jury to 398 00:24:43,960 --> 00:24:48,040 Speaker 6: convict you because you were part of this organization. So 399 00:24:48,640 --> 00:24:52,280 Speaker 6: it's not an uncontroversial statute. Many people think that it 400 00:24:52,320 --> 00:24:56,280 Speaker 6: allows prosecutors too much leeway in bringing cases that they 401 00:24:56,320 --> 00:24:59,439 Speaker 6: tend most of the time to be complex and involved 402 00:24:59,680 --> 00:25:04,280 Speaker 6: in sometimes unruly. As you're saying, in this case, this sort. 403 00:25:04,040 --> 00:25:08,119 Speaker 1: Of sounds like a movie script because Georgia is accusing 404 00:25:08,240 --> 00:25:11,920 Speaker 1: this Grammy winning rapper of leading a street gang that's 405 00:25:11,960 --> 00:25:17,240 Speaker 1: fronted by his record label, and the crimes include killings, 406 00:25:17,280 --> 00:25:20,480 Speaker 1: and shootings and carjackings, right. 407 00:25:20,800 --> 00:25:23,640 Speaker 6: And it's easy, remember, to charge people with a crime 408 00:25:23,680 --> 00:25:27,040 Speaker 6: and sometimes harder to prove that. And so the state 409 00:25:27,680 --> 00:25:29,800 Speaker 6: as they do in every criminal case, but certainly here 410 00:25:29,840 --> 00:25:32,000 Speaker 6: they'll have to come forward and put on some evidence 411 00:25:32,280 --> 00:25:36,840 Speaker 6: that the main defendant was really in control of what 412 00:25:37,000 --> 00:25:39,480 Speaker 6: was going on by other people on the street. I 413 00:25:39,520 --> 00:25:42,520 Speaker 6: think that gets harder to do if we are just 414 00:25:42,880 --> 00:25:46,680 Speaker 6: have realistic conversations about what actually happens in the real 415 00:25:46,760 --> 00:25:49,840 Speaker 6: world in certain neighborhoods and areas of town and that 416 00:25:49,960 --> 00:25:52,320 Speaker 6: type of thing, and the prosecutors will have to explain 417 00:25:52,359 --> 00:25:55,639 Speaker 6: how that's not just what i'll call street level crime, 418 00:25:56,160 --> 00:26:00,919 Speaker 6: but was actually part of this larger umbrella they've charged 419 00:26:01,000 --> 00:26:02,320 Speaker 6: as part of this Rico case. 420 00:26:02,920 --> 00:26:06,119 Speaker 1: They do. You have some people who pled right who 421 00:26:06,160 --> 00:26:06,960 Speaker 1: are going to testify? 422 00:26:07,000 --> 00:26:07,199 Speaker 6: They do? 423 00:26:07,520 --> 00:26:07,840 Speaker 1: They do? 424 00:26:07,920 --> 00:26:10,359 Speaker 6: I mean, And that's another reason that prosecutors like the 425 00:26:10,440 --> 00:26:12,800 Speaker 6: Rico case is it allows them to sort of pick 426 00:26:12,840 --> 00:26:16,600 Speaker 6: off defendants through plea agreements, and then they begin to 427 00:26:16,680 --> 00:26:19,840 Speaker 6: develop evidence in the case. It's always interesting to me 428 00:26:19,920 --> 00:26:22,720 Speaker 6: to see how Rico cases can be charged by a 429 00:26:22,760 --> 00:26:26,320 Speaker 6: grand jury, but then the prosecutor still needs the evidence 430 00:26:26,320 --> 00:26:29,639 Speaker 6: from code defendants. Who later plead to try to pull 431 00:26:29,680 --> 00:26:33,280 Speaker 6: the puzzle pieces together to really give a better picture 432 00:26:33,320 --> 00:26:37,080 Speaker 6: of what these cases or the organization's charged as part 433 00:26:37,119 --> 00:26:38,520 Speaker 6: of these cases, what it looks like. 434 00:26:38,920 --> 00:26:40,879 Speaker 1: What really interests me in this case is that the 435 00:26:41,040 --> 00:26:45,800 Speaker 1: judge has ruled that prosecutors can use his lyrics as 436 00:26:45,960 --> 00:26:48,680 Speaker 1: evidence of his involvement in the crimes. So they can 437 00:26:48,720 --> 00:26:53,320 Speaker 1: present seventeen sets of lyrics as evidence, provided they can 438 00:26:53,400 --> 00:26:57,200 Speaker 1: link their content to real world crimes. That's been done before. 439 00:26:57,280 --> 00:26:58,200 Speaker 1: Is it controversial? 440 00:26:58,200 --> 00:27:01,119 Speaker 6: Though it is controversial, and I don't know, frankly how 441 00:27:01,160 --> 00:27:03,480 Speaker 6: I feel about it. I think it's probably pushing the 442 00:27:03,680 --> 00:27:07,240 Speaker 6: envelope a little bit. And while it's not the first time, 443 00:27:07,320 --> 00:27:09,159 Speaker 6: so it's not really pressing a set in there other 444 00:27:09,240 --> 00:27:11,399 Speaker 6: cases where this has happened, I do think it'll raises 445 00:27:11,480 --> 00:27:16,000 Speaker 6: some pretty unique questions about the First Amendment about you know, 446 00:27:16,200 --> 00:27:19,320 Speaker 6: artist creativity and then whether or not later that can 447 00:27:19,359 --> 00:27:21,520 Speaker 6: be used in a case. You can think about cases, 448 00:27:21,640 --> 00:27:24,200 Speaker 6: you know, woe be it for any country music star 449 00:27:24,960 --> 00:27:28,080 Speaker 6: to either be charged with drug driving or get a 450 00:27:28,119 --> 00:27:30,399 Speaker 6: divorce because that's going to come up. Does that mean 451 00:27:30,440 --> 00:27:32,200 Speaker 6: now that that's going to be effence in their case? 452 00:27:32,760 --> 00:27:36,240 Speaker 6: That they talked about, you know, drinking too many drinks 453 00:27:36,400 --> 00:27:39,520 Speaker 6: or chasing too many paramoms or whatever the case may be, 454 00:27:39,720 --> 00:27:42,760 Speaker 6: or you know, smoking too much weed or you know whatever, 455 00:27:42,880 --> 00:27:44,840 Speaker 6: is that now going to be the norm. And I 456 00:27:44,840 --> 00:27:47,800 Speaker 6: think those are the kind of lines where this type 457 00:27:47,800 --> 00:27:50,960 Speaker 6: of admission of evidence, of this specific type of evidence, 458 00:27:51,080 --> 00:27:53,720 Speaker 6: that it gets blurry fright then you know, I was thinking, 459 00:27:54,200 --> 00:27:55,800 Speaker 6: is I thought some about the case that if you're 460 00:27:55,840 --> 00:27:59,479 Speaker 6: defending a case like this, or you're just representing an 461 00:27:59,600 --> 00:28:02,920 Speaker 6: artist of music artists, are you well advised to suggest 462 00:28:02,920 --> 00:28:05,240 Speaker 6: to them but just write a couple of songs with 463 00:28:05,480 --> 00:28:09,080 Speaker 6: really acceptable lyrics, things like I love the police, I've 464 00:28:09,080 --> 00:28:11,600 Speaker 6: never commit a crime, I don't do drugs, and say 465 00:28:11,600 --> 00:28:13,640 Speaker 6: well here's evidence. Now, by good care, you don't want 466 00:28:13,640 --> 00:28:15,120 Speaker 6: to if anything ever happen. I want you to put 467 00:28:15,160 --> 00:28:17,560 Speaker 6: this in. You know, that's something that I'll go into. 468 00:28:17,920 --> 00:28:20,480 Speaker 6: I assure you that the people who are prosecuting case 469 00:28:20,520 --> 00:28:23,639 Speaker 6: would say no. But somehow here this evident is coming in. 470 00:28:23,720 --> 00:28:27,160 Speaker 6: It limiting instructions too to a jury. And that may 471 00:28:27,160 --> 00:28:28,960 Speaker 6: be what the judge has in nine when he talks 472 00:28:28,960 --> 00:28:31,199 Speaker 6: about you have to link it up in office and 473 00:28:31,320 --> 00:28:33,040 Speaker 6: if he may limit the jury or tell them what 474 00:28:33,119 --> 00:28:34,840 Speaker 6: you can only consider this and it looks like it 475 00:28:34,880 --> 00:28:37,280 Speaker 6: went to an actual crime. That those are often a 476 00:28:37,280 --> 00:28:41,640 Speaker 6: little propylactic enough about it, because juries pay great attention 477 00:28:41,840 --> 00:28:46,080 Speaker 6: to what prosecutors put into evidence, and a prosecution like 478 00:28:46,160 --> 00:28:48,760 Speaker 6: it or not. The reality is that a prosecution team 479 00:28:48,880 --> 00:28:51,840 Speaker 6: goes in I think oftentimes with an advantage in a case, 480 00:28:51,840 --> 00:28:54,440 Speaker 6: and that is a jury want to believe them. It's 481 00:28:54,440 --> 00:28:57,040 Speaker 6: sort of like you want to trust your doctor, you know, 482 00:28:57,120 --> 00:29:00,760 Speaker 6: you want to trust the prosecutor, you want to trust preachery. 483 00:29:00,800 --> 00:29:03,200 Speaker 6: It's just something that's sort of ingrained in US, I 484 00:29:03,240 --> 00:29:07,440 Speaker 6: think to have this trust. Not everybody, but by and large, 485 00:29:07,480 --> 00:29:10,000 Speaker 6: I think they look for somebody to explain to them 486 00:29:10,080 --> 00:29:12,400 Speaker 6: what the case is about, what the evidence is going 487 00:29:12,440 --> 00:29:14,320 Speaker 6: to show, what it has shown at the end of 488 00:29:14,360 --> 00:29:17,520 Speaker 6: the case, and they often expect the prosecutor to do that. 489 00:29:17,960 --> 00:29:20,680 Speaker 6: And so the fact that the evidence comes in under 490 00:29:20,720 --> 00:29:24,680 Speaker 6: the guise of a prosecution presentation I don't think is 491 00:29:24,760 --> 00:29:27,320 Speaker 6: cured by some of the limiting efforts that may have 492 00:29:27,440 --> 00:29:30,000 Speaker 6: to happen in this case, because we don't know until 493 00:29:30,000 --> 00:29:32,000 Speaker 6: they get further along that they're going to be able 494 00:29:32,000 --> 00:29:35,080 Speaker 6: to connect the dots to these specific lyrics, you know, 495 00:29:35,240 --> 00:29:37,080 Speaker 6: and I think that can pose a problem later. 496 00:29:37,320 --> 00:29:40,000 Speaker 1: Some of the references that looked that I've seen are 497 00:29:40,840 --> 00:29:43,719 Speaker 1: you know, a little ambiguous, and the defense said that 498 00:29:43,920 --> 00:29:46,320 Speaker 1: not only it's a violation of free speech, but that 499 00:29:46,360 --> 00:29:49,520 Speaker 1: it would be unfairly prejudicial. So do you think that 500 00:29:49,600 --> 00:29:51,040 Speaker 1: will be an appellate issue. 501 00:29:51,120 --> 00:29:52,800 Speaker 6: I think there's no question. I mean, there have been 502 00:29:52,880 --> 00:29:55,080 Speaker 6: cases where it's been allowed, but I think this will 503 00:29:55,080 --> 00:29:57,760 Speaker 6: be right for an appeal, especially when they think about 504 00:29:57,760 --> 00:29:59,840 Speaker 6: how broad things have gotten. And I think that's one 505 00:29:59,840 --> 00:30:03,080 Speaker 6: of the concern and we're seeing in other cases, I mean, right, 506 00:30:03,120 --> 00:30:06,360 Speaker 6: we're seeing it in political cases too, right now, in 507 00:30:06,400 --> 00:30:09,040 Speaker 6: those types of things where some of what I would 508 00:30:09,080 --> 00:30:12,960 Speaker 6: call the protective norms that we've kind of held sacrisine, 509 00:30:13,040 --> 00:30:16,120 Speaker 6: we're willing to bend those a little bit because we 510 00:30:16,240 --> 00:30:18,720 Speaker 6: think that the end is going to justify the means 511 00:30:18,760 --> 00:30:22,280 Speaker 6: to get there. So, Presidents, here are we getting our 512 00:30:22,360 --> 00:30:24,520 Speaker 6: hands a little too tightly around the neck of the 513 00:30:24,520 --> 00:30:27,720 Speaker 6: First Amendment and the free speech of people off for 514 00:30:27,800 --> 00:30:30,479 Speaker 6: the sake of getting some small piece of evidence in 515 00:30:30,560 --> 00:30:32,480 Speaker 6: and the hopes that that might be what pushes the 516 00:30:32,560 --> 00:30:34,920 Speaker 6: jury over the edge to a conviction. As opposed to 517 00:30:35,000 --> 00:30:41,400 Speaker 6: looking for that evidence through witness testimony, codefindite testimony, physical evidence, videotapes, 518 00:30:41,480 --> 00:30:43,920 Speaker 6: whatever it is. We're saying, we're going to sacrifice a 519 00:30:43,920 --> 00:30:46,640 Speaker 6: little bit of what we've known traditionally as protection as 520 00:30:46,680 --> 00:30:49,240 Speaker 6: the First Amendment in order to get to this other place. 521 00:30:49,280 --> 00:30:51,560 Speaker 6: And I do think that's going to raise interesting issues. 522 00:30:51,600 --> 00:30:54,360 Speaker 6: And even though the evidence has been used in other cases, 523 00:30:54,600 --> 00:30:58,640 Speaker 6: appellate courts are known as time passes, and things change 524 00:30:58,720 --> 00:31:02,320 Speaker 6: and the technology evolves and all of that, they're no 525 00:31:02,640 --> 00:31:06,680 Speaker 6: for shifting or revisiting some of those issues later on. 526 00:31:06,880 --> 00:31:09,320 Speaker 6: And so I think this will be ripe if he 527 00:31:09,440 --> 00:31:11,720 Speaker 6: is convicted, or if anyone is convicted in this trial 528 00:31:12,080 --> 00:31:14,040 Speaker 6: and the evidence has been used for that, I think 529 00:31:14,040 --> 00:31:16,280 Speaker 6: this is the kind of thing that will be ripe 530 00:31:16,560 --> 00:31:17,200 Speaker 6: for an appeal. 531 00:31:18,400 --> 00:31:22,040 Speaker 1: In the opening statements, the long opening statements of the defense, 532 00:31:22,280 --> 00:31:26,600 Speaker 1: the defense attorney told his rags to riches story incidents 533 00:31:26,640 --> 00:31:30,040 Speaker 1: where the rapper's twenty year old brother was shot near 534 00:31:30,120 --> 00:31:33,680 Speaker 1: their building, and he sort of changed the narrative. He said, 535 00:31:33,840 --> 00:31:37,920 Speaker 1: THUG stands for truly humbled under God, and hy s 536 00:31:38,120 --> 00:31:41,880 Speaker 1: l the alleged gang doesn't stand for young slime. Life. 537 00:31:41,880 --> 00:31:45,440 Speaker 1: It stands for the luxury clothing brand Eves and Lauran. 538 00:31:45,880 --> 00:31:50,640 Speaker 1: I mean, he's trying to change the entire narrative of 539 00:31:50,800 --> 00:31:53,200 Speaker 1: who this rapper is. Is the jury going to pick 540 00:31:53,240 --> 00:31:56,400 Speaker 1: between this version of him and the totally opposite version 541 00:31:56,440 --> 00:31:59,080 Speaker 1: that the prosecution's presenting. 542 00:32:00,680 --> 00:32:04,240 Speaker 6: You know, And sometimes lawyers have to sort of dance 543 00:32:04,280 --> 00:32:06,240 Speaker 6: with what brung them, if you will, and or play 544 00:32:06,280 --> 00:32:09,320 Speaker 6: the cars they've been dealt. So this case, the lawyer 545 00:32:10,000 --> 00:32:14,320 Speaker 6: may have been looking for some way to make a distinction. 546 00:32:14,440 --> 00:32:17,560 Speaker 6: I do think though, that the Ragged the Riches story 547 00:32:17,600 --> 00:32:19,080 Speaker 6: is the type of thing that plays in what we 548 00:32:19,120 --> 00:32:21,680 Speaker 6: talk about him Indigo, and that is the lyrics. And 549 00:32:22,040 --> 00:32:25,200 Speaker 6: is this artist writing about what he saw as his 550 00:32:25,280 --> 00:32:28,920 Speaker 6: life experience or an experience of his friends, or something 551 00:32:28,920 --> 00:32:33,240 Speaker 6: that he believed might be relatable in his music genre 552 00:32:33,360 --> 00:32:36,520 Speaker 6: to his audience. And it's just something there as opposed 553 00:32:36,560 --> 00:32:41,360 Speaker 6: to some type of cryptic message about crimes that had 554 00:32:41,360 --> 00:32:43,120 Speaker 6: taken place or that he had been a part of. 555 00:32:43,720 --> 00:32:46,160 Speaker 6: And so those will be things they, you know, they 556 00:32:46,440 --> 00:32:49,840 Speaker 6: have to ferret out, you know. I'm mindful though, as 557 00:32:49,880 --> 00:32:54,880 Speaker 6: we think about how a lawyer might you know, change 558 00:32:54,880 --> 00:32:58,640 Speaker 6: the narrative. I mean, Remember that we've seen in famous 559 00:32:58,720 --> 00:33:03,480 Speaker 6: cases a narrative change. We've gone from a bloody crime 560 00:33:03,560 --> 00:33:07,520 Speaker 6: scene photo to scenes of somebody trying to pull on 561 00:33:07,560 --> 00:33:09,320 Speaker 6: a leather glove and an argument about it. If it 562 00:33:09,360 --> 00:33:12,440 Speaker 6: doesn't fit, you must have quit, you know, And so 563 00:33:12,520 --> 00:33:14,880 Speaker 6: the lawyer may try to change that narrative here in 564 00:33:14,880 --> 00:33:20,520 Speaker 6: this case to get the jury's attention on. This is 565 00:33:20,560 --> 00:33:22,800 Speaker 6: who he was, this is how he's come up, This 566 00:33:22,920 --> 00:33:26,480 Speaker 6: is why he writes these lyrics, This is why he 567 00:33:26,560 --> 00:33:27,920 Speaker 6: has this circle of friends. 568 00:33:30,000 --> 00:33:30,239 Speaker 3: You know. 569 00:33:30,440 --> 00:33:33,280 Speaker 6: This is him as a person, but he's now a 570 00:33:33,280 --> 00:33:35,840 Speaker 6: place where he's so successful that this idea of sort 571 00:33:35,880 --> 00:33:38,600 Speaker 6: of street crime at the level that's a legend of 572 00:33:38,600 --> 00:33:42,400 Speaker 6: the indictment is outside of what he does. And that's 573 00:33:42,400 --> 00:33:44,680 Speaker 6: why he may be talking about things like, you know, 574 00:33:45,160 --> 00:33:49,440 Speaker 6: designer clues as opposed to the gang name and such 575 00:33:49,480 --> 00:33:49,720 Speaker 6: as that. 576 00:33:50,320 --> 00:33:53,240 Speaker 1: Thanks so much, Michael. That's Michael Moore of Moore Hall. 577 00:33:53,840 --> 00:33:56,240 Speaker 1: And that's it for this edition of the Bloomberg Launch Show. 578 00:33:56,720 --> 00:33:59,280 Speaker 1: Remember you can always get the latest legal news by 579 00:33:59,320 --> 00:34:02,400 Speaker 1: listening to Ourloomberg Law podcasts. 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I'm June Grosso and you're 589 00:34:37,440 --> 00:34:38,400 Speaker 1: listening to Bloomberg