Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: The case before the Supreme Court is about a challenge
Speaker 1: to the powers of the SEC to bring legal actions
Speaker 1: in house, and it's another example of the conservative justices
Speaker 1: targeting the administrative state. During the oral arguments, Chief Justice
Speaker 1: John Roberts expressed concerns over the power of federal regulators.
Speaker 2: The extent of impact of government agencies on daily life
Speaker 2: today is enormously more significant than it was fifty years ago.
Speaker 1: The Jocracy case could strip the SEC of a key
Speaker 1: enforcement tool, and Conservative justices like Brett Cavanaugh suggested that
Speaker 1: people accused of fraud by the SEC have a constitutional
Speaker 1: right to have their cases decided by a jury in
Speaker 1: federal courts instead of by the SEC's in house administrative
Speaker 1: law judges.
Speaker 3: That seems problematic to say the government can deprive you
Speaker 3: of your property, your money, substantial sums in a tribunal
Speaker 3: that is at least perceived as not being impartial.
Speaker 1: A change in the law by the Court here could
Speaker 1: have effects far beyond the SEC, because roughly two dozen agencies,
Speaker 1: including the EPA, the CFTC, and the Federal Trade Commission,
Speaker 1: have similar enforcement schemes, as Liberal Justice Sonya Sotomayor pointed
Speaker 1: out to Jocasy's attorney Michael McCulloch.
Speaker 4: All of those agencies we'll have to go to court. Correct, Well,
Speaker 4: you are, all of their proceedings are now nullified unto
Speaker 4: your theory.
Speaker 1: And Liberal Justice Elena Kagan pointed to a nineteen seventy
Speaker 1: seven Supreme Court ruling at La Roofing, telling McCulloch it
Speaker 1: settled the issue and there was no right to a
Speaker 1: jury trial here.
Speaker 4: In a case where Congress has given an agency the
Speaker 4: power to enforce something and the agency is bringing the charge,
Speaker 4: if you will that you know that that's just not
Speaker 4: it's that's settled.
Speaker 1: Well, it's settled only to the extent no one's brought
Speaker 1: it up and forced this issue since Atlas Roofing in his.
Speaker 4: Chorea is contact. Nobody has had the you know, kutzpa
Speaker 4: to quote my people to bring it up since Atlas Roofing.
Speaker 1: My guest is Harold Krent, a professor at the Chicago
Speaker 1: Kent College of Law. How this involves George Jarcasy, a
Speaker 1: former hedge fund manager and conservative radio host, and the
Speaker 1: SEC found that he had committed securities fraud in twenty
Speaker 1: thirteen for misleading investors. Hell tell us about the case
Speaker 1: and what's at stake here.
Speaker 5: This started ten years ago and the variety of challenges
Speaker 5: against the SEC proceedings, and finally, after first losing in
Speaker 5: the DC Circuit, he tried and found more success in
Speaker 5: the Fifth Circuit, and the Fifth Circuit decided on three
Speaker 5: distinct constitutional violations. First that there was a non delegation
Speaker 5: violation in the fact that Congress had not given sufficient
Speaker 5: guidance to the Security Change Commission about whether to bring
Speaker 5: a security fraud action before an alj as opposed to
Speaker 5: in front of a court. And second, that the SEC
Speaker 5: proceedings weren't constitutionally constructed because the administer of law judges
Speaker 5: in the Security is a Change Commission are protected from
Speaker 5: that will removal and thus violate Article two. And the
Speaker 5: third problem was that the fraud charges that the SEC
Speaker 5: successfully brought against Charc echoed those of fraud cases at
Speaker 5: common law and that therefore that duct should have been
Speaker 5: granted a jury trial. If the Supreme Court decides all
Speaker 5: three issues against the SEC, they would have enormous ramifications
Speaker 5: on the administrative state. That's not likely after listening to
Speaker 5: the oral argument, but nonetheless, the consequence of dramatic and
Speaker 5: briefly they are that almost every particular individual or firm
Speaker 5: performed agency, many at least, would have the right to
Speaker 5: a jury trial and not have to go before an
Speaker 5: administrative tribunalism is currently the case. That would be one
Speaker 5: fundamental change. The second would be that all administrative law
Speaker 5: judges would have to be subject there outwill removal, which
Speaker 5: would undermine the independence, ironically of these administrative determinations. And third,
Speaker 5: there would be some kind reinvigoration of the non delegation doctrine,
Speaker 5: which was mimit Congress's ability to delegate issues for administry
Speaker 5: of agencies to resolve. So very consequential case, very usual
Speaker 5: what happened at oral arguments or the stakes couldn't be higher.
Speaker 1: So, now, before we go into the oral arguments, explain
Speaker 1: the difference between an administrative law judge and a federal
Speaker 1: district court judge known as an Article three judge, and
Speaker 1: the difference in the proceedings in the different forums.
Speaker 5: So the two different tracks of litigation when the government
Speaker 5: is involved. The first would be before an Article three
Speaker 5: judge in a federal trial court, and those proceedings are
Speaker 5: very similar to anything one would see on TV in
Speaker 5: terms of having rules of evidence. You'd have a judge
Speaker 5: who is protected from any kind of diminution and salary
Speaker 5: or removal. You'd have attorneys for both sides arguing subject
Speaker 5: to delineated rules, and at times you'd have a jury
Speaker 5: trial as well if there were money damages at stake.
Speaker 5: In contrast, in a typical administrative proceeding, of which there
Speaker 5: are hundreds of thousands a year, you would have an
Speaker 5: Administry of Law judge who is appointed by the agency
Speaker 5: and is subject to remove by the agency, but at
Speaker 5: least currently only for some kind of misconduct. The proceeding
Speaker 5: would go before this Administry of Law judge. The rules
Speaker 5: of evidence would be much more flexible, in other words,
Speaker 5: more information could be submitted. In addition, there would be
Speaker 5: no jury, and so the case would first go before
Speaker 5: the Ministry of Law judge, but then can be appealed
Speaker 5: to the administrative agency itself in this case the Securities
Speaker 5: and Exchange Commission, and of course those are political actors.
Speaker 5: But then only after these Securities and Exchange Commission would
Speaker 5: make a decision, then judicial review would be opened up
Speaker 5: and a court would determine whether the agency reasonably acted
Speaker 5: in terms of deciding upon a fine or discouragement, as
Speaker 5: indeed both happened in this case. So they're very different tracks.
Speaker 5: There's judicial involvement in both of them. One the judiciary
Speaker 5: has a review function over the agency and cancy agency
Speaker 5: some difference in how it conducts the proceedings, and the
Speaker 5: other it's much more protective of individual rights and the
Speaker 5: individual would have the ability to have a jury check
Speaker 5: upon any kind of zeal or overreaching by the government
Speaker 5: and bringing these charges.
Speaker 4: Now.
Speaker 1: Jocasy contends that defendants in SEC cases have a constitutional
Speaker 1: right to make their case to a federal jury, and
Speaker 1: the oral arguments focused almost entirely on that one issue
Speaker 1: on the Seventh Amendment, which provides that in suits at
Speaker 1: common law, the right of trial by jury shall be preserved.
Speaker 1: So tell us about the argument over the Seventh Amendment.
Speaker 5: Well before the argument of the amendment. What I think
Speaker 5: is extraordinary about this case is the two other very
Speaker 5: significant constitutional arguments that we discussed were hardly mentioned it
Speaker 5: all during oral argument and or argumently in almost two hours.
Speaker 5: And so the question is why, And I don't know
Speaker 5: the answer. You only speculate that either the justices were
Speaker 5: convinced that the other two arguments were not very weighty
Speaker 5: and therefore they knew what the result would be, or
Speaker 5: they might have decided that they were going to throw
Speaker 5: this case out on the Seventh Amendment grounds anyway, and
Speaker 5: so they didn't have to decide either the non delegation
Speaker 5: argument or the alga removability issue. But it is extremely
Speaker 5: unusual for the Court to ignore two very important constitutional
Speaker 5: challenges in a case of this nature, So that to
Speaker 5: me is the biggest mystery of this case. But turning
Speaker 5: to the difficult question about the Seventh Amendment, the question
Speaker 5: is how broad the Seventh Amendment should be construed to extend.
Speaker 5: On the one hand, an individual has a right to
Speaker 5: a jury trial, but the courts for one hundred and
Speaker 5: fifty years, if not more, have said that the very
Speaker 5: trial right does not exist if there is a public
Speaker 5: right involved, And so much of the argument discussed from
Speaker 5: different perspectives what is a public right? And the Supreme
Speaker 5: Court held fifty years ago in a case called Atlas Roofings,
Speaker 5: that a public right would include not only issues between
Speaker 5: individuals and the government directly, such as taxes and claims
Speaker 5: like social security benefits, but also would include anything under
Speaker 5: a comprehensive congressional scheme that was devised in order to
Speaker 5: protect the public. So in that case, Congress had created
Speaker 5: a mechanism to allow a federal agency OOSHA, to inspect
Speaker 5: workplaces and find individual companies for failure to maintain a
Speaker 5: healthy workplace. And then the court said, yes, these kinds
Speaker 5: of finds are a little bit like negligence claims or
Speaker 5: wantful death claims that could be launched against employers. But
Speaker 5: when the government brings such an action, it does so
Speaker 5: for a different purpose. It brings the action to protect
Speaker 5: the public and to try to prevent these kind of
Speaker 5: workplace accidents. And therefore, in light of this unique public nature,
Speaker 5: there is no right to a jury trial, and that
Speaker 5: therefore the government can recover fines even outside of the
Speaker 5: jury context. So this is the precedent that the government
Speaker 5: relied upon, and it has been cited in lots of
Speaker 5: cases since involving finding immigration proceedings, in customs proceedings and
Speaker 5: so forth. So the stakes are very high in this case,
Speaker 5: and indeed, much of the argument was talking about line drawing.
Speaker 5: What is to distinguish the fraud claim under the Securities
Speaker 5: Act in the Jerxi case from a case involving taxes,
Speaker 5: involving customs duties and so forth.
Speaker 1: Coming up next, we'll talk about what the decision might
Speaker 1: look like. I'm June gram So when you're listening to Bloomberg,
Speaker 1: I've been talking to Professor Harold Krant to the Chicago
Speaker 1: Kent College of Law about Supreme Court oral arguments this
Speaker 1: week over a challenge to the power of the sec
Speaker 1: to bring legal actions in house. The Conservative Justice is
Speaker 1: seem to be very concerned about the right to a
Speaker 1: jury in this case, and it struck me as a
Speaker 1: bit odd because jury trial isn't something they've historically cared
Speaker 1: about very much, right, They've always pushed forced arbitration they have.
Speaker 5: I mean, certainly, it's true. And what is clear out
Speaker 5: of this discussion is that they have circled back to
Speaker 5: the importance in seventeen ninety one of the ratification of
Speaker 5: the Seventh Amendment to think that this is a hallmark
Speaker 5: right that should be preserved by any individual, not only
Speaker 5: if they're litigating against another company or another individual, but
Speaker 5: also when they're litigating against the government itself. And that's
Speaker 5: not how we've recognized that right in the last seventy
Speaker 5: five years. So the Court is I think using this
Speaker 5: now is a lever to try to either cut down
Speaker 5: or diminish the power of these administrative agencies that operate
Speaker 5: in so many sectors of our lives, from transportation into immigration,
Speaker 5: to workplace safety, to environmental safety, and so much more.
Speaker 5: And so by focusing on the Seventh Amendment in a
Speaker 5: way that they haven't before, they will effectively force agencies
Speaker 5: to go to court to collect penalties, and that will
Speaker 5: slow down the administrative process.
Speaker 1: Justice is Elena Kagan and Katanji Brown Jackson said that
Speaker 1: the at Liss ruling settled the issue here, So would
Speaker 1: the Court have to overrule that nineteen seventy seven precedent
Speaker 1: in order to rule for jocracy here.
Speaker 5: Likely they would do so, at least in substance, if
Speaker 5: not inform I mean. Chief Justice Roberts himself said, well,
Speaker 5: you know that pathless was fifty years ago, and we've
Speaker 5: seen a lot of that's happened in the last fifty years,
Speaker 5: including the increasing power of administrative agencies. So it's time
Speaker 5: for us to take a good look back at it
Speaker 5: to see if it makes sense today. And to be fair,
Speaker 5: some of the more conservative justices, particularly Justice Barrett, was
Speaker 5: struggling to figure out a limiting principle about how you
Speaker 5: could make the determination of when the Seventh Amendment right
Speaker 5: would be triggered. For instance, is it just because there's
Speaker 5: a civil penalty that would be at least one easily
Speaker 5: administrable remedy to say, as opposed to say a discooragement
Speaker 5: penalty or something else, or a cease and desist order.
Speaker 5: So is that line important? So there was at least
Speaker 5: some kind of wrangling amongst some of the conservative justices,
Speaker 5: not Justice Alito, not Justice Thomas, but the others about
Speaker 5: this kind of line drawing. Is if they extend the
Speaker 5: Seventh Amend, how far will the extension be? And at
Speaker 5: least they were concerned that a literal interpretation of what
Speaker 5: Darshi was arguing might extend very far.
Speaker 1: Indeed, the Assistants Elicitor General said the government was protecting
Speaker 1: the rights of the public generally, and when the public's
Speaker 1: rights are at issue, the right to a jury trial
Speaker 1: guaranteed by the Seventh Amendment in suits that common law
Speaker 1: did not apply. Do you agree or disagree that the
Speaker 1: Seventh Amendment applies to this situation.
Speaker 5: I think that the President is extremely strong that the
Speaker 5: Seventh Amendment does not apply when Congress allows individuals to
Speaker 5: sue each other before a federal form. That's where the
Speaker 5: interest and concern of the Seventh Amendment should be at
Speaker 5: its strongest. And those are the examples I think the
Speaker 5: Court should be focusing on. But I don't think the
Speaker 5: Court is correct to be concerned about is when the
Speaker 5: actual challenges not between two private entities, but the between
Speaker 5: a private entity and the federal government itself. That's really
Speaker 5: the essence of what a public right is. That's what
Speaker 5: Justice Scotias said years ago, and that should be the
Speaker 5: focus here. And so in this case, when we have
Speaker 5: the government saying that we're not suing on behalf of
Speaker 5: a private party. We're suing because you have rattled confidence
Speaker 5: in the securities markets, that's absolutely permissible, and the jury
Speaker 5: trial right and the serf of Amendment should not be triggered.
Speaker 1: How do you think they're going to rule? Is it
Speaker 1: going to be a six ' to three ruling, whatever
Speaker 1: it is.
Speaker 5: You know, again, it's so difficult to judge from in
Speaker 5: our a argument. How of course finally going to come
Speaker 5: out but I would guess that they will try to
Speaker 5: articulate a fuzzy line, but a line that is more
Speaker 5: restrictive of Congress's ability really to determine what kind of
Speaker 5: suits can be presented before administrative agencies. I doubt they
Speaker 5: will go as far as to say that Congress can't
Speaker 5: allow such suits to go before, but they'll probably talk
Speaker 5: about Congress is limited when the suit is either in
Speaker 5: all respects similar or echoes or derivative of a common
Speaker 5: law right. So what the court we'll want to do
Speaker 5: is say, use the touchstone of a common law right
Speaker 5: and say, if you have the right to have a
Speaker 5: jury trial in a similar case in seventeen ninety one
Speaker 5: and a court to Westminster, then Congress cannot effectively deprive
Speaker 5: you of that right by calling it something else, by
Speaker 5: changing it slightly and vesting it before an administrative agency.
Speaker 5: That'd be my educated guess.
Speaker 1: Let's talk about the ramifications of a decision against the SEC. Here.
Speaker 1: For example, will the decision affect the Federal Trade Commission,
Speaker 1: which uses in house judges as well.
Speaker 5: The decision is likely to affect Federal Trade Commission. It
Speaker 5: may affect OSHA, It may affect the customs duties ends
Speaker 5: on the exact test for how to determine whether this
Speaker 5: particular right of action brought by the government is similar
Speaker 5: to the suited common law in seventeen ninety one. I mean,
Speaker 5: that is a very archaic way of understanding what Congress
Speaker 5: can do and can't do in terms of deciding where
Speaker 5: these particular claims can be brought. But I think that's
Speaker 5: where the court is headed. And that was the concern
Speaker 5: that was recognized by counsel for Darsi that depending upon
Speaker 5: the line drawing, the case may either have a modest
Speaker 5: impact or a tremendous impact. And so even if the court,
Speaker 5: as it seems, will lean towards DARKSI, the real question
Speaker 5: is how broad the decision and that's something they wrestled
Speaker 5: at it. And indeed, just as Sodhamoyor said, look, this
Speaker 5: is a big issue. Neither side has litigated how broad
Speaker 5: the impact will be of a decision if we strike
Speaker 5: down the claim in this case. Shouldn't we have more
Speaker 5: briefing on the issue in recognition of how important it was,
Speaker 5: And I doubt they we'll do that, But I mean
Speaker 5: her point was, you know, we're just reaching in a
Speaker 5: darker we don't know exactly how broad of an impact
Speaker 5: a room for darcy would have.
Speaker 1: This is part of a Supreme Court term that could
Speaker 1: have broad implications for federal regulators. The justices heard arguments
Speaker 1: in October over whether the Consumer Financial Protection Bureau's funding
Speaker 1: system is constitutional, and in January it will consider whether
Speaker 1: to overturn the Chevron doctrine, which is a precedent that
Speaker 1: gives agencies leeway when they interpret ambiguous congressional commands. Why
Speaker 1: this focus and do you think federal regulators should be
Speaker 1: afraid of what's going to happen this term?
Speaker 5: Well, it's plain that the focus has arisen from a
Speaker 5: deep distrust of the administrative state, and the Court has
Speaker 5: signaled in a variety of cases is that it wants
Speaker 5: to pair down the size of government, and it thinks
Speaker 5: Congress has gone too far in an empowering administrative agencies
Speaker 5: with the ability to investigate and to proceed against mostly
Speaker 5: companies who violate the regulations that these agencies have promulgated
Speaker 5: in order to enforce a congressional mission. And so these cases,
Speaker 5: together with the appointments cases and removal cases that the
Speaker 5: Court previously has articulated, is trying to take another look
Speaker 5: at how broadly administrative agencies have influence over our lives.
Speaker 5: But that being said, I think that the Court is
Speaker 5: proceeding probably a little more slowly now than it thought
Speaker 5: it might two years ago. My guess is that they
Speaker 5: will take some steps to curve the power of administrative agencies.
Speaker 5: But by ignoring the non delegation argument today, for instance,
Speaker 5: they have bypassed an opportunity that would really stick a
Speaker 5: stake in the most administrative agencies directly, because that could
Speaker 5: have had an incredibly dramatic impact upon administer of agencies
Speaker 5: had they held that Congress has to be incredibly clear
Speaker 5: before an agency can't exercise any power whatsoever. Indeed, because
Speaker 5: the question in this case was so minor, they had
Speaker 5: to do with whether the agency could use the judgment
Speaker 5: to decide whether to bring a fraud case before an
Speaker 5: Article three judge or before an agency. And the argument
Speaker 5: that the Fifth Circuit bought was because Congress didn't give
Speaker 5: any guidance as to inform the agency's choices to which
Speaker 5: route to take, that itself violated the Constitution. A decision
Speaker 5: to uphold that understanding of the non delegation doctrine we
Speaker 5: have done far more to dismantle this administrative state than
Speaker 5: with the self of the amendment issue that the court
Speaker 5: spent two hours on that oral argument. So yes, they
Speaker 5: are thinking about curving the power of the administrative state,
Speaker 5: but they're doing so not in a as aggressive manner
Speaker 5: as they might have if they had just seized upon
Speaker 5: the non delegation doctrine as a lever in which to
Speaker 5: accomplish that result.
Speaker 1: We'll see how these decisions come out. Thanks so much, Hal.
Speaker 1: That's Professor Harold Krant of the Chicago Kent College of
Speaker 1: Law coming up the racketeering trial of a famous rapper.
Speaker 1: I'm June Grasso. When you're listening to Bloomberg, who is
Speaker 1: Grammy winning rapper Young Thug. Is he the ruthless leader
Speaker 1: of a violent street gang that terrorized Atlanta neighborhoods. Or
Speaker 1: is he an inspiring success who pulled himself out of
Speaker 1: poverty to stardom. Those are the competing narratives presented by
Speaker 1: the prosecution of the defense as the rapper's trial got
Speaker 1: underway this week. Young Thug, whose given name is Jeffrey Williams,
Speaker 1: is charged in a sprawling indictment that accuses him in
Speaker 1: more than two dozen others of conspiring to violate Georgia's
Speaker 1: anti racketeering law. He's also charged with gang, drug and
Speaker 1: gun crimes and a standing trial with five of the
Speaker 1: others and dotted with him. Joining me is former US
Speaker 1: Attorney for the Middle District of Georgia, M Michael Moore
Speaker 1: Apartment Moore Hall. Even before the opening statements, there have
Speaker 1: been almost ten months of jury selection in courtroom drama.
Speaker 1: It started with twenty eight alleged street gang members as defendants.
Speaker 1: The trial is down to six. Do all these months
Speaker 1: of problems have any impact on the trial?
Speaker 6: Well, I think it could, And I mean we started
Speaker 6: with an extraordinarily long jury selection, and you know, trying
Speaker 6: not only to find people who may not have some
Speaker 6: familiarity with the case, but some famility with witnesses and otherwise,
Speaker 6: but also folks who may just have the time to
Speaker 6: sit for this long in a trial like this, it
Speaker 6: can be difficult. And so I think that started the
Speaker 6: case off with some problems. And then you've seen other
Speaker 6: issues that have come up, with some issues with some
Speaker 6: of the lawyers and things that have happened in the
Speaker 6: court room and whether or out there have been rents,
Speaker 6: and you know, it's been a little bit of a circus,
Speaker 6: I think at this point and may continue through the
Speaker 6: duration of presentation.
Speaker 1: Tell us about the Rico indictment, about the case, what
Speaker 1: the prosecution is charging.
Speaker 6: RICO really deals with racketeer influenced corrupt organizations, and if
Speaker 6: you think about it, maybe in Layman's term, that's really
Speaker 6: talking about things like organized crime. And so you saw
Speaker 6: some RICO cases that is going after these organizations the
Speaker 6: mob basically where they would try to take down the
Speaker 6: mob leader by essentially attributing the bad conduct of his
Speaker 6: underlings to him. In other words, they didn't have to
Speaker 6: find the mafia don pulled the trigger. They could actually
Speaker 6: have a murder committed by somebody else, but they could
Speaker 6: talk about this was a goal and an effort of
Speaker 6: this criminal enterprise to either obtain money or property, and
Speaker 6: that's how they went after the organization. Recently, you've seen
Speaker 6: RICO cases used not only in drug cases and drug
Speaker 6: conspiracy type cases, but also there was one relatively well
Speaker 6: known case in Atlanta where a RICO case was used
Speaker 6: involving public schools and the cheating scandal that went on
Speaker 6: some of those people. I think indications may've got some
Speaker 6: of them reversed that some certainly were convicted, And probably
Speaker 6: the most famous one right now that we're hearing about
Speaker 6: is a Trump campaign. But it's a prosecutor's dream really
Speaker 6: because it allows them to basically paint everybody with the
Speaker 6: negative brush, and so they can bring in a lot
Speaker 6: of evidence. They get to attribute all the bad conduct
Speaker 6: of your Code defendment to you if you're a defendant,
Speaker 6: and it's more of a I guess the case involving
Speaker 6: either directions to do wrong or involvement to do wrong,
Speaker 6: or sometimes just knowledge of people who are doing wrong.
Speaker 6: All that evidence gets to come in, and at the
Speaker 6: end of the day, the prosecution has the jury to
Speaker 6: convict you because you were part of this organization. So
Speaker 6: it's not an uncontroversial statute. Many people think that it
Speaker 6: allows prosecutors too much leeway in bringing cases that they
Speaker 6: tend most of the time to be complex and involved
Speaker 6: in sometimes unruly. As you're saying, in this case, this sort.
Speaker 1: Of sounds like a movie script because Georgia is accusing
Speaker 1: this Grammy winning rapper of leading a street gang that's
Speaker 1: fronted by his record label, and the crimes include killings,
Speaker 1: and shootings and carjackings, right.
Speaker 6: And it's easy, remember, to charge people with a crime
Speaker 6: and sometimes harder to prove that. And so the state
Speaker 6: as they do in every criminal case, but certainly here
Speaker 6: they'll have to come forward and put on some evidence
Speaker 6: that the main defendant was really in control of what
Speaker 6: was going on by other people on the street. I
Speaker 6: think that gets harder to do if we are just
Speaker 6: have realistic conversations about what actually happens in the real
Speaker 6: world in certain neighborhoods and areas of town and that
Speaker 6: type of thing, and the prosecutors will have to explain
Speaker 6: how that's not just what i'll call street level crime,
Speaker 6: but was actually part of this larger umbrella they've charged
Speaker 6: as part of this Rico case.
Speaker 1: They do. You have some people who pled right who
Speaker 1: are going to testify?
Speaker 6: They do?
Speaker 1: They do?
Speaker 6: I mean, And that's another reason that prosecutors like the
Speaker 6: Rico case is it allows them to sort of pick
Speaker 6: off defendants through plea agreements, and then they begin to
Speaker 6: develop evidence in the case. It's always interesting to me
Speaker 6: to see how Rico cases can be charged by a
Speaker 6: grand jury, but then the prosecutor still needs the evidence
Speaker 6: from code defendants. Who later plead to try to pull
Speaker 6: the puzzle pieces together to really give a better picture
Speaker 6: of what these cases or the organization's charged as part
Speaker 6: of these cases, what it looks like.
Speaker 1: What really interests me in this case is that the
Speaker 1: judge has ruled that prosecutors can use his lyrics as
Speaker 1: evidence of his involvement in the crimes. So they can
Speaker 1: present seventeen sets of lyrics as evidence, provided they can
Speaker 1: link their content to real world crimes. That's been done before.
Speaker 1: Is it controversial?
Speaker 6: Though it is controversial, and I don't know, frankly how
Speaker 6: I feel about it. I think it's probably pushing the
Speaker 6: envelope a little bit. And while it's not the first time,
Speaker 6: so it's not really pressing a set in there other
Speaker 6: cases where this has happened, I do think it'll raises
Speaker 6: some pretty unique questions about the First Amendment about you know,
Speaker 6: artist creativity and then whether or not later that can
Speaker 6: be used in a case. You can think about cases,
Speaker 6: you know, woe be it for any country music star
Speaker 6: to either be charged with drug driving or get a
Speaker 6: divorce because that's going to come up. Does that mean
Speaker 6: now that that's going to be effence in their case?
Speaker 6: That they talked about, you know, drinking too many drinks
Speaker 6: or chasing too many paramoms or whatever the case may be,
Speaker 6: or you know, smoking too much weed or you know whatever,
Speaker 6: is that now going to be the norm. And I
Speaker 6: think those are the kind of lines where this type
Speaker 6: of admission of evidence, of this specific type of evidence,
Speaker 6: that it gets blurry fright then you know, I was thinking,
Speaker 6: is I thought some about the case that if you're
Speaker 6: defending a case like this, or you're just representing an
Speaker 6: artist of music artists, are you well advised to suggest
Speaker 6: to them but just write a couple of songs with
Speaker 6: really acceptable lyrics, things like I love the police, I've
Speaker 6: never commit a crime, I don't do drugs, and say
Speaker 6: well here's evidence. Now, by good care, you don't want
Speaker 6: to if anything ever happen. I want you to put
Speaker 6: this in. You know, that's something that I'll go into.
Speaker 6: I assure you that the people who are prosecuting case
Speaker 6: would say no. But somehow here this evident is coming in.
Speaker 6: It limiting instructions too to a jury. And that may
Speaker 6: be what the judge has in nine when he talks
Speaker 6: about you have to link it up in office and
Speaker 6: if he may limit the jury or tell them what
Speaker 6: you can only consider this and it looks like it
Speaker 6: went to an actual crime. That those are often a
Speaker 6: little propylactic enough about it, because juries pay great attention
Speaker 6: to what prosecutors put into evidence, and a prosecution like
Speaker 6: it or not. The reality is that a prosecution team
Speaker 6: goes in I think oftentimes with an advantage in a case,
Speaker 6: and that is a jury want to believe them. It's
Speaker 6: sort of like you want to trust your doctor, you know,
Speaker 6: you want to trust the prosecutor, you want to trust preachery.
Speaker 6: It's just something that's sort of ingrained in US, I
Speaker 6: think to have this trust. Not everybody, but by and large,
Speaker 6: I think they look for somebody to explain to them
Speaker 6: what the case is about, what the evidence is going
Speaker 6: to show, what it has shown at the end of
Speaker 6: the case, and they often expect the prosecutor to do that.
Speaker 6: And so the fact that the evidence comes in under
Speaker 6: the guise of a prosecution presentation I don't think is
Speaker 6: cured by some of the limiting efforts that may have
Speaker 6: to happen in this case, because we don't know until
Speaker 6: they get further along that they're going to be able
Speaker 6: to connect the dots to these specific lyrics, you know,
Speaker 6: and I think that can pose a problem later.
Speaker 1: Some of the references that looked that I've seen are
Speaker 1: you know, a little ambiguous, and the defense said that
Speaker 1: not only it's a violation of free speech, but that
Speaker 1: it would be unfairly prejudicial. So do you think that
Speaker 1: will be an appellate issue.
Speaker 6: I think there's no question. I mean, there have been
Speaker 6: cases where it's been allowed, but I think this will
Speaker 6: be right for an appeal, especially when they think about
Speaker 6: how broad things have gotten. And I think that's one
Speaker 6: of the concern and we're seeing in other cases, I mean, right,
Speaker 6: we're seeing it in political cases too, right now, in
Speaker 6: those types of things where some of what I would
Speaker 6: call the protective norms that we've kind of held sacrisine,
Speaker 6: we're willing to bend those a little bit because we
Speaker 6: think that the end is going to justify the means
Speaker 6: to get there. So, Presidents, here are we getting our
Speaker 6: hands a little too tightly around the neck of the
Speaker 6: First Amendment and the free speech of people off for
Speaker 6: the sake of getting some small piece of evidence in
Speaker 6: and the hopes that that might be what pushes the
Speaker 6: jury over the edge to a conviction. As opposed to
Speaker 6: looking for that evidence through witness testimony, codefindite testimony, physical evidence, videotapes,
Speaker 6: whatever it is. We're saying, we're going to sacrifice a
Speaker 6: little bit of what we've known traditionally as protection as
Speaker 6: the First Amendment in order to get to this other place.
Speaker 6: And I do think that's going to raise interesting issues.
Speaker 6: And even though the evidence has been used in other cases,
Speaker 6: appellate courts are known as time passes, and things change
Speaker 6: and the technology evolves and all of that, they're no
Speaker 6: for shifting or revisiting some of those issues later on.
Speaker 6: And so I think this will be ripe if he
Speaker 6: is convicted, or if anyone is convicted in this trial
Speaker 6: and the evidence has been used for that, I think
Speaker 6: this is the kind of thing that will be ripe
Speaker 6: for an appeal.
Speaker 1: In the opening statements, the long opening statements of the defense,
Speaker 1: the defense attorney told his rags to riches story incidents
Speaker 1: where the rapper's twenty year old brother was shot near
Speaker 1: their building, and he sort of changed the narrative. He said,
Speaker 1: THUG stands for truly humbled under God, and hy s
Speaker 1: l the alleged gang doesn't stand for young slime. Life.
Speaker 1: It stands for the luxury clothing brand Eves and Lauran.
Speaker 1: I mean, he's trying to change the entire narrative of
Speaker 1: who this rapper is. Is the jury going to pick
Speaker 1: between this version of him and the totally opposite version
Speaker 1: that the prosecution's presenting.
Speaker 6: You know, And sometimes lawyers have to sort of dance
Speaker 6: with what brung them, if you will, and or play
Speaker 6: the cars they've been dealt. So this case, the lawyer
Speaker 6: may have been looking for some way to make a distinction.
Speaker 6: I do think though, that the Ragged the Riches story
Speaker 6: is the type of thing that plays in what we
Speaker 6: talk about him Indigo, and that is the lyrics. And
Speaker 6: is this artist writing about what he saw as his
Speaker 6: life experience or an experience of his friends, or something
Speaker 6: that he believed might be relatable in his music genre
Speaker 6: to his audience. And it's just something there as opposed
Speaker 6: to some type of cryptic message about crimes that had
Speaker 6: taken place or that he had been a part of.
Speaker 6: And so those will be things they, you know, they
Speaker 6: have to ferret out, you know. I'm mindful though, as
Speaker 6: we think about how a lawyer might you know, change
Speaker 6: the narrative. I mean, Remember that we've seen in famous
Speaker 6: cases a narrative change. We've gone from a bloody crime
Speaker 6: scene photo to scenes of somebody trying to pull on
Speaker 6: a leather glove and an argument about it. If it
Speaker 6: doesn't fit, you must have quit, you know, And so
Speaker 6: the lawyer may try to change that narrative here in
Speaker 6: this case to get the jury's attention on. This is
Speaker 6: who he was, this is how he's come up, This
Speaker 6: is why he writes these lyrics, This is why he
Speaker 6: has this circle of friends.
Speaker 3: You know.
Speaker 6: This is him as a person, but he's now a
Speaker 6: place where he's so successful that this idea of sort
Speaker 6: of street crime at the level that's a legend of
Speaker 6: the indictment is outside of what he does. And that's
Speaker 6: why he may be talking about things like, you know,
Speaker 6: designer clues as opposed to the gang name and such
Speaker 6: as that.
Speaker 1: Thanks so much, Michael. That's Michael Moore of Moore Hall.
Speaker 1: And that's it for this edition of the Bloomberg Launch Show.
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