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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com Slash podcasts. The defense and

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Speaker 1: the Paul Manafort trial rested its case without calling any

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Speaker 1: witnesses yesterday. Manafort's attorney, Kevin Downing, explained why while walking

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Speaker 1: out of the Alexandria Federal Courthouse yesterday, Mr Manafort just

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Speaker 1: rested his case, and he did so because he and

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Speaker 1: his legal team believe that the government has not met

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Speaker 1: its burden approved joining me as former federal prosecutor Ellie Honick,

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Speaker 1: special counsel at Loewenstein Sandler Ellie as a federal prosecutor.

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Speaker 1: How many times do you think you heard the defense

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Speaker 1: say the government has not met its burden as an

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Speaker 1: explanation for White didn't present its case all the time,

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Speaker 1: whatever the number of trials I did, times a hundred um.

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Speaker 1: This is this is the the constant refrain from defense lawyers,

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Speaker 1: and it should be you know, that's how our constitution

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Speaker 1: is set up. It is the burden of the prosecution

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Speaker 1: to prove every count beyond a reasonable doubt. And so

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Speaker 1: it's not at all on common to see the kind

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Speaker 1: of defense that we're seeing from Manapar here, which is

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Speaker 1: no defense really. Um. But I don't mean that in

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Speaker 1: a derogatory way. I mean they don't have to put

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Speaker 1: on in any kind of defense, and so it's what

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Speaker 1: we just call a reasonable about defense. Um. You don't

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Speaker 1: put on any affirmative evidence of your own as a defendant.

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Speaker 1: You just claim the government has not carried its burden.

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Speaker 1: That's obviously true that you don't have to put on

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Speaker 1: a case, and many defendants don't. But would you expect

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Speaker 1: with this the high caliber and high price of this

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Speaker 1: defense team, you have three defense lawyers basically in the courtroom,

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Speaker 1: that you would expect at least some character witnesses or

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Speaker 1: is that too dangerous? Uh No, I wouldn't equate, you know,

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Speaker 1: the quality with with quantity um and character witnesses. I've

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Speaker 1: I've been on trials where people have hall character witnesses.

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Speaker 1: They really don't do much because all they come out

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Speaker 1: and say is this is a good person and he

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Speaker 1: gives the charity. And you know, the jury usually understands

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Speaker 1: that has nothing to do with whether he committed the

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Speaker 1: charge crimes. A person can be a good person and

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Speaker 1: take care of his family and donate to charity, but

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Speaker 1: still commit bank fraud and tax fraud. So um, sometimes

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Speaker 1: I think jury see that as as just a dog

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Speaker 1: and pony show. Is sort of superficial. So if I

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Speaker 1: was in the shoes of the defense or I think

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Speaker 1: I do the same thing he did, I think I'd

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Speaker 1: either mount a very robust defense or just go with

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Speaker 1: reasonable belt. So now closings today, Gates, Rick Gates, the

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Speaker 1: star of witness, appeared to have suffered some credibility problems

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Speaker 1: during a tough cross examination he which exposed some lies.

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Speaker 1: Is the defense likely to stick with that blame the

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Speaker 1: star witness strategy and it's closing. They absolutely will. It's

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Speaker 1: really the only place they have to go. You know,

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Speaker 1: you can't attack the documents. He can't really attack the

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Speaker 1: bank witnesses that the vendors that came in. So they

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Speaker 1: made clear in their opening they're gonna attack with Gates,

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Speaker 1: and and I would expect that's what they're gonna do.

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Speaker 1: And you can already see, you know, the prosecution is

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Speaker 1: actually just within the last few minutes concluded, it's closing,

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Speaker 1: and you can see the prosecutors are already bracing for that.

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Speaker 1: And and the line out of the prosecution's closing is

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Speaker 1: the documents of the star witness in this case. Which

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Speaker 1: when I saw that, I thought that's a smart line.

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Speaker 1: It's it's not dazzling, it's not catchy or anything, but

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Speaker 1: I think it's a really good way for the prosecutors

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Speaker 1: to to sort of take the focus off of Rick

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Speaker 1: Gates as the criminal. Of course, that's why he's up

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Speaker 1: on the stand, you know, that's that's why Manafort liked him.

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Speaker 1: But ultimately, look at the documents. So the prosecution has

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Speaker 1: to prove that Manafort had criminal intent. How do they

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Speaker 1: get inside his mind when there are witnesses between Manafort

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Speaker 1: and the transactions. Yeah, that's a circumstantial you know. So

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Speaker 1: people people use the phrase circumstantial evidence like it's a

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Speaker 1: bad thing, but it's not necessarily and judges will instructures.

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Speaker 1: You may use your common sense inferences to to draw

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Speaker 1: to draw inferences about what the circumstances say. So if

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Speaker 1: these if these accounts are controlled by manaphor, which it

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Speaker 1: seems clear that they are, and if he's ordering documents

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Speaker 1: to be falsified, as it seems clearly that he was.

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Speaker 1: And if he's the one receiving all the benefit, all

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Speaker 1: the millions of dollars, which seems pretty clear as well,

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Speaker 1: then then a jury as well when it's right to

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Speaker 1: infer that he had the intent. Now we've talked about

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Speaker 1: the judge before moving the trial along, but we haven't

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Speaker 1: talked about all the comments that the judge made during

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Speaker 1: the trial, some on the prosecution's evidence and one that

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Speaker 1: was flatly contradicted by a transcript which he brought out,

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Speaker 1: But he never really said he was wrong. Could his

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Speaker 1: statements have an impact on the jury? They could. Juries,

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Speaker 1: of course listened to judges, and you know the judge

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Speaker 1: is the most powerful figure in the court room, and

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Speaker 1: juries literally look up at the judge. So yes, juries

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Speaker 1: are swayed by things judges say. I think the judge

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Speaker 1: got a few things wrong here, as you pointed out, um,

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Speaker 1: and I think he even sort of misstated the law

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Speaker 1: when he when he snapped at one of the witnesses.

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Speaker 1: Can you tell us about bank loan that actually happened.

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Speaker 1: It's a climate if they tried to get a bank

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Speaker 1: loan illegally, even if that loan didn't happen, So that

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Speaker 1: could have an impact. I will say, though, on the

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Speaker 1: other hand, I've seen situations where judges have bullied one

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Speaker 1: party or another, maybe the prosecutors, maybe the defense. But

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Speaker 1: sometimes if the judge is really uh over, you know,

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Speaker 1: comes on too strong or abusive to a party, it

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Speaker 1: has the effect of actually rallying the jury to that

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Speaker 1: party side. You know that the party will sort of

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Speaker 1: start to empathize or sympathize with that side, and that

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Speaker 1: can actually sort of work the opposite way as well.

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Speaker 1: Let's turn to the Muller investigation for a moment. Trump's

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Speaker 1: lawyer Rudy Giuliani has been stating deadlines from Muller to

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Speaker 1: end the investigation just about since he got on the team.

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Speaker 1: Now he's claiming that if the investigation isn't over by September, quote,

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Speaker 1: then we have a very very serious violation of the

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Speaker 1: Justice Department rules. Explain that murky policy at the Justice Department,

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Speaker 1: and whether where Trump isn't even on the ballot, there's

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Speaker 1: any problem here If Rudy is off base and he

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Speaker 1: knows he's he's been at this long he worked for

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Speaker 1: the Department Justice for decades um. This is first of all,

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Speaker 1: the idea that that you don't do things within sixty

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Speaker 1: days of an election is a custom and a practice.

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Speaker 1: It is not a rule. It is not a regulation,

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Speaker 1: It is not a statute. Second of all, Rudy seems

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Speaker 1: to be suggesting that the rule says either you absolutely

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Speaker 1: stop everything you're doing, you pause it until after the election,

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Speaker 1: or it sounds like what Rudy's really saying is they

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Speaker 1: have to finish by then and I have to just

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Speaker 1: end the investigation. And neither of those are true. What

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Speaker 1: the custom is is you don't take over steps, You

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Speaker 1: don't get behind a podium and announce a new set

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Speaker 1: of charges. You you know, typically don't go out and

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Speaker 1: do and arrest in that period. But can you continue

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Speaker 1: doing your work? Of course, and and uh Mulla has

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Speaker 1: made clear that he intends to keep doing his work.

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Speaker 1: There's already there's a known grand jury day for Kristin

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Speaker 1: Davis for September seven, So he has no intention on

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Speaker 1: stopping what he's doing on September one, nor should he. Now.

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Speaker 1: Giuliani has gotten the facts wrong at times, he's gotten

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Speaker 1: the law wrong at times, But has he succeeded in

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Speaker 1: confusing the public, murking the waters. It could be and

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Speaker 1: that may be the goal. Um. You know, he's certainly

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Speaker 1: been out there in visible and loud, and I guess

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Speaker 1: if he says something enough times, it sort of tends

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Speaker 1: to stick in people's heads. And you know, there is

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Speaker 1: pulling out there that shows that a good number of

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Speaker 1: people across parties Democrats are Republicans would like to see

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Speaker 1: Mueller finish up by September one. But everybody wants every

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Speaker 1: criminal investigation to finish up, whether you're being investigated or

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Speaker 1: you're just a member of the public. It's not pleasant,

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Speaker 1: but it's necessary that it go on until it's done

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Speaker 1: right and concluded. And certainly the length of the Mueller

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Speaker 1: investigation is far less so far than some of the

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Speaker 1: other Special Counsel investigations. Thanks so much, Ellie, always a pleasure.

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Speaker 1: That's Ellie Honick, Special Counsel A Lowenstein Sandler. It's unprecedented.

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Speaker 1: On Monday night, the West Virginia House of Delegates voted

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Speaker 1: to impeach another branch of government, the entire state Supreme Court.

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Speaker 1: If the Senate also votes to impeach the justices, their

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Speaker 1: seats will be filled by the state's Republican governor, except

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Speaker 1: for one seat, which the voters will decide because Democratic

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Speaker 1: Justice Robin Gene Davis retired from her post effective one

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Speaker 1: day before the impeachment. The majority members have ignored, ignored

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Speaker 1: the will of the people who elected the justices of

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Speaker 1: this court. They have erased the lines of separation between

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Speaker 1: the branches of government. Joining me is Patrick McGinley, a

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Speaker 1: professor at the West Virginia University College of Law. Patrick,

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Speaker 1: is this really about extravagance spending by the justices or

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Speaker 1: is there more? Well? Certainly on the surface, uh, it's uh.

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Speaker 1: The focus has been on extravagant spending and mismanagement by

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Speaker 1: members of the Supreme Court, but critics UH suggests that

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Speaker 1: there's more to it. That this is a power play

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Speaker 1: by the Republican legislature and the governor to replace all

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Speaker 1: of the members of the Supreme Court with um UH

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Speaker 1: justices friendly to their perspective by appointment of the governor. UH.

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Speaker 1: And so that the specter of political impeachment certainly is

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Speaker 1: on the horizon as being discussed here in West Virginia

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Speaker 1: and exploring the media around the country, that's that's also

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Speaker 1: a topic of concern. The West Virginia's constitution, I understand

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Speaker 1: allows the judiciary to sit and control its own budget.

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Speaker 1: Are there specific laws or rules that govern the judge's

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Speaker 1: expenditures that you know? The West Virginia House of Delegates

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Speaker 1: points to, Well, there's there is a civil law. Uh.

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Speaker 1: The only one really cited specifically in the articles of

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Speaker 1: impeachment is one that uh uh that allows the court

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Speaker 1: to appoint retired judges to sit in places where they're needed,

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Speaker 1: where there's a heavy caseload, there's illness of a judge,

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Speaker 1: and that statute indicates that uh those um special especially

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Speaker 1: appointed judges, should not be compensated more than sitting circuit

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Speaker 1: court judges in the state. And apparently there have been

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Speaker 1: instances where uh the Supreme Court has approved the employment

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Speaker 1: of judges in certain uh circuits where they're cumulative income

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Speaker 1: during a year um exceeds that of a sitting judge.

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Speaker 1: That's it's not a criminal statute, but that's what cited

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Speaker 1: in the articles of impeachment. Have is there a separation

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Speaker 1: of powers problem here that and this may set a

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Speaker 1: precedent in that area. Well, of course, there is uhh

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Speaker 1: the ability of one branch of government to displaced the

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Speaker 1: entire head of the judicial branches is a matter of concern,

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Speaker 1: and of course, UM that is more likely to rise.

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Speaker 1: I might say that it's really never these circumstances. Well,

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Speaker 1: all the members of the court have been impeached, and impeached,

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Speaker 1: by the way, doesn't mean conviction or removed from office.

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Speaker 1: It's a quote of an indictment. That's that's never occurred

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Speaker 1: in West Virginia or in the United States, so that

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Speaker 1: that's unusual and it's unsettling, But it only occurs in

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Speaker 1: a situation like this where the both the legislative branch

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Speaker 1: and the governor's office is occupied by members of the

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Speaker 1: same party. And I think historically you don't see this

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Speaker 1: because UH in state legislatures, the members are cognizant of

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Speaker 1: the impact of such a UH. Such a move would

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Speaker 1: be on the integrity of the entire judicial system, and

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Speaker 1: also the removal of all the judges would throw the

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Speaker 1: West Virginia court system into disarray, with styusands of pending

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Speaker 1: cases in the Supreme Court being the body that not

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Speaker 1: only here's UH appeals from lower courts, but also administers

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Speaker 1: a lower court system. So, Patrick, we have about a

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Speaker 1: minute here. Does it seem as if this is going

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Speaker 1: to go to the Senate. Will the republic is in

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Speaker 1: the Senate be able to to vote for impeachment? Will

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Speaker 1: this actually go through? I'm skeptical. Uh, the members of

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Speaker 1: the House have made their point. Uh, there's not going

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Speaker 1: to be excessive spending on renovations. Judges will will be um. Uh,

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Speaker 1: cognizance of spending tax pay money that's really seen the

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Speaker 1: many to be overkill. All right, Thanks so much, Patrick,

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Speaker 1: that's Patrick McGinley, professor at the West Riginia University College

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Speaker 1: of Law. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg