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

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Speaker 2: In a jury selection is largely luck. It depends who

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Speaker 2: you get.

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Speaker 1: Donald Trump is right that luck does play a part

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Speaker 1: in jury selection, as well as a host of other

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Speaker 1: factors considered. During four days of wadir in the hush

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Speaker 1: money trial of the former president, the trial judge, prosecutors,

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Speaker 1: and defense attorneys vetted almost two hundred prospective jurors to

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Speaker 1: weed out people who might be biased one way or

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Speaker 1: the other, and a jury of five women and seven

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Speaker 1: men has been sworn in to hear the historic case

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Speaker 1: in which Trump is accused of falsifying business records to

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Speaker 1: conceal a sex scandal before the twenty sixteen election. The

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Speaker 1: jury includes a teacher, a software engineer, an investment banker,

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Speaker 1: a speech therapist, a security engineer, a physical therapist, a

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Speaker 1: retired wealth manager, and two lawyers. Joining me to take

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Speaker 1: some of the mystery out of jury selection is former

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Speaker 1: federal prosecutor Robert Mintz, a partner McCarter in English, Bob.

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Speaker 1: Before we get to these jurors, I want to talk

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Speaker 1: about jury selection in general. So in this case, they

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Speaker 1: started with a large pool of prospective jurors, and about

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Speaker 1: half said they couldn't be fair and impartial, So right

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Speaker 1: off the bat, the judge dismissed those jurors. Then eighteen

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Speaker 1: of the remaining jurors were seated in the jury box,

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Speaker 1: and the prosecution and defense each got a half an

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Speaker 1: hour to question them individually. That's unlike federal court, where

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Speaker 1: the judge does the questioning. So tell us, as a

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Speaker 1: trial lawyer, when you're questioning the jurors individually, what are

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Speaker 1: you trying to do? Assess their honesty, make a connection.

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Speaker 1: What's your goal?

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Speaker 3: Well, what you're trying to do is find jurors who

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Speaker 3: may be sympathetic to your side. So you're looking for

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Speaker 3: every sign that you can about how they might view

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Speaker 3: the case, whether they're going to be rule for, whether

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Speaker 3: they are going to be somebody who's going to be

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Speaker 3: more guided by their emotions, whether they're going to like

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Speaker 3: your client if you're on the defense, and if you're

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Speaker 3: the prosecution, whether or not they're going to like the

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Speaker 3: government's case. So it really is much more of an

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Speaker 3: art form than it is a science, because jurors don't

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Speaker 3: tell you everything about them, and what they say may

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Speaker 3: or may not be true. It really is a bit

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Speaker 3: of luck in selecting the jury, and ultimately it is

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Speaker 3: a guessing game for lawyers to try to pick curers

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Speaker 3: and try to make sure they're going to pick somebody

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Speaker 3: who is going to be fair to their respective side.

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Speaker 1: Now to jury challenges, you have four cause challenges for

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Speaker 1: when you think a juror can't be fair or impartial,

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Speaker 1: but the judge has to rule on whether you'll get

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Speaker 1: a four caused challenge. Then you have peremptories, which means

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Speaker 1: you can challenge a juror for any reason except for

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Speaker 1: reasons of race, sex, ethnicity, and the like. But those

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Speaker 1: peremptories are limited, and in this case, each side had

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Speaker 1: only ten. How do you decide how to.

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Speaker 3: Use those, Well, that becomes very tricky. You're looking at

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Speaker 3: this jury pool and you have your ten parentory challenges,

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Speaker 3: which you are essentially challenges that you can ask the

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Speaker 3: judge to remove agur for almost any reason. As you say,

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Speaker 3: you cannot remove ajuror based upon their race or ethnicity

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Speaker 3: or some kind of improper reason, but for just about

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Speaker 3: anything else. You don't have to explain why you want

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Speaker 3: to remove them. So you want to use those sparingly

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Speaker 3: you want to move somebody off the jury if you

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Speaker 3: really think they're going to be bad for your client.

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Speaker 3: But once you run out of your peremptories, then you're

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Speaker 3: basically stuck with that jury unless there is what's called

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Speaker 3: a four cause reason, and that is much more difficult.

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Speaker 3: That's where you have to convince the judge that the

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Speaker 3: juror cannot be fair, and that is a much bigger challenge.

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Speaker 3: So you guard those peremptory challenges very carefully, trying to

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Speaker 3: save at least one until near the end, so you

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Speaker 3: make sure you're removing anybody who you think is going

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Speaker 3: to be not good for your client, but you have

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Speaker 3: something left in case somebody comes along who you really

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Speaker 3: don't like. But eventually you do run out of those

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Speaker 3: and then you're pretty much stuck with the jury unless

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Speaker 3: you can show that this curor simply cannot be fair

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Speaker 3: to your client.

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Speaker 1: And I think that's what happened to the defense here,

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Speaker 1: because one juror who works in product development said this

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Speaker 1: about Trump. I don't like his persona, how he presents

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Speaker 1: himself in public. He seems very selfish and self serving.

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Speaker 1: And when the defense lawyer said it sounds a bit

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Speaker 1: like what you're saying is you don't like him. She

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Speaker 1: responded yes, and the defense attorney asked for her to

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Speaker 1: be dismissed for cause, and the judge refused. But the

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Speaker 1: defense had no peremptories left.

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Speaker 3: You would use your peremptory for someone like that if

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Speaker 3: you have any left, And that's exactly the type of

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Speaker 3: jury you would want removed. You don't want somebody sitting

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Speaker 3: on the jury who has told the court that they

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Speaker 3: don't like your client, if you're a defense lawyer. But

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Speaker 3: in this case, that is not, at least in the

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Speaker 3: of the judge a basis to remove somebody. You're not

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Speaker 3: going to find a lot of jurors who have no

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Speaker 3: opinion about former President Trump one way or the other.

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Speaker 3: And if you use that logic, then somebody who liked

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Speaker 3: him would be removed by the prosecution, and anybody who

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Speaker 3: didn't like them would be removed by the defense. So

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Speaker 3: the judge has said there has to be something more

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Speaker 3: than that. If they say that, regardless of what their

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Speaker 3: personal feelings are about him as president or as a person,

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Speaker 3: they can put that aside and make a decision about

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Speaker 3: his guilt or innocence based solely on the evidence that's

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Speaker 3: presented a trial, the judge is going to leave them

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Speaker 3: on the jury. No question that the defense is not

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Speaker 3: thrilled having that curor on the jury, but at that

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Speaker 3: point they had no peremptory challenges.

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Speaker 1: Let's look at some of the others who were selected

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Speaker 1: to be on the jury. What strikes me first is

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Speaker 1: that there are two lawyers, a civil litigator and a

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Speaker 1: corporate lawyer. And there used to be a time when

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Speaker 1: lawyers weren't allowed to sit on juries because jurors might

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Speaker 1: turn to them as the thought already on the law.

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Speaker 1: You know, what, do you think, you're a lawyer.

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Speaker 3: Yeah, it's totally uncommon to have even one lawyer sit

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Speaker 3: on a jury led alone, too, because basically, whether you're

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Speaker 3: the prosecution or the defense, you really don't want a

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Speaker 3: lawyer sitting on that jury because they're going to have

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Speaker 3: outsized influence. Other jurors may defer to them. So we

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Speaker 3: really don't know what kind of influence a lawyer could

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Speaker 3: have on the other jurors. And unless you're one hundred

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Speaker 3: percent certain that that lawyer is in your camp and

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Speaker 3: that lawyer is going to be favoring your client, whether

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Speaker 3: you're the prosecution, or the defense. You don't generally want

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Speaker 3: to put that much power in the hands of one juror,

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Speaker 3: and what you really want to do is make sure

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Speaker 3: that everybody on the jury sort of has an equal stay.

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Speaker 3: They all bring their collective backgrounds to the deliberation process,

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Speaker 3: rather than having one person who will convince other jurors.

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Speaker 3: But the prevailing view is that two lawyers on the

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Speaker 3: jury might actually benefit the defense more than the prosecution

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Speaker 3: because of the defense strategy here is to try to

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Speaker 3: convincedures that there's a technical error in this case, that

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Speaker 3: this is really just a technical violation, that it really

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Speaker 3: doesn't rise to the level of a crime. A lawyer

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Speaker 3: on a jury may find that more persuasive than somebody

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Speaker 3: who's not a lawyer. So it's possible that these two

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Speaker 3: lawyers may actually help the defense more than the prosecution.

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Speaker 3: But having said that, at the time that these two

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Speaker 3: lawyers were still being questioned by both sides, both the

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Speaker 3: prosecution and the defense still had parentary challenges left. In

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Speaker 3: other words, either side could have removed one or both

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Speaker 3: of those lawyers, and neither chose to do it. So

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Speaker 3: what that tells us is that the prosecution on the

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Speaker 3: defense viewed those lawyers in completely different ways. The prosecutors

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Speaker 3: thinking that a lawyer will actually be good for their case,

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Speaker 3: somebody who will follow the judges instructions carefully, who will

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Speaker 3: look at the facts analytically rather than emotionally, while the

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Speaker 3: defense looked at the singing two lawyers and thought they'll

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Speaker 3: be good for the defense because they may be able

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Speaker 3: to cut through the emotion of the case. Look at

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Speaker 3: this case as much more of a technical violation that

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Speaker 3: is not sufficient to convict the former president.

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Speaker 1: Several jurors have college educations, plus two have master's degrees,

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Speaker 1: one has a doctorate, two the lawyers have jds. Isn't

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Speaker 1: that what the prosecution was looking for.

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Speaker 3: The prevailing view in terms of jury selection going into

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Speaker 3: this case is that prosecutors would be looking for a

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Speaker 3: more educated jury. In other words, they would probably want

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Speaker 3: to steer away from more blue collar workers, they'd want

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Speaker 3: to steer away from civil servants. They'd be looking for

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Speaker 3: a jury that included perhaps more educated jurors who would

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Speaker 3: look at the case carefully, analytically, who would be able

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Speaker 3: to follow the judge's instructions, because at the end of

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Speaker 3: the day, following the instructions of the is going to

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Speaker 3: be critical for the prosecution if they're going to get

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Speaker 3: a conviction here. So when you look at this jury

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Speaker 3: and you look at the educational background of this jury,

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Speaker 3: you would think that the prosecutors are very happy with

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Speaker 3: these twelve jurors.

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Speaker 1: During the jury selection, the defense spent a lot of

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Speaker 1: time delving into jurors social media posts going back years.

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Speaker 1: What do you think the defense was looking for in

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Speaker 1: a juror.

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Speaker 3: Yeah, I think from the defense side, what you don't

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Speaker 3: want is a zeal it. You don't want somebody who's

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Speaker 3: politically active. You don't want someone who is going to

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Speaker 3: go into this trial as a way to try to

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Speaker 3: even the score for what they believe to be any

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Speaker 3: kinds of injustices that were committed by former President Trump,

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Speaker 3: having nothing to do with the charges here. So I

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Speaker 3: think they were scouring social media. They were asking jurors

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Speaker 3: questions about where they got their news. Did they watch MSNBC,

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Speaker 3: did they watch Fox News? How much do they know

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Speaker 3: about this case? And they basically want somebody who may

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Speaker 3: not know that much about it, who will come to

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Speaker 3: this trial with an open mind, and someone who will

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Speaker 3: hear their case because what's going to happen here is

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Speaker 3: we're going to see dueling stories here. We're going to

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Speaker 3: see conflicting stories being told by the defense and the prosecution.

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Speaker 3: The prosecution is going to say this is a serious case.

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Speaker 3: It's not simply paying off former peign stars. This has

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Speaker 3: to do with potential election interference. The prosecution is going

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Speaker 3: to stay that this case is all about trying to

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Speaker 3: make sure the public was not aware of these relationships

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Speaker 3: leading up to the twenty sixteen election, because former President

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Speaker 3: Trump and his campaign believed that if this became known

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Speaker 3: that he might lose the election. The defense, on the

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Speaker 3: other hand, is going to paint a very different story

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Speaker 3: for the jury, and they are going to say these

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Speaker 3: are simply technical bookkeeping violations, that this case is politically motivated.

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Speaker 3: The judge will only let them get so far with

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Speaker 3: that defense, but if they don't stay expressly, they'll certainly

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Speaker 3: infer to the jury that this is a minor violation

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Speaker 3: and should never have been a criminal case from the start.

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Speaker 1: That's probably an unfair question, but I'm going to ask

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Speaker 1: it anyway. From what we know, can you tell if

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Speaker 1: this jury is better for the prosecution or better for

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Speaker 1: the defense.

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Speaker 3: Well, I think We can say from the get go

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Speaker 3: that the defense was never going to be thrilled with

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Speaker 3: this jury because this is a venue that is not

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Speaker 3: particularly favorable to former President Trump. It's obviously in New

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Speaker 3: York State. More than that, it's in Manhattan, where former

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Speaker 3: President Trump is not particularly popular. So I think the

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Speaker 3: defense is looking at this as an uphill climb. They're

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Speaker 3: probably looking realistically to try to get at least one

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Speaker 3: juror who'd go to a quit and then they get

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Speaker 3: a mistrial, the case has to be tried all over again.

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Speaker 3: They're probably also looking to try to trip up the

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Speaker 3: judge to create an issue on appeal, and at the

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Speaker 3: end of the day, the defense's best play here is

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Speaker 3: going to probably be to create a record that they

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Speaker 3: can take up on appeal, because I think most people

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Speaker 3: believe there will be a condition at the end of

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Speaker 3: this case.

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Speaker 1: We will learn more on Monday when opening statements take place.

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Speaker 1: Thanks so much, Bob Robert Mints of maccarter and English.

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Speaker 1: Coming up those January sixth obstruction charges, I'm June Grosso.

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Speaker 1: When you're listening to Bloomberg, Federal prosecutors have brought obstruction

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Speaker 1: charges against more than three hundred and fifty defendants in

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Speaker 1: January sixth cases, including two counts against Donald Trump for

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Speaker 1: his efforts to overturn his election loss in twenty twenty.

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Speaker 1: But during oral arguments on Tuesday, several Conservative Supreme Court

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Speaker 1: justices like Neil Gorsich express skepticism about the potential scope

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Speaker 1: of the charge and the kinds of conduct it could criminalize.

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Speaker 2: Would a sit in that disrupts a trial for access

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Speaker 2: to a federal courthouse qualify? Would a heckler in today's

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Speaker 2: audience qualify? Or at the State of the Union address,

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Speaker 2: would pulling a fire alarm before vote qualify? For twenty

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Speaker 2: years in federal prison.

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Speaker 1: The obstruction law has a broad catch a provision that

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Speaker 1: makes it a crime to corruptly, obstruct, influence, or impede

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Speaker 1: any official proceeding, and Joseph Fisher, a former Pennsylvania police

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Speaker 1: officer and January sixth defendant, argues it was intended to

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Speaker 1: prevent evidence tampering, not an insurrection. Justice Clarence Thomas, whose

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Speaker 1: wife Ginny is a conservative activist, who was at the

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Speaker 1: rally on January sixth, asked the US Solicitor General, Elizabeth Prelager,

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Speaker 1: if prosecutors had ever used this statute for other violent protests.

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Speaker 2: Have you enforced it in that manner?

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Speaker 4: We have enforced it in a variety of prosecutions that

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Speaker 4: don't focus on evidence tampering. Now, I can't give you

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Speaker 4: an example of enforcing it in a situation where people

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Speaker 4: have violently stormed a building in order to prevent an

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Speaker 4: official preceding a specified one from occurring, with all of

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Speaker 4: the elements like intent to obstruct, knowledge of the preceding,

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Speaker 4: of having the corruptly mensraa. But that's just because I'm

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Speaker 4: not aware of that circumstance ever happening prior to January sixth.

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Speaker 1: Joining me is former federal prosecutor Jessica Roth, a professor

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Speaker 1: at Cardozo Law School. Jessica explain what the issue is here.

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Speaker 5: So the issue here is how to interpret the Obstruction

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Speaker 5: of an Official preceding Statute, which is one of a

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Speaker 5: series of statutes that address obstruction of justice in various forms.

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Speaker 5: It's a particular provision that was enacted in two thousand

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Speaker 5: and two as part of the Sarbanes Oxley Act following

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Speaker 5: the Enron scandal and the revelation of significant accounting fraud

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Speaker 5: on the part of the accountants for Enron, and the

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Speaker 5: revelation that although those involved in the shredding of documents

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Speaker 5: related to Enron were prosecuted, that there was essentially a

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Speaker 5: gap in the obstruction of justice statutes because it was

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Speaker 5: not possible to charge somebody for destroying evidence essentially on

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Speaker 5: their own. The statutes required that a person direct or

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Speaker 5: somehow get another person to destroy documents. And so it

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Speaker 5: wasn't that there was so much a problem charging in

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Speaker 5: the Enron case, but that it was identified that this

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Speaker 5: could be a problem in future cases. And so the

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Speaker 5: particular statute that was charged here against mister Fisher, that's

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Speaker 5: been used against over three hundred defendants who are charged

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Speaker 5: arising out of the January sixth insurrection, and that also

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Speaker 5: is the basis for two of the charges against Donald

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Speaker 5: Trump and the January sixth case against him. And the

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Speaker 5: question is whether or not that statute can be used

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Speaker 5: to charge a person for obstructing and a proceeding, including

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Speaker 5: a proceeding of Congress, where the destruction of evidence or

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Speaker 5: tampering with evidence per se is not part of the

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Speaker 5: factual allegation.

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Speaker 1: Did it seem during the oral arguments that the Conservative

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Speaker 1: justices were skeptical about the Justice Department using the obstruction

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Speaker 1: charge against Fisher and the other January sixth defendants.

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Speaker 5: There were clearly some justices who were skeptical of the charges.

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Speaker 5: I would say Justice Alito was the one who seemed

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Speaker 5: most clearly skeptical. Chief Justice Roberts also expressed some concerns,

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Speaker 5: although he did not ask that many questions. Justice Gorschitz

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Speaker 5: had some concerns about the breadth of the potential application

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Speaker 5: of the statute if the Court were to rule for

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Speaker 5: the government. There were several justices who seemed much more

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Speaker 5: inclined to rule for the government, notably Justice Soto, Mayor,

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Speaker 5: Justice Kagan, and Justice Katangi bron Jackson all seemed supportive

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Speaker 5: of the interpretation of the statutes that the government was advancing.

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Speaker 5: But then there were several justices who seemed sort of

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Speaker 5: in the middle and open to persuasion. So I can't

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Speaker 5: say with any confidence how this case is going to

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Speaker 5: come out.

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Speaker 1: Let's talk about some of the concerns of the very

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Speaker 1: conservative justices on the far right of the court. So

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Speaker 1: Justice Neil Gorsich said, would a sit in that disrupts

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Speaker 1: a trial or access to a federal courthouse qualify would

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Speaker 1: a heckler in today's audience qualify? Would pulling a fire

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Speaker 1: alarm before a vote referring to an incident in Congress

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Speaker 1: that happened recently qualify for twenty years in federal prison.

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Speaker 1: So they were questioning the breadth I guess of this.

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Speaker 5: A number of the justices asked questions and post hypotheticals

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Speaker 5: that really were geared at testing the outer limits of

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Speaker 5: the construction of the statutes that the government was advancing,

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Speaker 5: and those did include hypothetical protests, for example, or somebody

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Speaker 5: in some way disrupting an official proceeding, such as protesting

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Speaker 5: outside a courthouse or pulling a fire alarm, and the

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Speaker 5: justices wanted to know, well, would the government charge that

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Speaker 5: person with obstruction of an official proceeding under its interpretation?

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Speaker 5: And this Lister General responded by saying there are a

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Speaker 5: number of safeguards in the statute that would preclude a

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Speaker 5: prosecution in those circumstances. She said, the obstruction or the

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Speaker 5: impediment of the official preceding in a sense must be

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Speaker 5: more than dominionists. It has to actually, in some way

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Speaker 5: that is not insignificant impair the proceeding, and so that

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Speaker 5: would be something that might preclude a prosecution for somebody

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Speaker 5: who pulled a fire alarm that caused a disruption that

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Speaker 5: was only a matter of minutes, or that would preclude

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Speaker 5: prosecution of protesters who only minimally disrupted a proceeding inside

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Speaker 5: a courthouse, perhaps where things had to quiet down for

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Speaker 5: a few minutes, just to make sure that the protest

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Speaker 5: was moving on and was peaceful. The second thing she

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Speaker 5: said is that the men's rea requirement of the statute,

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Speaker 5: which is that the person has to act corruptly, also

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Speaker 5: would preclude prosecution of people in some of these hypotheticals,

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Speaker 5: because it would be unlikely that the government could prove

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Speaker 5: that those people acted with corrupt intents, that is, doing

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Speaker 5: something knowing that it was wrong and contrary to law.

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Speaker 5: If people thought, for example, they were engaged in peaceful

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Speaker 5: protests protected by the First Amendment, in some circumstances, they

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Speaker 5: might be wrong about whether their activity was protected by

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Speaker 5: the First Amendment, but their belief that it was might

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Speaker 5: preclude a finding that they acted with the requisite corrupt intent. So,

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Speaker 5: in other words, she said, the court could rule in

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Speaker 5: the government's favor on its interpretation of the statute as

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Speaker 5: applied to official proceedings and not be worried about some

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Speaker 5: of the sort of pervade of horribles that the court

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Speaker 5: seemed to be concerned about.

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Speaker 1: A couple of justices seemed concerned about the stiff possible

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Speaker 1: twenty year sentence this charge carries, and Justice Brett Kavanaugh

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Speaker 1: brought up the six other charges that Fisher is facing.

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Speaker 6: Why aren't those six counts good enough just from the

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Speaker 6: Justice Department's perspective, given that they don't have any of

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Speaker 6: the hurdles.

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Speaker 5: I thought the Slisser General's response to that question was

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Speaker 5: actually quite compelling. She said, yes, he was charged with

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Speaker 5: other counts, but that those other counts did not fully

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Speaker 5: capture the harm of his conduct, and that it was

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Speaker 5: important that the charges reflect the harm that his conduct

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Speaker 5: allegedly inflicted, which was impairing the official proceeding of the

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Speaker 5: congressional certification of the electoral College vote, and prosecutors frequently

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Speaker 5: charge a number of offenses for one set of conduct

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Speaker 5: in order to have the charges fully reflect the seriousness

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Speaker 5: and the scope of the conduct. It is important to

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Speaker 5: note that Fisher has not actually been tried yet, so

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Speaker 5: I should qualify all of this with he is alleged

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Speaker 5: to have done all these things. This charge was dismissed

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Speaker 5: by the trial court before it went to trial, and

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Speaker 5: then that went up to the DC Circuit Court of Appeals,

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Speaker 5: And so there's actually a factual dispute among the parties

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Speaker 5: about what exactly it is that Fisher did and how

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Speaker 5: violent was he at the capitol.

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Speaker 1: If the court finds for Fisher here, what happens to

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Speaker 1: the one hundred and twenty or so January sixth defendants who

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Speaker 1: have been convicted and sentenced under the same charge.

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Speaker 5: So I'm fairly certain that no defendant associated with January

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Speaker 5: sixth has been charged solely with this obstruction statute, that

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Speaker 5: there were other charges for each of them. So those

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Speaker 5: other convictions would stand even if the court were to

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Speaker 5: rule against the government here, and the court were a

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Speaker 5: rule that this obstruction statute cannot be used in the

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Speaker 5: context of January sixth because it didn't involve the destruction

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Speaker 5: of evidence, So the defendants in those other cases would

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Speaker 5: be resentenced.

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Speaker 1: And even if the court rules for Fisher, Trump is

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Speaker 1: facing two other charges, so the election interference trial against

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Speaker 1: him could go forward. Jessica, what are your thoughts? Is

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Speaker 1: the prosecution stretching the law with these January sixth the

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Speaker 1: obstruction charges.

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Speaker 5: I think if you look at the statute and you

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Speaker 5: follow the government's argument about how the statute can be

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Speaker 5: read as applying to any means of obstructing an official

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Speaker 5: proceedings so long as the person acts with corrupt intent

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Speaker 5: and this requisite nexus is satisfied, I think it is

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Speaker 5: a fair interpretation of the statute that it applies to

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Speaker 5: these facts. It is unprecedent, but that I think speaks

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Speaker 5: to the fact that there's been no similar fact pattern

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Speaker 5: where people have attempted to and did obstruct for a

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Speaker 5: time and official proceeding through such acts of violence. So

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Speaker 5: it is novel, but I don't think that it is

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Speaker 5: beyond the pale of what is covered by this statute.

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Speaker 1: The government could try something else, and just as Amy

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Speaker 1: Cony Barrett asked Fisher's lawyer about whether the government could

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Speaker 1: argue that there was evidence being tampered with and that

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Speaker 1: evidence was the certifications of the vote.

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Speaker 7: So in the hypothetical, I'm giving you it's evidence related

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Speaker 7: because it's focused on their certificates, but it's obstruct, obstruct

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Speaker 7: or impede, say the certificates arriving to the Vice President's desk,

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Speaker 7: insofar as the goal was to shut down the proceeding

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Speaker 7: and therefore interfere with the evidence reaching the Vice president.

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Speaker 5: I do think we'd be getting into some very interesting

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Speaker 5: territory if the Court were to say that it's finding

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Speaker 5: for Fisher and the statute cannot be read beyond applications

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Speaker 5: involving evidence, and whether the government then seeks to apply

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Speaker 5: the statute so limited to the facts presented here. The

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Speaker 5: government said in a footnote in its brief, and it

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Speaker 5: reiterated at the argument that it would like the opportunity

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Speaker 5: to argue that, even under such a narrowed construction, that

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Speaker 5: the facts can meet that construction because the proceeding before

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Speaker 5: Congress involved the counting of the electoral votes, and that

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Speaker 5: involved essentially the evidence of the votes presented to Congress.

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Speaker 5: That's I think going to be very interesting to think

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Speaker 5: about whether that application strains the statute too much. And

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Speaker 5: that is precisely the argument that has been advanced by

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Speaker 5: some watching the Fisher case for its significance for the

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Speaker 5: case against Donald Trump, on the theory that if the

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Speaker 5: court rules against the government in Fisher and says that

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Speaker 5: acts of violence to obstruct official proceeding do not fall

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Speaker 5: within the statute. Could a sort of backup argument be

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Speaker 5: that the electoral vote being certified in the course of

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Speaker 5: that proceeding before Congress, that that could be essentially the

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Speaker 5: hook to the documentary evidence that would be required to

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Speaker 5: satisfy the statute.

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Speaker 1: That's actually an intriguing theory. If the government loses here,

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Speaker 1: we'll see Thanks so much, Jessica for your insights. That's

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Speaker 1: Professor Jessica Roth of Cardozo Law School. Coming up next

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Speaker 1: on The Bloomberg Lawn Show. Will the Supreme Court limit

439
00:24:35,640 --> 00:24:39,560
Speaker 1: a bribery law used in public corruption cases? I'm June

440
00:24:39,600 --> 00:24:43,840
Speaker 1: Grosso and you're listening to Bloomberg. The Supreme Court has

441
00:24:44,000 --> 00:24:48,160
Speaker 1: consistently been making it harder for prosecutors to bring corruption

442
00:24:48,359 --> 00:24:51,840
Speaker 1: cases against public officials, and it may do so again.

443
00:24:52,000 --> 00:24:55,359
Speaker 1: In a case heard this week, James Snyder, the former

444
00:24:55,400 --> 00:24:59,840
Speaker 1: mayor of a northwest Indiana town, received thirteen thousand dollars

445
00:25:00,040 --> 00:25:03,360
Speaker 1: I'm a trucking company one month after it was awarded

446
00:25:03,400 --> 00:25:07,879
Speaker 1: city contracts in a bidding process he oversaw. Snyder claimed

447
00:25:07,880 --> 00:25:11,520
Speaker 1: the payment was for consulting services, but he was convicted

448
00:25:11,520 --> 00:25:14,880
Speaker 1: of bribery by a jury in twenty nineteen, and then

449
00:25:14,960 --> 00:25:18,080
Speaker 1: convicted by a second jury in a retrial in twenty

450
00:25:18,160 --> 00:25:21,760
Speaker 1: twenty one. But the Supreme Court, which has been having

451
00:25:21,800 --> 00:25:25,760
Speaker 1: its own problems of late with unreported gifts to justices,

452
00:25:26,200 --> 00:25:29,560
Speaker 1: seem to suggest that the thirteen thousand dollars payment was

453
00:25:29,640 --> 00:25:33,399
Speaker 1: like taking a teacher to the cheesecake factory or buying

454
00:25:33,440 --> 00:25:37,440
Speaker 1: a gift card for Starbucks. Here are Justices Neil Gorsich

455
00:25:37,480 --> 00:25:38,480
Speaker 1: and Brett Cavanaugh.

456
00:25:38,800 --> 00:25:42,879
Speaker 8: How does somebody who accepts the cheesecake factory no a

457
00:25:42,920 --> 00:25:46,399
Speaker 8: trip to the cheesecake factory for nice treatment at the hospital,

458
00:25:46,800 --> 00:25:52,240
Speaker 8: for treating my child well in school, for an arrest made?

459
00:25:52,800 --> 00:25:55,280
Speaker 8: How does that person know whether that falls on the

460
00:25:55,560 --> 00:25:59,639
Speaker 8: what you call the wrongfulness side of the equation or not.

461
00:26:01,280 --> 00:26:04,399
Speaker 6: So does one hundred dollars Starbuck gift certificate as a

462
00:26:04,400 --> 00:26:08,840
Speaker 6: thank you to the city council person who for working

463
00:26:08,880 --> 00:26:13,760
Speaker 6: on a new zoning rag. Is that corrupt or not?

464
00:26:14,480 --> 00:26:17,359
Speaker 1: Many of the justices thought there was a problem drawing

465
00:26:17,400 --> 00:26:21,320
Speaker 1: a line between gratuities given for past actions and quid

466
00:26:21,400 --> 00:26:25,520
Speaker 1: pro quo bribes paid for future actions. But Justice Sonia

467
00:26:25,600 --> 00:26:28,760
Speaker 1: Sotomayor saw the line in the Snyder case.

468
00:26:28,920 --> 00:26:33,680
Speaker 9: Here's a case in which someone is that's the allegation,

469
00:26:33,880 --> 00:26:39,320
Speaker 9: demanding money, gets it basically for no services, spends his

470
00:26:39,480 --> 00:26:44,199
Speaker 9: time giving two or three different reasons and services that

471
00:26:44,240 --> 00:26:50,840
Speaker 9: he performed which he didn't, and there's a series of

472
00:26:51,000 --> 00:26:57,119
Speaker 9: meetings or phone calls Texas, etc. Before the second contract

473
00:26:57,160 --> 00:27:01,879
Speaker 9: is awarded between these people. At some point point, can't

474
00:27:01,880 --> 00:27:06,480
Speaker 9: the jury see that as a demand for payment for services?

475
00:27:06,760 --> 00:27:10,320
Speaker 1: Joining me to answer that question and many others is

476
00:27:10,400 --> 00:27:14,560
Speaker 1: business law professor Eric Tally of Columbia Law School. The

477
00:27:14,680 --> 00:27:17,840
Speaker 1: law makes it a crime for certain state or local

478
00:27:17,880 --> 00:27:23,200
Speaker 1: officials to corruptly accept anything of value over five thousand dollars.

479
00:27:23,760 --> 00:27:27,160
Speaker 1: The word corruptly seemed to be a problem for the justices.

480
00:27:27,800 --> 00:27:31,640
Speaker 10: Yes, and the key issue on the question of corruptly

481
00:27:32,040 --> 00:27:35,119
Speaker 10: seems to be, at least in part, circulating around a

482
00:27:35,240 --> 00:27:38,919
Speaker 10: question of timing, and a lot of the Q and

483
00:27:38,960 --> 00:27:42,920
Speaker 10: A during the oral argument was all about, you know,

484
00:27:43,280 --> 00:27:46,439
Speaker 10: the timing of a payment that, let's just say, for

485
00:27:46,600 --> 00:27:51,399
Speaker 10: argument's sake, exceeds five thousand dollars. But the hypotheticals that

486
00:27:51,440 --> 00:27:55,560
Speaker 10: were being bandied about involved situations like taking someone out

487
00:27:55,600 --> 00:27:58,000
Speaker 10: to dinner at the cheesecake factory, I don't know if

488
00:27:58,000 --> 00:28:00,960
Speaker 10: you've been to the cheesecake factory lately, but I've never

489
00:28:01,040 --> 00:28:03,399
Speaker 10: run up anything like a five hundred dollars bill of

490
00:28:03,440 --> 00:28:06,040
Speaker 10: the cheesecake factory, so it wouldn't actually hit that status

491
00:28:06,080 --> 00:28:06,879
Speaker 10: tarort threshold.

492
00:28:07,040 --> 00:28:10,200
Speaker 1: Well, Kavanaugh said, you don't know if the concert tickets,

493
00:28:10,240 --> 00:28:14,040
Speaker 1: the game tickets, the gift card to Starbucks, whatever, where

494
00:28:14,080 --> 00:28:17,160
Speaker 1: is the line? So there's that vagueness. I mean, are

495
00:28:17,160 --> 00:28:20,639
Speaker 1: they really talking about a more than five thousand dollars

496
00:28:20,880 --> 00:28:22,880
Speaker 1: gift card to Starbucks?

497
00:28:22,880 --> 00:28:24,760
Speaker 10: Super odd? I mean, just so of my or brought

498
00:28:24,800 --> 00:28:27,760
Speaker 10: this up, but this question of corruptly ended up floating

499
00:28:27,800 --> 00:28:32,080
Speaker 10: around in its own mist right, independent of the dollar amounts. Look,

500
00:28:32,119 --> 00:28:34,600
Speaker 10: a lot of times in these situations there will be

501
00:28:35,040 --> 00:28:38,600
Speaker 10: either inside the statute or kind of a reasonable construction

502
00:28:38,680 --> 00:28:41,680
Speaker 10: of statute, a judge will come in and say, listen,

503
00:28:41,760 --> 00:28:44,760
Speaker 10: we're going to impose a you know, it's sometimes called

504
00:28:44,800 --> 00:28:49,160
Speaker 10: a materiality threshold or a materiality test on some sort

505
00:28:49,200 --> 00:28:52,520
Speaker 10: of suspect payment. And the definition of materiality is itself.

506
00:28:52,640 --> 00:28:55,200
Speaker 10: It's a little foggy. It usually circulates around and you

507
00:28:55,280 --> 00:28:57,160
Speaker 10: know what a reasonable person think, This is a big

508
00:28:57,200 --> 00:28:59,960
Speaker 10: payment that would change someone's judgment. But that is where

509
00:29:00,200 --> 00:29:02,760
Speaker 10: all over the place and all types of financial crimes

510
00:29:02,760 --> 00:29:06,040
Speaker 10: and financial civil actions, materiality is a very very common

511
00:29:06,120 --> 00:29:10,200
Speaker 10: workhorse that was oddly, it wasn't quite absent, but it

512
00:29:10,240 --> 00:29:12,960
Speaker 10: seemed to be suppressed pretty far down the list in

513
00:29:13,000 --> 00:29:13,840
Speaker 10: the oral argument.

514
00:29:14,120 --> 00:29:18,680
Speaker 1: Where were the justices going with hypothetical after hypothetical after hypothetical.

515
00:29:18,880 --> 00:29:22,440
Speaker 10: Much of the oral argument seems to devolve into like

516
00:29:22,640 --> 00:29:26,200
Speaker 10: kind of a non stop set of hypotheticals, each somewhat

517
00:29:26,200 --> 00:29:30,320
Speaker 10: more extraordinary than the others. And you know, that kind

518
00:29:30,320 --> 00:29:32,040
Speaker 10: of is where the two lawyers had to go.

519
00:29:32,120 --> 00:29:32,280
Speaker 6: Now.

520
00:29:32,280 --> 00:29:34,640
Speaker 10: I think the lawyer for mister Snyder was quite happy

521
00:29:34,640 --> 00:29:37,480
Speaker 10: to go there because the entire theory on the case

522
00:29:37,600 --> 00:29:40,800
Speaker 10: is it's just impossible to draw lines in this type

523
00:29:40,800 --> 00:29:44,200
Speaker 10: of situation. And the government's attorneys pretty much had to say, now,

524
00:29:44,520 --> 00:29:46,600
Speaker 10: line drawing is hard, but it's always hard, and the

525
00:29:46,600 --> 00:29:49,360
Speaker 10: Government's going to only bring these cases when it feels

526
00:29:49,400 --> 00:29:52,200
Speaker 10: like it's a good case that's consistent with public policy

527
00:29:52,200 --> 00:29:55,920
Speaker 10: associated with the anti bribery Statute. But that itself, you know,

528
00:29:55,960 --> 00:29:58,320
Speaker 10: at least to some judges and maybe to some observers,

529
00:29:58,600 --> 00:30:01,080
Speaker 10: is a type of assurance. It's really hard to check

530
00:30:01,400 --> 00:30:03,760
Speaker 10: later on, and so you know, I think the Court's

531
00:30:03,800 --> 00:30:06,320
Speaker 10: probably going to have to be forced into some sort

532
00:30:06,360 --> 00:30:09,360
Speaker 10: of a line drawing exercise here. The big issue that

533
00:30:09,480 --> 00:30:13,120
Speaker 10: was brought up in the case was in this particular scenario,

534
00:30:13,240 --> 00:30:15,760
Speaker 10: and even Kavanaugh said the facts were really good for

535
00:30:15,840 --> 00:30:19,760
Speaker 10: the government prosecutors in this case. Mister Snyder had allegedly

536
00:30:19,840 --> 00:30:22,880
Speaker 10: sort of rigged a contract bidding process when he was

537
00:30:23,000 --> 00:30:26,120
Speaker 10: mayor of Portage, Indiana, and the company that won that

538
00:30:26,160 --> 00:30:29,080
Speaker 10: bidding process he had been in consistent contact with, and

539
00:30:29,120 --> 00:30:32,640
Speaker 10: then pretty shortly after the contract was awarded to them,

540
00:30:32,880 --> 00:30:36,400
Speaker 10: they handed over a thirteen thousand dollars check, ostensibly for

541
00:30:36,680 --> 00:30:39,720
Speaker 10: consulting services to be provided in the future. And so

542
00:30:40,120 --> 00:30:43,680
Speaker 10: the line drawing exercise between his administration of the bidding

543
00:30:43,720 --> 00:30:47,040
Speaker 10: process and the thirteen thousand dollars check seems pretty direct.

544
00:30:47,120 --> 00:30:49,480
Speaker 10: But the point that his attorneys were making, they were

545
00:30:49,480 --> 00:30:51,800
Speaker 10: making quite vehemently at the court, is that, well, no,

546
00:30:52,160 --> 00:30:55,200
Speaker 10: this would have to be payments that are made before

547
00:30:55,480 --> 00:30:59,360
Speaker 10: the favor is granted and not after, and this came afterwards,

548
00:30:59,400 --> 00:31:02,360
Speaker 10: and there are too many hypothetical situations that would lead

549
00:31:02,480 --> 00:31:05,360
Speaker 10: us on. Lawyers like to talk about slippery slopes to hell,

550
00:31:05,600 --> 00:31:07,320
Speaker 10: and this was one and that's what caused us to

551
00:31:07,360 --> 00:31:09,680
Speaker 10: go into the dinner out of gratitude for your high

552
00:31:09,680 --> 00:31:12,840
Speaker 10: school English teacher at the cheesecake factory? Is that a bribe?

553
00:31:13,240 --> 00:31:17,200
Speaker 1: So the government's attorney suggested that the government typically wouldn't

554
00:31:17,240 --> 00:31:21,920
Speaker 1: prosecute fringe cases, but Chief Justice Roberts noted that in

555
00:31:22,000 --> 00:31:25,680
Speaker 1: recent cases the Court has been skeptical of prosecutors trust

556
00:31:25,760 --> 00:31:29,000
Speaker 1: us arguments. What are the justices afraid of here?

557
00:31:29,440 --> 00:31:33,920
Speaker 10: Well, I think there is a justified caution about statutory

558
00:31:34,320 --> 00:31:38,520
Speaker 10: authorizations that give prosecutors too much of a blank check

559
00:31:38,560 --> 00:31:41,280
Speaker 10: and what they're going to charge people with. If the

560
00:31:41,440 --> 00:31:43,840
Speaker 10: check is too much of a blank check, then it's

561
00:31:43,880 --> 00:31:48,480
Speaker 10: not inconceivable that political calculations may end up either entering

562
00:31:48,560 --> 00:31:52,480
Speaker 10: or being perceived to have entered into a prosecutor's decision

563
00:31:52,600 --> 00:31:55,000
Speaker 10: about whom to go after and whom to leave alone.

564
00:31:55,040 --> 00:31:56,760
Speaker 10: And so I think that that's part of what the

565
00:31:56,840 --> 00:31:59,160
Speaker 10: Court has been trying to grapple with. And you know,

566
00:31:59,200 --> 00:32:03,800
Speaker 10: in fairness, there have been several high profile cases involving

567
00:32:04,000 --> 00:32:07,360
Speaker 10: various types of applications of this and other anti bribery

568
00:32:07,440 --> 00:32:10,720
Speaker 10: or anti corruption statutes in which politics is pretty hard

569
00:32:10,840 --> 00:32:13,840
Speaker 10: to ignore. There was a twenty twenty case that involved

570
00:32:13,840 --> 00:32:18,240
Speaker 10: the infamous Bridgegate scenario in which Chris Christie was alleged

571
00:32:18,240 --> 00:32:21,680
Speaker 10: to have had his subordinates closed down at GW Bridge

572
00:32:21,920 --> 00:32:24,520
Speaker 10: in order to punish his political foes, and then the

573
00:32:24,560 --> 00:32:29,200
Speaker 10: prosecution was brought at least allegedly for political reasons, sort

574
00:32:29,200 --> 00:32:32,320
Speaker 10: of anti Chris Christy, anti Republican reasons, and the Supreme

575
00:32:32,360 --> 00:32:35,200
Speaker 10: Court ended up actually reversing that conviction, but on kind

576
00:32:35,240 --> 00:32:38,920
Speaker 10: of weird technical grounds about what was motivating these operatives.

577
00:32:38,920 --> 00:32:42,400
Speaker 10: So they sort of found maybe even unrelated fault reasons

578
00:32:42,440 --> 00:32:44,520
Speaker 10: to reverse in some of these cases. And you know

579
00:32:44,640 --> 00:32:47,240
Speaker 10: that maybe what is being put forward here this kind

580
00:32:47,240 --> 00:32:50,560
Speaker 10: of idea that well, if the payment happens after the

581
00:32:50,600 --> 00:32:53,479
Speaker 10: political favor is given, then that can't possibly be corruption.

582
00:32:53,600 --> 00:32:56,000
Speaker 10: That's a nice bright line rule, you know, as the

583
00:32:56,000 --> 00:32:59,040
Speaker 10: government lawyers were bringing up, probably correctly, is that if

584
00:32:59,080 --> 00:33:01,680
Speaker 10: you established that as a bright line rule, that will

585
00:33:01,720 --> 00:33:04,280
Speaker 10: be kind of a gold embossed invitation for how you

586
00:33:04,320 --> 00:33:08,000
Speaker 10: should structure corruption payments in the future. Right that you know,

587
00:33:08,080 --> 00:33:10,840
Speaker 10: you always have a political actor go first, wait some

588
00:33:11,360 --> 00:33:13,959
Speaker 10: requisite short amount of time, and then the payment comes second.

589
00:33:14,120 --> 00:33:16,600
Speaker 10: And in some ways, the ease with which one could

590
00:33:16,600 --> 00:33:19,959
Speaker 10: engineer around that type of a definition, I think it's

591
00:33:19,960 --> 00:33:22,040
Speaker 10: going to make it difficult for a majority of the

592
00:33:22,120 --> 00:33:25,400
Speaker 10: judges to ignore that the Supreme.

593
00:33:25,000 --> 00:33:28,400
Speaker 1: Court over the years has made it harder and harder

594
00:33:28,920 --> 00:33:34,160
Speaker 1: to prosecute politicians and other public officials for corruption starting

595
00:33:34,200 --> 00:33:35,800
Speaker 1: in twenty sixteen. Right.

596
00:33:36,320 --> 00:33:39,880
Speaker 10: Yeah, The skepticism goes at least back to a twenty

597
00:33:39,920 --> 00:33:42,719
Speaker 10: sixteen case, and there have been several others, both at

598
00:33:42,760 --> 00:33:46,120
Speaker 10: the federal level and the state level, and so there

599
00:33:46,200 --> 00:33:48,320
Speaker 10: is a little bit of a I guess it's sort

600
00:33:48,360 --> 00:33:51,520
Speaker 10: of a trend here where the judges have become, I

601
00:33:51,520 --> 00:33:56,520
Speaker 10: don't know, increasingly worried about the possibility that these antibribery

602
00:33:56,560 --> 00:34:00,000
Speaker 10: or anti corruption statutes are being used for political reds,

603
00:34:00,280 --> 00:34:02,960
Speaker 10: and therefore, you know, they're trying to carve back on them,

604
00:34:03,120 --> 00:34:06,240
Speaker 10: you know. I guess another factor of this is sort

605
00:34:06,280 --> 00:34:09,160
Speaker 10: of almost a meta factor June, which is that one

606
00:34:09,239 --> 00:34:11,879
Speaker 10: of the bodies of the federal government that has come

607
00:34:12,000 --> 00:34:15,680
Speaker 10: under immense scrutiny recently is the Supreme Court itself. For

608
00:34:16,000 --> 00:34:19,520
Speaker 10: whether there are friends of Justices of the Supreme Court

609
00:34:19,920 --> 00:34:23,160
Speaker 10: who bestow all kinds of valuable gifts on them out

610
00:34:23,200 --> 00:34:26,320
Speaker 10: of friendship or for people they care about, and whether

611
00:34:26,400 --> 00:34:30,239
Speaker 10: that itself is something that should trigger at least suspicion,

612
00:34:30,360 --> 00:34:34,520
Speaker 10: if not considerable handwringing amongst people who are trying to

613
00:34:34,520 --> 00:34:37,520
Speaker 10: regulate the court. There's big separation of powers issues, and

614
00:34:37,640 --> 00:34:40,200
Speaker 10: the Supreme Court itself basically decided to promulgate its own

615
00:34:40,200 --> 00:34:42,960
Speaker 10: ethics guideline, but a lot of people think it's somewhat toothless.

616
00:34:43,360 --> 00:34:47,000
Speaker 10: It is not a subtle fact that Justice Thomas, who's

617
00:34:47,000 --> 00:34:49,080
Speaker 10: been one of the people who's been at the center

618
00:34:49,120 --> 00:34:51,960
Speaker 10: of this Maelstrom, decided not to even participate in the

619
00:34:52,080 --> 00:34:53,960
Speaker 10: oral argument, but he is going to participate in the

620
00:34:54,040 --> 00:34:57,200
Speaker 10: judgment through briefs and through reading the transcript. That was

621
00:34:57,280 --> 00:34:59,600
Speaker 10: sort of an odd decision that didn't really have much

622
00:34:59,640 --> 00:35:01,920
Speaker 10: of an ext explanation. So, you know, I think all

623
00:35:01,960 --> 00:35:05,960
Speaker 10: aspects of this are in some ways delicate, and I

624
00:35:05,960 --> 00:35:09,000
Speaker 10: think the Supreme Court itself has gotten dragged a little

625
00:35:09,000 --> 00:35:13,480
Speaker 10: bit into its own kerfuffles around when are expressions of

626
00:35:13,560 --> 00:35:16,640
Speaker 10: gratitude that may have significant monetary value, when of the

627
00:35:16,719 --> 00:35:20,080
Speaker 10: appropriate and when do they trigger considerations and concerns about

628
00:35:20,080 --> 00:35:20,600
Speaker 10: corruption and.

629
00:35:20,600 --> 00:35:25,279
Speaker 1: Bribery And Eric these public corruption cases are hard to prosecute,

630
00:35:25,280 --> 00:35:28,000
Speaker 1: aren't they. You know, public officials and these kind of bribes.

631
00:35:28,040 --> 00:35:31,439
Speaker 1: They don't leave notes or emails saying thanks so much

632
00:35:31,480 --> 00:35:33,120
Speaker 1: for that, I was happy to help.

633
00:35:33,000 --> 00:35:36,279
Speaker 10: You out yeat. Typically they don't. There have been some

634
00:35:36,400 --> 00:35:39,160
Speaker 10: cases that have largely been overturned that sort of said, well,

635
00:35:39,280 --> 00:35:41,200
Speaker 10: you have to have a written contract on bribery, and

636
00:35:41,239 --> 00:35:43,799
Speaker 10: I think everyone realizes that that's an easy one to

637
00:35:43,840 --> 00:35:46,919
Speaker 10: engineer your way around. So you have to demonstrate either

638
00:35:47,000 --> 00:35:51,359
Speaker 10: a conversation or a set of conversations that establishes this understanding,

639
00:35:51,840 --> 00:35:55,400
Speaker 10: or a set of patterns and practices of behavior whose

640
00:35:55,520 --> 00:36:00,480
Speaker 10: only reasonable construction or interpretation would be Yeah, these are

641
00:36:00,520 --> 00:36:03,000
Speaker 10: acting as though they are in a quid pro quo

642
00:36:03,160 --> 00:36:06,759
Speaker 10: that they are recognizing through either their communicative acts or

643
00:36:06,920 --> 00:36:10,839
Speaker 10: hard to misinterpret action, And that makes it tough and eric.

644
00:36:10,920 --> 00:36:14,160
Speaker 1: If the court doesn't decide on a bright line rule

645
00:36:14,280 --> 00:36:17,399
Speaker 1: based on when the money was paid, how else could

646
00:36:17,400 --> 00:36:21,240
Speaker 1: the court decide this? Considering some of their concerns about

647
00:36:21,440 --> 00:36:25,160
Speaker 1: Starbucks cards and cheesecake factory meals, I think.

648
00:36:25,000 --> 00:36:29,080
Speaker 10: That most of the absurd situations involved little perks that

649
00:36:29,239 --> 00:36:33,040
Speaker 10: are kind of pocket change type perks, and that once

650
00:36:33,120 --> 00:36:36,279
Speaker 10: things got large, including the five thousand dollars trigger in

651
00:36:36,360 --> 00:36:41,080
Speaker 10: this situation, then that would be large enough to trigger

652
00:36:41,160 --> 00:36:46,479
Speaker 10: not only the explicit trigger, but also a judicial interpretation that, yes,

653
00:36:46,600 --> 00:36:49,360
Speaker 10: this is large enough that it could affect someone's judgment.

654
00:36:49,520 --> 00:36:51,480
Speaker 10: And that's one of the reasons why I feel like

655
00:36:51,760 --> 00:36:55,800
Speaker 10: the Court may well end up borrowing from a half dozen,

656
00:36:55,880 --> 00:36:59,160
Speaker 10: if not more than a dozen other areas of financial

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00:36:59,239 --> 00:37:03,560
Speaker 10: fraud and white collar crime that all sort of turns

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00:37:03,680 --> 00:37:07,560
Speaker 10: on materiality, and that may end up being a helpful

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00:37:07,640 --> 00:37:09,840
Speaker 10: lever for the Supreme Court when they try to decide

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00:37:09,840 --> 00:37:12,080
Speaker 10: this case. If they don't go with the timing part,

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00:37:12,080 --> 00:37:14,200
Speaker 10: they're going to have to have some sort of a cutoff,

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00:37:14,280 --> 00:37:16,799
Speaker 10: and a materiality cutoff is not a crazy place to

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00:37:16,800 --> 00:37:18,680
Speaker 10: put it. That's why you see it so many other

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Speaker 10: areas of law.

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Speaker 1: Thanks for joining me, Eric, that's Professor Eric Talley at

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Speaker 1: Columbia Law School. And that's it for this edition of

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Speaker 1: the Bloomberg Law Podcast. Remember you can always get the

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00:37:28,760 --> 00:37:31,720
Speaker 1: latest legal news by subscribing and listening to the show

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Speaker 1: on Apple Podcasts, Spotify, and at Bloomberg dot com, Slash

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Speaker 1: podcast Slash Law. I'm June grosso and This is Bloomberg