1 00:00:02,040 --> 00:00:03,920 Speaker 1: This is Bloomberg Law. 2 00:00:03,960 --> 00:00:06,760 Speaker 2: What does a prosecutor have to prove in order to 3 00:00:06,800 --> 00:00:09,960 Speaker 2: get a Rico conviction? Tell us why this solicitor General 4 00:00:10,039 --> 00:00:12,319 Speaker 2: is sometimes referred to as the tenth Justice. 5 00:00:12,360 --> 00:00:15,560 Speaker 1: Interviews with prominent attorneys in Bloomberg Legal Experts. 6 00:00:15,600 --> 00:00:18,360 Speaker 2: That's Jennifer k from Bloomberg Law. Joining me is former 7 00:00:18,440 --> 00:00:20,200 Speaker 2: federal prosecutor Robert miss. 8 00:00:20,040 --> 00:00:23,200 Speaker 1: And analysis of important legal issues, cases and headlines. 9 00:00:23,239 --> 00:00:26,439 Speaker 2: It is the toughest hurtle for prosecutors proving Trump's intent. 10 00:00:26,640 --> 00:00:30,040 Speaker 2: Alito took on Congress saying Congress has no power to 11 00:00:30,080 --> 00:00:31,560 Speaker 2: regulate the Supreme Court. 12 00:00:31,560 --> 00:00:34,680 Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio. 13 00:00:37,600 --> 00:00:40,720 Speaker 2: Welcome to the Bloomberg Law Show. I'm June Grosso. Ahead 14 00:00:40,720 --> 00:00:43,839 Speaker 2: in this hour, the fight over the abortion bill is 15 00:00:43,880 --> 00:00:47,120 Speaker 2: coming up at the Supreme Court. Alec Baldwin is trying 16 00:00:47,159 --> 00:00:51,400 Speaker 2: to get his trial for involuntary manslaughter dismissed. And the 17 00:00:51,440 --> 00:00:55,160 Speaker 2: Senator who loves to trip up judicial nominees with pop 18 00:00:55,240 --> 00:01:02,880 Speaker 2: legal quizzes. Since Supreme Court stripped federal abortion rights in 19 00:01:03,000 --> 00:01:07,000 Speaker 2: twenty twenty two's Dobbs decision, pill induced abortion is now 20 00:01:07,080 --> 00:01:10,640 Speaker 2: the most common method for terminating a pregnancy, in the US. 21 00:01:11,480 --> 00:01:14,520 Speaker 2: Next week, the justices will hear arguments in a case 22 00:01:14,600 --> 00:01:17,240 Speaker 2: that puts them back into one of the nation's most 23 00:01:17,319 --> 00:01:20,880 Speaker 2: bitterly contested issues, setting up a ruling in the middle 24 00:01:20,920 --> 00:01:25,200 Speaker 2: of the presidential campaign. The court will decide how available 25 00:01:25,240 --> 00:01:29,240 Speaker 2: mitha pristone, a widely used abortion pill, will be in 26 00:01:29,280 --> 00:01:32,880 Speaker 2: this country. More broadly, the case will test the power 27 00:01:32,920 --> 00:01:36,560 Speaker 2: of federal judges to overrule the Food and Drug Administration 28 00:01:36,959 --> 00:01:40,919 Speaker 2: on the safety and effectiveness of pharmaceuticals and medical devices. 29 00:01:41,760 --> 00:01:45,280 Speaker 2: Joining me is Madlin Meckelberg Bloomberg News. Texas legal reporter 30 00:01:45,720 --> 00:01:48,720 Speaker 2: Madlands start by telling us about the decision of the 31 00:01:48,760 --> 00:01:53,920 Speaker 2: district court judge in Amarillo, Texas conservative legal activists, So 32 00:01:54,440 --> 00:01:56,160 Speaker 2: judge shopping going on there. 33 00:01:56,200 --> 00:01:56,720 Speaker 3: That's right. 34 00:01:57,000 --> 00:02:00,600 Speaker 4: This case was before Judge Matthew kasmerk and MLA, which 35 00:02:00,680 --> 00:02:03,600 Speaker 4: is a single judge district so if you file a 36 00:02:03,640 --> 00:02:07,040 Speaker 4: case there, you're virtually guaranteed to have it go before him. 37 00:02:07,640 --> 00:02:10,519 Speaker 4: And it was brought by the Alliance Defending Freedom, the 38 00:02:10,600 --> 00:02:13,800 Speaker 4: Christian legal advocacy group, and they basically suit the FDA 39 00:02:14,080 --> 00:02:17,560 Speaker 4: and said the agency didn't follow appropriate protocol when it 40 00:02:17,600 --> 00:02:21,160 Speaker 4: first authorized these of methapristone. And they didn't study the 41 00:02:21,200 --> 00:02:24,200 Speaker 4: safety and they made a politically motivated decision to let 42 00:02:24,200 --> 00:02:28,000 Speaker 4: it go to market. And the AFDEA refuted that during 43 00:02:28,000 --> 00:02:30,800 Speaker 4: a hearing in m Maillo and said they reviewed the 44 00:02:30,840 --> 00:02:34,799 Speaker 4: evidence medication abortion is safe and every decision they've made 45 00:02:34,800 --> 00:02:39,280 Speaker 4: about it was supported by science and research. But Judge 46 00:02:39,320 --> 00:02:43,239 Speaker 4: caav Merik sided with the Alliance Defending Freedom and he 47 00:02:43,560 --> 00:02:50,280 Speaker 4: essentially said that he revoked federal approval of mythapristone, which 48 00:02:50,320 --> 00:02:54,440 Speaker 4: would have fundamentally changed the landscape of abortion in the country, 49 00:02:55,240 --> 00:02:57,720 Speaker 4: but until it was appealed to the Fifth Circuit. 50 00:02:57,760 --> 00:03:00,640 Speaker 2: Right, and so the Fifth Circuit, which is the most 51 00:03:00,680 --> 00:03:04,360 Speaker 2: conservative circuit in the country, tell us what they decided. 52 00:03:05,639 --> 00:03:08,240 Speaker 4: That's right. So the Fifth Circuit got the case, and 53 00:03:08,280 --> 00:03:11,760 Speaker 4: they essentially said that friend smith of pristone was first 54 00:03:11,800 --> 00:03:16,279 Speaker 4: approved by the FDA in two thousand, so decades ago. 55 00:03:16,440 --> 00:03:19,840 Speaker 4: They couldn't go far enough back to change that decision. 56 00:03:19,919 --> 00:03:22,960 Speaker 4: But what they could do was roll back access to 57 00:03:23,000 --> 00:03:26,320 Speaker 4: the drug that the FDA had approved in the intervening years. 58 00:03:26,880 --> 00:03:30,080 Speaker 4: So in twenty sixteen, the FDA had shifted the window 59 00:03:30,240 --> 00:03:33,359 Speaker 4: for use for the drugs from seven weeks to ten 60 00:03:33,400 --> 00:03:36,840 Speaker 4: weeks through pregnancy, and then more recently they said the 61 00:03:36,880 --> 00:03:40,480 Speaker 4: drug could be prescribed through telemedicine and sent to patients 62 00:03:40,520 --> 00:03:43,440 Speaker 4: through the mail. The FDA or excuse me, the Fifth 63 00:03:43,440 --> 00:03:46,520 Speaker 4: Circuit essentially said that those new decisions by the FDA 64 00:03:46,720 --> 00:03:49,920 Speaker 4: could be rolled back, and so they preserved access to 65 00:03:49,960 --> 00:03:52,440 Speaker 4: the pill for now, but with serious limits. 66 00:03:53,160 --> 00:03:57,320 Speaker 2: And it seems like a lot of abortion cases start 67 00:03:57,360 --> 00:03:59,960 Speaker 2: in Texas. Do they have strong lobbies there? 68 00:04:00,320 --> 00:04:03,760 Speaker 4: That is a great observation and very accurate. I mean, 69 00:04:03,920 --> 00:04:07,920 Speaker 4: Texas lawmakers, I think, for one, have led the nation 70 00:04:08,080 --> 00:04:11,080 Speaker 4: for a while in pursuing some of the most aggressive 71 00:04:11,200 --> 00:04:15,040 Speaker 4: abortion restrictions. You'll recall this is where lawmakers passed a 72 00:04:15,080 --> 00:04:18,560 Speaker 4: bill known as Senate Bill eight that essentially outlawed abortion 73 00:04:18,839 --> 00:04:22,440 Speaker 4: before Roe v. Wade had been overturned. So I think 74 00:04:22,440 --> 00:04:25,560 Speaker 4: we're seeing a lot of motivation from the lawmakers and 75 00:04:25,600 --> 00:04:28,279 Speaker 4: the citizens here. But we also do have a deep 76 00:04:28,320 --> 00:04:31,760 Speaker 4: bench of conservative judges, and Texas cases go up through 77 00:04:31,800 --> 00:04:35,080 Speaker 4: the Fifth Circuit, So things that happen here it's you're 78 00:04:35,120 --> 00:04:37,800 Speaker 4: guaranteed to go before a friendly judge who's going to 79 00:04:37,800 --> 00:04:39,120 Speaker 4: put a ruling in your favor. 80 00:04:39,720 --> 00:04:44,160 Speaker 2: Thanks Madeline, that's Madleen Meckelberg. Bloomberg News Texas Legal reporter. 81 00:04:44,960 --> 00:04:48,239 Speaker 2: Joining me now is Greg Store, Bloomberg News Supreme Court reporter. 82 00:04:48,760 --> 00:04:53,080 Speaker 2: So tell us the Supreme Court accepted this case, tell 83 00:04:53,160 --> 00:04:56,120 Speaker 2: us what the parameters of the argument it's going to be. 84 00:04:56,760 --> 00:04:59,720 Speaker 3: Yeah, the Supreme Court pretty much had to accept this 85 00:04:59,800 --> 00:05:03,440 Speaker 3: case because the Fifth Circuit decision would have put significant 86 00:05:03,560 --> 00:05:07,400 Speaker 3: new restrictions on methipristone, the abortion drug. It would have 87 00:05:07,440 --> 00:05:12,159 Speaker 3: basically put things back where they were before some changes 88 00:05:12,800 --> 00:05:17,160 Speaker 3: to widen access in twenty sixteen. So at the Supreme Court, 89 00:05:17,520 --> 00:05:20,159 Speaker 3: the case is all about those changes that started in 90 00:05:20,200 --> 00:05:26,719 Speaker 3: twenty sixteen, and that includes making mifipristone available by mail. 91 00:05:27,880 --> 00:05:32,560 Speaker 3: The previously was a requirement that someone would have to 92 00:05:32,920 --> 00:05:36,039 Speaker 3: go in to get it to a doctor's office to 93 00:05:36,080 --> 00:05:39,040 Speaker 3: get it. That is no longer the case, and that 94 00:05:39,120 --> 00:05:41,720 Speaker 3: is one of the issues and probably the most consequential 95 00:05:42,120 --> 00:05:43,799 Speaker 3: change being challenged in this case. 96 00:05:44,200 --> 00:05:48,120 Speaker 2: So there's a question of standing. Basically, do the plaintiffs, 97 00:05:48,160 --> 00:05:51,520 Speaker 2: a group of anti abortion doctors and organizations have a 98 00:05:51,560 --> 00:05:54,679 Speaker 2: stake in the outcome? I mean, could the whole case 99 00:05:54,720 --> 00:05:55,640 Speaker 2: turn on standing? 100 00:05:56,320 --> 00:05:59,720 Speaker 3: It certainly could, And in fact, the Biden Administration's brief 101 00:05:59,720 --> 00:06:02,480 Speaker 3: spend more time talking about standing than it does about 102 00:06:02,839 --> 00:06:06,800 Speaker 3: the underlying issue about whether the FDA scientific judgment can 103 00:06:06,880 --> 00:06:10,880 Speaker 3: be questioned. The argument is basically that these doctors and 104 00:06:10,960 --> 00:06:14,680 Speaker 3: these groups are making is hey because of the liberalization 105 00:06:14,760 --> 00:06:17,000 Speaker 3: of methi pristone, there are going to be all these 106 00:06:17,000 --> 00:06:19,640 Speaker 3: side effects, and we inevitably are going to be treating 107 00:06:20,320 --> 00:06:23,919 Speaker 3: women with those side effects, and that's the harm that 108 00:06:23,960 --> 00:06:27,880 Speaker 3: we're suffering. You have to so harm to show standing. 109 00:06:28,360 --> 00:06:31,960 Speaker 3: And the Biden administration and the manufacturer say on the 110 00:06:31,960 --> 00:06:35,200 Speaker 3: other side that that is way too speculative, too many 111 00:06:35,680 --> 00:06:39,359 Speaker 3: chains in that chain of causation there, and that's not 112 00:06:39,440 --> 00:06:43,479 Speaker 3: the kind of case or controversy the Supreme Court is 113 00:06:43,520 --> 00:06:46,239 Speaker 3: capable of deciding. So it is certainly possible the Supreme 114 00:06:46,279 --> 00:06:49,920 Speaker 3: Court will agree with the administration on that issue and 115 00:06:50,000 --> 00:06:52,880 Speaker 3: never get to the underlying question about the FDA's assessment 116 00:06:53,080 --> 00:06:54,120 Speaker 3: of mispah pristone. 117 00:06:54,320 --> 00:06:56,640 Speaker 2: Of course, then the case may come back to the 118 00:06:56,680 --> 00:06:58,159 Speaker 2: Supreme Court in a different form. 119 00:06:58,920 --> 00:07:01,080 Speaker 3: It could now, of course, have to find somebody who 120 00:07:01,160 --> 00:07:05,600 Speaker 3: does have standing in order in order to challenge it. Uh, 121 00:07:05,839 --> 00:07:08,159 Speaker 3: we don't want to, you know, never say never, but 122 00:07:08,160 --> 00:07:11,240 Speaker 3: but that's you know, that could be could be a challenge. 123 00:07:11,280 --> 00:07:14,400 Speaker 3: There is an issue involving whether sort of lurking in 124 00:07:14,440 --> 00:07:17,120 Speaker 3: the background about whether a state might be able to 125 00:07:17,960 --> 00:07:21,320 Speaker 3: press a challenge. The Supreme Court has allowed states to 126 00:07:21,800 --> 00:07:25,240 Speaker 3: challenge administration policies in a variety of other contexts, so 127 00:07:25,280 --> 00:07:27,880 Speaker 3: that potentially could be could be the way to it. 128 00:07:28,040 --> 00:07:31,160 Speaker 3: And undoubtedly the Court will be cognizant of that that 129 00:07:31,200 --> 00:07:34,720 Speaker 3: possibility if they do rule on standing grounds. 130 00:07:34,920 --> 00:07:38,240 Speaker 2: And the Supreme Court did issue an emergency order keeping 131 00:07:38,320 --> 00:07:41,720 Speaker 2: if a pristone fully available over two descents. 132 00:07:41,960 --> 00:07:44,400 Speaker 3: Yeah, exactly. Justices a Leito and Thomas, who are the 133 00:07:44,440 --> 00:07:48,400 Speaker 3: most conservative justices, were the dissenters. The Fifth Circuit decision 134 00:07:48,600 --> 00:07:52,040 Speaker 3: that Madelin mentioned and that I alluded to was set 135 00:07:52,080 --> 00:07:54,960 Speaker 3: the kick in, and the Supreme Court put that on 136 00:07:55,080 --> 00:07:57,640 Speaker 3: hold until it could decide whether to take up the 137 00:07:57,640 --> 00:07:59,320 Speaker 3: case and ultimately decide the case. 138 00:08:00,160 --> 00:08:00,920 Speaker 5: That was. 139 00:08:02,400 --> 00:08:03,640 Speaker 3: You know, it's going to be more than a year 140 00:08:03,680 --> 00:08:06,840 Speaker 3: that that stay has been in effect from the Supreme Court. 141 00:08:06,960 --> 00:08:10,480 Speaker 3: So the Court does not seem to be in any 142 00:08:10,680 --> 00:08:16,640 Speaker 3: huge rush to let the lower court's restrictions go into effect. 143 00:08:16,760 --> 00:08:19,440 Speaker 3: Whether that means anything in terms of the ultimate outcome, 144 00:08:19,520 --> 00:08:20,400 Speaker 3: we'll have to see. 145 00:08:20,720 --> 00:08:24,880 Speaker 2: Bloomberg Intelligence analysts are giving a sixty chance that the 146 00:08:24,880 --> 00:08:28,840 Speaker 2: Supreme Court will reverse the Fifth Circuit. So do most 147 00:08:28,880 --> 00:08:32,120 Speaker 2: people that you talk to, Most legal experts feel that 148 00:08:32,200 --> 00:08:33,640 Speaker 2: it will be a reversal as well. 149 00:08:34,400 --> 00:08:38,120 Speaker 3: Certainly there's a pretty broad consensus that there's a real chance, 150 00:08:38,440 --> 00:08:41,200 Speaker 3: a significant chance that it will be. And you know 151 00:08:41,240 --> 00:08:43,839 Speaker 3: the fact, we've obviously seen this as a court that 152 00:08:44,240 --> 00:08:47,719 Speaker 3: overturned the constitutional right to abortion, but this is a 153 00:08:47,760 --> 00:08:52,480 Speaker 3: completely different legal issue. So certainly one should not assume 154 00:08:52,520 --> 00:08:55,720 Speaker 3: that because the court ended up on the anti abortion 155 00:08:55,880 --> 00:08:58,040 Speaker 3: side in that case, that it's going to do so 156 00:08:58,120 --> 00:08:59,080 Speaker 3: in this case as well. 157 00:08:59,280 --> 00:09:03,360 Speaker 2: Greg, have there been tons of briefs from amyekus or 158 00:09:03,640 --> 00:09:04,040 Speaker 2: a few? 159 00:09:05,160 --> 00:09:07,400 Speaker 3: There has certainly been a lot. I'm sorry I didn't 160 00:09:07,400 --> 00:09:12,480 Speaker 3: count them beforehand, but dozens for sure very closely watched issue. 161 00:09:13,040 --> 00:09:15,040 Speaker 3: Both you know, groups on one side or the other 162 00:09:15,120 --> 00:09:20,480 Speaker 3: of the abortion fight, and pharmaceutical companies and their trade 163 00:09:20,520 --> 00:09:23,719 Speaker 3: group Pharma, very very interested in this case because they 164 00:09:23,720 --> 00:09:27,600 Speaker 3: are concerned that if the FDA's judgment can be second 165 00:09:27,640 --> 00:09:31,040 Speaker 3: guessed in this case, that it could be in other 166 00:09:31,080 --> 00:09:34,360 Speaker 3: cases as well, and it could affect their bottom lines. 167 00:09:34,960 --> 00:09:37,839 Speaker 2: So the Supreme Court has also agreed to consider in 168 00:09:38,360 --> 00:09:44,520 Speaker 2: April whether hospitals can perform abortions in emergency situations, even 169 00:09:44,559 --> 00:09:47,679 Speaker 2: in states like Idaho that have near total bands. 170 00:09:48,280 --> 00:09:50,839 Speaker 3: Yeah, this one has flown under the radar in part 171 00:09:50,960 --> 00:09:54,840 Speaker 3: because the court agreed to hear this almost exactly the 172 00:09:54,880 --> 00:09:57,120 Speaker 3: same time, late on a Friday afternoon that had agreed 173 00:09:57,160 --> 00:10:00,840 Speaker 3: to hear the Trump Colorado ballot case. Everybody who has 174 00:10:00,880 --> 00:10:05,280 Speaker 3: focused on that. But yeah, this is potentially very very important, 175 00:10:05,280 --> 00:10:07,400 Speaker 3: and if you're on the side of abortion rights, this 176 00:10:07,520 --> 00:10:11,599 Speaker 3: might be a place where you should might want to 177 00:10:11,640 --> 00:10:14,760 Speaker 3: worry that that abortion rights will be rolled back. Further, 178 00:10:16,280 --> 00:10:19,840 Speaker 3: this has to do with a federal law that requires 179 00:10:20,880 --> 00:10:24,160 Speaker 3: hospital emergency rooms to treat somebody who comes in with 180 00:10:24,200 --> 00:10:28,679 Speaker 3: an emergency condition. And the question is is what happens 181 00:10:28,679 --> 00:10:30,440 Speaker 3: in a state that has a near total band like 182 00:10:30,480 --> 00:10:35,320 Speaker 3: Idaho's band makes an exception only when the mother's life 183 00:10:35,520 --> 00:10:40,320 Speaker 3: is threatened and need an abortion abortion to avoid a 184 00:10:40,360 --> 00:10:44,040 Speaker 3: risk to the mother's life. And so the question here is, well, 185 00:10:44,040 --> 00:10:48,440 Speaker 3: what if somebody comes in who has a serious risk 186 00:10:48,559 --> 00:10:52,760 Speaker 3: to her health but not necessarily a life threatening condition, 187 00:10:53,360 --> 00:10:56,920 Speaker 3: can the doctors should the doctors perform an abortion in 188 00:10:56,960 --> 00:11:01,680 Speaker 3: that situation? Lower courts are divided on this issue, which 189 00:11:01,679 --> 00:11:05,240 Speaker 3: is why the Supreme Court has agreed to take it up. 190 00:11:05,400 --> 00:11:08,160 Speaker 3: And you know, at the end of the term, we're 191 00:11:08,280 --> 00:11:10,240 Speaker 3: very likely to have, or what we will have, to 192 00:11:11,000 --> 00:11:13,040 Speaker 3: pretty significant abortion decisions. 193 00:11:13,440 --> 00:11:19,040 Speaker 2: Should abortion rights activists be concerned that the Court said 194 00:11:19,080 --> 00:11:23,000 Speaker 2: the law could take full effect in the meantime before 195 00:11:23,040 --> 00:11:27,400 Speaker 2: the arguments, before the decision blocking a trial judge's order 196 00:11:27,440 --> 00:11:30,640 Speaker 2: that had ensured that hospitals could perform the procedure in 197 00:11:30,720 --> 00:11:31,880 Speaker 2: medical emergencies. 198 00:11:32,520 --> 00:11:35,080 Speaker 3: Yeah, that was very striking. Now, you always want to 199 00:11:35,080 --> 00:11:39,240 Speaker 3: have a cautionary note to read too much into emergency 200 00:11:39,280 --> 00:11:42,880 Speaker 3: actions like that with the Supreme Court, but that was 201 00:11:42,920 --> 00:11:46,480 Speaker 3: pretty striking because the idleho law had been on hold 202 00:11:46,480 --> 00:11:50,960 Speaker 3: in these emergency situations for quite some time, and so 203 00:11:51,640 --> 00:11:54,839 Speaker 3: the Supreme Court changed the status quo when it did that, 204 00:11:54,880 --> 00:11:58,800 Speaker 3: and it certainly didn't have to do that. So if 205 00:11:58,800 --> 00:12:02,480 Speaker 3: you're on yeah, if you're on the side of abortion rights, 206 00:12:02,520 --> 00:12:05,760 Speaker 3: that is definitely one of those things you put on 207 00:12:05,800 --> 00:12:08,040 Speaker 3: your list of reasons he might be worried about this case. 208 00:12:08,440 --> 00:12:11,720 Speaker 2: Thanks so much, Greg. That's Bloomberg New Supreme Court reporter 209 00:12:11,840 --> 00:12:15,679 Speaker 2: Greg Store looking for legal research. Whether you're an in 210 00:12:15,760 --> 00:12:19,360 Speaker 2: house counsel or in private practice. Bloomberg Law gives you 211 00:12:19,400 --> 00:12:23,240 Speaker 2: the edge with the latest in AI powered legal analytics, 212 00:12:23,400 --> 00:12:27,760 Speaker 2: business insights, and workflow tools. With guidance from our experts, 213 00:12:27,800 --> 00:12:31,240 Speaker 2: you'll grasp the latest trends in the legal industry, helping 214 00:12:31,280 --> 00:12:34,480 Speaker 2: you achieve better results for the practice of law, the 215 00:12:34,520 --> 00:12:37,760 Speaker 2: business of law, the future of law. Visit Bloomberg Law 216 00:12:37,800 --> 00:12:40,760 Speaker 2: dot com. Coming up next on The Bloomberg Lawn Show, 217 00:12:41,320 --> 00:12:44,080 Speaker 2: actor Alec Baldwin is trying to get his trial for 218 00:12:44,240 --> 00:12:49,880 Speaker 2: involuntary manslaughter dismissed. I'm June Grosso and you're listening to Bloomberg. 219 00:12:59,760 --> 00:13:04,440 Speaker 1: Is Bloomberg Law with June Brusso from Bloomberg Radio. 220 00:13:05,320 --> 00:13:08,000 Speaker 2: Alec Baldwin is set to go on trial July ninth 221 00:13:08,040 --> 00:13:12,240 Speaker 2: in Santa Fe, New Mexico, for involuntary manslaughter for the 222 00:13:12,280 --> 00:13:15,920 Speaker 2: death of cinematographer Helena Hutchins, who was shot and killed 223 00:13:15,920 --> 00:13:18,200 Speaker 2: when a live round from a gun held by the 224 00:13:18,240 --> 00:13:21,280 Speaker 2: actor fired on the set of the film Rust. But 225 00:13:21,360 --> 00:13:24,560 Speaker 2: with the clock running out, his attorneys are basically saying 226 00:13:24,840 --> 00:13:28,120 Speaker 2: not so fast, and they're asking the judge to dismiss 227 00:13:28,160 --> 00:13:32,720 Speaker 2: the indictment due to prosecutorial misconduct. Balwin has maintained from 228 00:13:32,720 --> 00:13:35,439 Speaker 2: the start that he is not responsible for the death 229 00:13:35,679 --> 00:13:37,360 Speaker 2: and that he did not pull the trigger. 230 00:13:37,679 --> 00:13:39,760 Speaker 1: I would never point to pull a trigger at them. 231 00:13:39,840 --> 00:13:40,480 Speaker 5: Never. Never. 232 00:13:40,520 --> 00:13:42,080 Speaker 1: That was the training that I had. You don't point 233 00:13:42,080 --> 00:13:43,280 Speaker 1: a guns man and pull trigger. 234 00:13:43,800 --> 00:13:47,080 Speaker 2: The film's armorer, Hanna Guccieras Reid, was found guilty of 235 00:13:47,160 --> 00:13:51,440 Speaker 2: involuntary manslaughter on March sixth for her handling of the gun. 236 00:13:52,080 --> 00:13:55,880 Speaker 2: Joining me is former prosecutor Joshua Castenberg, a professor at 237 00:13:55,920 --> 00:13:59,360 Speaker 2: the University of New Mexico Law School. This has been, 238 00:14:00,080 --> 00:14:03,959 Speaker 2: shall we say, a confusing prosecution. Baldwin was charged, and 239 00:14:04,080 --> 00:14:07,240 Speaker 2: the charges were dropped and new charges were brought, and 240 00:14:07,280 --> 00:14:10,000 Speaker 2: now Balwin is asking the judge to dismiss the case 241 00:14:10,120 --> 00:14:14,760 Speaker 2: due to prosecutorial misconduct, saying, quote, the state prosecutors have 242 00:14:14,840 --> 00:14:18,520 Speaker 2: engaged in this misconduct and publicly dragged Baldwin through the 243 00:14:18,600 --> 00:14:22,680 Speaker 2: cesspool created by their improprieties, without any regard for the 244 00:14:22,720 --> 00:14:26,160 Speaker 2: fact that serious criminal charges have been hanging over his 245 00:14:26,240 --> 00:14:29,200 Speaker 2: head for two and a half years. What are their 246 00:14:29,320 --> 00:14:32,040 Speaker 2: chances of getting this dismissed based on that? 247 00:14:33,480 --> 00:14:39,200 Speaker 5: Well, very nothing is nothing is out of the question, 248 00:14:39,320 --> 00:14:42,600 Speaker 5: but I would say not very high. I mean the 249 00:14:42,680 --> 00:14:44,800 Speaker 5: chances are not very high of that. First of all, 250 00:14:45,240 --> 00:14:52,080 Speaker 5: prosecutorial misconduct usually falls into the form of deliberately hiding evidence, 251 00:14:53,360 --> 00:14:59,000 Speaker 5: ignoring that witnesses are going to commit perjury, ignoring witness misconduct, 252 00:14:59,120 --> 00:15:03,080 Speaker 5: making public statements that are patently untrue, and an effort 253 00:15:03,160 --> 00:15:06,360 Speaker 5: to prejudice a jury. I mean, look, I think you 254 00:15:06,400 --> 00:15:10,320 Speaker 5: can say at the very beginning of this matter, the 255 00:15:10,360 --> 00:15:14,920 Speaker 5: prosecution of mister Baldwin, the initial prosecution team was not 256 00:15:15,080 --> 00:15:18,640 Speaker 5: up to snuff, and they made some critical errors in judgment. 257 00:15:19,320 --> 00:15:23,720 Speaker 5: But there's a fundamental difference between negligence or even incompetence 258 00:15:23,800 --> 00:15:27,760 Speaker 5: at the one hand, and intentional misconduct on the other. 259 00:15:27,960 --> 00:15:32,560 Speaker 5: And I don't think that prosecutorial misconduct is at play here. 260 00:15:32,880 --> 00:15:35,920 Speaker 2: We've discussed this before. From the start, Baldwin has said 261 00:15:35,960 --> 00:15:40,480 Speaker 2: he didn't pull the trigger. The prosecution's gun expert testified 262 00:15:40,520 --> 00:15:43,400 Speaker 2: that the gun could not have fired without pulling the trigger, 263 00:15:43,760 --> 00:15:46,480 Speaker 2: and the defense claims in this motion that one of 264 00:15:46,520 --> 00:15:52,240 Speaker 2: the states quote purported firearms experts. Testimony omitted several essential 265 00:15:52,320 --> 00:15:56,920 Speaker 2: facts regarding the testing, including that the FBI testing established 266 00:15:56,960 --> 00:15:59,680 Speaker 2: that the gun did fire without a trigger pull when 267 00:15:59,720 --> 00:16:02,960 Speaker 2: the firearm was fully loaded with six rounds as it 268 00:16:03,120 --> 00:16:05,840 Speaker 2: was on the day of the incident. Why does it 269 00:16:05,880 --> 00:16:07,560 Speaker 2: matter if you pulled the trigger or not. 270 00:16:08,200 --> 00:16:11,120 Speaker 5: Well, that's a pretty heady accusation that they made against 271 00:16:11,120 --> 00:16:14,320 Speaker 5: the firearms expert in the first place. And why I 272 00:16:14,360 --> 00:16:19,120 Speaker 5: say heady allegation is that firearms experts, like any other experts, 273 00:16:19,120 --> 00:16:22,120 Speaker 5: are allowed to opin us to their opinion and do 274 00:16:22,240 --> 00:16:25,600 Speaker 5: so in a manner that normal witnesses can't do. The 275 00:16:25,640 --> 00:16:28,840 Speaker 5: other side is certainly entitled to bring forward a witness 276 00:16:29,040 --> 00:16:34,720 Speaker 5: or two to contradict the expert, and also to splash 277 00:16:34,760 --> 00:16:39,600 Speaker 5: the expert with cross examination. But the accusation made against 278 00:16:39,640 --> 00:16:42,080 Speaker 5: the expert needs more facts for me to say that 279 00:16:42,120 --> 00:16:45,800 Speaker 5: the accusation actually holds any water at all. And why 280 00:16:45,880 --> 00:16:49,080 Speaker 5: does it matter? Ultimately, it may not matter. It may 281 00:16:49,120 --> 00:16:52,240 Speaker 5: not matter for two reasons. One, if this goes to trial, 282 00:16:52,280 --> 00:16:55,120 Speaker 5: one is that mister Baldwin gets acquitted and the jury 283 00:16:55,160 --> 00:16:58,200 Speaker 5: considers that the expert was in the wrong or unreliable 284 00:16:58,360 --> 00:17:02,080 Speaker 5: or the evidence wasn't all that compelling. So that's one. 285 00:17:02,280 --> 00:17:06,880 Speaker 5: And two, it's possible that the jury would say that 286 00:17:06,920 --> 00:17:10,040 Speaker 5: the issue of whether the trigger or not was depressed 287 00:17:10,280 --> 00:17:14,000 Speaker 5: is really just tertiary and meaning not all that relevant 288 00:17:14,040 --> 00:17:17,240 Speaker 5: to the issue of criminal negligence that is being charged 289 00:17:17,240 --> 00:17:20,480 Speaker 5: in this case and the involuntary homicide. 290 00:17:20,640 --> 00:17:24,359 Speaker 2: The trial of the armorer gives the defense a preview 291 00:17:24,440 --> 00:17:27,800 Speaker 2: of Baldwin's trial to a certain extent. The jury found 292 00:17:27,840 --> 00:17:30,760 Speaker 2: she was negligent in her responsibilities, that she didn't check 293 00:17:30,800 --> 00:17:33,840 Speaker 2: the gun properly, and there was evidence that she brought 294 00:17:34,040 --> 00:17:37,560 Speaker 2: the live ammunition on set. How can Baldwin use that 295 00:17:37,720 --> 00:17:38,560 Speaker 2: at his trial. 296 00:17:39,800 --> 00:17:43,560 Speaker 5: Well, that's actually a great strength to Baldwin's case. I mean, 297 00:17:43,640 --> 00:17:46,679 Speaker 5: in the first place, if he assumed, and had no 298 00:17:46,800 --> 00:17:49,919 Speaker 5: reason to believe otherwise, that the only bullets that were 299 00:17:50,000 --> 00:17:53,280 Speaker 5: available to be used into that gun were blanks, were 300 00:17:53,320 --> 00:17:57,200 Speaker 5: stunt bullets, and he would not be in a way 301 00:17:57,240 --> 00:18:00,640 Speaker 5: to know that there were live bullets around the need 302 00:18:00,720 --> 00:18:06,280 Speaker 5: for additional or extra safety precautions. That's relevant evidence that 303 00:18:06,400 --> 00:18:10,200 Speaker 5: can come, in my opinion, for the defense, and it strengthens, 304 00:18:10,320 --> 00:18:14,159 Speaker 5: you know, it strengthens his case against the prosecution. On 305 00:18:14,200 --> 00:18:17,720 Speaker 5: the other hand, the prosecution can return fire, so to speak, 306 00:18:17,760 --> 00:18:20,600 Speaker 5: and say, look, that doesn't really matter because people can 307 00:18:20,640 --> 00:18:24,840 Speaker 5: be killed by blanks and harmed by blanks as well. 308 00:18:25,160 --> 00:18:30,800 Speaker 2: Prosecutors have argued that Baldwin failed to observe firearms safety measures. 309 00:18:31,160 --> 00:18:34,800 Speaker 2: He was the star, the producer, and the authority on 310 00:18:34,880 --> 00:18:38,320 Speaker 2: the set. Last year, the district attorney said he had 311 00:18:38,320 --> 00:18:41,000 Speaker 2: a duty to ensure that the gun and the ammunition 312 00:18:41,119 --> 00:18:46,520 Speaker 2: were properly checked, but the union representing film workers sag AFTRA, 313 00:18:46,920 --> 00:18:50,400 Speaker 2: said that was wrong and uninformed, and that an actor's 314 00:18:50,480 --> 00:18:53,720 Speaker 2: job is not to be a firearms or weapons expert. 315 00:18:54,400 --> 00:18:57,600 Speaker 5: Yeah, I suppose you can think, you know, the defense 316 00:18:57,640 --> 00:19:02,359 Speaker 5: can try to get industry standards and evidence, but the 317 00:19:02,359 --> 00:19:05,879 Speaker 5: one stage, but industry standards, movie standards. You know, the 318 00:19:05,920 --> 00:19:10,720 Speaker 5: movie industry standards are not the law, they're not regulations, 319 00:19:10,840 --> 00:19:13,960 Speaker 5: they're what typically goes on on a movie set. And 320 00:19:14,040 --> 00:19:16,920 Speaker 5: it seems to me that the union is only focusing 321 00:19:16,920 --> 00:19:20,520 Speaker 5: on the duty of an actor. And you know, there's 322 00:19:20,520 --> 00:19:25,400 Speaker 5: a general there's a general law here at play, and 323 00:19:25,480 --> 00:19:28,960 Speaker 5: no amount of you know, industry practices, whether it comes 324 00:19:29,000 --> 00:19:32,919 Speaker 5: from the movie industry, whether it comes from you know, 325 00:19:33,080 --> 00:19:40,520 Speaker 5: used car sales, rental cars, firearms sales, UH or pyrotechnics 326 00:19:40,520 --> 00:19:44,120 Speaker 5: for the fourth of July, can overcome what the basic law. 327 00:19:44,240 --> 00:19:47,040 Speaker 5: You know, the duty of care is under the basic 328 00:19:47,200 --> 00:19:49,520 Speaker 5: law of the State of New Mexico or any other 329 00:19:49,560 --> 00:19:54,160 Speaker 5: state for that matter. So it's not the most compelling evidence. 330 00:19:54,200 --> 00:19:56,439 Speaker 5: And it's like I said, it tends to focus on 331 00:19:56,520 --> 00:19:59,080 Speaker 5: the actor, right, and Baldwin had a greater role than 332 00:19:59,160 --> 00:20:00,000 Speaker 5: just being an actor. 333 00:20:00,800 --> 00:20:02,639 Speaker 2: What do you think his best defense is. 334 00:20:03,640 --> 00:20:08,119 Speaker 5: Well, his best defense is twofold. One is he had 335 00:20:09,320 --> 00:20:12,240 Speaker 5: no reason to believe there were live rounds, nor would 336 00:20:12,240 --> 00:20:14,679 Speaker 5: anyone have reason to believe there were live rounds on 337 00:20:14,760 --> 00:20:23,000 Speaker 5: the set. And two that although the prosecution's expert is 338 00:20:23,040 --> 00:20:26,760 Speaker 5: going to testify in a certain manner, that manner being 339 00:20:26,840 --> 00:20:30,120 Speaker 5: that the firearm couldn't have gone off on its own, 340 00:20:30,320 --> 00:20:33,640 Speaker 5: you know, continuing to insist that he didn't pull the trigger, 341 00:20:34,920 --> 00:20:36,600 Speaker 5: that it did go off on its own. I mean, 342 00:20:36,640 --> 00:20:40,119 Speaker 5: if you have a battle of experts and you also 343 00:20:40,240 --> 00:20:43,560 Speaker 5: have the idea that somebody else was guilty, meaning the 344 00:20:43,680 --> 00:20:47,480 Speaker 5: armor Hanegudiers read, then you've got a pretty strong defense 345 00:20:47,560 --> 00:20:48,160 Speaker 5: case there. 346 00:20:48,720 --> 00:20:48,880 Speaker 3: Yeah. 347 00:20:48,920 --> 00:20:51,800 Speaker 2: I mean the jurors, despite what the judge tells them 348 00:20:51,920 --> 00:20:54,639 Speaker 2: about you know, more than one person can be found 349 00:20:54,680 --> 00:20:58,119 Speaker 2: negligent of a crime. They might look at this and say, 350 00:20:58,320 --> 00:21:01,440 Speaker 2: if not for her negligence, if not for her bringing 351 00:21:01,640 --> 00:21:04,320 Speaker 2: the live ammunition to the set, there wouldn't have been 352 00:21:04,320 --> 00:21:04,680 Speaker 2: a death. 353 00:21:05,080 --> 00:21:07,560 Speaker 5: That's exactly right. And I should say this is a 354 00:21:07,640 --> 00:21:09,760 Speaker 5: very unique case, so I can't say, Look, that's how 355 00:21:09,800 --> 00:21:12,639 Speaker 5: cases are argued all the time. But when you have 356 00:21:12,880 --> 00:21:16,560 Speaker 5: cases where there are more than one defendant and the 357 00:21:16,640 --> 00:21:21,000 Speaker 5: defendants were not part of a conspiracy sharing the same aim, 358 00:21:21,520 --> 00:21:23,600 Speaker 5: but rather the defendants are in sort of a chain 359 00:21:23,640 --> 00:21:26,879 Speaker 5: of negligence, just like a torque case. One defendant is 360 00:21:26,920 --> 00:21:30,440 Speaker 5: certainly entitled to argue but for the fact that somebody 361 00:21:30,480 --> 00:21:34,480 Speaker 5: before on the causation chain didn't do their job right, 362 00:21:34,600 --> 00:21:35,879 Speaker 5: we wouldn't be here today. 363 00:21:36,080 --> 00:21:41,440 Speaker 2: Balwin's attorneys have added one name, Assistant director Dave Halls, 364 00:21:41,480 --> 00:21:44,959 Speaker 2: to their witness list. He's the one who pointed the 365 00:21:45,000 --> 00:21:49,320 Speaker 2: finger at the armorer when testifying it her trial, claiming 366 00:21:49,600 --> 00:21:51,480 Speaker 2: she was the one who gave ball in the gun, 367 00:21:51,760 --> 00:21:54,760 Speaker 2: but the police reports state that it was Hall's who 368 00:21:54,800 --> 00:21:57,439 Speaker 2: handed ball in the gun. Are they just going to 369 00:21:57,440 --> 00:21:59,320 Speaker 2: try to confuse the issue. 370 00:21:58,920 --> 00:22:03,040 Speaker 5: Here, Well, you know, that's the possibility, or the other 371 00:22:03,160 --> 00:22:07,320 Speaker 5: possibility is to show that you know, that would sort 372 00:22:07,359 --> 00:22:12,040 Speaker 5: of show that Baldwin had It's ridiculous for the jury 373 00:22:12,080 --> 00:22:14,879 Speaker 5: to believe that Baldwin would have known that there was 374 00:22:14,920 --> 00:22:16,919 Speaker 5: a chance life bullets were in the gun. I mean, 375 00:22:16,920 --> 00:22:19,320 Speaker 5: if they could show the confusion of the day before 376 00:22:19,400 --> 00:22:22,480 Speaker 5: it happened, I suppose that could lay you know, that 377 00:22:22,560 --> 00:22:28,760 Speaker 5: additional idea that he was he had no reasonable person 378 00:22:28,800 --> 00:22:30,640 Speaker 5: in his place would have an idea that there were 379 00:22:30,680 --> 00:22:33,800 Speaker 5: live rounds on the set, and therefore this is just 380 00:22:33,960 --> 00:22:38,040 Speaker 5: an unfortunate, you know, accident that resulted in a death. 381 00:22:38,080 --> 00:22:40,679 Speaker 5: I could see that. But there's one other thing that 382 00:22:40,760 --> 00:22:43,560 Speaker 5: I think we haven't talked about in regard to the prosecutions. 383 00:22:43,600 --> 00:22:47,359 Speaker 5: List of witnesses, of witnesses who were on the movie set, 384 00:22:48,359 --> 00:22:50,320 Speaker 5: and one of the things the defense is likely to 385 00:22:50,400 --> 00:22:55,000 Speaker 5: do and probably has to dance very you know, carefully 386 00:22:55,080 --> 00:22:59,320 Speaker 5: on this factor, is that Baldwin at least has been 387 00:22:59,400 --> 00:23:03,960 Speaker 5: reported as not a particularly likable guy, and the defense 388 00:23:04,119 --> 00:23:07,120 Speaker 5: may be able to get through cross examination the bias 389 00:23:07,160 --> 00:23:10,800 Speaker 5: of those witnesses that you know, they're shading their testimony, 390 00:23:10,840 --> 00:23:14,320 Speaker 5: either on purpose or subconsciously because Baldwin's not a likable 391 00:23:14,359 --> 00:23:17,240 Speaker 5: guy and they don't like him. You know, that sort 392 00:23:17,280 --> 00:23:20,240 Speaker 5: of thing can go on as well, and that certainly 393 00:23:20,280 --> 00:23:21,800 Speaker 5: can help Baldwin's case. 394 00:23:22,520 --> 00:23:26,320 Speaker 2: So the biggest question always in a criminal defense is 395 00:23:26,440 --> 00:23:30,240 Speaker 2: will the defendant testify. Baldwin is a movie star who 396 00:23:30,280 --> 00:23:33,600 Speaker 2: speaks well, and the jurors will want to hear from him. 397 00:23:34,200 --> 00:23:37,040 Speaker 2: Tell me what you think the upside in the downside 398 00:23:37,080 --> 00:23:38,439 Speaker 2: of his testimony. 399 00:23:38,040 --> 00:23:43,280 Speaker 5: Is well, you know, normally defendants don't testify, but it's 400 00:23:43,359 --> 00:23:45,840 Speaker 5: their choice to do so or not do so. I mean, 401 00:23:45,840 --> 00:23:50,000 Speaker 5: a defense council cannot order a defendant not to testify, 402 00:23:50,119 --> 00:23:53,000 Speaker 5: and it's a fundamental right. So let's suppose for a 403 00:23:53,040 --> 00:23:56,240 Speaker 5: minute he testifies. The upside if he looks at the 404 00:23:56,280 --> 00:23:58,560 Speaker 5: jury with a straight face and he tells him I 405 00:23:58,600 --> 00:24:01,439 Speaker 5: did not depress the trigger, and I only believe there 406 00:24:01,440 --> 00:24:04,240 Speaker 5: were blanks in that gun and the gun was safety chucked, 407 00:24:04,280 --> 00:24:07,560 Speaker 5: and I was told it's fine to go forward with 408 00:24:07,720 --> 00:24:10,919 Speaker 5: doing what I was doing and act remorseful when he 409 00:24:10,960 --> 00:24:12,679 Speaker 5: does it. I mean, there can be that kind of 410 00:24:12,680 --> 00:24:17,199 Speaker 5: believability as Taylor made for an acquittal. The downside is 411 00:24:17,240 --> 00:24:21,199 Speaker 5: twofold one. He has the you know, he's opened a 412 00:24:21,200 --> 00:24:28,119 Speaker 5: cross examination, and cross examination could include other instances of 413 00:24:29,440 --> 00:24:32,320 Speaker 5: you know, carelessness on his part, and not only the 414 00:24:32,400 --> 00:24:35,640 Speaker 5: rust set. But if there are other instances of carelessness 415 00:24:35,760 --> 00:24:38,480 Speaker 5: or a lack of regard for human safety and other 416 00:24:38,600 --> 00:24:41,520 Speaker 5: movie sets or just you know, in the walk of life. Basically, 417 00:24:41,600 --> 00:24:44,520 Speaker 5: those may come into evidence to show a pattern. They 418 00:24:44,560 --> 00:24:47,959 Speaker 5: wouldn't come into evidence against him in all likelihood if 419 00:24:48,000 --> 00:24:51,560 Speaker 5: they if he didn't testify. But once he testifies, it's 420 00:24:51,640 --> 00:24:53,840 Speaker 5: possible that he opens up the door to sort of 421 00:24:53,840 --> 00:24:56,639 Speaker 5: the broad sweep of his life. And I'm not aware 422 00:24:56,680 --> 00:24:58,760 Speaker 5: of the broad sweep of his life. But sometimes that 423 00:24:58,800 --> 00:25:01,760 Speaker 5: can be devastating to the fans, and sometimes it doesn't matter. 424 00:25:02,840 --> 00:25:07,960 Speaker 5: The other downside, possible downside to it is, Yo, you 425 00:25:08,040 --> 00:25:12,359 Speaker 5: mentioned it. He's an actor, and jury's you know, human 426 00:25:12,400 --> 00:25:17,680 Speaker 5: beings like authenticity, and a defendant who's not authentic, like 427 00:25:17,920 --> 00:25:20,440 Speaker 5: a like a victim in a case who's not authentic, 428 00:25:20,560 --> 00:25:24,600 Speaker 5: or a police officer who's not can dig their own hole. 429 00:25:25,359 --> 00:25:28,240 Speaker 2: Thanks so much for joining me, josh That's Professor Joshua 430 00:25:28,400 --> 00:25:32,240 Speaker 2: Castenberg of the University of New Mexico Law School. Coming 431 00:25:32,320 --> 00:25:35,680 Speaker 2: up next on the Bloomberg Law Show, The Senator who 432 00:25:35,760 --> 00:25:39,440 Speaker 2: loves to trip up judicial nominees with pop legal quizzes. 433 00:25:39,800 --> 00:25:42,080 Speaker 2: I'm June Grosso and this is Bloomberg. 434 00:25:50,040 --> 00:25:54,840 Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg radio. 435 00:25:56,359 --> 00:25:59,760 Speaker 2: Tell me what Article five of the Constitution does. 436 00:26:01,080 --> 00:26:03,600 Speaker 1: Article five is not coming to mind at the moment. 437 00:26:04,240 --> 00:26:05,640 Speaker 5: Okay, how about Article two? 438 00:26:09,840 --> 00:26:11,000 Speaker 3: Neither is Article two. 439 00:26:11,960 --> 00:26:16,119 Speaker 2: Jarnelle b Yelkengren asked the Biden administration to withdraw her 440 00:26:16,200 --> 00:26:19,560 Speaker 2: name from consideration for a federal trial court seat in 441 00:26:19,720 --> 00:26:24,520 Speaker 2: Washington State after that exchange with Republican Senator John Kennedy 442 00:26:24,800 --> 00:26:28,679 Speaker 2: during her confirmation hearing. The Louisiana senator likes to quiz 443 00:26:28,720 --> 00:26:33,080 Speaker 2: nominees to the federal bench about legal doctrines and courtroom procedure. 444 00:26:33,440 --> 00:26:37,119 Speaker 2: With questions that have tripped up nominees from both parties, 445 00:26:37,720 --> 00:26:40,879 Speaker 2: Kennedy manages to get inside the heads of nominees with 446 00:26:40,920 --> 00:26:44,480 Speaker 2: his quizzes like no other senator does. Joining me is 447 00:26:44,480 --> 00:26:48,760 Speaker 2: Bloomberg Lost Tianna Headley, who's written about Kennedy's questioning of 448 00:26:48,880 --> 00:26:52,480 Speaker 2: judicial nominees as if they were law students. How are 449 00:26:52,640 --> 00:26:58,520 Speaker 2: Senator Kennedy's questions or questioning different from that of other senators. 450 00:26:58,960 --> 00:27:01,879 Speaker 6: This is a committee of a lot of lawyers. There's 451 00:27:01,880 --> 00:27:05,400 Speaker 6: fifteen total on the committee and several others who've been 452 00:27:05,880 --> 00:27:10,399 Speaker 6: former law professors as well. But Senator Kennedy both a 453 00:27:11,280 --> 00:27:15,960 Speaker 6: law professor still a lawyer, guests into nominees, has by 454 00:27:16,240 --> 00:27:20,600 Speaker 6: asking sort of these frankly on the spot, very scary 455 00:27:20,680 --> 00:27:24,919 Speaker 6: questions about the law, about core procedure, about legal doctrine, 456 00:27:25,320 --> 00:27:28,520 Speaker 6: and he's stummed quite a few nominees over the years. 457 00:27:28,760 --> 00:27:31,280 Speaker 2: It's been called the Kennedy Quiz. 458 00:27:31,480 --> 00:27:35,040 Speaker 6: The Kennedy Quiz, the Kennedy six minute Bar exam, as 459 00:27:35,160 --> 00:27:37,800 Speaker 6: Chairman Durbin has called it in the past. 460 00:27:38,000 --> 00:27:40,760 Speaker 2: And just tell us a little bit about Kennedy's background. 461 00:27:41,119 --> 00:27:45,359 Speaker 6: He was an adjunct law professor at Louisiana State University. 462 00:27:45,760 --> 00:27:50,199 Speaker 6: He graduated law school from the University of Virginia and 463 00:27:50,359 --> 00:27:54,720 Speaker 6: is an Oxford University graduate. And in these questions you 464 00:27:54,800 --> 00:27:57,919 Speaker 6: can kind of see that he's not only drawn on 465 00:27:58,160 --> 00:28:02,679 Speaker 6: that sort of academic background from his law school and 466 00:28:02,760 --> 00:28:07,560 Speaker 6: legal education days, but also his experience teaching of Louisiana 467 00:28:07,560 --> 00:28:11,040 Speaker 6: State University, posing questions that he told me in a 468 00:28:11,080 --> 00:28:14,520 Speaker 6: hallway interview that he would expect his students to know. 469 00:28:15,119 --> 00:28:18,520 Speaker 2: Do these questions cover the gamut like a bar exam 470 00:28:18,600 --> 00:28:22,080 Speaker 2: wood or are they focused in specific areas. 471 00:28:22,520 --> 00:28:26,600 Speaker 6: It really runs the gamut where you can expect questions 472 00:28:26,640 --> 00:28:29,000 Speaker 6: such as, you know, what does the thirteenth Amendment. Do 473 00:28:29,400 --> 00:28:35,200 Speaker 6: so almost middle school physics class to you know, what's 474 00:28:35,200 --> 00:28:40,640 Speaker 6: the emotion in lemony about courtroom procedure, what's the Brady 475 00:28:40,760 --> 00:28:44,440 Speaker 6: motion right for you know, turning over evidence the favorable 476 00:28:44,480 --> 00:28:45,320 Speaker 6: to a defendant. 477 00:28:45,960 --> 00:28:50,400 Speaker 2: And last month, did one nominee actually withdraw her name 478 00:28:50,440 --> 00:28:55,400 Speaker 2: from consideration for a federal trial court seat. 479 00:28:54,960 --> 00:28:55,840 Speaker 1: Because of the question? 480 00:28:55,920 --> 00:29:00,480 Speaker 6: He asked, yes, so, Charnette Bielkengrin, she was nomine for 481 00:29:00,560 --> 00:29:04,520 Speaker 6: a trial court seat in Washington State. One might sort 482 00:29:04,560 --> 00:29:10,240 Speaker 6: of make that connection, right that the controversy after her 483 00:29:10,600 --> 00:29:16,560 Speaker 6: confirmation hearing in which she was unable to define Articles 484 00:29:16,600 --> 00:29:21,920 Speaker 6: five and two of the Constitution. Once that hearing was over, 485 00:29:22,160 --> 00:29:25,520 Speaker 6: there was huge backlash, most of it sort of from 486 00:29:25,640 --> 00:29:30,160 Speaker 6: conservatives to this Biden nominee, saying that she if she 487 00:29:30,160 --> 00:29:33,240 Speaker 6: can't even you know, define articles of the Constitution, like 488 00:29:33,320 --> 00:29:36,520 Speaker 6: why would she make a good judge basically? And you know, 489 00:29:36,640 --> 00:29:40,360 Speaker 6: she ultimately was not renominated in the new year and 490 00:29:40,680 --> 00:29:44,240 Speaker 6: officially asked the White House to withdraw her name from 491 00:29:44,280 --> 00:29:46,120 Speaker 6: considerations to the judge shift. 492 00:29:46,320 --> 00:29:50,600 Speaker 2: There was a similar incident during the questioning of a 493 00:29:50,640 --> 00:29:54,240 Speaker 2: Trump nominee to the DC District Court. And I remember 494 00:29:54,360 --> 00:29:56,680 Speaker 2: that he withdrew his name too, tell us about that. 495 00:29:57,120 --> 00:30:01,800 Speaker 6: Yes, So we're going all the way back to twenty seventeen. 496 00:30:02,240 --> 00:30:07,120 Speaker 6: So this was Matthew Peterson, the former Federal Election Commission chair, 497 00:30:07,760 --> 00:30:12,880 Speaker 6: who had very little sort of a practicing litigation background 498 00:30:12,920 --> 00:30:16,480 Speaker 6: to draw from as far as trying to answer questions about, 499 00:30:16,640 --> 00:30:20,520 Speaker 6: you know, trials and just legal practice generally. You know, 500 00:30:20,560 --> 00:30:25,360 Speaker 6: he'd never tried a jury trial, either civil or criminal. 501 00:30:25,720 --> 00:30:28,840 Speaker 6: Couldn't define the dovert standard, if I'm saying that correctly, 502 00:30:29,160 --> 00:30:32,680 Speaker 6: couldn't have defined emotion in limity as I said before. Really, 503 00:30:32,720 --> 00:30:37,280 Speaker 6: it was a very awkward five minutes of questioning where 504 00:30:37,680 --> 00:30:41,800 Speaker 6: just time after time again he either admitted to his 505 00:30:42,680 --> 00:30:47,880 Speaker 6: lack of litigation experience or simply could not answer, you know, 506 00:30:48,000 --> 00:30:51,840 Speaker 6: basic questions that someone with trial experience would be able 507 00:30:51,880 --> 00:30:52,400 Speaker 6: to answer. 508 00:30:53,360 --> 00:30:58,680 Speaker 2: Nominees go through extensive preparations for these hearings. How much 509 00:30:58,720 --> 00:31:02,000 Speaker 2: are these Kennedy quiz is now a part of that. 510 00:31:02,280 --> 00:31:06,880 Speaker 6: So as far as our understanding of what that prep 511 00:31:06,880 --> 00:31:09,280 Speaker 6: has looked like over the years. So Kennedy's joined the 512 00:31:09,280 --> 00:31:13,200 Speaker 6: Senate back in twenty seventeen, and so the nominees who 513 00:31:13,240 --> 00:31:15,440 Speaker 6: would have been sort of subject to these quizzes have 514 00:31:15,560 --> 00:31:18,400 Speaker 6: been Trump and Biden nominees. I was able to talk 515 00:31:18,480 --> 00:31:23,040 Speaker 6: with some former Justice Department officials under the Trump administration 516 00:31:23,160 --> 00:31:26,000 Speaker 6: who were in charge of prepping nominees. They said to 517 00:31:26,040 --> 00:31:29,480 Speaker 6: me that they would sort of go over mock questions 518 00:31:29,520 --> 00:31:32,400 Speaker 6: that the Senator Kennedy might have asked, you know, relating 519 00:31:32,440 --> 00:31:36,840 Speaker 6: to legal procedure, et cetera. A former official told me 520 00:31:36,920 --> 00:31:40,600 Speaker 6: that they would hold mock hearings in which staffers would 521 00:31:40,800 --> 00:31:45,360 Speaker 6: portray different senators, including Kennedy. I would really love to 522 00:31:45,360 --> 00:31:51,280 Speaker 6: see that Kennedy impression. But it's really trying to get 523 00:31:51,320 --> 00:31:54,120 Speaker 6: these nominees in this frame of mind of you know, 524 00:31:54,240 --> 00:31:57,479 Speaker 6: answering it on the spot mini bar exams. I'll just 525 00:31:57,560 --> 00:32:00,440 Speaker 6: add to that too as well, that these are marshals. 526 00:32:00,880 --> 00:32:03,800 Speaker 6: Did say that they would sort of generally provide some 527 00:32:04,000 --> 00:32:07,760 Speaker 6: form of practice for the nominees, but ultimately, you know, 528 00:32:07,840 --> 00:32:12,240 Speaker 6: it's what has that person done in their professional career 529 00:32:12,400 --> 00:32:15,640 Speaker 6: that has you know, prepared them for that moment. Right, 530 00:32:16,080 --> 00:32:18,080 Speaker 6: We're not going to have you study for the bar 531 00:32:18,160 --> 00:32:21,200 Speaker 6: exam again, but what have you done in your career? 532 00:32:21,280 --> 00:32:25,000 Speaker 6: What has been your legal practice? Then that should in 533 00:32:25,040 --> 00:32:28,440 Speaker 6: and of itself prepare you for this moment. And you know, 534 00:32:28,480 --> 00:32:32,800 Speaker 6: there's some debate about whether if one does or does 535 00:32:32,840 --> 00:32:35,400 Speaker 6: not do well on these quizes, if that really reflects 536 00:32:35,440 --> 00:32:39,040 Speaker 6: on the breath of that person's professional experience. 537 00:32:39,400 --> 00:32:43,600 Speaker 2: But nominees, from district court nominees to Supreme Court nominees 538 00:32:44,280 --> 00:32:49,800 Speaker 2: usually steer clear of making commitments to specific legal issues. 539 00:32:50,000 --> 00:32:52,680 Speaker 2: Does that annoy Kennedy? You know you'll hear a Supreme 540 00:32:52,720 --> 00:32:54,920 Speaker 2: Court nominees say, well, that may come before me. 541 00:32:55,840 --> 00:33:01,320 Speaker 6: Kennedy, much like any other senator, understands that they nominees 542 00:33:01,440 --> 00:33:03,920 Speaker 6: can't say that they will rule this in this way 543 00:33:04,320 --> 00:33:07,920 Speaker 6: on any particular issue or case. There have been some 544 00:33:08,120 --> 00:33:12,239 Speaker 6: tense exchanges between nominees. In those exchanges, he'll say, I 545 00:33:12,280 --> 00:33:14,520 Speaker 6: know the White House has coached you not to answer 546 00:33:14,560 --> 00:33:17,440 Speaker 6: my question, but I need to know how you think. 547 00:33:18,000 --> 00:33:22,240 Speaker 6: That's actually a statement that was reflected in one of 548 00:33:22,280 --> 00:33:25,880 Speaker 6: my conversations with a former Department of Justice official who 549 00:33:25,960 --> 00:33:29,360 Speaker 6: is in charge of proping nominees that Kennedy does indeed 550 00:33:29,520 --> 00:33:33,280 Speaker 6: want to understand how nominees think, how they how they 551 00:33:33,320 --> 00:33:37,320 Speaker 6: think through issues. He's not necessarily looking for commitments on 552 00:33:37,440 --> 00:33:41,360 Speaker 6: legal matters on cases that could come before a nominee. 553 00:33:41,400 --> 00:33:46,320 Speaker 6: But in this sort of socratic exchange that a law 554 00:33:46,360 --> 00:33:49,920 Speaker 6: professor might have with a student, where they're talking through 555 00:33:49,960 --> 00:33:53,200 Speaker 6: a legal issue or a legal doctrine, he does this 556 00:33:53,520 --> 00:33:57,240 Speaker 6: Department of Justice official with telling me he does want 557 00:33:57,680 --> 00:34:00,160 Speaker 6: an active exchange with a nominee. 558 00:34:00,960 --> 00:34:04,120 Speaker 2: It seems like he takes delight in his reputation as 559 00:34:04,120 --> 00:34:07,400 Speaker 2: a hard question or sort of like street Cred on 560 00:34:07,520 --> 00:34:10,720 Speaker 2: the committee. He did an Instagram reel. Tell me about 561 00:34:10,760 --> 00:34:11,080 Speaker 2: that one. 562 00:34:11,280 --> 00:34:16,200 Speaker 6: Yeah, so, I believe. Back in December on his Instagram page, 563 00:34:16,719 --> 00:34:20,520 Speaker 6: he posted a reel that was almost a montage, if 564 00:34:20,560 --> 00:34:24,360 Speaker 6: you will, of some of his famous moments of questioning 565 00:34:24,440 --> 00:34:28,040 Speaker 6: Biden nominees over the earlier months of twenty twenty three, 566 00:34:28,640 --> 00:34:31,680 Speaker 6: where you have clips of him questioning at the time 567 00:34:31,719 --> 00:34:36,080 Speaker 6: nominee Cato Cruz for the District of Colorado, Charnel Bielkins 568 00:34:36,160 --> 00:34:39,640 Speaker 6: Grant for the a trial court feat in Washington State. 569 00:34:40,200 --> 00:34:43,960 Speaker 6: And really these clips really showcase these nominees being frankly, 570 00:34:44,440 --> 00:34:48,239 Speaker 6: very stumped by these questions. And so I think that's 571 00:34:48,280 --> 00:34:51,320 Speaker 6: a pretty fair reading that he does take some delight 572 00:34:51,440 --> 00:34:55,040 Speaker 6: in this reputation that he has gained for being a 573 00:34:55,120 --> 00:34:57,000 Speaker 6: formidable questioner of nominees. 574 00:34:57,320 --> 00:34:57,640 Speaker 3: I don't know. 575 00:34:57,719 --> 00:35:00,160 Speaker 2: Formidable is the word. He just goes in area is 576 00:35:00,200 --> 00:35:04,200 Speaker 2: where other senators don't. And it seems to me, having 577 00:35:04,239 --> 00:35:06,760 Speaker 2: watched this for a while, that it's like a game 578 00:35:06,800 --> 00:35:11,160 Speaker 2: for him. And does the inability to answer one legal 579 00:35:11,239 --> 00:35:14,800 Speaker 2: question show that a nominee is not qualified for the bench? 580 00:35:14,880 --> 00:35:18,440 Speaker 2: I mean even Supreme Court justices don't know all the answers. 581 00:35:18,719 --> 00:35:21,160 Speaker 2: That's one of the reasons they ask all the questions 582 00:35:21,160 --> 00:35:23,879 Speaker 2: they do in oral arguments. It just seems like it's 583 00:35:23,960 --> 00:35:24,440 Speaker 2: for show. 584 00:35:24,760 --> 00:35:28,160 Speaker 6: I think those are all incredibly fair points to make, 585 00:35:28,360 --> 00:35:33,200 Speaker 6: right In talking with people for the story, one thing 586 00:35:33,280 --> 00:35:36,959 Speaker 6: that came up was just sort of the nature of 587 00:35:37,040 --> 00:35:40,720 Speaker 6: the questioning. Where you have someone sort of sitting down 588 00:35:40,840 --> 00:35:44,640 Speaker 6: in front of these really bright lights, in front of 589 00:35:44,719 --> 00:35:48,040 Speaker 6: some of the most powerful politicians in the country, and 590 00:35:48,280 --> 00:35:51,759 Speaker 6: all of a sudden, you're asked about this amendment that 591 00:35:51,920 --> 00:35:55,799 Speaker 6: you probably haven't thought of in a while, and you're 592 00:35:55,880 --> 00:35:58,600 Speaker 6: meant to sort of define it on the spot in 593 00:35:58,600 --> 00:36:01,320 Speaker 6: that moment. If you go, you might end up in 594 00:36:01,360 --> 00:36:04,520 Speaker 6: a highlight reel on Kennedy's Instagram page. 595 00:36:04,840 --> 00:36:08,080 Speaker 2: You spoke to the Justice program director at the Alliance 596 00:36:08,120 --> 00:36:10,759 Speaker 2: for Justice, and I thought that what he told you 597 00:36:11,080 --> 00:36:13,479 Speaker 2: really hit home is he said that Kennedy doesn't seem 598 00:36:13,520 --> 00:36:17,719 Speaker 2: to recognize that judges have access to libraries, and you know, 599 00:36:17,880 --> 00:36:22,359 Speaker 2: these questions get briefed and they have law clerks. Did 600 00:36:22,440 --> 00:36:24,799 Speaker 2: other people that you spoke to and think that this 601 00:36:25,080 --> 00:36:29,600 Speaker 2: was not really the best way to approach these hearings? 602 00:36:30,120 --> 00:36:32,920 Speaker 6: Yes, for the most part, most of the sources I 603 00:36:33,040 --> 00:36:38,440 Speaker 6: spoke to highlighted the realities in their view, the realities 604 00:36:38,480 --> 00:36:41,360 Speaker 6: of what it means to be not just a judge, 605 00:36:41,400 --> 00:36:45,920 Speaker 6: but to practice the law generally, where it isn't just recalling, 606 00:36:47,520 --> 00:36:51,400 Speaker 6: memorize quantum of the law. That it is about research, 607 00:36:51,440 --> 00:36:55,440 Speaker 6: It is about looking through the legal questions being presented. 608 00:36:55,520 --> 00:36:58,480 Speaker 6: It is about you know, going through case law that 609 00:36:58,520 --> 00:37:01,759 Speaker 6: you may or may not be familiar with. And all 610 00:37:01,840 --> 00:37:05,719 Speaker 6: of these very important decisions that judges make in the 611 00:37:05,760 --> 00:37:08,440 Speaker 6: course of legal practice and the course of their jobs 612 00:37:08,520 --> 00:37:12,279 Speaker 6: aren't necessarily made on the spot. They're made after countless 613 00:37:12,280 --> 00:37:16,399 Speaker 6: hours of doing the research of analyzing legal issues, etc. 614 00:37:16,719 --> 00:37:20,000 Speaker 6: And so I was just talking with some judge former 615 00:37:20,040 --> 00:37:23,879 Speaker 6: and current federal judges for a previous story that said, look, 616 00:37:23,960 --> 00:37:26,440 Speaker 6: most of these cases don't even go to trial, right 617 00:37:26,480 --> 00:37:29,520 Speaker 6: we don't even have a bench trial or a jury trial. 618 00:37:29,840 --> 00:37:32,560 Speaker 6: Much of this is done and sort of these motions 619 00:37:32,560 --> 00:37:35,040 Speaker 6: that are made between parties, a. 620 00:37:34,960 --> 00:37:37,759 Speaker 2: Lot of motion practice in the federal courts. Well, it's 621 00:37:37,800 --> 00:37:42,080 Speaker 2: a really interesting article. Thanks so much, Tianna. That's Tianna 622 00:37:42,120 --> 00:37:45,239 Speaker 2: Headley of Bloomberg Law, and that's it for this edition 623 00:37:45,280 --> 00:37:47,920 Speaker 2: of the Bloomberg Law Show. Remember you can always get 624 00:37:47,960 --> 00:37:51,120 Speaker 2: the latest legal news on our Bloomberg Law Podcast. You 625 00:37:51,120 --> 00:37:55,200 Speaker 2: can find them on Apple Podcasts, Spotify and at www 626 00:37:55,360 --> 00:37:59,880 Speaker 2: dot Bloomberg dot com, Slash podcast, Slash Law. And attorneys 627 00:38:00,080 --> 00:38:03,560 Speaker 2: looking for legal research. Whether you're an in house counsel 628 00:38:03,760 --> 00:38:07,040 Speaker 2: or in private practice, Bloomberg Law gives you the edge 629 00:38:07,280 --> 00:38:11,400 Speaker 2: with the latest in AI powered legal analytics, business insights, 630 00:38:11,440 --> 00:38:15,440 Speaker 2: and workflow tools. 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