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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: They're destined to be the most challenging and significant Justice

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Speaker 1: Department criminal investigations in years, involving former President Donald Trump,

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Speaker 1: the investigation into interference with the transfer of power following

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Speaker 1: the presidential election, and the investigation into classified documents found

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Speaker 1: at Trump's home in Mara Lago. I have concluded that

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Speaker 1: it is in the public interest to appoint a special

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Speaker 1: council such an employment. An appointment underscores the Department's commitment

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Speaker 1: to both independence and accountability in particularly sensitive matters. It

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Speaker 1: also allows prosecutors and agents to continue their work expeditiously

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Speaker 1: and to make decisions indisputably guided only by the facts

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Speaker 1: and the law. Attorney General Merrick Garland has appointed Jack Smith,

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Speaker 1: who has a long career of fighting public corruption, police brutality,

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Speaker 1: and war crimes, as a new special counsel to oversee

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Speaker 1: those high profile and politically sensitive investigations. My guest is

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Speaker 1: former federal Prosecutor Robert Mints, a partner mc carter in English.

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Speaker 1: Attorney General Merrick Garland cited Trump formally entering the presidential

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Speaker 1: race and Joe Biden's expected candidacy as reasons why independent

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Speaker 1: special counsel was in the public interest. Is that a

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Speaker 1: good call? Do you think there are really two sets

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Speaker 1: of opinions on whether or not the appointment of a

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Speaker 1: special council is the right move at this point. It's

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Speaker 1: something that the Attorney General's office has been talking about

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Speaker 1: for some time, and it was really precipitated by former

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Speaker 1: President Trump's announcement that he is now a candidate for

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Speaker 1: the presidency, as well as President Biden's stated intention to

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Speaker 1: run for reelection. This created, at least in the mind

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Speaker 1: of Merrick Garland, the Attorney General, a con like of

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Speaker 1: interest since he would be investigating somebody who has now

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Speaker 1: announced that he is running to replace the sitting president.

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Speaker 1: But there is some controversy to it because there's concern

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Speaker 1: that it could slow down the investigation. So among former

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Speaker 1: federal prosecutors and people who are familiar with the special

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Speaker 1: council role, there's a split of opinion as to whether

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Speaker 1: or not this is really the right move at this point.

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Speaker 1: Why are some people concerned that appointing a special council

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Speaker 1: means a slowdown in the investigation. The special Council was

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Speaker 1: appointed to continue to investigations that are now ongoing with

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Speaker 1: the Department of Justice. The first is oversight of the

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Speaker 1: investigation into the January six insurrection of the US Capital,

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Speaker 1: and the second is the role that Trump may have

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Speaker 1: played in the handling of classified records that he removed

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Speaker 1: from office and took tomorrow lago his house in Florida.

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Speaker 1: Those are both investigations that have been ongoing for some time,

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Speaker 1: and the team of Department of Justice investigators and prosecutors

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Speaker 1: who are involved in that will continue, so it's not

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Speaker 1: going to be starting from scratch. But there is some

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Speaker 1: concern that the appointment of a special prosecutor could sclow

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Speaker 1: down this process, and because of the upcoming election, the

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Speaker 1: special prosecutor is really under the clock right now to

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Speaker 1: try to complete this investigation one way or the other,

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Speaker 1: a naked decision about whether or not to bring charges.

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Speaker 1: This is already being called by many Republicans a politicization

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Speaker 1: of the Justice Department. Well, there certainly is no law

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Speaker 1: prohibiting an investigation and an indictment of somebody who's running

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Speaker 1: for office. In fact, there's no law prohibiting the investigation

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Speaker 1: and indictment of a sitting elected official. For example, United

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Speaker 1: States senator or a governor. That has happened all the

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Speaker 1: time in our history. The only prohibition under Department of

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Speaker 1: Justice rules is that the Department of Justice will not

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Speaker 1: indict a sitting United States president, which was the roadblock

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Speaker 1: that the Mueller investigation ran into when they investigated potential

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Speaker 1: ties between Russia and the Trump campaign, and that was

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Speaker 1: something that Mueller was ultimately criticized for. But here the

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Speaker 1: Department Justice absolutely has the right and the ability to

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Speaker 1: investigate whether or not anything was done illegally by somebody,

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Speaker 1: and simply the fact that they've announced that they're running

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Speaker 1: for president does not shield them from that investigation. Having

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Speaker 1: said that, however, they are a bit under the gun

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Speaker 1: because they have to try to complete this investigation in

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Speaker 1: a timely fashion so that it will not interfere with

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Speaker 1: the upcoming election. I think, as a realistic matter, if

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Speaker 1: charges are to be brought against President Trump, it will

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Speaker 1: likely have to be done sometime in the spring of

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Speaker 1: three because they do not want to bring charges and

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Speaker 1: then have a trial pending while an election is coming up.

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Speaker 1: So if they're going to bring charges and actually try

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Speaker 1: a case before elections, there's not much time left. These

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Speaker 1: charges will likely have to be brought by the spring

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Speaker 1: of the part of Justice regulations say that you cannot

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Speaker 1: bring charges within sixty or ninety days ahead of an election.

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Speaker 1: But here we're really talking about a situation where, if

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Speaker 1: charges are brought, the great thing to do is to

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Speaker 1: allow enough time to have that trial actually take place

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Speaker 1: before the election. And bear in mind, this is not

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Speaker 1: going to be an ordinary trial, and it may drag

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Speaker 1: out longer than most trials would. Typically in the federal system,

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Speaker 1: if somebody's indicted for a federal crime, you can expect

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Speaker 1: to go to trial was in about a year. But

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Speaker 1: if there were to be an indictment of a former president,

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Speaker 1: it would certainly raise some new questions of loss, some

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Speaker 1: novel issues that would likely be litigated, and probably drag

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Speaker 1: the case out even longer. So, while the special Prosecutor

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Speaker 1: is getting on board here, and while he does have

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Speaker 1: the benefit of having Department of us as investigators and

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Speaker 1: prosecutors who have been working on this case who will

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Speaker 1: continue to work under his supervision, he has a steep

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Speaker 1: mountain to climb here to try to learn exactly what's

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Speaker 1: been going on and make some very big decisions in

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Speaker 1: the near term. Smith said in a statement, the pace

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Speaker 1: of the investigations will not pause or flag under my watch.

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Speaker 1: I will exercise independent judgment and will move the investigations

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Speaker 1: forward expeditiously and thoroughly to whatever outcome the facts and

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Speaker 1: the law dictate. Looking at his background, is he the

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Speaker 1: right person for this job? I think Jack Smith is

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Speaker 1: as good a person as you could possibly get for

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Speaker 1: this role. Nobody is going to be perfect, because there's

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Speaker 1: nobody who could be appointed who would satisfy everybody. There's

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Speaker 1: going to be a hardcore base of Republicans and Trump

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Speaker 1: supporters who are going to believe that any investigation is

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Speaker 1: politically motivated. And then there is going to be a

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Speaker 1: hardcore base of Democratic supporters, people who believe that the

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Speaker 1: Department of Justice is not moving quickly enough. But there

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Speaker 1: is a middle ground here, independent people who are not

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Speaker 1: tremendously politically involved, who are going to be watching closely,

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Speaker 1: and I think they will look at Jack Smith as

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Speaker 1: somebody who is essentially nonpartisan. He's a career prosecutor. He's

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Speaker 1: worked in the Brooklyn U s. Attorney's Office. He was

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Speaker 1: chief of the Public Integrity Section in Washington, and most

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Speaker 1: recently he was the chief prosecutor investigating war crime in

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Speaker 1: Kosovo for a court in the Hague. So he's somebody

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Speaker 1: who really has been involved as a prosecutor in many

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Speaker 1: high level cases. But at the same time he's really

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Speaker 1: not very well known outside a prosecutorial circle. He's certainly

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Speaker 1: not somebody who is political, and he's certainly not someone

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Speaker 1: who's ever received a political appointment. So he does fit

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Speaker 1: the bill in terms of being a career prosecutor, somebody

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Speaker 1: who has a reputation for working extremely hard and getting

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Speaker 1: to the bottom of a case, and he does not

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Speaker 1: have any obvious political connections to either part. He's a

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Speaker 1: registered independence. Would Garland have appointed a special counsel if

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Speaker 1: charges were not under consideration already, Well, that's a great question,

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Speaker 1: and it does suggest that charges are being seriously considered.

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Speaker 1: The mere fact that Merrick Garland has taken this extraordinary

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Speaker 1: step and appointed a special prosecutor suggests that he has

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Speaker 1: already come to the conclusion that there is a possibility

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Speaker 1: that charges will be brought here. I don't think that

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Speaker 1: he would have taken this step unless the evidence had

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Speaker 1: at least passed a threshold where there was a possibility

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Speaker 1: that charges could be brought. You don't typically bring a

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Speaker 1: special prosecutor simply to wind down an investigation. He obviously

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Speaker 1: believes that there is credible evidence here that needs to

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Speaker 1: be investigated, and that's walking named Jack Smith as a

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Speaker 1: special prosecutor. So what happens? Smith presents a report to

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Speaker 1: Garland and then what Yes, So the appointment of the

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Speaker 1: Special prosecutor does provide some covered to Merrick Garland in

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Speaker 1: that it does insulate the investigation from a direct report

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Speaker 1: to political appointees within the Department of Justice. So the

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Speaker 1: special prosecutor will not be subject to day to day

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Speaker 1: oversight by the Attorney General. You will not answer to

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Speaker 1: senior political appointees in the department, and he basically can't

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Speaker 1: be removed by the Attorney General except for cause. So,

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Speaker 1: in other words, unless there's some misconduct, dereliction of duty, incapacity,

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Speaker 1: conflict of interest, some really agregious situation in which the

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Speaker 1: independence and the unbiased nature of the investigation is seriously challenged,

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Speaker 1: Attorney General Garland is stuck with this special prosecutor. At

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Speaker 1: the end of the day, though it is the Attorney

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Speaker 1: General's decision about whether or not to proceed with a prosecution.

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Speaker 1: The special Prosecutor makes a recommendation. That recommendation ultimately goes

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Speaker 1: to the Attorney General, who can then either accept or rejected. However,

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Speaker 1: if he declines to take the recommendation of the Special Counsel,

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Speaker 1: he has to notify Congress and explain his decision. What

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Speaker 1: Smith will do at the end of his investigation is

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Speaker 1: submit a confidential report to Garland explaining those prosecutorial decisions,

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Speaker 1: and then Garland can decide what to do with that report.

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Speaker 1: He can either make the entire report public, he can

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Speaker 1: make some of it public, he can redact portions of it,

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Speaker 1: but ultimately it goes to Garland for the final decision

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Speaker 1: on what to do. The reason that this does provide

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Speaker 1: some level of installation is because that first decision, the

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Speaker 1: decision that's being made by the person who is most

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Speaker 1: familiar with the facts, who's in charge of the investigation,

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Speaker 1: is somebody who is independent from the Attorney General's office,

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Speaker 1: and it is going to be extremely difficult for Merrick

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Speaker 1: Garland or Frankly any Age not to follow the recommendation

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Speaker 1: of the Special Council. Under these circumstances, We've seen many

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Speaker 1: Special Council investigation asians drag on and on. I mean,

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Speaker 1: the John Durham investigation is three years in counting with

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Speaker 1: two failed trials. Is that a danger? Well, that is

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Speaker 1: the peril of appointing the Special Counsel. And why some

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Speaker 1: people criticize Merrick Garland for doing this and not simply

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Speaker 1: bringing these charges by the Department of Justice frankly long ago.

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Speaker 1: There's people who look at the classified documents case, for example,

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Speaker 1: and believe that it's fairly clear cut, and that's Department

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Speaker 1: of Justice should have moved on this months ago. But

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Speaker 1: at this point, given the fact that President Trump has

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Speaker 1: announced his candidacy and President Biden has announced his intention

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Speaker 1: to run for re election, I think Merrick Garland really

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Speaker 1: had no choice but to appoint the Special Council. Now,

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Speaker 1: as you say, the Special Council's history has been somewhat checkered.

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Speaker 1: The history of the Special Council really began after Watergates,

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Speaker 1: where Congress passed the Ethics in Government Act, and that

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Speaker 1: was the situation where the Attorney General, along with a

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Speaker 1: three judge Powell from the Court of Appeals, would appoint

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Speaker 1: a special prosecutor. Those are the kinds of cases that

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Speaker 1: Americans will remember really ran on and on in some

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Speaker 1: stay out of control. Examples of that were the Iran

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Speaker 1: Contra affair, the White Water controversy, and of course, most famously,

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Speaker 1: the Lewinsky scandal and the investigation by Canada Star that

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Speaker 1: led to the impeachment of Bill Clinton. Those were all

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Speaker 1: special prosecutors that were appointed under the Ethics in Government Act.

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Speaker 1: But because of those investigations, and because there was a

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Speaker 1: view by Congress that one special prosecutors were appointed, they

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Speaker 1: essentially ran a muck. They went on for years and years.

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Speaker 1: The scope of the investigations went far beyond what their

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Speaker 1: initial mandate was. Congress allowed that law to lap in

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Speaker 1: and since then there's been no federal statutory law governing

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Speaker 1: the appointment of special council. So what happened here is

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Speaker 1: that the Attorney General, under certain regulations kind appoint a

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Speaker 1: special Council, and at that point the Special Council runs

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Speaker 1: the investigation, but does ultimately have to report to Merrick Garland.

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Speaker 1: At to some extent, the Attorney General can check in

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Speaker 1: with the Special Counsel and try to move the investigation

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Speaker 1: along as a practical matter. Once this is handed over

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Speaker 1: to the Special Council, it's really in the hands of

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Speaker 1: Jack Smith, and all the up to him how quickly

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Speaker 1: to move this investigation on where this investigation will ultimately leave.

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Speaker 1: Does Smith have any parameters for how much money he spends,

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Speaker 1: how much staff he puts on. All of the details

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Speaker 1: about the size of his staff, about his budge at

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Speaker 1: that wall has to be run through the Department of Justice.

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Speaker 1: But I think it's fair to assume that Jack Smith

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Speaker 1: will be given whatever resources he believes are necessary in

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Speaker 1: order to complete this investigation. Thanks so much, Bob. That's

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Speaker 1: Robert Mensimcarter and English. Parao's founder Elizabeth Holmes, who claimed

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Speaker 1: her company could detect diseases with just a few drops

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Speaker 1: of blood, was sentenced to more than eleven years in

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Speaker 1: prison for defrauding investors. Homes built her blood testing start

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Speaker 1: up into a nine billion dollar company that collapse in scandal.

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Speaker 1: Before the judge handed down the sentence, Holmes cried as

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Speaker 1: she apologized to victims and investors, saying she took full

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Speaker 1: responsibility for Para nos. However, she did not admit to

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Speaker 1: committing any crimes. My guest is Anne Coughlin, a professor

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Speaker 1: at the University of Virginia Law School who specializes in

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Speaker 1: feminist jurisprudence, this seems like a tough sentence. The sentencing

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Speaker 1: guidelines max was up to twenty years. The probation office

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Speaker 1: recommended nine, the prosecutors asked for fifteen, and Holmes lawyer

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Speaker 1: asked for eighteen months of house arrest. Does this seem

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Speaker 1: on the tough side? Well, I certainly thought it seemed

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Speaker 1: tough when I read the sentence. Eleven years is a

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Speaker 1: really significant chunk of anyone's life. I think it's very

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Speaker 1: common to see the different parties, the two sides, the

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Speaker 1: probation office and then the judge, landing in different places.

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Speaker 1: One thing that strikes me about the case, of course,

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Speaker 1: as she elected to go to trial, so you know,

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Speaker 1: we would have seen a more lenient sentence come out

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Speaker 1: of a plea bargaining situation, presumably. But once she made

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Speaker 1: the you know, the decision that she was going to

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Speaker 1: go all in and say that she was not responsible

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Speaker 1: for this conduct or that she lacked the men's right,

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Speaker 1: you know, she had a couple of different kinds of

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Speaker 1: claims going for her. She decides she's going to go

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Speaker 1: to trial. If she loses, then of course the sentencing,

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Speaker 1: any kind of sentencing leniency that she would expect is gone.

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Speaker 1: So I guess, as we're speaking, I'm not that surprised.

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Speaker 1: The judge knows her. He sat through an entire trial.

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Speaker 1: He's also sat through Sonny Belwani's trial, and he said

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Speaker 1: that holmes refusal to accept responsibility for the fraud counted

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Speaker 1: against her and his sentencing decision, and even at the

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Speaker 1: sentencing when she spoke, she said she had tried to

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Speaker 1: realize the dream too quickly and do too many things

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Speaker 1: at once, so she never accepted her guilt. No, she

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Speaker 1: never did, and that's very striking. I mean, that seems

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Speaker 1: to have been her m o from the very beginning

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Speaker 1: of the lodging of the accusations against her. You know, again,

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Speaker 1: it's hard to get inside her mind. Maybe she herself

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Speaker 1: feels as though she didn't do anything wrong. But the judge,

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Speaker 1: as you said, was deeply familiar with the evidence in

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Speaker 1: her case and in bald Wanis case, and was able

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Speaker 1: to point I take it to you, very substantial, indeed,

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Speaker 1: proof beyond a reasonable doubt that she lied and that

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Speaker 1: she harmed people, and that she was culpable. And I

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Speaker 1: guess for the judge just became rather too much to

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Speaker 1: bear when she continued to refuse to acknowledge any responsibility

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Speaker 1: at all, So it doesn't surprise me that that would

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Speaker 1: be held against her. And then, of course this problem

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Speaker 1: for her, this failure to accept responsibility thread, is part

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Speaker 1: and parcel of her entire theory of defense. Her whole

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Speaker 1: fear of defense was I'm not guilty, I'm not responsible.

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Speaker 1: I was coerced to do these things by an abusive boyfriend.

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Speaker 1: That was one thread. I'm not responsible, he is. I

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Speaker 1: am a victim here. That that's one theory. Um. And

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Speaker 1: I take it that when she makes that assertion, that

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Speaker 1: is entirely compatible with the idea I'm not responsible, right, Um,

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Speaker 1: why would you blame me? He's the one who's at fault. Um.

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Speaker 1: And that that once she fails to prove that case

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Speaker 1: at the trial and she's found guilty, you know, then

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Speaker 1: it's it's kind of she's in a very awkward position,

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Speaker 1: right She's been denying responsibility all along, and the judge

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Speaker 1: clearly didn't buy it, and and and found that it

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Speaker 1: was again a factor that should lead to a more

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Speaker 1: severe sentence. I want to talk a little bit about

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Speaker 1: the fact that she got pregnant while she was awaiting trial,

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Speaker 1: and had a baby, and now she's pregnant again. Her

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Speaker 1: lawyer has positioned her as a caring friend and loving

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Speaker 1: mother with a toddler at home and a second child

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Speaker 1: on the way, who's incarceration would only prove detrimental to

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Speaker 1: her family and community. And her partner, Billy Evans, who's

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Speaker 1: a hotel heir, sent all these pictures of them together

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Speaker 1: and with their child in his letter to the judge.

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Speaker 1: Did that backfire in a way she chose to get pregnant.

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Speaker 1: Do you think that a judge should take that into account?

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Speaker 1: So that's a really tough question, isn't it. And the

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Speaker 1: issue is one that we've dealt with historically. Um, when

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Speaker 1: women are pregnant, when women are mothers, how should the

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Speaker 1: criminal law take account of those facts when deciding what

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Speaker 1: their punishment should be. I mean, I take it that

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Speaker 1: we might, and presumably do in some cases, ask similar

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Speaker 1: questions about male defendants. Of course, the man is not meant,

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Speaker 1: but there are many cases women have children, and you

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Speaker 1: could make similar arguments about how the punishment is going

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Speaker 1: to harm their families. You can make arguments about how

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Speaker 1: they are loving fathers and perhaps husbands, you know, outside

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Speaker 1: of their their criminal activities. So it's a really interesting

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Speaker 1: question as to whether we would give more weight to

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Speaker 1: that kind of concern in a case involving pregnant person

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Speaker 1: and a mother such as Elizabeth Holmes. So that's that's

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Speaker 1: really tough, you know, because you can end up in

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Speaker 1: a position where you worry that if you accept Holmes's

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Speaker 1: claim that her punishment should be reduced because she is

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Speaker 1: a mother, um, that that then reinforces, you know, stereotypes

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Speaker 1: about women that they're delicate and nurturing and therefore they

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Speaker 1: shouldn't be punished as severely. So that's quite difficult, you know.

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Speaker 1: And then we also want to be thinking too about

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Speaker 1: the truthfulness of it. I'm sure it is a big

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Speaker 1: impact on her family to have her to spend a

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Speaker 1: long period of time incarcerated as opposed to spending time

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Speaker 1: at home. But that's a concern that would come up

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Speaker 1: in any case where you have a parent, and so

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Speaker 1: it's hard to know how to think about it here,

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Speaker 1: you know, Again, we have to think about all of

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Speaker 1: those nuances. The other thing at the same time is

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Speaker 1: I don't see why it can't both be true that

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Speaker 1: she's you know, loving to her toddler and yet committing

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Speaker 1: these crimes for which she deserves to be punished. You know,

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Speaker 1: her substantive claim at the trial was, you know, I

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Speaker 1: was a victim, I was abused. I was not responsible

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Speaker 1: for this. I was easily manipulated that. You know, somehow

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Speaker 1: she was a vulnerable person. And that's sort of consistent

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Speaker 1: with this vision of femininity that might support giving her

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Speaker 1: a more lenient sentence. But again, I take it the

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Speaker 1: judge just didn't buy it. The fact that she might

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Speaker 1: be loving mother to a to a toddler and that

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Speaker 1: she's now pregnant is not incompatible with also seeing her

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Speaker 1: as committing criminal fraud, and then presumably it's not incompatible

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Speaker 1: with punishing her for that. As for this larger question,

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Speaker 1: how do we treat parents in the criminal justice system.

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Speaker 1: That's a really tough call. But I can imagine it

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Speaker 1: might be hard for some observers to have sympathy for

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Speaker 1: her because she has so many assets, so many resources,

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Speaker 1: so many ways that she could have avoided violating the

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Speaker 1: criminal law right and it was her choices that are

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Speaker 1: culpable and that are taking her away from her family.

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Speaker 1: The judge got more than a hundred letters from people

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Speaker 1: in all walks of life, and they painted her as

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Speaker 1: this virtuous person, as a victim of circumstance. And then

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Speaker 1: at the sentencing you had a relative, the father of

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Speaker 1: one of the whistleblowers, talking about how how horrible she

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Speaker 1: was to him, how he was so afraid because she

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Speaker 1: had people following him, that he slept with a knife

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Speaker 1: under his pillow. I mean, do those letters ever do anything?

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Speaker 1: So um, Yes and no. I mean I would think

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Speaker 1: of the margins, they can have some effect. I mean,

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Speaker 1: the judge obviously is aware of the facts that came

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Speaker 1: out at the trial, and then the judge will be

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Speaker 1: thinking about the impact of the sentence, not just on homes,

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Speaker 1: but on the entire community. What's the value of sentencing

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Speaker 1: her more or less severely, you know, how does a

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Speaker 1: particular sentence serve the interests of the criminal law criminal

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Speaker 1: law policy? What kind of injuries did she inflict on

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Speaker 1: individual victims in this case, an actual person who was

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Speaker 1: terrified presumably by her behavior, as well as the numerous

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Speaker 1: potential patients who she put at risk, health care providers

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Speaker 1: and so forth. So yes, the judge is going to

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Speaker 1: be weighing all of that kind of impact when deciding

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Speaker 1: what the sentence would be. But again, if I was

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Speaker 1: a judge too, I would really be thinking hard about

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Speaker 1: this question about you know, her privilege and the fact

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Speaker 1: that this is someone who was not committing a crime,

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Speaker 1: committing fraud trying to gain some kind of you know,

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Speaker 1: financial benefit, because she was in desperate circumstances, right, someone

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Speaker 1: who you really felt perhaps sympathy for again you blame them,

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Speaker 1: but sympathy for the fact that their lives were out

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Speaker 1: of control and they were committing crimes, say to take

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Speaker 1: care of their family or something like that. It's just

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Speaker 1: very hard to give her leniency and not to recognize

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Speaker 1: the other kinds of, you know, serious conditions that people

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Speaker 1: might confront when committing crimes. And this again the picture

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Speaker 1: that emerges the sentencing of someone who was very, very

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Speaker 1: focused on her own self aggrandizement and obviously building up

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Speaker 1: this tremendous fortune for herself, almost at whatever cost. This

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Speaker 1: was a very high profile case, there are TV shows, documentaries, books,

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Speaker 1: and the prosecutors asked the judge to send a message

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Speaker 1: to deter future startup fraud schemes, and the judge drew

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Speaker 1: a distinction between investors who take big risks backing ambitious

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Speaker 1: founders and those who don't know that they're being lied to.

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Speaker 1: So was it important for him to also send a

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Speaker 1: message with this really high profile sentencing. I think so, Um,

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Speaker 1: but that all will remains to be seen. What we're

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Speaker 1: focusing on here again, or what are the purposes of

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Speaker 1: the chronal sanction? You know, why are we doing this?

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Speaker 1: Are we doing this because we want to impose on

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Speaker 1: homes her just desserts? You know, this is what justice demands. Um,

404
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Speaker 1: She's done wrong and and so she should be punished,

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Speaker 1: you know, pretty seriously because the harm she inflicted. We're

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Speaker 1: serious or are we thinking? Well? Really, the value of

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Speaker 1: the sentence is to send message to other folks who

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Speaker 1: were working in that space, you know, they're is a

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Speaker 1: line between let's say, sort of ambitious puffery, you know,

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Speaker 1: or you know, young people who have terrific ideas that

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Speaker 1: they're not quite ready to deliver on, you know, sort

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Speaker 1: of optimistic projections versus the out and out lie. You know,

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Speaker 1: we're gonna give you some room to to puff your project,

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Speaker 1: but you're not going to get to lie about it

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Speaker 1: in the way that Homes did. And the idea would

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Speaker 1: be Wow, people are gonna be looking at the sentence

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Speaker 1: and saying, yep, I'm gonna, you know, clip my wings.

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Speaker 1: I'm not going to make such fantastic claims. I don't

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Speaker 1: know discriminal justice work that way. Do the people who

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Speaker 1: are in homes this position today, tomorrow and the next

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Speaker 1: day pay attention to these sentences? We think they do.

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Speaker 1: That's one of the reasons why we impose them. But

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Speaker 1: it's hard to the empirical matter to know that that's

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Speaker 1: the case. It's just that there have been so many,

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Speaker 1: you know, business rasis that have gone bad lately, that

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Speaker 1: that one starts one during about what the next case

427
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Speaker 1: is going to look like and whether it's going to

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Speaker 1: be another Elizabeth Holmes or perhaps someone else entirely, Are

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Speaker 1: there any studies about whether women are generally given lighter

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Speaker 1: or harsher sentences than men charged with similar crimes. That's

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Speaker 1: such a fantastic question. It's an empirical question. And I I,

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Speaker 1: since I don't have the data and my fingertips, I

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Speaker 1: just want to be careful. Let me be clear, so

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Speaker 1: the historians of women's crime um will make a claim

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00:26:31,280 --> 00:26:34,480
Speaker 1: and and and I believe it's true that when women

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00:26:34,640 --> 00:26:39,479
Speaker 1: are perceived to have violated the norms of their sex,

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00:26:39,640 --> 00:26:43,040
Speaker 1: that when women behave in ways that are contrary to

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Speaker 1: being female or to being feminine, that they will be

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00:26:46,840 --> 00:26:50,919
Speaker 1: sentenced more severely that women in effect, who try to

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00:26:50,960 --> 00:26:54,919
Speaker 1: step into the man's world and to try to you know,

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00:26:55,040 --> 00:26:57,720
Speaker 1: commit crimes in the way that a male criminal would

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00:26:57,880 --> 00:27:00,920
Speaker 1: would commit them tend to be and it's more severely.

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00:27:00,920 --> 00:27:03,920
Speaker 1: But these are empirical claims, and I just don't want

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Speaker 1: to take a position on the truth of this matter.

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00:27:07,240 --> 00:27:10,680
Speaker 1: There's certainly this perception that women are going to be

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00:27:10,720 --> 00:27:16,000
Speaker 1: punished more severely because the women who violate the criminal law,

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00:27:16,359 --> 00:27:19,400
Speaker 1: you know, have sort of violated the double bind, if

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00:27:19,400 --> 00:27:22,800
Speaker 1: you will, right, they have not only violated the criminal law,

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00:27:22,880 --> 00:27:26,200
Speaker 1: they have also violated the norms of femininity. And so

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00:27:26,280 --> 00:27:29,639
Speaker 1: that's what's interesting about homes here. We do feel that,

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00:27:29,960 --> 00:27:33,040
Speaker 1: you know, she was working in this very masculine space,

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00:27:33,600 --> 00:27:38,320
Speaker 1: that she was thriving according to the very assertive, maybe

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00:27:38,320 --> 00:27:41,600
Speaker 1: even aggressive norms of that space for how people were

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00:27:41,640 --> 00:27:44,879
Speaker 1: supposed to behave. She was hard charging, she was you know,

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00:27:45,000 --> 00:27:47,760
Speaker 1: pushing the line all over the place, and then we

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00:27:47,800 --> 00:27:51,960
Speaker 1: discover committing fraud. She's doing the crime, but then suddenly

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00:27:52,000 --> 00:27:55,240
Speaker 1: when she's accused of it, we see that her whole

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00:27:55,240 --> 00:27:58,760
Speaker 1: defense is shaped around trying to portray her as this

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00:27:59,280 --> 00:28:04,520
Speaker 1: feminine victim of this male Bengali or this male abuser. Right,

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Speaker 1: So it's really interesting to see the way the stereotypes

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00:28:07,920 --> 00:28:12,480
Speaker 1: play out. Whatever the empirical reality, there's certainly an impression

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00:28:12,520 --> 00:28:15,520
Speaker 1: out there, and we see, you know, claims along these

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Speaker 1: lines being made that women get punished more severely precisely

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Speaker 1: because they're women who, you know, as I said, not

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00:28:23,880 --> 00:28:25,960
Speaker 1: just broke the commands of the criminal law, but they

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00:28:26,000 --> 00:28:29,560
Speaker 1: also broke the bonds of femininity and homes. Seems to

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00:28:29,640 --> 00:28:33,359
Speaker 1: have had that in mind when creating this theory of

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00:28:33,359 --> 00:28:37,120
Speaker 1: defense and then the theory of sentencing that's portraying her

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00:28:37,160 --> 00:28:39,920
Speaker 1: as kind of, you know, the angel in the house,

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00:28:40,200 --> 00:28:43,080
Speaker 1: the mother of children and the wife of a man,

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Speaker 1: who shouldn't be ripped from heart and home to go

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00:28:45,360 --> 00:28:47,760
Speaker 1: to prison. You know that that would somehow be a

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Speaker 1: violation of community norms to punish her. Judge wasn't buying it,

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Speaker 1: thanks so much, an that's Ann Coughlin, a professor at

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00:28:55,400 --> 00:28:59,120
Speaker 1: the University of Virginia Law School. Judge de Villa ordered

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00:28:59,160 --> 00:29:02,719
Speaker 1: Holmes to report to prison in April, though the facility

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00:29:02,760 --> 00:29:05,880
Speaker 1: hasn't been determined yet. Her lawyers asked him to let

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00:29:05,920 --> 00:29:09,400
Speaker 1: Holmes remain free on bail while she appeals, which could

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00:29:09,480 --> 00:29:12,600
Speaker 1: take years. The judge said he'll decide that at a

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00:29:12,720 --> 00:29:16,200
Speaker 1: later date. He also said he'll address the question of

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00:29:16,320 --> 00:29:20,320
Speaker 1: restitution for the victims at a future date. The government

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00:29:20,360 --> 00:29:23,280
Speaker 1: proposed that Holmes be ordered to pay eight hundred million

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00:29:23,320 --> 00:29:26,920
Speaker 1: dollars to investors who lost money in Thorns, while the

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00:29:27,000 --> 00:29:31,240
Speaker 1: judge calculated the losses at one one million. And that's

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Speaker 1: it for this edition of The Bloomberg Law Show. Remember

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00:29:33,920 --> 00:29:35,959
Speaker 1: you can always get the latest legal news on our

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00:29:36,000 --> 00:29:40,160
Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

488
00:29:40,360 --> 00:29:45,400
Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law,

489
00:29:45,800 --> 00:29:48,400
Speaker 1: and remember to tune into The Bloomberg Law Show every

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00:29:48,440 --> 00:29:52,400
Speaker 1: week night at ten pm Wall Street Time. I'm June Grossow,

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00:29:52,480 --> 00:29:54,080
Speaker 1: and you're listening to Bloomberg