1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio. 2 00:00:08,800 --> 00:00:12,479 Speaker 2: The writ of habeas corpus is a bedrock American legal 3 00:00:12,560 --> 00:00:16,720 Speaker 2: right embedded in the Constitution. Yet White House Deputy Chief 4 00:00:16,760 --> 00:00:20,960 Speaker 2: of Staff Stephen Miller said the administration has been actively 5 00:00:21,040 --> 00:00:24,520 Speaker 2: looking at suspending habeas corpus unilaterally. 6 00:00:24,720 --> 00:00:26,920 Speaker 1: Well, the Constitution is clear, and that, of course is 7 00:00:26,960 --> 00:00:30,880 Speaker 1: the supreme law of the land that the privilege of 8 00:00:30,880 --> 00:00:33,519 Speaker 1: the writ of habeas corpus can be suspended in a 9 00:00:33,560 --> 00:00:36,280 Speaker 1: time of invasion. Sold say, that's an option we're actively 10 00:00:36,280 --> 00:00:39,160 Speaker 1: looking at. Look, A lot of it depends on whether 11 00:00:39,240 --> 00:00:40,760 Speaker 1: the court do the right thing or not. 12 00:00:41,360 --> 00:00:45,640 Speaker 2: Habeas corpus has been suspended only four times in our history, 13 00:00:45,920 --> 00:00:49,720 Speaker 2: basically for reasons of war and insurrection. My guest is 14 00:00:49,720 --> 00:00:53,600 Speaker 2: an expert in constitutional law. Jonathan Adler, a professor at 15 00:00:53,680 --> 00:00:57,560 Speaker 2: Case Western Reserve Law School, tell us about the history 16 00:00:57,560 --> 00:00:59,200 Speaker 2: of the writ of habeas corpus. 17 00:01:00,200 --> 00:01:03,120 Speaker 3: So, the rit of habeas corpus traces its way back 18 00:01:03,160 --> 00:01:07,560 Speaker 3: to the Magna carta. Literally, habeas corpus is a declaration 19 00:01:07,680 --> 00:01:10,360 Speaker 3: that you have the body. The idea is that you're 20 00:01:10,520 --> 00:01:14,920 Speaker 3: challenging the alleged unlawful detention of someone by the government. 21 00:01:15,120 --> 00:01:15,640 Speaker 4: The writ of. 22 00:01:15,560 --> 00:01:19,000 Speaker 3: Habeas corpus has been recognized going back to the seventeenth 23 00:01:19,000 --> 00:01:22,800 Speaker 3: century as a way of challenging in England, at least 24 00:01:22,840 --> 00:01:26,000 Speaker 3: the king's right to incarcerate people, and in the United States, 25 00:01:26,240 --> 00:01:28,880 Speaker 3: the rid of habeas corpus is a way to challenge 26 00:01:29,000 --> 00:01:32,840 Speaker 3: either a conviction or the government's detention of an individual 27 00:01:33,080 --> 00:01:35,560 Speaker 3: on the grounds that it is not consistent with law. 28 00:01:35,720 --> 00:01:37,920 Speaker 3: So in the case of a conviction, we see rits 29 00:01:37,920 --> 00:01:41,120 Speaker 3: of habeas corpus filed by people who have been convicted 30 00:01:41,160 --> 00:01:44,160 Speaker 3: of crimes, often people who have been sentenced to capital punishment, 31 00:01:44,640 --> 00:01:47,919 Speaker 3: challenging the regularity or of the lawfulness of the proceedings 32 00:01:48,160 --> 00:01:50,080 Speaker 3: through which they are convicted. And then the writ of 33 00:01:50,120 --> 00:01:52,720 Speaker 3: habeas corpus can be filed in cases where, for example, 34 00:01:52,760 --> 00:01:55,600 Speaker 3: someone is alleging that the basis upon which they have 35 00:01:55,680 --> 00:01:59,040 Speaker 3: been detained or arrested is unlawful. So we've seen this 36 00:01:59,080 --> 00:02:02,000 Speaker 3: with alleged enemy imbats, and we're seeing it now with 37 00:02:02,160 --> 00:02:05,120 Speaker 3: individuals who are alleged to be unlawfully present in the 38 00:02:05,160 --> 00:02:07,480 Speaker 3: country or potentially subject to deportation. 39 00:02:08,280 --> 00:02:12,959 Speaker 2: The section of the US Constitution that includes the suspension 40 00:02:12,960 --> 00:02:17,440 Speaker 2: of habeas corpus grants its powers to Congress and not 41 00:02:17,560 --> 00:02:18,280 Speaker 2: the President. 42 00:02:18,720 --> 00:02:21,600 Speaker 3: Well, that is the way we've generally interpreted what we 43 00:02:21,680 --> 00:02:24,840 Speaker 3: call the suspension clause. So Article one, section nine, which 44 00:02:24,960 --> 00:02:29,320 Speaker 3: a portion of the Constitution that identifies limits on Congress's power, 45 00:02:29,960 --> 00:02:33,280 Speaker 3: has a clause that we refer to as the suspension clause, 46 00:02:33,480 --> 00:02:36,040 Speaker 3: and it reads, the privilege of the writ of habeas 47 00:02:36,040 --> 00:02:39,680 Speaker 3: corpus shall not be suspended unless, when in cases of 48 00:02:39,720 --> 00:02:43,680 Speaker 3: rebellion or invasion, the public safety may require it. And 49 00:02:43,720 --> 00:02:46,080 Speaker 3: given that it is in Article one, section nine, it 50 00:02:46,120 --> 00:02:50,040 Speaker 3: has always been interpreted as placing limitation on Congress's ability 51 00:02:50,200 --> 00:02:53,320 Speaker 3: to suspend the rit of habeas corpus, and that interpretation 52 00:02:53,720 --> 00:02:57,280 Speaker 3: goes back all the way to eighteen oh seven. Is 53 00:02:57,320 --> 00:03:00,360 Speaker 3: the first time Supreme Court, in an opinion by Chiechoss Marshall, 54 00:03:00,360 --> 00:03:04,880 Speaker 3: indicated the understanding this is Congress's authority to decide that 55 00:03:04,960 --> 00:03:09,480 Speaker 3: habeas corpus can be suspended. And historically, with one exception, 56 00:03:09,680 --> 00:03:12,679 Speaker 3: when the writ of habeas corpus has been suspended, it 57 00:03:12,720 --> 00:03:16,160 Speaker 3: has either been suspended by Congress or Congress has delegated 58 00:03:16,240 --> 00:03:18,320 Speaker 3: to the President the authority to. 59 00:03:18,280 --> 00:03:23,800 Speaker 5: Suspend the writ in specified circumstances that interpretation of the 60 00:03:23,840 --> 00:03:29,960 Speaker 5: habeas corpus clause has been affirmed in Supreme Court opinions 61 00:03:29,960 --> 00:03:31,240 Speaker 5: in modern times. 62 00:03:31,760 --> 00:03:31,959 Speaker 2: Yes. 63 00:03:32,040 --> 00:03:32,120 Speaker 4: So. 64 00:03:32,400 --> 00:03:35,320 Speaker 3: For example, in the case of Hamdi, which was a 65 00:03:35,320 --> 00:03:39,400 Speaker 3: case involving an individual and American citizen who was allegedly 66 00:03:39,560 --> 00:03:43,200 Speaker 3: captured in Afghanistan as a fighter with the Taliban. He 67 00:03:43,360 --> 00:03:45,920 Speaker 3: was brought to the United States and he filed a 68 00:03:45,920 --> 00:03:48,440 Speaker 3: petition for rid of habeas corpus. The question was whether 69 00:03:48,520 --> 00:03:50,560 Speaker 3: or not he could be detained in the United States 70 00:03:50,600 --> 00:03:53,160 Speaker 3: without being subject to trial. And if one goes through 71 00:03:53,160 --> 00:03:56,400 Speaker 3: the opinions in that case, while Justice has disagreed on 72 00:03:56,440 --> 00:03:59,200 Speaker 3: a lot of questions about what sort of process mister 73 00:03:59,240 --> 00:04:03,560 Speaker 3: Hamdy was and what other constitutional protections he deserved, all 74 00:04:03,600 --> 00:04:06,800 Speaker 3: of the opinions operated on the premise that if the 75 00:04:06,800 --> 00:04:09,640 Speaker 3: writ of habeas corpus was to be suspended, it had 76 00:04:09,680 --> 00:04:12,680 Speaker 3: to be done so pursuant to an Act of Congress. 77 00:04:13,000 --> 00:04:15,560 Speaker 3: Subsequent to that in a case called Buma Dien, also 78 00:04:15,640 --> 00:04:19,160 Speaker 3: involving alleged enemy combatants, on the majority opinion of the 79 00:04:19,200 --> 00:04:22,159 Speaker 3: Supreme Court in that case made clear that this is 80 00:04:22,200 --> 00:04:24,719 Speaker 3: a check on executive power, that the rit of heabeas 81 00:04:24,760 --> 00:04:27,240 Speaker 3: Corpus often in this sort of context serves as a 82 00:04:27,320 --> 00:04:30,040 Speaker 3: check on executive power, and it obviously could not serve 83 00:04:30,080 --> 00:04:34,039 Speaker 3: that function if the executive branch could unilaterally just decide 84 00:04:34,080 --> 00:04:34,800 Speaker 3: to suspend it. 85 00:04:35,640 --> 00:04:40,440 Speaker 2: So, if the Trump administration actually did decide to suspend 86 00:04:40,520 --> 00:04:46,719 Speaker 2: habeas corpus unilaterally, would that definitely constitute a constitutional crisis. 87 00:04:47,640 --> 00:04:49,800 Speaker 3: Well, two things. First, I think when one looks at 88 00:04:49,839 --> 00:04:53,080 Speaker 3: Miller's comments, I think he was perhaps being very careful. 89 00:04:53,120 --> 00:04:57,120 Speaker 3: He said they were looking at the option of the 90 00:04:57,160 --> 00:04:59,680 Speaker 3: privilege of the writ of habeas corpus being suspended. He 91 00:04:59,760 --> 00:05:02,000 Speaker 3: did not think whether the executive branch was going to 92 00:05:02,040 --> 00:05:04,400 Speaker 3: try and do that unilaterally, or whether they were going 93 00:05:04,480 --> 00:05:06,719 Speaker 3: to ask Congress to do it. My own view is 94 00:05:06,720 --> 00:05:09,040 Speaker 3: they can look at it all they want, because if 95 00:05:09,080 --> 00:05:11,159 Speaker 3: they do look at it, they'll realize that they do 96 00:05:11,240 --> 00:05:14,400 Speaker 3: not have the authority to do it unilaterally. The one 97 00:05:14,480 --> 00:05:17,440 Speaker 3: time the executive branch did suspend the Writ of habeas 98 00:05:17,480 --> 00:05:21,760 Speaker 3: corpus unilaterally was during the Civil War, when President Lincoln 99 00:05:21,960 --> 00:05:25,000 Speaker 3: suspended the writ in Baltimore out of a concern that 100 00:05:25,120 --> 00:05:28,120 Speaker 3: rail lines to the nation's capital would be severed or 101 00:05:28,160 --> 00:05:31,680 Speaker 3: blocked and that would lead to the fall of Washington, 102 00:05:31,760 --> 00:05:35,320 Speaker 3: d C. To Confederate forces, and even that in such 103 00:05:35,360 --> 00:05:38,280 Speaker 3: an extreme circumstance, when the nation was in civil war, 104 00:05:38,360 --> 00:05:41,799 Speaker 3: when there were hostile troops threatening the nation's capital, even 105 00:05:41,839 --> 00:05:45,560 Speaker 3: that was recognized as an extreme action. It's one that 106 00:05:45,640 --> 00:05:50,560 Speaker 3: Congress later ratified, but most people except was not consistent 107 00:05:50,680 --> 00:05:55,280 Speaker 3: with the constitution structure. So if the administration were to 108 00:05:55,320 --> 00:05:58,240 Speaker 3: try to suspend the Writ of Habeas corpus, I'm not 109 00:05:58,640 --> 00:06:02,039 Speaker 3: particularly doubtful that courts would conclude that that was unlawful, 110 00:06:02,080 --> 00:06:05,120 Speaker 3: that the administration lacks that authority, and I think they 111 00:06:05,160 --> 00:06:08,080 Speaker 3: would primarily do so on the grounds that it's just 112 00:06:08,160 --> 00:06:12,320 Speaker 3: not something the executive branch can do within US territory 113 00:06:12,400 --> 00:06:16,159 Speaker 3: during peacetime, etc. That there's no question that the executive 114 00:06:16,200 --> 00:06:20,520 Speaker 3: branch does not have that sort of unilateral authority. The 115 00:06:20,520 --> 00:06:25,000 Speaker 3: more interesting thought experiment would be what if the administration 116 00:06:25,160 --> 00:06:29,159 Speaker 3: could convince Congress to suspend the writ. And as I 117 00:06:29,200 --> 00:06:32,920 Speaker 3: noted before, the language of the suspension clause refers to 118 00:06:32,960 --> 00:06:36,440 Speaker 3: the reasons why the writ could be suspended. It says 119 00:06:36,480 --> 00:06:39,000 Speaker 3: that it shall not be suspended unless win in cases 120 00:06:39,040 --> 00:06:43,919 Speaker 3: of rebellion or invasion, And so hypothetically, if the administration 121 00:06:44,000 --> 00:06:49,040 Speaker 3: were to convince Congress that illegal immigration is such that 122 00:06:49,200 --> 00:06:52,520 Speaker 3: it constitutes an invasion, and Congress were to suspend the WRIT, 123 00:06:53,160 --> 00:06:56,280 Speaker 3: there is an interesting question about whether or not that 124 00:06:56,400 --> 00:07:00,279 Speaker 3: judgment by Congress would be subject to judicial review. That 125 00:07:00,360 --> 00:07:04,320 Speaker 3: prevailing wisdom is that whether or not Article one, Section 126 00:07:04,440 --> 00:07:07,080 Speaker 3: nine requirements have been met would be a non justiciable 127 00:07:07,160 --> 00:07:10,800 Speaker 3: political question. But that's really just a thought experiment, because 128 00:07:11,000 --> 00:07:15,400 Speaker 3: that would require Congress passing legislation to suspend the WRIT, 129 00:07:15,480 --> 00:07:17,680 Speaker 3: and you know, it's pretty clear with the margins in 130 00:07:17,720 --> 00:07:21,360 Speaker 3: Congress right now, that's not something that is even remotely likely. 131 00:07:22,000 --> 00:07:26,640 Speaker 2: The grounds that they referred to for suspending the WRIT 132 00:07:27,120 --> 00:07:29,960 Speaker 2: are the same grounds basically that they referred to for 133 00:07:30,080 --> 00:07:34,120 Speaker 2: invoking the Alien Enemies Act, and at least four federal 134 00:07:34,200 --> 00:07:39,000 Speaker 2: judges have found that America isn't facing an invasion by 135 00:07:39,240 --> 00:07:44,280 Speaker 2: undocumented migrants. But the Supreme Court did allow the Trump 136 00:07:44,400 --> 00:07:51,160 Speaker 2: administration to continue invoking that Alien Enemies Act as long 137 00:07:51,200 --> 00:07:54,240 Speaker 2: as they gave due process to the immigrants. 138 00:07:54,800 --> 00:07:57,560 Speaker 3: Right, so the Trump administration is being required to allow 139 00:07:58,240 --> 00:08:01,840 Speaker 3: individuals attained to file a petitions for Brits of abas Corpus, 140 00:08:02,200 --> 00:08:04,960 Speaker 3: and I expect that would continue. I mean, in the 141 00:08:05,000 --> 00:08:08,360 Speaker 3: background here, there is this long standing notion that certain 142 00:08:08,440 --> 00:08:12,080 Speaker 3: questions relating to national security, perhaps even some relating to 143 00:08:12,120 --> 00:08:14,960 Speaker 3: the border, are what we refer to as political questions, 144 00:08:15,040 --> 00:08:19,280 Speaker 3: questions that are resolved by the political branches, not by courts. 145 00:08:19,360 --> 00:08:22,120 Speaker 3: And in so far as these questions touch on that, 146 00:08:22,680 --> 00:08:24,760 Speaker 3: the role that courts have played is to make sure 147 00:08:24,760 --> 00:08:27,560 Speaker 3: that the legislature and the executive branch each perform their 148 00:08:27,560 --> 00:08:32,520 Speaker 3: respective functions, but to not second guess their determinations. So, 149 00:08:32,720 --> 00:08:37,000 Speaker 3: if Congress were to conclude that waves of illegal immigration 150 00:08:37,320 --> 00:08:40,040 Speaker 3: are at least potentially in an invasion for purposes of 151 00:08:40,080 --> 00:08:46,160 Speaker 3: the suspension clause, I suspect courts would allow that to stand, 152 00:08:46,920 --> 00:08:49,600 Speaker 3: not because they would be saying Congress is correct, but 153 00:08:49,679 --> 00:08:52,760 Speaker 3: because they would be saying the courts don't get to 154 00:08:53,160 --> 00:08:56,040 Speaker 3: second guess that. Now, having said all that, I don't 155 00:08:56,040 --> 00:09:00,640 Speaker 3: think there is any question as a historical matter, that immigration, 156 00:09:00,880 --> 00:09:04,199 Speaker 3: even at far higher rates than we see now, would 157 00:09:04,200 --> 00:09:07,920 Speaker 3: not constitute an invasion for purposes of that clause. The 158 00:09:08,120 --> 00:09:11,520 Speaker 3: language of the suspension clause is invoking the idea that 159 00:09:11,520 --> 00:09:14,800 Speaker 3: there are certain situations, such as rebellion or an invasion 160 00:09:14,840 --> 00:09:18,480 Speaker 3: by an invading army that create a situation in which, 161 00:09:18,800 --> 00:09:21,400 Speaker 3: in effect, the courts are not open. So the idea 162 00:09:21,440 --> 00:09:24,280 Speaker 3: has been that if martial law, for example, is declared, 163 00:09:24,800 --> 00:09:29,120 Speaker 3: that effectively tells the courts to stop operations. The rid 164 00:09:29,160 --> 00:09:32,119 Speaker 3: of habeas corpus, when it is suspended by the legislature, 165 00:09:32,200 --> 00:09:35,520 Speaker 3: that's typically because it's not safe or possible for the 166 00:09:35,559 --> 00:09:38,680 Speaker 3: courts to engage in their normal functioning. That is the 167 00:09:38,720 --> 00:09:43,480 Speaker 3: sort of invasion that Article one, section nine contemplates, not 168 00:09:44,080 --> 00:09:47,199 Speaker 3: higher numbers of people crossing the border than perhaps Congress 169 00:09:47,280 --> 00:09:49,760 Speaker 3: might like. So I don't think there's any question that 170 00:09:50,040 --> 00:09:52,440 Speaker 3: as a textual matter or as a historical matter, that 171 00:09:52,520 --> 00:09:55,800 Speaker 3: the clause would not be satisfied. But there is this 172 00:09:55,960 --> 00:09:59,360 Speaker 3: question about whether or not it's something that courts can 173 00:09:59,559 --> 00:10:01,880 Speaker 3: properly issue a decision on, as opposed to leaving it 174 00:10:01,920 --> 00:10:05,280 Speaker 3: to the interplay between the executive and the legislature. 175 00:10:05,440 --> 00:10:10,480 Speaker 2: Are the principles of habeas corpus and due process intertwined? 176 00:10:10,760 --> 00:10:14,200 Speaker 3: Yeah, so the rid of baby's corpus is processed that 177 00:10:14,360 --> 00:10:16,800 Speaker 3: someone might be due So when we think about due 178 00:10:16,800 --> 00:10:19,440 Speaker 3: process and the fact that the Constitution, in both the 179 00:10:19,440 --> 00:10:22,800 Speaker 3: fifth and fourteenth Amendments says that people cannot be deprived 180 00:10:23,360 --> 00:10:26,120 Speaker 3: of their life, liberty, or property without due processes of law. 181 00:10:26,559 --> 00:10:28,720 Speaker 3: Is in booking the idea that there is process that 182 00:10:28,840 --> 00:10:31,600 Speaker 3: one is entitled to, the process that one is due 183 00:10:32,120 --> 00:10:34,959 Speaker 3: before the government can subject you to one of these 184 00:10:34,960 --> 00:10:38,200 Speaker 3: sorts of deprivations. And the way that has been understood 185 00:10:38,520 --> 00:10:41,880 Speaker 3: throughout American history is that the degree of process that 186 00:10:42,080 --> 00:10:44,520 Speaker 3: is required, the degree of process that you are due, 187 00:10:45,040 --> 00:10:48,640 Speaker 3: is dependent upon the context, and in particular it's dependent 188 00:10:48,720 --> 00:10:52,559 Speaker 3: upon of what's at risk for you, what the government's 189 00:10:52,640 --> 00:10:54,960 Speaker 3: interest is, you know, the thing the government is trying 190 00:10:55,000 --> 00:10:58,000 Speaker 3: to achieve, and then the extent to which process can 191 00:10:58,200 --> 00:11:02,640 Speaker 3: safeguard against the government making a mistake, so the government 192 00:11:02,800 --> 00:11:06,440 Speaker 3: erroneously concluding that someone's not a citizen, or not entitled 193 00:11:06,440 --> 00:11:09,800 Speaker 3: to remain in the country, or not properly convicted. So 194 00:11:10,440 --> 00:11:13,400 Speaker 3: the rid of habeas corpus is part of the process 195 00:11:13,520 --> 00:11:16,680 Speaker 3: that someone might be due if they are going to 196 00:11:16,679 --> 00:11:20,040 Speaker 3: be deprived of life, liberty, or property. And so the 197 00:11:20,040 --> 00:11:23,079 Speaker 3: Supreme Court has indicated thus far is that it believed, 198 00:11:23,120 --> 00:11:25,960 Speaker 3: even in the context of invoking something like the Alien 199 00:11:26,040 --> 00:11:30,120 Speaker 3: Enemies Act, that even individuals who are not citizens, even 200 00:11:30,160 --> 00:11:33,439 Speaker 3: individuals who may have entered the country unlawfully or may 201 00:11:33,480 --> 00:11:38,000 Speaker 3: have overstated visa. They're still entitled to file a rid 202 00:11:38,000 --> 00:11:40,560 Speaker 3: of habeas corpus as part of the due process that 203 00:11:40,600 --> 00:11:43,520 Speaker 3: they are entitled to before certain things can be done 204 00:11:43,559 --> 00:11:46,679 Speaker 3: to them, such as being detained and forcibly removed from 205 00:11:46,679 --> 00:11:47,160 Speaker 3: the country. 206 00:11:47,480 --> 00:11:50,480 Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue 207 00:11:50,520 --> 00:11:54,880 Speaker 2: this conversation with Professor Jonathan Adler. Was there a veiled 208 00:11:55,000 --> 00:11:59,839 Speaker 2: threat to judges in Stephen Miller's comments? This is Bloomberg. 209 00:12:03,040 --> 00:12:07,320 Speaker 2: The Trump administration has often challenged the decision making of 210 00:12:07,400 --> 00:12:12,000 Speaker 2: federal judges, and White House Deputy Chief of Staff Stephen Miller, 211 00:12:12,520 --> 00:12:17,000 Speaker 2: in discussing the administration possibly suspending the rid of habeas 212 00:12:17,040 --> 00:12:21,320 Speaker 2: corpus unilaterally, said, the decision depends a lot on whether 213 00:12:21,360 --> 00:12:24,120 Speaker 2: the courts quote do the right thing or not. 214 00:12:24,760 --> 00:12:27,440 Speaker 1: If the courts aren't just at war with the executive branch, 215 00:12:27,920 --> 00:12:30,720 Speaker 1: the courts are at war these radical road judges with 216 00:12:30,800 --> 00:12:33,200 Speaker 1: the legislative branch as well too, So all of that 217 00:12:33,240 --> 00:12:35,560 Speaker 1: will inform the choice that the president ultimately makes. 218 00:12:36,000 --> 00:12:39,920 Speaker 2: Habeas corpus has only been suspended four times in our 219 00:12:40,040 --> 00:12:43,840 Speaker 2: nation's history. I've been talking to Professor Jonathan Adler of 220 00:12:44,000 --> 00:12:49,199 Speaker 2: Case Western Reserve Law School. Miller was talking about suspending 221 00:12:49,320 --> 00:12:55,240 Speaker 2: Habeas corpus in the context of undocumented migrants. But could 222 00:12:55,240 --> 00:12:59,200 Speaker 2: the Trump administration, if it decides to try to suspend 223 00:12:59,240 --> 00:13:04,679 Speaker 2: habeas corpse is just suspended for a small segment of 224 00:13:04,720 --> 00:13:07,520 Speaker 2: the population, or would it apply to the whole population, 225 00:13:08,200 --> 00:13:11,679 Speaker 2: so all Americans habeas corpus rights would be suspended. 226 00:13:12,000 --> 00:13:14,680 Speaker 3: Well, it depends. I mean, there have been contacts in 227 00:13:14,679 --> 00:13:18,280 Speaker 3: the past where the WRIT has been suspended in particular areas, 228 00:13:19,000 --> 00:13:23,920 Speaker 3: but not everywhere. So Franklin o' world's are suspended in Hawaii, 229 00:13:24,000 --> 00:13:29,120 Speaker 3: for example, pursuant to a delegation of that authority from Congress. 230 00:13:29,480 --> 00:13:35,360 Speaker 3: So there is historical precedent for confining, certainly geographically, the 231 00:13:35,400 --> 00:13:38,600 Speaker 3: suspension of the WRIT. I'm not aware of a suspension 232 00:13:38,600 --> 00:13:42,440 Speaker 3: of the WRIT that tried to suspend it for categories 233 00:13:42,480 --> 00:13:45,400 Speaker 3: of people. And part of the problem there would be 234 00:13:45,960 --> 00:13:49,360 Speaker 3: is how would you know who you're suspending the WRIT 235 00:13:49,520 --> 00:13:53,960 Speaker 3: for if you're not maintaining a process for them to 236 00:13:54,040 --> 00:13:56,280 Speaker 3: be able to challenge that. This is a similar sort 237 00:13:56,280 --> 00:13:58,400 Speaker 3: of issue that has been coming up in some of 238 00:13:58,400 --> 00:14:02,000 Speaker 3: these deportation cases where the administration has maintained. Steven Miller 239 00:14:02,040 --> 00:14:06,000 Speaker 3: has said, oh, illegal immigrants aren't entitled to due process, 240 00:14:06,400 --> 00:14:09,280 Speaker 3: And the fundamental reason why that's wrong is that someone 241 00:14:09,280 --> 00:14:12,000 Speaker 3: who's alleged to be an illegal immigrant or someone who's 242 00:14:12,040 --> 00:14:16,400 Speaker 3: alleged to be subject to deportation is entitled to due process, 243 00:14:16,480 --> 00:14:19,600 Speaker 3: just as someone who's alleged to be a criminal is 244 00:14:19,760 --> 00:14:23,800 Speaker 3: entitled to do process. To say that someone is an 245 00:14:23,840 --> 00:14:27,400 Speaker 3: illegal immigrant or so it's deportation is to assume that 246 00:14:27,600 --> 00:14:32,200 Speaker 3: which process is guaranteed to determine in the first place. 247 00:14:32,680 --> 00:14:35,480 Speaker 3: And so if the administration, again with or without Congress, 248 00:14:35,520 --> 00:14:37,760 Speaker 3: were to try to suspend the writ of habeas corpus 249 00:14:37,920 --> 00:14:41,040 Speaker 3: just for specified individuals, we would still have this problem 250 00:14:41,120 --> 00:14:43,520 Speaker 3: of how do we know it's being properly applied to 251 00:14:43,600 --> 00:14:48,200 Speaker 3: the right People with geographically based suspensions less less of 252 00:14:48,240 --> 00:14:52,600 Speaker 3: a problem because you're applying that rule or not allowing 253 00:14:52,640 --> 00:14:55,720 Speaker 3: the filing of the writ in a particular area. Those 254 00:14:55,720 --> 00:14:59,400 Speaker 3: boundaries are much easier to determine than knowing whether or 255 00:14:59,400 --> 00:15:01,800 Speaker 3: not the person who been accused of something is in 256 00:15:01,880 --> 00:15:03,680 Speaker 3: fact what they've been accused of. 257 00:15:04,600 --> 00:15:10,480 Speaker 2: In two recent cases where foreign students were held in detention, 258 00:15:11,120 --> 00:15:14,520 Speaker 2: they filed habeas corpus petitions, and two federal judges have 259 00:15:14,640 --> 00:15:19,240 Speaker 2: released them pending more proceedings. But in general, is it 260 00:15:19,280 --> 00:15:23,080 Speaker 2: difficult for defendants to get the relief they want through 261 00:15:23,080 --> 00:15:24,600 Speaker 2: habeas corpus petitions. 262 00:15:25,080 --> 00:15:28,040 Speaker 3: As a general matter, the rid of habeas corpus is 263 00:15:28,080 --> 00:15:30,400 Speaker 3: often a long shot. I mean certainly when we look 264 00:15:30,400 --> 00:15:34,400 Speaker 3: at petitions for habeas corpus filed domestically by individuals who 265 00:15:34,440 --> 00:15:36,960 Speaker 3: have been convicted of crimes in the United States. These 266 00:15:37,000 --> 00:15:40,280 Speaker 3: petitions are typically filed to challenge convictions in state courts 267 00:15:40,720 --> 00:15:43,400 Speaker 3: or to challenge the sentences that state courts have imposed. 268 00:15:43,520 --> 00:15:46,640 Speaker 3: So quite commonly individuals who have been sentenced to death 269 00:15:46,720 --> 00:15:49,800 Speaker 3: file petitions for a rid of habeas corpus, and in 270 00:15:49,800 --> 00:15:55,800 Speaker 3: that context, unless you can identify a very serious procedural irregularity, 271 00:15:56,240 --> 00:15:59,560 Speaker 3: those petitions are are very difficult to prevail. So the 272 00:15:59,560 --> 00:16:04,240 Speaker 3: Supreme Court is usually fairly stingy in granting rits of 273 00:16:04,280 --> 00:16:08,360 Speaker 3: habeas corpus in those contexts. And that's largely because of 274 00:16:08,480 --> 00:16:11,840 Speaker 3: a law enacted during the Clint administration called EDPA, the 275 00:16:12,040 --> 00:16:15,560 Speaker 3: Anti Terrorism and Effective Death Penalty Act, which was designed 276 00:16:15,640 --> 00:16:20,520 Speaker 3: to curtail the use of habeas petitions to challenge convictions 277 00:16:20,520 --> 00:16:23,000 Speaker 3: in state court in these sorts of cases that we're 278 00:16:23,000 --> 00:16:25,480 Speaker 3: seeing now, I think one of the reasons why we're 279 00:16:25,480 --> 00:16:28,560 Speaker 3: seeing some of these petitions be successful is because you 280 00:16:28,600 --> 00:16:31,640 Speaker 3: have individuals who are basically being given no process or 281 00:16:31,720 --> 00:16:35,280 Speaker 3: virtually no process at all. And so whereas when prisoners 282 00:16:35,320 --> 00:16:39,760 Speaker 3: are challenging state court convictions, they're challenging convictions where someone 283 00:16:39,800 --> 00:16:42,520 Speaker 3: has had a trial, where they've had appeals, where something 284 00:16:42,560 --> 00:16:45,080 Speaker 3: has typically gone up to the highest court within that state, 285 00:16:45,240 --> 00:16:47,840 Speaker 3: and so there's been a lot of process and trying 286 00:16:47,880 --> 00:16:52,600 Speaker 3: to identify particular deficiencies in that process really hard to 287 00:16:52,640 --> 00:16:54,680 Speaker 3: do with a pission for a rit of habeas corpus. 288 00:16:55,080 --> 00:16:57,640 Speaker 3: But when you're talking about individuals like Stata Scrat student 289 00:16:57,680 --> 00:17:01,160 Speaker 3: from Tuffs who had been detained, who was given virtually 290 00:17:01,200 --> 00:17:03,640 Speaker 3: no process at all, well, then the argument for a 291 00:17:03,680 --> 00:17:06,760 Speaker 3: petition is much stronger because while we can debate about 292 00:17:06,800 --> 00:17:09,600 Speaker 3: how much process someone should get or what the burdens 293 00:17:09,600 --> 00:17:12,680 Speaker 3: of proof should be, the administration has acted very aggressively 294 00:17:12,720 --> 00:17:15,040 Speaker 3: in some of these cases and tried to deny people 295 00:17:15,240 --> 00:17:17,920 Speaker 3: for really any effective process at all. And so in 296 00:17:17,960 --> 00:17:21,399 Speaker 3: that posture, I think it's easier for courts to grant 297 00:17:21,560 --> 00:17:22,720 Speaker 3: these sorts of petitions. 298 00:17:23,000 --> 00:17:27,320 Speaker 2: Did you hear a subtle threat to judges in Miller's comments? 299 00:17:27,880 --> 00:17:31,919 Speaker 2: He described the judges here as a handful of Marxist 300 00:17:32,000 --> 00:17:36,440 Speaker 2: judges carrying out a judicial coup, and that the administration's 301 00:17:36,480 --> 00:17:42,440 Speaker 2: decision whether or not to suspend habeas corpus unilaterally depends 302 00:17:42,480 --> 00:17:44,920 Speaker 2: a lot on whether the courts do the right thing 303 00:17:45,040 --> 00:17:45,280 Speaker 2: or not. 304 00:17:46,000 --> 00:17:46,200 Speaker 5: Yeah. 305 00:17:46,240 --> 00:17:48,520 Speaker 3: So, I mean, you know, Steve Miller's not a lawyer, 306 00:17:48,840 --> 00:17:53,280 Speaker 3: but he is someone that often speaks about legal issues 307 00:17:53,359 --> 00:17:57,000 Speaker 3: for the administration and often says things that aren't quite 308 00:17:57,080 --> 00:17:59,920 Speaker 3: right as a legal matter. But I think do Act 309 00:18:00,080 --> 00:18:03,840 Speaker 3: goes the message that the administration wants to send, particularly 310 00:18:03,880 --> 00:18:07,600 Speaker 3: to its base. I think in this sort of context, 311 00:18:08,000 --> 00:18:12,080 Speaker 3: there is this implicit threat, or this very adversarial posture 312 00:18:12,119 --> 00:18:15,080 Speaker 3: to the courts, a suggestion that of courts don't cooperate, 313 00:18:15,160 --> 00:18:18,360 Speaker 3: or if the courts obstruct the administration's agenda, the administration 314 00:18:18,480 --> 00:18:22,560 Speaker 3: will look for ways to push back in an extreme way, 315 00:18:23,040 --> 00:18:25,800 Speaker 3: and this certainly could be one of them. Now, I'm 316 00:18:25,800 --> 00:18:30,800 Speaker 3: not entirely sure this is an effective strategy for the administration. 317 00:18:31,440 --> 00:18:34,920 Speaker 3: I mean, certainly, I can't imagine lawyers who work in 318 00:18:34,960 --> 00:18:38,399 Speaker 3: the administration making these sorts of comments publicly, certainly not 319 00:18:38,640 --> 00:18:41,760 Speaker 3: the lawyers that have to themselves appear in court. And 320 00:18:41,920 --> 00:18:44,119 Speaker 3: it's not clear to me that these sorts of comments 321 00:18:44,560 --> 00:18:48,879 Speaker 3: are helpful, and I doubt they do much to change 322 00:18:48,920 --> 00:18:52,280 Speaker 3: the way judges evaluate these sorts of claims. In fact, 323 00:18:52,359 --> 00:18:56,560 Speaker 3: in some cases, they might even undermine the administration's position 324 00:18:57,359 --> 00:19:00,679 Speaker 3: insofar as they suggest the administration is not dotting its 325 00:19:00,720 --> 00:19:03,199 Speaker 3: size and crossing its piece on legal questions. But I 326 00:19:03,200 --> 00:19:05,639 Speaker 3: think it's also possible that Steven Miller is, since he's 327 00:19:05,680 --> 00:19:10,320 Speaker 3: primarily a political advisor, is speaking politically and speaking to 328 00:19:10,359 --> 00:19:13,440 Speaker 3: the base more than he is detailing what the administration's 329 00:19:13,520 --> 00:19:14,639 Speaker 3: actual legal position is. 330 00:19:15,240 --> 00:19:17,639 Speaker 2: Sort of in the category of he's not a lawyer, 331 00:19:17,680 --> 00:19:19,000 Speaker 2: but he plays one on TV. 332 00:19:19,520 --> 00:19:23,399 Speaker 3: Steven Miller can be relied upon to offer pugilistic spin 333 00:19:23,680 --> 00:19:29,120 Speaker 3: on legal questions on the administration's losses in court, and 334 00:19:29,520 --> 00:19:32,480 Speaker 3: he can he presents a very aggressive posture that certainly 335 00:19:32,480 --> 00:19:36,400 Speaker 3: the administration's lawyers would not take in either of their 336 00:19:36,440 --> 00:19:39,120 Speaker 3: filings or in actual arguments. But I think it's also 337 00:19:39,119 --> 00:19:41,960 Speaker 3: important to recognize that he's not speaking as a lawyer. 338 00:19:42,320 --> 00:19:45,159 Speaker 3: Often gets the law wrong, and we can often find 339 00:19:45,560 --> 00:19:49,840 Speaker 3: meaningful differences between the things he says to the television 340 00:19:49,840 --> 00:19:53,320 Speaker 3: cameras or on Twitter and the things that government attorneys 341 00:19:53,320 --> 00:19:55,160 Speaker 3: actually are willing to put into legal filings. 342 00:19:55,200 --> 00:19:58,199 Speaker 2: Well, we'll see if the administration brings this suspension of 343 00:19:58,280 --> 00:20:02,880 Speaker 2: habeas corpus up began, or it's dropped. Thanks so much 344 00:20:02,920 --> 00:20:05,920 Speaker 2: for joining me on the show, Jonathan. That's Professor Jonathan 345 00:20:06,000 --> 00:20:10,560 Speaker 2: Alder of Case Western Reserve Law School. It's day two 346 00:20:10,600 --> 00:20:14,920 Speaker 2: of the trial of Sean Diddy Combs, whose charge with racketeering, conspiracy, 347 00:20:15,080 --> 00:20:21,200 Speaker 2: sex trafficking, and transportation to engage in prostitution. During opening statements, 348 00:20:21,240 --> 00:20:27,120 Speaker 2: prosecutors portrayed Combs as an abusive kingpin who used violence, threats, drugs, 349 00:20:27,119 --> 00:20:30,800 Speaker 2: and money to coerce two women into drug fueled days 350 00:20:30,840 --> 00:20:34,719 Speaker 2: long sex parties with prostitutes, while the defense described him 351 00:20:34,760 --> 00:20:38,440 Speaker 2: as a Harlem born success story with a tumultuous love 352 00:20:38,480 --> 00:20:41,879 Speaker 2: life who could get angry or even violent, but that 353 00:20:41,960 --> 00:20:45,240 Speaker 2: the violent moments didn't amount to the charges the government 354 00:20:45,280 --> 00:20:49,919 Speaker 2: has accused him of. The prosecution's star witness, Combe's former girlfriend, 355 00:20:49,960 --> 00:20:53,840 Speaker 2: Cassie Ventura, took the stand today. My guest is former 356 00:20:53,880 --> 00:20:57,800 Speaker 2: federal prosecutor Robert Mintz. A partner at Macarter and English, 357 00:20:58,080 --> 00:20:59,760 Speaker 2: Bob tell us about the charges. 358 00:20:59,800 --> 00:21:03,879 Speaker 4: He essentially, what the government has a leg here is 359 00:21:03,920 --> 00:21:07,520 Speaker 4: that mister Combs was involved in sex trafficking three women 360 00:21:07,920 --> 00:21:12,520 Speaker 4: and exercising control over their lives through violence, with financial 361 00:21:12,600 --> 00:21:15,879 Speaker 4: payments and by supplying them with drugs. Some of the 362 00:21:15,920 --> 00:21:20,520 Speaker 4: incidents prosecutors specifically referred to or something called freakofs, which 363 00:21:20,560 --> 00:21:25,639 Speaker 4: according to prosecutors, were these elaborate drug fueled sex marathons 364 00:21:25,720 --> 00:21:28,080 Speaker 4: that could last for days, and that was one of 365 00:21:28,080 --> 00:21:32,440 Speaker 4: the means by which, according to prosecutors, he exercised control 366 00:21:32,800 --> 00:21:36,520 Speaker 4: over the women who he was sex trafficking for all 367 00:21:36,560 --> 00:21:39,760 Speaker 4: those years. What's interesting here is that these charges go 368 00:21:39,880 --> 00:21:44,440 Speaker 4: back twenty years. They're saying that mister Combs maintained what's 369 00:21:44,480 --> 00:21:50,280 Speaker 4: called a criminal enterprise. A rico racketeering charge was included 370 00:21:50,320 --> 00:21:53,840 Speaker 4: in these charges in which they say that mister Combs 371 00:21:53,960 --> 00:21:59,480 Speaker 4: used his entourage basically his various employees including security guards, 372 00:22:00,040 --> 00:22:05,760 Speaker 4: personal assistance, household staff and other supervisors to enable him 373 00:22:06,000 --> 00:22:08,960 Speaker 4: with this leg sex trafficking to cover it up. 374 00:22:09,280 --> 00:22:12,880 Speaker 2: The criminal enterprise part of this is that a stretch 375 00:22:13,080 --> 00:22:16,160 Speaker 2: for the prosecution to make this into a criminal enterprise. 376 00:22:16,960 --> 00:22:19,720 Speaker 4: Well, that is interesting here because the government has a 377 00:22:19,800 --> 00:22:24,240 Speaker 4: leg that this criminal enterprise has been conducted over the 378 00:22:24,280 --> 00:22:26,919 Speaker 4: course of twenty years, from two thousand and four to 379 00:22:27,080 --> 00:22:30,280 Speaker 4: twenty twenty four, and that part of the acts that 380 00:22:30,320 --> 00:22:34,000 Speaker 4: were carried out as part of that enterprise included arson, kidnapping, 381 00:22:34,480 --> 00:22:39,639 Speaker 4: forced labor, bribery, obstruction of justice, and drug violations. But 382 00:22:39,840 --> 00:22:43,720 Speaker 4: the RICO laws, this racketeering law, which was created in 383 00:22:43,760 --> 00:22:47,880 Speaker 4: north to battle organized crime, has now more recently been 384 00:22:48,000 --> 00:22:52,080 Speaker 4: used by federal prosecutors to go after popular figures in 385 00:22:52,119 --> 00:22:55,560 Speaker 4: the entertainment industry. One example of that was a case 386 00:22:55,600 --> 00:22:58,040 Speaker 4: in twenty twenty one when there was a federal trial 387 00:22:58,080 --> 00:23:01,720 Speaker 4: against R and B singer RCA. Kelly and mister Kelly 388 00:23:01,760 --> 00:23:05,119 Speaker 4: there was convicted of the sexual exploitation of a child, 389 00:23:05,400 --> 00:23:10,080 Speaker 4: including bribery, racketeering, and sex trafficking involving five victims. So 390 00:23:10,160 --> 00:23:12,960 Speaker 4: that was a case in which a racketeering enterprise was 391 00:23:13,040 --> 00:23:16,359 Speaker 4: also alleged against the celebrity and it was used to 392 00:23:16,400 --> 00:23:19,639 Speaker 4: successfully prosecute him and he is now serving a thirty 393 00:23:19,640 --> 00:23:22,399 Speaker 4: one year sentence in federal prison. So we're seeing this 394 00:23:22,840 --> 00:23:25,359 Speaker 4: more and more, but I think we will see the 395 00:23:25,400 --> 00:23:29,399 Speaker 4: defense hamber away at that because their scheme here is 396 00:23:29,440 --> 00:23:32,080 Speaker 4: that what the government is trying to do is to 397 00:23:32,320 --> 00:23:37,440 Speaker 4: criminalize conduct that was essentially consensual, and they are arguing 398 00:23:37,480 --> 00:23:40,960 Speaker 4: that the government here has overreached, that they have reached 399 00:23:40,960 --> 00:23:43,920 Speaker 4: into the private lives of their client, a client who 400 00:23:43,960 --> 00:23:48,520 Speaker 4: they acknowledged as flawed, whose practices were unorthodox, who had 401 00:23:48,520 --> 00:23:52,800 Speaker 4: a violent temper, and who they admit committed domestic violence. 402 00:23:53,000 --> 00:23:55,280 Speaker 4: But in the end they argue that he was not 403 00:23:55,480 --> 00:23:58,439 Speaker 4: involved with sex trafficking and should not have been charged 404 00:23:58,440 --> 00:24:00,000 Speaker 4: with these crimes. 405 00:24:00,119 --> 00:24:03,560 Speaker 2: That's a hard distinction for a jury to make, you know, 406 00:24:04,080 --> 00:24:06,000 Speaker 2: he's guilty of domestic violence. 407 00:24:06,080 --> 00:24:09,200 Speaker 4: But well, I think this is the case that really 408 00:24:09,240 --> 00:24:12,160 Speaker 4: comes down to several things, one of which the central 409 00:24:12,200 --> 00:24:16,400 Speaker 4: theme here is consent versus coercion. And this is where 410 00:24:16,400 --> 00:24:19,840 Speaker 4: it gets very murky, because the heart of the government's 411 00:24:19,840 --> 00:24:23,480 Speaker 4: case is the testimony of the women who were allegedly 412 00:24:23,840 --> 00:24:26,720 Speaker 4: the subject of his violent acts, but who stayed in 413 00:24:26,800 --> 00:24:30,400 Speaker 4: relationships with him for many years. And so you have 414 00:24:30,440 --> 00:24:34,359 Speaker 4: that sort of trapped personality which has now become fairly 415 00:24:34,760 --> 00:24:38,399 Speaker 4: popular in terms of prosecutions, where women are trapped in 416 00:24:38,480 --> 00:24:42,440 Speaker 4: these domestic violence situations and they don't leave, and ultimately, 417 00:24:42,760 --> 00:24:45,400 Speaker 4: the defense is always that they were free to leave 418 00:24:45,400 --> 00:24:48,480 Speaker 4: and that this relationship, while it may have been an orthodox, 419 00:24:48,800 --> 00:24:52,320 Speaker 4: was ultimately consensual. The defense here has argued that this 420 00:24:52,400 --> 00:24:56,320 Speaker 4: case is really about love, jealousy, and infidelity. With the 421 00:24:56,440 --> 00:25:00,600 Speaker 4: highly volatile relationship they acknowledge. They acknowledged that they're went 422 00:25:00,680 --> 00:25:04,760 Speaker 4: over the top and sometimes acted out violently, which was inappropriate. 423 00:25:05,040 --> 00:25:08,159 Speaker 4: But again they're attacking the government for trying to turn 424 00:25:08,440 --> 00:25:12,640 Speaker 4: what was a heated sexual relationship that was consensual into 425 00:25:12,680 --> 00:25:14,160 Speaker 4: a racketuring enterprise. 426 00:25:14,640 --> 00:25:19,639 Speaker 2: The prosecution has shown the jury a video that a 427 00:25:19,640 --> 00:25:23,879 Speaker 2: lot of people probably have already seen where Colmbs is 428 00:25:23,920 --> 00:25:29,240 Speaker 2: beating up Cassie Ventura at a Los Angeles hotel. That's 429 00:25:29,280 --> 00:25:32,840 Speaker 2: going to be a key piece of prosecution evidence, even 430 00:25:32,880 --> 00:25:36,640 Speaker 2: though it doesn't go to the racketeering or trafficking charges. 431 00:25:37,240 --> 00:25:40,600 Speaker 4: Yeah, that will be a central piece of evidence for prosecutors. 432 00:25:40,600 --> 00:25:44,000 Speaker 4: The defense tried to keep that video evidence out of 433 00:25:44,040 --> 00:25:47,240 Speaker 4: the case, and the judge ruled that it was admissible. 434 00:25:47,480 --> 00:25:50,560 Speaker 4: And it does go back to this twenty sixteen incident 435 00:25:50,600 --> 00:25:55,360 Speaker 4: at a hotel in California where mister Colmbs is allegedly 436 00:25:55,480 --> 00:25:59,520 Speaker 4: seen beating his then girlfriend, Cassie Ventura, dragging her by 437 00:25:59,560 --> 00:26:04,000 Speaker 4: the hair. Ultimately, several years later, he brought a civil 438 00:26:04,080 --> 00:26:07,800 Speaker 4: suit against him, using that video as a key piece 439 00:26:07,800 --> 00:26:11,160 Speaker 4: of evidence in her civil lawsuits. That case was settled 440 00:26:11,160 --> 00:26:14,520 Speaker 4: within one day, but prosecutors picked up on the civil 441 00:26:14,600 --> 00:26:18,600 Speaker 4: lawsuits and ultimately brought these federal criminal charges against him, 442 00:26:18,760 --> 00:26:22,080 Speaker 4: which mirror to a large extent the allegations in the 443 00:26:22,080 --> 00:26:24,360 Speaker 4: civil lawsuits filed by Cassie Ventura. 444 00:26:24,880 --> 00:26:29,280 Speaker 2: Apparently he took videos of these so called freakouts that 445 00:26:29,400 --> 00:26:33,879 Speaker 2: are very graphic, and the prosecution is going to introduce 446 00:26:34,000 --> 00:26:39,320 Speaker 2: them for the jury. How incriminating is just seeing a 447 00:26:39,400 --> 00:26:40,120 Speaker 2: scene like that? 448 00:26:40,680 --> 00:26:43,200 Speaker 4: Well, I think it is difficult for the defense because 449 00:26:43,200 --> 00:26:46,440 Speaker 4: what they're trying to do is soften his image. They 450 00:26:46,480 --> 00:26:49,560 Speaker 4: have spent some time already in their opening statements talking 451 00:26:49,600 --> 00:26:54,040 Speaker 4: about the rags to Rich's story, how Shancomb came from 452 00:26:54,080 --> 00:26:56,719 Speaker 4: a background where he had no money. He's a self 453 00:26:56,760 --> 00:27:00,400 Speaker 4: made man. He's become a major figure in the hip 454 00:27:00,400 --> 00:27:04,480 Speaker 4: hop industry and a major figure generally in the music industry, 455 00:27:04,520 --> 00:27:09,919 Speaker 4: responsible for making many people into major music stars. Up 456 00:27:10,000 --> 00:27:12,639 Speaker 4: until a lot of these allegations came out, he was 457 00:27:12,760 --> 00:27:16,159 Speaker 4: viewed as somebody who was really very much a role model. 458 00:27:16,320 --> 00:27:18,960 Speaker 4: But now you've got all of these allegations, and as 459 00:27:19,000 --> 00:27:23,320 Speaker 4: you say, they also now backed up with this video evidence, 460 00:27:23,600 --> 00:27:26,800 Speaker 4: which is really difficult for the defense to try to 461 00:27:26,880 --> 00:27:30,480 Speaker 4: square with the public persona that Seawan Colms has so 462 00:27:30,600 --> 00:27:35,960 Speaker 4: carefully cultivated over many, many years. The video is something 463 00:27:36,080 --> 00:27:39,879 Speaker 4: that is very difficult for the defense to try to 464 00:27:39,960 --> 00:27:43,560 Speaker 4: explain away. They're going to suggest that there were things 465 00:27:43,560 --> 00:27:46,159 Speaker 4: that happened before the video started. Typically they're going to 466 00:27:46,160 --> 00:27:48,560 Speaker 4: say things that happen after the video that is out 467 00:27:48,560 --> 00:27:50,800 Speaker 4: of context, that you don't get a real clear picture 468 00:27:51,040 --> 00:27:54,040 Speaker 4: as to exactly what was going on in the relationship. 469 00:27:54,280 --> 00:27:56,760 Speaker 4: But those images are the types of things that can 470 00:27:56,760 --> 00:27:59,320 Speaker 4: be steered into the minds of jurors and difficult for 471 00:27:59,400 --> 00:28:00,800 Speaker 4: defense Blowder to overcome. 472 00:28:01,520 --> 00:28:06,600 Speaker 2: So Cassie Ventura is on the stand and she's visibly pregnant. 473 00:28:07,240 --> 00:28:10,560 Speaker 2: How do you do a cross examination of someone like 474 00:28:10,640 --> 00:28:13,920 Speaker 2: Curry if you want to question her motives? For example, 475 00:28:14,119 --> 00:28:17,119 Speaker 2: why we're in criminal charges brought, why we're just civil 476 00:28:17,240 --> 00:28:20,120 Speaker 2: charges brought? Why did you stay with him for so long? 477 00:28:20,200 --> 00:28:23,480 Speaker 2: I mean, how difficult is that kind of cross examination? 478 00:28:24,480 --> 00:28:27,639 Speaker 4: Well, it's the situation that defense lawyers deals all the 479 00:28:27,720 --> 00:28:32,160 Speaker 4: time in crimes that involve rape or other sexual misconduct 480 00:28:32,160 --> 00:28:35,880 Speaker 4: where the victim takes the stand and the case largely turns, 481 00:28:35,960 --> 00:28:39,120 Speaker 4: as I think will in this case, on the credibility 482 00:28:39,160 --> 00:28:42,400 Speaker 4: of those witnesses. Jurors will be able to look the 483 00:28:42,480 --> 00:28:45,280 Speaker 4: witnesses in the eye in this case, Cassy Ventura being 484 00:28:45,480 --> 00:28:49,440 Speaker 4: the central witness and gauge her credibility as she tells 485 00:28:49,520 --> 00:28:53,160 Speaker 4: these stories, as he explains what was going on in 486 00:28:53,200 --> 00:28:57,280 Speaker 4: her mind as she felt that he was coerced into 487 00:28:57,320 --> 00:29:01,000 Speaker 4: performing the sex acts, and how she was the victim 488 00:29:01,280 --> 00:29:05,320 Speaker 4: of violent and defense lawyers have to tread carefully and 489 00:29:05,400 --> 00:29:10,040 Speaker 4: trying to discredit her, trying to show that he was 490 00:29:10,320 --> 00:29:13,760 Speaker 4: doing this consensually, that she could have left the relationship, 491 00:29:14,200 --> 00:29:17,960 Speaker 4: that she had a financial motive, that mister Combs was 492 00:29:18,080 --> 00:29:21,000 Speaker 4: making her career, which he did to some extent. He 493 00:29:21,040 --> 00:29:24,880 Speaker 4: did get her a lucrative record deal, and she ultimately 494 00:29:25,040 --> 00:29:28,320 Speaker 4: settled with him in her civil suit for a very 495 00:29:28,480 --> 00:29:30,840 Speaker 4: large sum of money. I believe it was disclosed as 496 00:29:31,360 --> 00:29:34,520 Speaker 4: an eight figure settlement. And they are going to try 497 00:29:34,520 --> 00:29:38,080 Speaker 4: to suggest that he and the other victims who testify 498 00:29:38,120 --> 00:29:42,440 Speaker 4: at this trial are really motivated about financial gains, and 499 00:29:42,520 --> 00:29:47,840 Speaker 4: that they are taking what was a consensual, albeit unorthodox relationship, 500 00:29:48,280 --> 00:29:52,160 Speaker 4: one which at one point the defense lawyers actually described 501 00:29:52,200 --> 00:29:57,000 Speaker 4: as mutually violent, trying to suggest that the alleged victims 502 00:29:57,000 --> 00:30:00,680 Speaker 4: here were as violent towards mister Colmbs as he was 503 00:30:00,760 --> 00:30:04,400 Speaker 4: to them, and suggest that this is really a private 504 00:30:04,560 --> 00:30:09,720 Speaker 4: matter between he and these former girlfriends and something that 505 00:30:09,760 --> 00:30:12,480 Speaker 4: does not rise to the level of criminal conduct. 506 00:30:13,360 --> 00:30:16,360 Speaker 2: If Shawn Combs took the stand, it would be a 507 00:30:16,560 --> 00:30:20,719 Speaker 2: difficult cross examination. He did take the stand in his 508 00:30:20,920 --> 00:30:24,440 Speaker 2: trial more than twenty years ago for firing a gun 509 00:30:24,440 --> 00:30:27,760 Speaker 2: in a Manhattan nightclub, and he was acquitted. Do you 510 00:30:27,800 --> 00:30:30,480 Speaker 2: think there is a chance that he might take the stand. 511 00:30:31,240 --> 00:30:35,360 Speaker 4: Well, there's always a temptation for defendants to want to 512 00:30:35,400 --> 00:30:38,600 Speaker 4: tell their side of the story because they sit there 513 00:30:38,640 --> 00:30:41,960 Speaker 4: throughout the trial and listen to their accusers and they 514 00:30:42,040 --> 00:30:45,080 Speaker 4: obviously have a very different take on what occurs. But 515 00:30:45,200 --> 00:30:48,520 Speaker 4: it is a very high risk move on the part 516 00:30:48,520 --> 00:30:51,040 Speaker 4: of a defense lawyer ever to put their client on 517 00:30:51,120 --> 00:30:54,480 Speaker 4: the stand, and in this case, we would see prosecutors 518 00:30:54,720 --> 00:30:58,880 Speaker 4: having an opportunity to essentially retry their entire case through 519 00:30:58,920 --> 00:31:02,239 Speaker 4: the cross examination of Sean Colms, and no doubt they 520 00:31:02,280 --> 00:31:06,000 Speaker 4: would take him through that elevator video from twenty sixteen, 521 00:31:06,560 --> 00:31:10,680 Speaker 4: frame by frame and pointing out every time he committed 522 00:31:10,720 --> 00:31:14,440 Speaker 4: an act of violence. And generally speaking, when a defendant 523 00:31:14,480 --> 00:31:16,959 Speaker 4: tries to take the stand in their own defense, it 524 00:31:17,000 --> 00:31:21,400 Speaker 4: doesn't end well for the defendant. But anything's possible here, 525 00:31:21,440 --> 00:31:24,400 Speaker 4: and ultimately it is the decision of the defendant, not 526 00:31:24,520 --> 00:31:26,719 Speaker 4: the lawyers, as to whether or not he will want 527 00:31:26,760 --> 00:31:29,760 Speaker 4: to testify on his own behalf. I think what we're 528 00:31:29,760 --> 00:31:33,640 Speaker 4: seeing so far, though, signals that the defense does not 529 00:31:33,760 --> 00:31:36,360 Speaker 4: intend to call him, and that they will build their 530 00:31:36,440 --> 00:31:41,120 Speaker 4: case largely by attacking the credibility of the alleged victims 531 00:31:41,560 --> 00:31:46,120 Speaker 4: and portraying the government as having overreached here, having tried 532 00:31:46,160 --> 00:31:50,400 Speaker 4: to tear down a successful businessman in order to try 533 00:31:50,480 --> 00:31:54,520 Speaker 4: to make a case against a major celebrity by suggesting 534 00:31:54,600 --> 00:31:58,920 Speaker 4: that his unorthodox lifestyle is actually a racket sharing enterprise. 535 00:32:00,120 --> 00:32:04,040 Speaker 2: The prosecutor who gave the opening statement is a woman. 536 00:32:04,600 --> 00:32:08,360 Speaker 2: Mark Agnifolo, well known as the defense attorney, but his 537 00:32:08,720 --> 00:32:15,520 Speaker 2: associate Tenny Garrigos did the opening statement. Introals like this, 538 00:32:15,680 --> 00:32:19,280 Speaker 2: where the victims are women. Do you think there's an 539 00:32:19,280 --> 00:32:21,320 Speaker 2: effort to have women attorneys. 540 00:32:21,960 --> 00:32:25,480 Speaker 4: I think in this case, we see two competing issues here. 541 00:32:25,600 --> 00:32:28,800 Speaker 4: There's a racial issue and there's a gender issue. You 542 00:32:28,920 --> 00:32:33,160 Speaker 4: have a very successful black entrepreneur, somebody who was successful 543 00:32:33,560 --> 00:32:36,720 Speaker 4: in the black music industry who's being attacked by the 544 00:32:36,760 --> 00:32:41,440 Speaker 4: government here with the serious allegations that if he is convicted, 545 00:32:41,760 --> 00:32:44,000 Speaker 4: could likely send him to prison for the rest of 546 00:32:44,040 --> 00:32:47,400 Speaker 4: his life. You also have a situation in which the 547 00:32:47,440 --> 00:32:53,080 Speaker 4: accusers are primarily female, and that's something that you often 548 00:32:53,120 --> 00:32:57,480 Speaker 4: see defense lawyers try to deal with by using female 549 00:32:57,560 --> 00:33:01,960 Speaker 4: lawyers so they're not seen as attacking the victims here. 550 00:33:02,200 --> 00:33:05,080 Speaker 4: But we will see I think both sides try to 551 00:33:05,120 --> 00:33:08,760 Speaker 4: deal with these two issues, both gender and race, throughout 552 00:33:08,800 --> 00:33:11,880 Speaker 4: the trial. And we already did see emotion by the 553 00:33:11,960 --> 00:33:18,520 Speaker 4: defense to try to strike some of the prosecutions jury decisions, 554 00:33:18,600 --> 00:33:23,840 Speaker 4: suggesting that they were striking African American jurors without a 555 00:33:23,920 --> 00:33:27,520 Speaker 4: valid basis. Ultimately, the judge denied that motion, but we've 556 00:33:27,560 --> 00:33:30,840 Speaker 4: already seen the issue of race being ejected into this trial, 557 00:33:31,160 --> 00:33:33,720 Speaker 4: and I think we'll see the defense continue to try 558 00:33:33,760 --> 00:33:35,840 Speaker 4: to do that in subtle ways throughout the course of 559 00:33:35,920 --> 00:33:36,320 Speaker 4: the trial. 560 00:33:36,760 --> 00:33:41,000 Speaker 2: Comb's family is in the courtroom, his six adult children, 561 00:33:41,160 --> 00:33:43,560 Speaker 2: his mother. Does a jury notice. 562 00:33:43,280 --> 00:33:46,440 Speaker 4: That, Yeah, I think they do. I think jurors notice 563 00:33:46,480 --> 00:33:49,720 Speaker 4: everything going on in the courtroom. You have to remember 564 00:33:49,760 --> 00:33:53,600 Speaker 4: that a trial really is very much a scripted event. 565 00:33:53,960 --> 00:33:57,680 Speaker 4: The prosecutors have their case scripted out. They've already spent 566 00:33:57,840 --> 00:34:00,880 Speaker 4: hours and hours prepping their witness is. They know what 567 00:34:00,920 --> 00:34:04,200 Speaker 4: they're going to ask them. The prosecution's goal is to 568 00:34:04,280 --> 00:34:07,960 Speaker 4: have the testimony go in exactly as planned. From the 569 00:34:08,040 --> 00:34:11,080 Speaker 4: defense side, it is a bit more of a crapshoot. 570 00:34:11,160 --> 00:34:14,239 Speaker 4: They try to attack the vulnerability in the witnesses. You 571 00:34:14,280 --> 00:34:16,120 Speaker 4: don't know what the witnesses are going to stay, and 572 00:34:16,160 --> 00:34:18,520 Speaker 4: so you have to kind of roll with the punches 573 00:34:18,600 --> 00:34:21,440 Speaker 4: during the trial. And you see a witness slip up 574 00:34:21,440 --> 00:34:23,799 Speaker 4: in a certain way, you may then begin a line 575 00:34:23,800 --> 00:34:26,640 Speaker 4: of questioning that you hadn't anticipated, but you have to 576 00:34:26,680 --> 00:34:29,279 Speaker 4: try to pick apart the credibility of that witness. But 577 00:34:29,480 --> 00:34:32,480 Speaker 4: jurors are watching all of that. They're watching the witnesses. 578 00:34:32,719 --> 00:34:36,160 Speaker 4: They're watching the reaction of the defendant himself, They're watching 579 00:34:36,160 --> 00:34:39,640 Speaker 4: the reaction of lawyers on both sides as the witnesses testify, 580 00:34:40,000 --> 00:34:43,040 Speaker 4: and they're also looking around the courtroom and seeing who's there, 581 00:34:43,239 --> 00:34:46,600 Speaker 4: and there's no question that the president of Shancomb's family 582 00:34:47,000 --> 00:34:50,120 Speaker 4: in the courtroom is meant to portray him as somebody 583 00:34:50,120 --> 00:34:53,479 Speaker 4: who has the support of his family despite these very 584 00:34:53,520 --> 00:34:57,759 Speaker 4: serious allegations, and to try to convey to yours that 585 00:34:57,880 --> 00:35:02,080 Speaker 4: his family supports him in what they believe are unfounded 586 00:35:02,200 --> 00:35:06,200 Speaker 4: charges against their son, against their father, against their brother. 587 00:35:06,680 --> 00:35:10,480 Speaker 2: Thanks so much, Bob. That's former federal prosecutor Robert Mintz, 588 00:35:10,600 --> 00:35:13,239 Speaker 2: a partner at McCarter and English. And that's it for 589 00:35:13,239 --> 00:35:15,880 Speaker 2: this edition of The Bloomberg Law Show. Remember you can 590 00:35:15,920 --> 00:35:19,160 Speaker 2: always get the latest legal news on our Bloomberg Law Podcast. 591 00:35:19,440 --> 00:35:22,480 Speaker 2: You can find them on Apple Podcasts, Spotify, and at 592 00:35:22,640 --> 00:35:27,640 Speaker 2: www dot Bloomberg dot com, slash podcast, Slash Law, and 593 00:35:27,719 --> 00:35:30,799 Speaker 2: remember to tune into The Bloomberg Law Show every weeknight 594 00:35:30,880 --> 00:35:34,319 Speaker 2: at ten pm Wall Street Time. I'm June Grosso, and 595 00:35:34,400 --> 00:35:35,840 Speaker 2: you're listening to Bloomberg