Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2: The writ of habeas corpus is a bedrock American legal
Speaker 2: right embedded in the Constitution. Yet White House Deputy Chief
Speaker 2: of Staff Stephen Miller said the administration has been actively
Speaker 2: looking at suspending habeas corpus unilaterally.
Speaker 1: Well, the Constitution is clear, and that, of course is
Speaker 1: the supreme law of the land that the privilege of
Speaker 1: the writ of habeas corpus can be suspended in a
Speaker 1: time of invasion. Sold say, that's an option we're actively
Speaker 1: looking at. Look, A lot of it depends on whether
Speaker 1: the court do the right thing or not.
Speaker 2: Habeas corpus has been suspended only four times in our history,
Speaker 2: basically for reasons of war and insurrection. My guest is
Speaker 2: an expert in constitutional law. Jonathan Adler, a professor at
Speaker 2: Case Western Reserve Law School, tell us about the history
Speaker 2: of the writ of habeas corpus.
Speaker 3: So, the rit of habeas corpus traces its way back
Speaker 3: to the Magna carta. Literally, habeas corpus is a declaration
Speaker 3: that you have the body. The idea is that you're
Speaker 3: challenging the alleged unlawful detention of someone by the government.
Speaker 4: The writ of.
Speaker 3: Habeas corpus has been recognized going back to the seventeenth
Speaker 3: century as a way of challenging in England, at least
Speaker 3: the king's right to incarcerate people, and in the United States,
Speaker 3: the rid of habeas corpus is a way to challenge
Speaker 3: either a conviction or the government's detention of an individual
Speaker 3: on the grounds that it is not consistent with law.
Speaker 3: So in the case of a conviction, we see rits
Speaker 3: of habeas corpus filed by people who have been convicted
Speaker 3: of crimes, often people who have been sentenced to capital punishment,
Speaker 3: challenging the regularity or of the lawfulness of the proceedings
Speaker 3: through which they are convicted. And then the writ of
Speaker 3: habeas corpus can be filed in cases where, for example,
Speaker 3: someone is alleging that the basis upon which they have
Speaker 3: been detained or arrested is unlawful. So we've seen this
Speaker 3: with alleged enemy imbats, and we're seeing it now with
Speaker 3: individuals who are alleged to be unlawfully present in the
Speaker 3: country or potentially subject to deportation.
Speaker 2: The section of the US Constitution that includes the suspension
Speaker 2: of habeas corpus grants its powers to Congress and not
Speaker 2: the President.
Speaker 3: Well, that is the way we've generally interpreted what we
Speaker 3: call the suspension clause. So Article one, section nine, which
Speaker 3: a portion of the Constitution that identifies limits on Congress's power,
Speaker 3: has a clause that we refer to as the suspension clause,
Speaker 3: and it reads, the privilege of the writ of habeas
Speaker 3: corpus shall not be suspended unless, when in cases of
Speaker 3: rebellion or invasion, the public safety may require it. And
Speaker 3: given that it is in Article one, section nine, it
Speaker 3: has always been interpreted as placing limitation on Congress's ability
Speaker 3: to suspend the rit of habeas corpus, and that interpretation
Speaker 3: goes back all the way to eighteen oh seven. Is
Speaker 3: the first time Supreme Court, in an opinion by Chiechoss Marshall,
Speaker 3: indicated the understanding this is Congress's authority to decide that
Speaker 3: habeas corpus can be suspended. And historically, with one exception,
Speaker 3: when the writ of habeas corpus has been suspended, it
Speaker 3: has either been suspended by Congress or Congress has delegated
Speaker 3: to the President the authority to.
Speaker 5: Suspend the writ in specified circumstances that interpretation of the
Speaker 5: habeas corpus clause has been affirmed in Supreme Court opinions
Speaker 5: in modern times.
Speaker 2: Yes.
Speaker 4: So.
Speaker 3: For example, in the case of Hamdi, which was a
Speaker 3: case involving an individual and American citizen who was allegedly
Speaker 3: captured in Afghanistan as a fighter with the Taliban. He
Speaker 3: was brought to the United States and he filed a
Speaker 3: petition for rid of habeas corpus. The question was whether
Speaker 3: or not he could be detained in the United States
Speaker 3: without being subject to trial. And if one goes through
Speaker 3: the opinions in that case, while Justice has disagreed on
Speaker 3: a lot of questions about what sort of process mister
Speaker 3: Hamdy was and what other constitutional protections he deserved, all
Speaker 3: of the opinions operated on the premise that if the
Speaker 3: writ of habeas corpus was to be suspended, it had
Speaker 3: to be done so pursuant to an Act of Congress.
Speaker 3: Subsequent to that in a case called Buma Dien, also
Speaker 3: involving alleged enemy combatants, on the majority opinion of the
Speaker 3: Supreme Court in that case made clear that this is
Speaker 3: a check on executive power, that the rit of heabeas
Speaker 3: Corpus often in this sort of context serves as a
Speaker 3: check on executive power, and it obviously could not serve
Speaker 3: that function if the executive branch could unilaterally just decide
Speaker 3: to suspend it.
Speaker 2: So, if the Trump administration actually did decide to suspend
Speaker 2: habeas corpus unilaterally, would that definitely constitute a constitutional crisis.
Speaker 3: Well, two things. First, I think when one looks at
Speaker 3: Miller's comments, I think he was perhaps being very careful.
Speaker 3: He said they were looking at the option of the
Speaker 3: privilege of the writ of habeas corpus being suspended. He
Speaker 3: did not think whether the executive branch was going to
Speaker 3: try and do that unilaterally, or whether they were going
Speaker 3: to ask Congress to do it. My own view is
Speaker 3: they can look at it all they want, because if
Speaker 3: they do look at it, they'll realize that they do
Speaker 3: not have the authority to do it unilaterally. The one
Speaker 3: time the executive branch did suspend the Writ of habeas
Speaker 3: corpus unilaterally was during the Civil War, when President Lincoln
Speaker 3: suspended the writ in Baltimore out of a concern that
Speaker 3: rail lines to the nation's capital would be severed or
Speaker 3: blocked and that would lead to the fall of Washington,
Speaker 3: d C. To Confederate forces, and even that in such
Speaker 3: an extreme circumstance, when the nation was in civil war,
Speaker 3: when there were hostile troops threatening the nation's capital, even
Speaker 3: that was recognized as an extreme action. It's one that
Speaker 3: Congress later ratified, but most people except was not consistent
Speaker 3: with the constitution structure. So if the administration were to
Speaker 3: try to suspend the Writ of Habeas corpus, I'm not
Speaker 3: particularly doubtful that courts would conclude that that was unlawful,
Speaker 3: that the administration lacks that authority, and I think they
Speaker 3: would primarily do so on the grounds that it's just
Speaker 3: not something the executive branch can do within US territory
Speaker 3: during peacetime, etc. That there's no question that the executive
Speaker 3: branch does not have that sort of unilateral authority. The
Speaker 3: more interesting thought experiment would be what if the administration
Speaker 3: could convince Congress to suspend the writ. And as I
Speaker 3: noted before, the language of the suspension clause refers to
Speaker 3: the reasons why the writ could be suspended. It says
Speaker 3: that it shall not be suspended unless win in cases
Speaker 3: of rebellion or invasion, And so hypothetically, if the administration
Speaker 3: were to convince Congress that illegal immigration is such that
Speaker 3: it constitutes an invasion, and Congress were to suspend the WRIT,
Speaker 3: there is an interesting question about whether or not that
Speaker 3: judgment by Congress would be subject to judicial review. That
Speaker 3: prevailing wisdom is that whether or not Article one, Section
Speaker 3: nine requirements have been met would be a non justiciable
Speaker 3: political question. But that's really just a thought experiment, because
Speaker 3: that would require Congress passing legislation to suspend the WRIT,
Speaker 3: and you know, it's pretty clear with the margins in
Speaker 3: Congress right now, that's not something that is even remotely likely.
Speaker 2: The grounds that they referred to for suspending the WRIT
Speaker 2: are the same grounds basically that they referred to for
Speaker 2: invoking the Alien Enemies Act, and at least four federal
Speaker 2: judges have found that America isn't facing an invasion by
Speaker 2: undocumented migrants. But the Supreme Court did allow the Trump
Speaker 2: administration to continue invoking that Alien Enemies Act as long
Speaker 2: as they gave due process to the immigrants.
Speaker 3: Right, so the Trump administration is being required to allow
Speaker 3: individuals attained to file a petitions for Brits of abas Corpus,
Speaker 3: and I expect that would continue. I mean, in the
Speaker 3: background here, there is this long standing notion that certain
Speaker 3: questions relating to national security, perhaps even some relating to
Speaker 3: the border, are what we refer to as political questions,
Speaker 3: questions that are resolved by the political branches, not by courts.
Speaker 3: And in so far as these questions touch on that,
Speaker 3: the role that courts have played is to make sure
Speaker 3: that the legislature and the executive branch each perform their
Speaker 3: respective functions, but to not second guess their determinations. So,
Speaker 3: if Congress were to conclude that waves of illegal immigration
Speaker 3: are at least potentially in an invasion for purposes of
Speaker 3: the suspension clause, I suspect courts would allow that to stand,
Speaker 3: not because they would be saying Congress is correct, but
Speaker 3: because they would be saying the courts don't get to
Speaker 3: second guess that. Now, having said all that, I don't
Speaker 3: think there is any question as a historical matter, that immigration,
Speaker 3: even at far higher rates than we see now, would
Speaker 3: not constitute an invasion for purposes of that clause. The
Speaker 3: language of the suspension clause is invoking the idea that
Speaker 3: there are certain situations, such as rebellion or an invasion
Speaker 3: by an invading army that create a situation in which,
Speaker 3: in effect, the courts are not open. So the idea
Speaker 3: has been that if martial law, for example, is declared,
Speaker 3: that effectively tells the courts to stop operations. The rid
Speaker 3: of habeas corpus, when it is suspended by the legislature,
Speaker 3: that's typically because it's not safe or possible for the
Speaker 3: courts to engage in their normal functioning. That is the
Speaker 3: sort of invasion that Article one, section nine contemplates, not
Speaker 3: higher numbers of people crossing the border than perhaps Congress
Speaker 3: might like. So I don't think there's any question that
Speaker 3: as a textual matter or as a historical matter, that
Speaker 3: the clause would not be satisfied. But there is this
Speaker 3: question about whether or not it's something that courts can
Speaker 3: properly issue a decision on, as opposed to leaving it
Speaker 3: to the interplay between the executive and the legislature.
Speaker 2: Are the principles of habeas corpus and due process intertwined?
Speaker 3: Yeah, so the rid of baby's corpus is processed that
Speaker 3: someone might be due So when we think about due
Speaker 3: process and the fact that the Constitution, in both the
Speaker 3: fifth and fourteenth Amendments says that people cannot be deprived
Speaker 3: of their life, liberty, or property without due processes of law.
Speaker 3: Is in booking the idea that there is process that
Speaker 3: one is entitled to, the process that one is due
Speaker 3: before the government can subject you to one of these
Speaker 3: sorts of deprivations. And the way that has been understood
Speaker 3: throughout American history is that the degree of process that
Speaker 3: is required, the degree of process that you are due,
Speaker 3: is dependent upon the context, and in particular it's dependent
Speaker 3: upon of what's at risk for you, what the government's
Speaker 3: interest is, you know, the thing the government is trying
Speaker 3: to achieve, and then the extent to which process can
Speaker 3: safeguard against the government making a mistake, so the government
Speaker 3: erroneously concluding that someone's not a citizen, or not entitled
Speaker 3: to remain in the country, or not properly convicted. So
Speaker 3: the rid of habeas corpus is part of the process
Speaker 3: that someone might be due if they are going to
Speaker 3: be deprived of life, liberty, or property. And so the
Speaker 3: Supreme Court has indicated thus far is that it believed,
Speaker 3: even in the context of invoking something like the Alien
Speaker 3: Enemies Act, that even individuals who are not citizens, even
Speaker 3: individuals who may have entered the country unlawfully or may
Speaker 3: have overstated visa. They're still entitled to file a rid
Speaker 3: of habeas corpus as part of the due process that
Speaker 3: they are entitled to before certain things can be done
Speaker 3: to them, such as being detained and forcibly removed from
Speaker 3: the country.
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
Speaker 2: this conversation with Professor Jonathan Adler. Was there a veiled
Speaker 2: threat to judges in Stephen Miller's comments? This is Bloomberg.
Speaker 2: The Trump administration has often challenged the decision making of
Speaker 2: federal judges, and White House Deputy Chief of Staff Stephen Miller,
Speaker 2: in discussing the administration possibly suspending the rid of habeas
Speaker 2: corpus unilaterally, said, the decision depends a lot on whether
Speaker 2: the courts quote do the right thing or not.
Speaker 1: If the courts aren't just at war with the executive branch,
Speaker 1: the courts are at war these radical road judges with
Speaker 1: the legislative branch as well too, So all of that
Speaker 1: will inform the choice that the president ultimately makes.
Speaker 2: Habeas corpus has only been suspended four times in our
Speaker 2: nation's history. I've been talking to Professor Jonathan Adler of
Speaker 2: Case Western Reserve Law School. Miller was talking about suspending
Speaker 2: Habeas corpus in the context of undocumented migrants. But could
Speaker 2: the Trump administration, if it decides to try to suspend
Speaker 2: habeas corpse is just suspended for a small segment of
Speaker 2: the population, or would it apply to the whole population,
Speaker 2: so all Americans habeas corpus rights would be suspended.
Speaker 3: Well, it depends. I mean, there have been contacts in
Speaker 3: the past where the WRIT has been suspended in particular areas,
Speaker 3: but not everywhere. So Franklin o' world's are suspended in Hawaii,
Speaker 3: for example, pursuant to a delegation of that authority from Congress.
Speaker 3: So there is historical precedent for confining, certainly geographically, the
Speaker 3: suspension of the WRIT. I'm not aware of a suspension
Speaker 3: of the WRIT that tried to suspend it for categories
Speaker 3: of people. And part of the problem there would be
Speaker 3: is how would you know who you're suspending the WRIT
Speaker 3: for if you're not maintaining a process for them to
Speaker 3: be able to challenge that. This is a similar sort
Speaker 3: of issue that has been coming up in some of
Speaker 3: these deportation cases where the administration has maintained. Steven Miller
Speaker 3: has said, oh, illegal immigrants aren't entitled to due process,
Speaker 3: And the fundamental reason why that's wrong is that someone
Speaker 3: who's alleged to be an illegal immigrant or someone who's
Speaker 3: alleged to be subject to deportation is entitled to due process,
Speaker 3: just as someone who's alleged to be a criminal is
Speaker 3: entitled to do process. To say that someone is an
Speaker 3: illegal immigrant or so it's deportation is to assume that
Speaker 3: which process is guaranteed to determine in the first place.
Speaker 3: And so if the administration, again with or without Congress,
Speaker 3: were to try to suspend the writ of habeas corpus
Speaker 3: just for specified individuals, we would still have this problem
Speaker 3: of how do we know it's being properly applied to
Speaker 3: the right People with geographically based suspensions less less of
Speaker 3: a problem because you're applying that rule or not allowing
Speaker 3: the filing of the writ in a particular area. Those
Speaker 3: boundaries are much easier to determine than knowing whether or
Speaker 3: not the person who been accused of something is in
Speaker 3: fact what they've been accused of.
Speaker 2: In two recent cases where foreign students were held in detention,
Speaker 2: they filed habeas corpus petitions, and two federal judges have
Speaker 2: released them pending more proceedings. But in general, is it
Speaker 2: difficult for defendants to get the relief they want through
Speaker 2: habeas corpus petitions.
Speaker 3: As a general matter, the rid of habeas corpus is
Speaker 3: often a long shot. I mean certainly when we look
Speaker 3: at petitions for habeas corpus filed domestically by individuals who
Speaker 3: have been convicted of crimes in the United States. These
Speaker 3: petitions are typically filed to challenge convictions in state courts
Speaker 3: or to challenge the sentences that state courts have imposed.
Speaker 3: So quite commonly individuals who have been sentenced to death
Speaker 3: file petitions for a rid of habeas corpus, and in
Speaker 3: that context, unless you can identify a very serious procedural irregularity,
Speaker 3: those petitions are are very difficult to prevail. So the
Speaker 3: Supreme Court is usually fairly stingy in granting rits of
Speaker 3: habeas corpus in those contexts. And that's largely because of
Speaker 3: a law enacted during the Clint administration called EDPA, the
Speaker 3: Anti Terrorism and Effective Death Penalty Act, which was designed
Speaker 3: to curtail the use of habeas petitions to challenge convictions
Speaker 3: in state court in these sorts of cases that we're
Speaker 3: seeing now, I think one of the reasons why we're
Speaker 3: seeing some of these petitions be successful is because you
Speaker 3: have individuals who are basically being given no process or
Speaker 3: virtually no process at all. And so whereas when prisoners
Speaker 3: are challenging state court convictions, they're challenging convictions where someone
Speaker 3: has had a trial, where they've had appeals, where something
Speaker 3: has typically gone up to the highest court within that state,
Speaker 3: and so there's been a lot of process and trying
Speaker 3: to identify particular deficiencies in that process really hard to
Speaker 3: do with a pission for a rit of habeas corpus.
Speaker 3: But when you're talking about individuals like Stata Scrat student
Speaker 3: from Tuffs who had been detained, who was given virtually
Speaker 3: no process at all, well, then the argument for a
Speaker 3: petition is much stronger because while we can debate about
Speaker 3: how much process someone should get or what the burdens
Speaker 3: of proof should be, the administration has acted very aggressively
Speaker 3: in some of these cases and tried to deny people
Speaker 3: for really any effective process at all. And so in
Speaker 3: that posture, I think it's easier for courts to grant
Speaker 3: these sorts of petitions.
Speaker 2: Did you hear a subtle threat to judges in Miller's comments?
Speaker 2: He described the judges here as a handful of Marxist
Speaker 2: judges carrying out a judicial coup, and that the administration's
Speaker 2: decision whether or not to suspend habeas corpus unilaterally depends
Speaker 2: a lot on whether the courts do the right thing
Speaker 2: or not.
Speaker 5: Yeah.
Speaker 3: So, I mean, you know, Steve Miller's not a lawyer,
Speaker 3: but he is someone that often speaks about legal issues
Speaker 3: for the administration and often says things that aren't quite
Speaker 3: right as a legal matter. But I think do Act
Speaker 3: goes the message that the administration wants to send, particularly
Speaker 3: to its base. I think in this sort of context,
Speaker 3: there is this implicit threat, or this very adversarial posture
Speaker 3: to the courts, a suggestion that of courts don't cooperate,
Speaker 3: or if the courts obstruct the administration's agenda, the administration
Speaker 3: will look for ways to push back in an extreme way,
Speaker 3: and this certainly could be one of them. Now, I'm
Speaker 3: not entirely sure this is an effective strategy for the administration.
Speaker 3: I mean, certainly, I can't imagine lawyers who work in
Speaker 3: the administration making these sorts of comments publicly, certainly not
Speaker 3: the lawyers that have to themselves appear in court. And
Speaker 3: it's not clear to me that these sorts of comments
Speaker 3: are helpful, and I doubt they do much to change
Speaker 3: the way judges evaluate these sorts of claims. In fact,
Speaker 3: in some cases, they might even undermine the administration's position
Speaker 3: insofar as they suggest the administration is not dotting its
Speaker 3: size and crossing its piece on legal questions. But I
Speaker 3: think it's also possible that Steven Miller is, since he's
Speaker 3: primarily a political advisor, is speaking politically and speaking to
Speaker 3: the base more than he is detailing what the administration's
Speaker 3: actual legal position is.
Speaker 2: Sort of in the category of he's not a lawyer,
Speaker 2: but he plays one on TV.
Speaker 3: Steven Miller can be relied upon to offer pugilistic spin
Speaker 3: on legal questions on the administration's losses in court, and
Speaker 3: he can he presents a very aggressive posture that certainly
Speaker 3: the administration's lawyers would not take in either of their
Speaker 3: filings or in actual arguments. But I think it's also
Speaker 3: important to recognize that he's not speaking as a lawyer.
Speaker 3: Often gets the law wrong, and we can often find
Speaker 3: meaningful differences between the things he says to the television
Speaker 3: cameras or on Twitter and the things that government attorneys
Speaker 3: actually are willing to put into legal filings.
Speaker 2: Well, we'll see if the administration brings this suspension of
Speaker 2: habeas corpus up began, or it's dropped. Thanks so much
Speaker 2: for joining me on the show, Jonathan. That's Professor Jonathan
Speaker 2: Alder of Case Western Reserve Law School. It's day two
Speaker 2: of the trial of Sean Diddy Combs, whose charge with racketeering, conspiracy,
Speaker 2: sex trafficking, and transportation to engage in prostitution. During opening statements,
Speaker 2: prosecutors portrayed Combs as an abusive kingpin who used violence, threats, drugs,
Speaker 2: and money to coerce two women into drug fueled days
Speaker 2: long sex parties with prostitutes, while the defense described him
Speaker 2: as a Harlem born success story with a tumultuous love
Speaker 2: life who could get angry or even violent, but that
Speaker 2: the violent moments didn't amount to the charges the government
Speaker 2: has accused him of. The prosecution's star witness, Combe's former girlfriend,
Speaker 2: Cassie Ventura, took the stand today. My guest is former
Speaker 2: federal prosecutor Robert Mintz. A partner at Macarter and English,
Speaker 2: Bob tell us about the charges.
Speaker 4: He essentially, what the government has a leg here is
Speaker 4: that mister Combs was involved in sex trafficking three women
Speaker 4: and exercising control over their lives through violence, with financial
Speaker 4: payments and by supplying them with drugs. Some of the
Speaker 4: incidents prosecutors specifically referred to or something called freakofs, which
Speaker 4: according to prosecutors, were these elaborate drug fueled sex marathons
Speaker 4: that could last for days, and that was one of
Speaker 4: the means by which, according to prosecutors, he exercised control
Speaker 4: over the women who he was sex trafficking for all
Speaker 4: those years. What's interesting here is that these charges go
Speaker 4: back twenty years. They're saying that mister Combs maintained what's
Speaker 4: called a criminal enterprise. A rico racketeering charge was included
Speaker 4: in these charges in which they say that mister Combs
Speaker 4: used his entourage basically his various employees including security guards,
Speaker 4: personal assistance, household staff and other supervisors to enable him
Speaker 4: with this leg sex trafficking to cover it up.
Speaker 2: The criminal enterprise part of this is that a stretch
Speaker 2: for the prosecution to make this into a criminal enterprise.
Speaker 4: Well, that is interesting here because the government has a
Speaker 4: leg that this criminal enterprise has been conducted over the
Speaker 4: course of twenty years, from two thousand and four to
Speaker 4: twenty twenty four, and that part of the acts that
Speaker 4: were carried out as part of that enterprise included arson, kidnapping,
Speaker 4: forced labor, bribery, obstruction of justice, and drug violations. But
Speaker 4: the RICO laws, this racketeering law, which was created in
Speaker 4: north to battle organized crime, has now more recently been
Speaker 4: used by federal prosecutors to go after popular figures in
Speaker 4: the entertainment industry. One example of that was a case
Speaker 4: in twenty twenty one when there was a federal trial
Speaker 4: against R and B singer RCA. Kelly and mister Kelly
Speaker 4: there was convicted of the sexual exploitation of a child,
Speaker 4: including bribery, racketeering, and sex trafficking involving five victims. So
Speaker 4: that was a case in which a racketeering enterprise was
Speaker 4: also alleged against the celebrity and it was used to
Speaker 4: successfully prosecute him and he is now serving a thirty
Speaker 4: one year sentence in federal prison. So we're seeing this
Speaker 4: more and more, but I think we will see the
Speaker 4: defense hamber away at that because their scheme here is
Speaker 4: that what the government is trying to do is to
Speaker 4: criminalize conduct that was essentially consensual, and they are arguing
Speaker 4: that the government here has overreached, that they have reached
Speaker 4: into the private lives of their client, a client who
Speaker 4: they acknowledged as flawed, whose practices were unorthodox, who had
Speaker 4: a violent temper, and who they admit committed domestic violence.
Speaker 4: But in the end they argue that he was not
Speaker 4: involved with sex trafficking and should not have been charged
Speaker 4: with these crimes.
Speaker 2: That's a hard distinction for a jury to make, you know,
Speaker 2: he's guilty of domestic violence.
Speaker 4: But well, I think this is the case that really
Speaker 4: comes down to several things, one of which the central
Speaker 4: theme here is consent versus coercion. And this is where
Speaker 4: it gets very murky, because the heart of the government's
Speaker 4: case is the testimony of the women who were allegedly
Speaker 4: the subject of his violent acts, but who stayed in
Speaker 4: relationships with him for many years. And so you have
Speaker 4: that sort of trapped personality which has now become fairly
Speaker 4: popular in terms of prosecutions, where women are trapped in
Speaker 4: these domestic violence situations and they don't leave, and ultimately,
Speaker 4: the defense is always that they were free to leave
Speaker 4: and that this relationship, while it may have been an orthodox,
Speaker 4: was ultimately consensual. The defense here has argued that this
Speaker 4: case is really about love, jealousy, and infidelity. With the
Speaker 4: highly volatile relationship they acknowledge. They acknowledged that they're went
Speaker 4: over the top and sometimes acted out violently, which was inappropriate.
Speaker 4: But again they're attacking the government for trying to turn
Speaker 4: what was a heated sexual relationship that was consensual into
Speaker 4: a racketuring enterprise.
Speaker 2: The prosecution has shown the jury a video that a
Speaker 2: lot of people probably have already seen where Colmbs is
Speaker 2: beating up Cassie Ventura at a Los Angeles hotel. That's
Speaker 2: going to be a key piece of prosecution evidence, even
Speaker 2: though it doesn't go to the racketeering or trafficking charges.
Speaker 4: Yeah, that will be a central piece of evidence for prosecutors.
Speaker 4: The defense tried to keep that video evidence out of
Speaker 4: the case, and the judge ruled that it was admissible.
Speaker 4: And it does go back to this twenty sixteen incident
Speaker 4: at a hotel in California where mister Colmbs is allegedly
Speaker 4: seen beating his then girlfriend, Cassie Ventura, dragging her by
Speaker 4: the hair. Ultimately, several years later, he brought a civil
Speaker 4: suit against him, using that video as a key piece
Speaker 4: of evidence in her civil lawsuits. That case was settled
Speaker 4: within one day, but prosecutors picked up on the civil
Speaker 4: lawsuits and ultimately brought these federal criminal charges against him,
Speaker 4: which mirror to a large extent the allegations in the
Speaker 4: civil lawsuits filed by Cassie Ventura.
Speaker 2: Apparently he took videos of these so called freakouts that
Speaker 2: are very graphic, and the prosecution is going to introduce
Speaker 2: them for the jury. How incriminating is just seeing a
Speaker 2: scene like that?
Speaker 4: Well, I think it is difficult for the defense because
Speaker 4: what they're trying to do is soften his image. They
Speaker 4: have spent some time already in their opening statements talking
Speaker 4: about the rags to Rich's story, how Shancomb came from
Speaker 4: a background where he had no money. He's a self
Speaker 4: made man. He's become a major figure in the hip
Speaker 4: hop industry and a major figure generally in the music industry,
Speaker 4: responsible for making many people into major music stars. Up
Speaker 4: until a lot of these allegations came out, he was
Speaker 4: viewed as somebody who was really very much a role model.
Speaker 4: But now you've got all of these allegations, and as
Speaker 4: you say, they also now backed up with this video evidence,
Speaker 4: which is really difficult for the defense to try to
Speaker 4: square with the public persona that Seawan Colms has so
Speaker 4: carefully cultivated over many, many years. The video is something
Speaker 4: that is very difficult for the defense to try to
Speaker 4: explain away. They're going to suggest that there were things
Speaker 4: that happened before the video started. Typically they're going to
Speaker 4: say things that happen after the video that is out
Speaker 4: of context, that you don't get a real clear picture
Speaker 4: as to exactly what was going on in the relationship.
Speaker 4: But those images are the types of things that can
Speaker 4: be steered into the minds of jurors and difficult for
Speaker 4: defense Blowder to overcome.
Speaker 2: So Cassie Ventura is on the stand and she's visibly pregnant.
Speaker 2: How do you do a cross examination of someone like
Speaker 2: Curry if you want to question her motives? For example,
Speaker 2: why we're in criminal charges brought, why we're just civil
Speaker 2: charges brought? Why did you stay with him for so long?
Speaker 2: I mean, how difficult is that kind of cross examination?
Speaker 4: Well, it's the situation that defense lawyers deals all the
Speaker 4: time in crimes that involve rape or other sexual misconduct
Speaker 4: where the victim takes the stand and the case largely turns,
Speaker 4: as I think will in this case, on the credibility
Speaker 4: of those witnesses. Jurors will be able to look the
Speaker 4: witnesses in the eye in this case, Cassy Ventura being
Speaker 4: the central witness and gauge her credibility as she tells
Speaker 4: these stories, as he explains what was going on in
Speaker 4: her mind as she felt that he was coerced into
Speaker 4: performing the sex acts, and how she was the victim
Speaker 4: of violent and defense lawyers have to tread carefully and
Speaker 4: trying to discredit her, trying to show that he was
Speaker 4: doing this consensually, that she could have left the relationship,
Speaker 4: that she had a financial motive, that mister Combs was
Speaker 4: making her career, which he did to some extent. He
Speaker 4: did get her a lucrative record deal, and she ultimately
Speaker 4: settled with him in her civil suit for a very
Speaker 4: large sum of money. I believe it was disclosed as
Speaker 4: an eight figure settlement. And they are going to try
Speaker 4: to suggest that he and the other victims who testify
Speaker 4: at this trial are really motivated about financial gains, and
Speaker 4: that they are taking what was a consensual, albeit unorthodox relationship,
Speaker 4: one which at one point the defense lawyers actually described
Speaker 4: as mutually violent, trying to suggest that the alleged victims
Speaker 4: here were as violent towards mister Colmbs as he was
Speaker 4: to them, and suggest that this is really a private
Speaker 4: matter between he and these former girlfriends and something that
Speaker 4: does not rise to the level of criminal conduct.
Speaker 2: If Shawn Combs took the stand, it would be a
Speaker 2: difficult cross examination. He did take the stand in his
Speaker 2: trial more than twenty years ago for firing a gun
Speaker 2: in a Manhattan nightclub, and he was acquitted. Do you
Speaker 2: think there is a chance that he might take the stand.
Speaker 4: Well, there's always a temptation for defendants to want to
Speaker 4: tell their side of the story because they sit there
Speaker 4: throughout the trial and listen to their accusers and they
Speaker 4: obviously have a very different take on what occurs. But
Speaker 4: it is a very high risk move on the part
Speaker 4: of a defense lawyer ever to put their client on
Speaker 4: the stand, and in this case, we would see prosecutors
Speaker 4: having an opportunity to essentially retry their entire case through
Speaker 4: the cross examination of Sean Colms, and no doubt they
Speaker 4: would take him through that elevator video from twenty sixteen,
Speaker 4: frame by frame and pointing out every time he committed
Speaker 4: an act of violence. And generally speaking, when a defendant
Speaker 4: tries to take the stand in their own defense, it
Speaker 4: doesn't end well for the defendant. But anything's possible here,
Speaker 4: and ultimately it is the decision of the defendant, not
Speaker 4: the lawyers, as to whether or not he will want
Speaker 4: to testify on his own behalf. I think what we're
Speaker 4: seeing so far, though, signals that the defense does not
Speaker 4: intend to call him, and that they will build their
Speaker 4: case largely by attacking the credibility of the alleged victims
Speaker 4: and portraying the government as having overreached here, having tried
Speaker 4: to tear down a successful businessman in order to try
Speaker 4: to make a case against a major celebrity by suggesting
Speaker 4: that his unorthodox lifestyle is actually a racket sharing enterprise.
Speaker 2: The prosecutor who gave the opening statement is a woman.
Speaker 2: Mark Agnifolo, well known as the defense attorney, but his
Speaker 2: associate Tenny Garrigos did the opening statement. Introals like this,
Speaker 2: where the victims are women. Do you think there's an
Speaker 2: effort to have women attorneys.
Speaker 4: I think in this case, we see two competing issues here.
Speaker 4: There's a racial issue and there's a gender issue. You
Speaker 4: have a very successful black entrepreneur, somebody who was successful
Speaker 4: in the black music industry who's being attacked by the
Speaker 4: government here with the serious allegations that if he is convicted,
Speaker 4: could likely send him to prison for the rest of
Speaker 4: his life. You also have a situation in which the
Speaker 4: accusers are primarily female, and that's something that you often
Speaker 4: see defense lawyers try to deal with by using female
Speaker 4: lawyers so they're not seen as attacking the victims here.
Speaker 4: But we will see I think both sides try to
Speaker 4: deal with these two issues, both gender and race, throughout
Speaker 4: the trial. And we already did see emotion by the
Speaker 4: defense to try to strike some of the prosecutions jury decisions,
Speaker 4: suggesting that they were striking African American jurors without a
Speaker 4: valid basis. Ultimately, the judge denied that motion, but we've
Speaker 4: already seen the issue of race being ejected into this trial,
Speaker 4: and I think we'll see the defense continue to try
Speaker 4: to do that in subtle ways throughout the course of
Speaker 4: the trial.
Speaker 2: Comb's family is in the courtroom, his six adult children,
Speaker 2: his mother. Does a jury notice.
Speaker 4: That, Yeah, I think they do. I think jurors notice
Speaker 4: everything going on in the courtroom. You have to remember
Speaker 4: that a trial really is very much a scripted event.
Speaker 4: The prosecutors have their case scripted out. They've already spent
Speaker 4: hours and hours prepping their witness is. They know what
Speaker 4: they're going to ask them. The prosecution's goal is to
Speaker 4: have the testimony go in exactly as planned. From the
Speaker 4: defense side, it is a bit more of a crapshoot.
Speaker 4: They try to attack the vulnerability in the witnesses. You
Speaker 4: don't know what the witnesses are going to stay, and
Speaker 4: so you have to kind of roll with the punches
Speaker 4: during the trial. And you see a witness slip up
Speaker 4: in a certain way, you may then begin a line
Speaker 4: of questioning that you hadn't anticipated, but you have to
Speaker 4: try to pick apart the credibility of that witness. But
Speaker 4: jurors are watching all of that. They're watching the witnesses.
Speaker 4: They're watching the reaction of the defendant himself, They're watching
Speaker 4: the reaction of lawyers on both sides as the witnesses testify,
Speaker 4: and they're also looking around the courtroom and seeing who's there,
Speaker 4: and there's no question that the president of Shancomb's family
Speaker 4: in the courtroom is meant to portray him as somebody
Speaker 4: who has the support of his family despite these very
Speaker 4: serious allegations, and to try to convey to yours that
Speaker 4: his family supports him in what they believe are unfounded
Speaker 4: charges against their son, against their father, against their brother.
Speaker 2: Thanks so much, Bob. That's former federal prosecutor Robert Mintz,
Speaker 2: a partner at McCarter and English. And that's it for
Speaker 2: this edition of The Bloomberg Law Show. Remember you can
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