1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,800 --> 00:00:13,320 Speaker 1: We will bring justice to this issue to our community. 3 00:00:13,560 --> 00:00:18,120 Speaker 2: We will not stand for this type of discrimination and racism. 4 00:00:18,200 --> 00:00:22,640 Speaker 3: Los Angeles Mayor Karen Bess slammed the Supreme Court's emergency 5 00:00:22,800 --> 00:00:26,159 Speaker 3: ruling this week that allows ice agents to stop and 6 00:00:26,239 --> 00:00:31,000 Speaker 3: detain people based on their race, language, job, or location, 7 00:00:31,520 --> 00:00:36,080 Speaker 3: factors that a federal judge had found unconstitutional. The ruling 8 00:00:36,240 --> 00:00:39,360 Speaker 3: was six to three, with the conservative justices in the 9 00:00:39,400 --> 00:00:44,520 Speaker 3: majority and the liberals in descent. Immigration advocates like Columbia 10 00:00:44,600 --> 00:00:48,280 Speaker 3: Law School professor Alaura Mukherjee say it means the Court 11 00:00:48,320 --> 00:00:51,520 Speaker 3: has essentially legalized racial profiling. 12 00:00:51,880 --> 00:00:55,720 Speaker 4: What this means in practice is that immigration officers, as 13 00:00:55,760 --> 00:01:00,400 Speaker 4: well as other law enforcement officers, now practically have an 14 00:01:00,440 --> 00:01:04,400 Speaker 4: invitation to engage in racial profiling when they are carrying 15 00:01:04,400 --> 00:01:08,959 Speaker 4: out stops. The effect of this decision is that America 16 00:01:09,520 --> 00:01:13,720 Speaker 4: has become a show me your papers country for the 17 00:01:13,840 --> 00:01:16,160 Speaker 4: overwhelming majority of people of color. 18 00:01:16,520 --> 00:01:20,440 Speaker 3: The ruling was a one paragraph order with no explanation 19 00:01:20,560 --> 00:01:23,320 Speaker 3: at all from the majority. My guest is a leading 20 00:01:23,360 --> 00:01:28,040 Speaker 3: authority on racial profiling, Professor David Harris of the University 21 00:01:28,040 --> 00:01:31,200 Speaker 3: of Pittsburgh Law School. David, I want to start with 22 00:01:31,240 --> 00:01:35,720 Speaker 3: the basics. When can law enforcement stop someone under the 23 00:01:35,760 --> 00:01:36,600 Speaker 3: Fourth Amendment. 24 00:01:37,200 --> 00:01:39,800 Speaker 5: People can be stopped by the police under the Fourth 25 00:01:39,840 --> 00:01:43,960 Speaker 5: Amendment when there is reasonable suspicion that a crime is 26 00:01:44,000 --> 00:01:46,440 Speaker 5: afoot and they may be involved in the crime, and 27 00:01:46,520 --> 00:01:49,840 Speaker 5: reasonable suspicion is less than probable cause, but it is 28 00:01:49,920 --> 00:01:54,760 Speaker 5: based on facts and reasons. Now, when we transition from 29 00:01:55,080 --> 00:01:59,240 Speaker 5: detecting crime to looking at immigration issues, the standard is 30 00:01:59,280 --> 00:02:02,680 Speaker 5: still reasonable suspicion. There must be facts, and there must 31 00:02:02,720 --> 00:02:07,400 Speaker 5: be proper inferences. But what we're looking for, of course, 32 00:02:07,560 --> 00:02:11,280 Speaker 5: is whether a person is in immigration status or not. 33 00:02:12,040 --> 00:02:15,240 Speaker 3: So with this ruling, the Supreme Court put on hold 34 00:02:15,400 --> 00:02:19,520 Speaker 3: a federal judges order tell us about the order at stayed. 35 00:02:20,280 --> 00:02:23,880 Speaker 5: The lower court in Los Angeles had decided that ICE 36 00:02:24,320 --> 00:02:29,440 Speaker 5: and its law enforcement allies were using factors to stop 37 00:02:29,520 --> 00:02:35,880 Speaker 5: people that inevitably led to unconstitutional stops, and the lower 38 00:02:35,919 --> 00:02:40,000 Speaker 5: court had said, you may not use, either alone or 39 00:02:40,040 --> 00:02:46,480 Speaker 5: in combination, the factors of somebody's Hispanic or Latino appearance, 40 00:02:46,800 --> 00:02:50,760 Speaker 5: speaking Spanish or having an accent appearance, that you are 41 00:02:50,800 --> 00:02:55,720 Speaker 5: engaged in low wage work, and being at a location 42 00:02:55,919 --> 00:02:59,800 Speaker 5: associated with day labor, and the Court said, you can't 43 00:02:59,880 --> 00:03:03,640 Speaker 5: do this anymore because I can see from the evidence 44 00:03:03,760 --> 00:03:06,960 Speaker 5: that I took that this is being done in ways 45 00:03:07,000 --> 00:03:11,239 Speaker 5: that violate the Constitution. And what the Supreme Court did 46 00:03:11,320 --> 00:03:15,760 Speaker 5: on its emergency docket was to say, no, no, this 47 00:03:16,000 --> 00:03:19,560 Speaker 5: order will not go into effect. We're holding it for 48 00:03:19,639 --> 00:03:21,920 Speaker 5: now until we have more time to look at it. 49 00:03:22,320 --> 00:03:26,480 Speaker 5: And Justice Kavanaugh wrote an opinion that is not for 50 00:03:26,560 --> 00:03:31,239 Speaker 5: the court, saying that he believed that the administration who 51 00:03:31,360 --> 00:03:35,400 Speaker 5: want to be able to use those factors will succeed 52 00:03:35,520 --> 00:03:38,320 Speaker 5: when they get to a full hearing, that they'll win, 53 00:03:38,920 --> 00:03:42,640 Speaker 5: and therefore Ice and the police allies can go back 54 00:03:42,680 --> 00:03:46,840 Speaker 5: to using those factors when they stop people to see 55 00:03:46,880 --> 00:03:50,320 Speaker 5: if they are in violation of the immigration laws. 56 00:03:50,640 --> 00:03:53,760 Speaker 3: Are they basically saying, well, racial profiling's okay. 57 00:03:53,800 --> 00:03:57,280 Speaker 5: Then what they're doing is they're looking back, and this 58 00:03:57,360 --> 00:03:59,880 Speaker 5: is the best we can tell. We're not really sure, because, 59 00:04:00,080 --> 00:04:02,320 Speaker 5: like you said, there is no opinion, so we're having 60 00:04:02,360 --> 00:04:05,040 Speaker 5: to speculate to some extent. But what they seem to 61 00:04:05,120 --> 00:04:07,760 Speaker 5: be saying, based on the fact that they stopped the 62 00:04:07,840 --> 00:04:10,320 Speaker 5: lower courts ruling which would have put a stop to 63 00:04:10,440 --> 00:04:15,000 Speaker 5: all of this and Justice Kavanaugh's opinion for himself is 64 00:04:15,200 --> 00:04:20,800 Speaker 5: it's okay to use some combination of those four factors 65 00:04:20,880 --> 00:04:24,960 Speaker 5: ethnic appearance, Spanish speaking or accent, appearance of being a 66 00:04:24,960 --> 00:04:29,080 Speaker 5: low wage worker in these particular locations. Now, Kavanaugh was 67 00:04:29,440 --> 00:04:32,520 Speaker 5: clear on saying, you can't just say, well, this person 68 00:04:32,560 --> 00:04:36,080 Speaker 5: looks Mexican and that's enough. But it's a very slippery 69 00:04:36,080 --> 00:04:41,040 Speaker 5: slope down to exactly that point. Our experience with this 70 00:04:41,120 --> 00:04:44,080 Speaker 5: sort of thing goes back many years now. I've been 71 00:04:44,120 --> 00:04:47,599 Speaker 5: studying racial and ethnic profiling for well over thirty years, 72 00:04:47,600 --> 00:04:49,880 Speaker 5: and we've seen it. We've seen exactly this kind of 73 00:04:49,880 --> 00:04:53,320 Speaker 5: thing before. We saw it when Arizona enacted the show 74 00:04:53,360 --> 00:04:56,559 Speaker 5: your Paper statue back in about two thousand and eight 75 00:04:56,800 --> 00:05:00,360 Speaker 5: or so, and Sheriff Joe Rpio went to town on 76 00:05:00,400 --> 00:05:02,640 Speaker 5: that and it was just picking up people because of 77 00:05:02,839 --> 00:05:07,880 Speaker 5: how they looked in their Spanish speaking or their accent. 78 00:05:08,440 --> 00:05:11,240 Speaker 5: And that is racial profiling by any other name. I mean, 79 00:05:11,240 --> 00:05:13,240 Speaker 5: we don't want to call it that, fine, but that's 80 00:05:13,240 --> 00:05:17,039 Speaker 5: what happened. Law enforcement begins to lean on the most 81 00:05:17,200 --> 00:05:20,919 Speaker 5: obvious factors, and that's what the judge saw in Los Angeles, 82 00:05:20,960 --> 00:05:23,080 Speaker 5: and that's why the judge stopped them from doing this 83 00:05:23,120 --> 00:05:26,440 Speaker 5: in the first place. So all of this will move 84 00:05:26,800 --> 00:05:31,200 Speaker 5: immigration enforcement efforts right up to that very same line, 85 00:05:31,320 --> 00:05:33,800 Speaker 5: and we will have people getting picked up just for 86 00:05:34,000 --> 00:05:37,200 Speaker 5: how they look and whether they're Spanish speaking. It's going 87 00:05:37,279 --> 00:05:39,159 Speaker 5: to happen as night follows day. 88 00:05:39,720 --> 00:05:42,400 Speaker 3: And the only way we'll find out what factors the 89 00:05:42,440 --> 00:05:47,280 Speaker 3: immigration officers are relying on is if someone who's detained 90 00:05:47,760 --> 00:05:49,159 Speaker 3: brings a lawsuit, right. 91 00:05:49,480 --> 00:05:52,880 Speaker 5: Exactly, and there will be some cases broad chances there, 92 00:05:52,960 --> 00:05:56,360 Speaker 5: because one of the other effects of this is going 93 00:05:56,440 --> 00:06:00,240 Speaker 5: to be that lots of people will be interrogated and 94 00:06:00,360 --> 00:06:04,120 Speaker 5: even picked up and arrested who are in good order 95 00:06:04,200 --> 00:06:08,040 Speaker 5: as far as immigration law. That's another thing that we see. 96 00:06:08,080 --> 00:06:12,640 Speaker 5: Whenever there is widespread sort of dragnet pulling people in 97 00:06:12,720 --> 00:06:16,360 Speaker 5: on these very basic factors, they end up making mistakes 98 00:06:16,560 --> 00:06:19,599 Speaker 5: when they're allowed to lean on those kind of factors, 99 00:06:20,000 --> 00:06:22,520 Speaker 5: and we will get a few people who end up 100 00:06:22,720 --> 00:06:25,000 Speaker 5: in custody, maybe for a few days, maybe for a 101 00:06:25,040 --> 00:06:28,159 Speaker 5: long time, maybe even getting deported before it can be 102 00:06:28,240 --> 00:06:32,000 Speaker 5: reversed and they can bring a case. Justice Kavanaugh says 103 00:06:32,080 --> 00:06:35,239 Speaker 5: in his opinion, well, look, if everything's in order, they'll 104 00:06:35,279 --> 00:06:38,360 Speaker 5: just let you go and He says it's an important 105 00:06:38,400 --> 00:06:41,320 Speaker 5: problem in Los Angeles because there's an estimate of stake 106 00:06:41,400 --> 00:06:46,000 Speaker 5: two million people who are undocumented in Los Angeles. But 107 00:06:46,080 --> 00:06:49,960 Speaker 5: what he doesn't say is that there are millions more 108 00:06:50,279 --> 00:06:54,400 Speaker 5: who share those characteristics, who have ethnic features of people 109 00:06:54,480 --> 00:06:57,760 Speaker 5: from Latin America, who speak Spanish, who have a Spanish accent, 110 00:06:58,040 --> 00:06:59,839 Speaker 5: and they're going to be swept up in this two 111 00:07:00,240 --> 00:07:02,839 Speaker 5: and that's where the cases will probably come from. 112 00:07:03,360 --> 00:07:06,719 Speaker 3: Just as Kavanaugh said, as for stops of those individuals 113 00:07:06,720 --> 00:07:09,800 Speaker 3: who are legally in the country, the questioning in those 114 00:07:09,840 --> 00:07:14,280 Speaker 3: circumstances is typically brief, and those individuals may promptly go 115 00:07:14,480 --> 00:07:17,680 Speaker 3: free after making clear of the immigration officers that they 116 00:07:17,680 --> 00:07:21,440 Speaker 3: are US citizens or otherwise legally in the United States. 117 00:07:21,680 --> 00:07:24,520 Speaker 3: He doesn't mention that one of the plaintiffs here, Jason 118 00:07:24,600 --> 00:07:29,680 Speaker 3: Brian Gavidia, who's an American citizen, was stopped by immigration agents, 119 00:07:30,200 --> 00:07:34,000 Speaker 3: shoved into a metal fence and his arm was twisted 120 00:07:34,240 --> 00:07:37,360 Speaker 3: behind his back, all the while that he's shouting, I'm American, 121 00:07:37,560 --> 00:07:40,320 Speaker 3: I was born in East LA And there's video of 122 00:07:40,360 --> 00:07:46,480 Speaker 3: it that anyone can see on the internet. 123 00:07:47,960 --> 00:07:48,360 Speaker 4: Literally. 124 00:07:52,440 --> 00:07:55,560 Speaker 3: Gavidia says that he was frightened and the agents took 125 00:07:55,560 --> 00:07:58,680 Speaker 3: his phone and ID. He was released, but he never 126 00:07:58,760 --> 00:08:00,240 Speaker 3: did get his ID card back. 127 00:08:00,640 --> 00:08:04,200 Speaker 5: Yeah, this is going to happen. This is going to 128 00:08:04,280 --> 00:08:09,119 Speaker 5: happen more now that everybody can see, including the ICE 129 00:08:09,200 --> 00:08:11,960 Speaker 5: agents and the police are helping them, that they've been 130 00:08:12,000 --> 00:08:15,400 Speaker 5: given the green light. We will have that happen. It's 131 00:08:15,400 --> 00:08:19,080 Speaker 5: a certainty. And for Justice Cavanaugh to say, hey, it's 132 00:08:19,120 --> 00:08:21,680 Speaker 5: all fine as long as you carrying your papers with it, well, 133 00:08:21,760 --> 00:08:23,920 Speaker 5: I mean, do you carry your birth certificate to work? 134 00:08:24,080 --> 00:08:26,480 Speaker 5: I mean does everybody do that? And even if you do, 135 00:08:26,840 --> 00:08:29,240 Speaker 5: you might not get those things back. You can be 136 00:08:29,440 --> 00:08:33,240 Speaker 5: in big trouble even if you have crushed every t 137 00:08:33,400 --> 00:08:36,000 Speaker 5: and dited every eye and you were born here. So 138 00:08:36,480 --> 00:08:38,960 Speaker 5: I just really took offense at that. I think it's 139 00:08:39,000 --> 00:08:42,600 Speaker 5: somebody who never has to confront these problems making a 140 00:08:42,640 --> 00:08:44,360 Speaker 5: pronouncement he knows nothing about. 141 00:08:44,960 --> 00:08:49,160 Speaker 3: So Justice Sodomayo wrote a stinging descent quote, we should 142 00:08:49,160 --> 00:08:51,160 Speaker 3: not have to live in a country where the government 143 00:08:51,200 --> 00:08:55,480 Speaker 3: can seize anyone who looks Latino, speaks Spanish, and appears 144 00:08:55,520 --> 00:08:59,160 Speaker 3: to work a low wage job. She quoted in nineteen 145 00:08:59,240 --> 00:09:02,920 Speaker 3: seventy five case that said it was unconstitutional for the 146 00:09:02,960 --> 00:09:06,400 Speaker 3: border patrol to stop a car and question its occupants 147 00:09:06,840 --> 00:09:09,280 Speaker 3: when the only ground for suspicion was that they appeared 148 00:09:09,320 --> 00:09:13,920 Speaker 3: to be of Mexican ancestry. Does this shadow docket decision 149 00:09:14,200 --> 00:09:17,920 Speaker 3: contradict that decision or is it broader? 150 00:09:18,559 --> 00:09:21,440 Speaker 5: It's a little broader, But again we're less to speculate 151 00:09:21,559 --> 00:09:24,360 Speaker 5: because it's just on the shadow docket. But that's a 152 00:09:24,440 --> 00:09:28,040 Speaker 5: live question. For sure. There is an older case that 153 00:09:28,120 --> 00:09:31,760 Speaker 5: says things like that you have to go beyond just 154 00:09:32,160 --> 00:09:36,480 Speaker 5: ethnic appearance, But certainly it does also say that same case, 155 00:09:36,800 --> 00:09:40,520 Speaker 5: ethnic appearance counts. And my experience, in the experience of 156 00:09:40,559 --> 00:09:43,560 Speaker 5: those who study this as I have, is that when 157 00:09:43,679 --> 00:09:48,479 Speaker 5: that's a factor that is relied on, even with others 158 00:09:48,600 --> 00:09:52,600 Speaker 5: in the mix, law enforcement leans heavily on. It discounts 159 00:09:52,640 --> 00:09:54,840 Speaker 5: the other factors that may go in the other direction, 160 00:09:55,320 --> 00:09:56,439 Speaker 5: and you get mistakes. 161 00:09:56,840 --> 00:10:00,960 Speaker 3: Immigration advocates fear that this decision will open the door 162 00:10:01,080 --> 00:10:06,000 Speaker 3: to racial profiling across the United States. Do you think 163 00:10:06,040 --> 00:10:09,680 Speaker 3: that now that the Supreme Court has found this is 164 00:10:10,040 --> 00:10:13,920 Speaker 3: okay in Los Angeles, that it will also be okay 165 00:10:14,160 --> 00:10:17,360 Speaker 3: in Chicago or New York or other cities. 166 00:10:17,600 --> 00:10:21,040 Speaker 5: Well, again, we're left without full knowledge of what the 167 00:10:21,080 --> 00:10:23,560 Speaker 5: Supreme Court has done or will do. We don't know 168 00:10:23,600 --> 00:10:25,760 Speaker 5: how far they will go or what they will say 169 00:10:25,760 --> 00:10:30,679 Speaker 5: in the end. But people who know just the headline, 170 00:10:31,120 --> 00:10:33,320 Speaker 5: if they're in the enforcement business, that's how they're going 171 00:10:33,400 --> 00:10:37,400 Speaker 5: to take it. Supreme Court says it's okay to use 172 00:10:37,840 --> 00:10:41,080 Speaker 5: racial or ethnic appearance. They're not even going to make 173 00:10:41,120 --> 00:10:46,280 Speaker 5: the distinction that Justice Kavanaugh does, which is that wouldn't 174 00:10:46,320 --> 00:10:49,240 Speaker 5: be enough by itself. They're going to take it as 175 00:10:49,480 --> 00:10:52,199 Speaker 5: racial profiling is okay. And if it's okay in LA, 176 00:10:52,280 --> 00:10:55,319 Speaker 5: why wouldn't it be okay in Chicago or New York. 177 00:10:55,480 --> 00:10:57,959 Speaker 5: And when they say blood his own, they mean lots 178 00:10:57,960 --> 00:11:00,360 Speaker 5: and lots of people from our force will be out 179 00:11:00,440 --> 00:11:04,280 Speaker 5: there doing this and long range. What you care about 180 00:11:04,320 --> 00:11:08,000 Speaker 5: is public safety. You are doing the wrong things because 181 00:11:08,000 --> 00:11:11,680 Speaker 5: public safety depends on public support. You need the public 182 00:11:12,000 --> 00:11:15,480 Speaker 5: to give the police information about what's what in the neighborhoods. 183 00:11:15,800 --> 00:11:19,000 Speaker 5: If this is happening not just to people who might 184 00:11:19,040 --> 00:11:23,959 Speaker 5: be deported legitimately, let's say, but to people born here 185 00:11:24,280 --> 00:11:26,760 Speaker 5: because they look a certain way. That is going to 186 00:11:26,880 --> 00:11:30,880 Speaker 5: alienate people not just from ice, but from police generally, 187 00:11:31,040 --> 00:11:33,880 Speaker 5: and it makes them less likely to cooperate with any 188 00:11:33,920 --> 00:11:37,760 Speaker 5: policing of any type. So this immigration policy of flooding 189 00:11:37,800 --> 00:11:42,600 Speaker 5: the zone with forces with these low accuracy factors, this 190 00:11:42,760 --> 00:11:45,720 Speaker 5: is going to make it more dangerous for US just 191 00:11:45,920 --> 00:11:47,720 Speaker 5: on the level of regular crime. 192 00:11:48,240 --> 00:11:51,280 Speaker 3: Thanks so much, David. That's Professor David Harris of the 193 00:11:51,360 --> 00:11:55,240 Speaker 3: University of Pittsburgh Law School. Coming up next. How the 194 00:11:55,320 --> 00:11:58,559 Speaker 3: Roberts Court has changed the law. I'm June gross when 195 00:11:58,559 --> 00:12:03,800 Speaker 3: you're listening to Bloomberg. Chief Justice John Roberts famously compared 196 00:12:03,920 --> 00:12:08,320 Speaker 3: judges to umpires during his confirmation hearings in twenty ten. 197 00:12:08,880 --> 00:12:12,720 Speaker 1: Judges are like umpires. Umpires don't make the rules, they 198 00:12:12,760 --> 00:12:16,520 Speaker 1: apply them. The role of an umpire and a judge 199 00:12:16,920 --> 00:12:20,440 Speaker 1: is critical. They make sure everybody plays by the rules. 200 00:12:21,200 --> 00:12:22,480 Speaker 1: But it is a limited role. 201 00:12:23,440 --> 00:12:27,400 Speaker 3: But many legal experts say the Roberts Court has changed 202 00:12:27,440 --> 00:12:31,400 Speaker 3: the rules playing anything but the limited role of an umpire. 203 00:12:31,960 --> 00:12:35,000 Speaker 3: During the twenty years since he's been chief, the Court, 204 00:12:35,120 --> 00:12:40,880 Speaker 3: with its conservative majority and now conservative supermajority, has dramatically 205 00:12:41,120 --> 00:12:46,960 Speaker 3: changed the law on abortion, gun rights, race, religion, federal agencies, 206 00:12:47,120 --> 00:12:51,360 Speaker 3: and presidential power, overturning precedents that got in the way 207 00:12:51,720 --> 00:12:54,800 Speaker 3: and moving the court further and further to the right. 208 00:12:55,400 --> 00:12:59,120 Speaker 3: My guest is constitutional law professor Eric Siegel of Georgia 209 00:12:59,160 --> 00:13:03,120 Speaker 3: State Universal. Eric, what do you think of Robert's comparison 210 00:13:03,480 --> 00:13:06,160 Speaker 3: of justices to umpires. 211 00:13:06,480 --> 00:13:10,360 Speaker 6: Well, Justice Kavanaugh repeated that years later as well, despite 212 00:13:10,440 --> 00:13:13,920 Speaker 6: the mockery of virtually all court watchers pungents across the 213 00:13:13,960 --> 00:13:17,600 Speaker 6: political spectrum on that statement by Justice Roberts, they're not umpires. 214 00:13:17,640 --> 00:13:21,600 Speaker 6: They've never been umpires. In eighteen fifty seven, Congress wanted 215 00:13:21,640 --> 00:13:24,559 Speaker 6: to end slavery in the territories. Congress had the power 216 00:13:24,640 --> 00:13:27,280 Speaker 6: to do that under the Constitution. The Court made up 217 00:13:27,280 --> 00:13:29,760 Speaker 6: a new rule and said no, And from nineteen hundred 218 00:13:29,800 --> 00:13:32,199 Speaker 6: to nineteen thirty six the Court struck down hundreds of 219 00:13:32,280 --> 00:13:36,200 Speaker 6: laws about minimum wages, overtime rules, and labor conditions. The 220 00:13:36,240 --> 00:13:39,120 Speaker 6: Constitution allows Congress to do that. The Court wasn't playing 221 00:13:39,200 --> 00:13:42,120 Speaker 6: like an umpire, And I think conservatives would fairly say 222 00:13:42,240 --> 00:13:45,280 Speaker 6: that cases like rovers Wait were not the justices acting 223 00:13:45,320 --> 00:13:47,719 Speaker 6: like umpires. So no, it was a silly statement when 224 00:13:47,760 --> 00:13:50,319 Speaker 6: he made it. It was even sillier for Justice Kavanaugh 225 00:13:50,440 --> 00:13:53,439 Speaker 6: to repeat it during this confirmation airing. The Constitution is 226 00:13:53,480 --> 00:13:56,679 Speaker 6: a very vague document when it comes to litigation, there 227 00:13:56,679 --> 00:13:59,640 Speaker 6: are some specific things. The president has to be thirty 228 00:13:59,640 --> 00:14:03,960 Speaker 6: five to centers from every state. Inauguration day is January twentieth. 229 00:14:04,040 --> 00:14:07,239 Speaker 6: But we don't litigate those clauses. We litigate due process, 230 00:14:07,360 --> 00:14:11,560 Speaker 6: equal protection, cruel and usual punishment, unreasonable searchers and seizures, 231 00:14:11,559 --> 00:14:13,920 Speaker 6: and so on. It'd be a thing to an umpire 232 00:14:14,440 --> 00:14:16,680 Speaker 6: you get to decide what's fair in a baseball game. 233 00:14:16,840 --> 00:14:19,400 Speaker 6: That's not what umpires do in baseball. They have some discretion. 234 00:14:19,560 --> 00:14:22,720 Speaker 6: Of course, we've told the Supreme Court in effect make 235 00:14:22,880 --> 00:14:26,080 Speaker 6: the constitutional rules for America, and that has nothing to 236 00:14:26,120 --> 00:14:26,640 Speaker 6: do with sports. 237 00:14:26,640 --> 00:14:27,240 Speaker 5: Someone. 238 00:14:27,280 --> 00:14:29,320 Speaker 3: There are a lot of areas where the Roberts Court 239 00:14:29,360 --> 00:14:33,760 Speaker 3: has changed or reshaped the law. Some changes seem dramatic, 240 00:14:33,920 --> 00:14:37,880 Speaker 3: like abortion and gun rights. Other changes, like the laws 241 00:14:37,880 --> 00:14:42,800 Speaker 3: around race, seem slower in coming. Tell us about Robert's role. 242 00:14:42,680 --> 00:14:47,680 Speaker 6: There other than the presidential immunity decision in Trump versus 243 00:14:47,720 --> 00:14:50,200 Speaker 6: the United States, one of the worst opinions in Supreme 244 00:14:50,200 --> 00:14:53,400 Speaker 6: Court history. In my opinion and many others, leaving aside 245 00:14:53,440 --> 00:14:56,440 Speaker 6: that opinion written by Justice Roberts, I think he's done 246 00:14:56,480 --> 00:14:59,280 Speaker 6: the most damage to America when it comes to race, 247 00:14:59,400 --> 00:15:01,920 Speaker 6: and it started in his very first term, when the 248 00:15:01,920 --> 00:15:05,880 Speaker 6: cities of Seattle and Louisville. Let's take Louisville for a minute. 249 00:15:05,960 --> 00:15:09,520 Speaker 6: You know, Louisville had segregation under the law for many, 250 00:15:09,560 --> 00:15:13,080 Speaker 6: many years. Those schools were still segregated. So at the 251 00:15:13,200 --> 00:15:17,560 Speaker 6: very local level, students and teachers and parents and school 252 00:15:17,560 --> 00:15:20,680 Speaker 6: board members and voters got together and came up with 253 00:15:20,760 --> 00:15:24,000 Speaker 6: a very limited plan to make sure that the public 254 00:15:24,040 --> 00:15:28,840 Speaker 6: schools in Louisville had some minimal degree of desegregation so 255 00:15:28,880 --> 00:15:31,560 Speaker 6: that white kids and black kids in Louisville could go 256 00:15:31,600 --> 00:15:34,120 Speaker 6: to school together. And no judge ordered this. This was 257 00:15:34,240 --> 00:15:37,320 Speaker 6: volunteer and in his very first term, the Roberts Court 258 00:15:37,360 --> 00:15:40,200 Speaker 6: struck that down. And that's when Justice Roberts said the 259 00:15:40,240 --> 00:15:43,440 Speaker 6: famous line, the way to stop discrimination based on race 260 00:15:43,520 --> 00:15:46,200 Speaker 6: is to stop discriminating based on race. In the context 261 00:15:46,240 --> 00:15:49,520 Speaker 6: of Louisville, Kentucky, which discriminated in the basis of race 262 00:15:49,640 --> 00:15:53,200 Speaker 6: legally for a century, that's, in my opinion, a very 263 00:15:53,200 --> 00:15:56,000 Speaker 6: bizarre statement. And even Justice Kennedy, who was a fifth 264 00:15:56,080 --> 00:15:58,760 Speaker 6: vote in that case, disagreed with that statement. So it 265 00:15:58,800 --> 00:16:02,240 Speaker 6: started there. Everybody knows that Justice Roberts does not like 266 00:16:02,360 --> 00:16:05,160 Speaker 6: voting rights as a young attorney in the Reagan administration 267 00:16:05,200 --> 00:16:08,560 Speaker 6: in nineteen eighty one, he wrote some scathing things about 268 00:16:08,600 --> 00:16:10,880 Speaker 6: the Voting Rights Act, and then, of course, in Shelby 269 00:16:10,920 --> 00:16:14,560 Speaker 6: County versus Holder, he was able to concoct a new 270 00:16:14,680 --> 00:16:17,800 Speaker 6: rule that Congress can't treat different states differently without a 271 00:16:17,800 --> 00:16:21,240 Speaker 6: strong reason and struck down a law that was passed 272 00:16:21,240 --> 00:16:24,800 Speaker 6: by a unanimous Senate and signed by a Republican president. 273 00:16:24,960 --> 00:16:27,920 Speaker 6: That law was struck down, and then the very next 274 00:16:28,000 --> 00:16:31,160 Speaker 6: day Texas and North Carolina passed the voting rules they 275 00:16:31,160 --> 00:16:33,920 Speaker 6: could not have passed prior to that law being struck down. 276 00:16:34,280 --> 00:16:37,400 Speaker 6: They've also interpreted the Voting Rights Act very narrowly, and 277 00:16:37,440 --> 00:16:40,840 Speaker 6: I think this next year even more narrowly again. And then, 278 00:16:40,880 --> 00:16:43,960 Speaker 6: of course there's the Affirmative Action case, which overturned fifty 279 00:16:44,080 --> 00:16:47,040 Speaker 6: years of president and said colleges and universities are not 280 00:16:47,120 --> 00:16:50,120 Speaker 6: allowed to use race at all in their admissions process. 281 00:16:50,280 --> 00:16:53,400 Speaker 6: It says, if Justice Roberts thinks race was never a 282 00:16:53,480 --> 00:16:55,880 Speaker 6: problem in this country, it's as if he thinks we 283 00:16:55,920 --> 00:16:58,280 Speaker 6: can just snap our fingers and all of our racial 284 00:16:58,360 --> 00:17:02,280 Speaker 6: divisions will go away. And Justice Roberts has really turned 285 00:17:02,600 --> 00:17:05,680 Speaker 6: a cold shoulder to dealing with those problems. 286 00:17:06,080 --> 00:17:09,040 Speaker 3: There was a time when Roberts seemed I guess you 287 00:17:09,080 --> 00:17:12,080 Speaker 3: could describe it as more middle of the road. He 288 00:17:12,119 --> 00:17:16,200 Speaker 3: did write the opinion saving Obamacare, and in the Dobbs decision, 289 00:17:16,240 --> 00:17:20,800 Speaker 3: he wouldn't have gone so far as to actually overturn Roe. 290 00:17:21,359 --> 00:17:23,480 Speaker 3: So is it Roberts that's moving the court to the 291 00:17:23,560 --> 00:17:27,720 Speaker 3: right or is it the three Trump appointees that gave 292 00:17:27,800 --> 00:17:30,040 Speaker 3: the court a conservative supermajority. 293 00:17:30,760 --> 00:17:34,800 Speaker 6: There's no question those three Trump appointees have played and 294 00:17:34,840 --> 00:17:38,480 Speaker 6: will continue to play a significant role in moving the 295 00:17:38,480 --> 00:17:41,520 Speaker 6: court far to the right. But it's also a little 296 00:17:41,520 --> 00:17:45,200 Speaker 6: bit of a myth that Justice Roberts was ever anything 297 00:17:45,320 --> 00:17:50,359 Speaker 6: less than an extremely conservative justice. Yes, he did save 298 00:17:50,680 --> 00:17:54,560 Speaker 6: part of Obamacare. Remember he did not save the medicaid 299 00:17:54,600 --> 00:17:57,320 Speaker 6: part of Obamacare, which was actually a key part of 300 00:17:57,359 --> 00:18:00,440 Speaker 6: that law, and by striking down that part of law, 301 00:18:00,760 --> 00:18:04,720 Speaker 6: the Court did serious damage to Obamacare in complicated ways 302 00:18:04,720 --> 00:18:08,480 Speaker 6: that health policy experts could explain. Before twenty twelve, in 303 00:18:08,520 --> 00:18:11,600 Speaker 6: a seven years preceding that case, he had never joined 304 00:18:11,600 --> 00:18:13,919 Speaker 6: with the liberals in a five to four opinion. Since then, 305 00:18:14,000 --> 00:18:16,360 Speaker 6: he's joined the liberals a few times. And you're right 306 00:18:16,400 --> 00:18:19,240 Speaker 6: about Dobbs but there is no question that he would 307 00:18:19,280 --> 00:18:23,160 Speaker 6: have eventually voted to overturn Row. Justice Roberts' formula has 308 00:18:23,200 --> 00:18:27,600 Speaker 6: been consistently in voting rights, race cases, abortion cases, and 309 00:18:27,720 --> 00:18:31,200 Speaker 6: separation of powers cases. Punch holes in the precedent, punch 310 00:18:31,200 --> 00:18:34,439 Speaker 6: holes in the precedent, then reverse the president. There is 311 00:18:34,520 --> 00:18:37,359 Speaker 6: no doubt he would have eventually voted to overturn Roe 312 00:18:37,440 --> 00:18:40,440 Speaker 6: versus Way. So I think even a five to four 313 00:18:40,640 --> 00:18:45,280 Speaker 6: court run by Justice Roberts would be an extremely conservative court, 314 00:18:45,560 --> 00:18:48,440 Speaker 6: and with the exception of Justice Kennedy's votes on affirmative 315 00:18:48,480 --> 00:18:51,760 Speaker 6: action in gay rights, was an extremely conservative court for 316 00:18:51,920 --> 00:18:53,400 Speaker 6: most of Justice Roberts's court. 317 00:18:53,680 --> 00:18:56,280 Speaker 3: There seems to be a lot of movement lately in 318 00:18:56,359 --> 00:19:01,600 Speaker 3: the area of federal agency authority, and likely more changes 319 00:19:01,640 --> 00:19:04,600 Speaker 3: to come. Tell us what's been happening there. 320 00:19:05,240 --> 00:19:10,160 Speaker 6: Most of the laws that govern American private conduct and companies, 321 00:19:10,680 --> 00:19:14,399 Speaker 6: environmental regulations, food and drug regulations, they all come from 322 00:19:14,440 --> 00:19:17,920 Speaker 6: the executive branch. Congress passes a very broad law saying 323 00:19:17,920 --> 00:19:21,520 Speaker 6: pollution is bad. President, go fix it. Congress passes the 324 00:19:21,600 --> 00:19:24,080 Speaker 6: law saying we want to have to stay food. Executive branch, 325 00:19:24,160 --> 00:19:26,560 Speaker 6: you go ahead and fix that. Well. Donald Trump's a 326 00:19:26,560 --> 00:19:30,159 Speaker 6: businessman who doesn't like regulations. He appointed three justices who 327 00:19:30,200 --> 00:19:33,320 Speaker 6: don't like regulations, and they are doing everything they can 328 00:19:33,440 --> 00:19:37,040 Speaker 6: to make it harder for the executive branch to pass 329 00:19:37,119 --> 00:19:41,280 Speaker 6: regulations such as environmental and food and drug laws. And 330 00:19:41,320 --> 00:19:43,639 Speaker 6: it's very hard for Congress to do it because they 331 00:19:43,680 --> 00:19:46,080 Speaker 6: don't want to politically take the hit. So it's not 332 00:19:46,119 --> 00:19:49,440 Speaker 6: a surprise that this Supreme Court is trying to really 333 00:19:49,480 --> 00:19:54,200 Speaker 6: go back to a nineteen thirty's pre New Deal understanding 334 00:19:54,760 --> 00:19:58,600 Speaker 6: of federal power over the economy because these are people 335 00:19:58,640 --> 00:20:01,439 Speaker 6: who believe, you know, in a tur free marketplace, not 336 00:20:01,600 --> 00:20:05,520 Speaker 6: burdened by government regulation. And of course not just in 337 00:20:05,560 --> 00:20:08,320 Speaker 6: the court, but this is filtering down all through the 338 00:20:08,359 --> 00:20:13,280 Speaker 6: Trump administration. But the justices share that political goal, and 339 00:20:13,320 --> 00:20:14,320 Speaker 6: that's what we're seeing. 340 00:20:14,800 --> 00:20:18,080 Speaker 3: Roberts is the Chief Justice, but his vote is just 341 00:20:18,560 --> 00:20:22,600 Speaker 3: one of nine votes, So how much power does he wield? 342 00:20:23,680 --> 00:20:27,440 Speaker 6: So a very famous lower court judge, maybe the most 343 00:20:27,480 --> 00:20:30,480 Speaker 6: famous lower court judge of our lifetimes, Judge Richard Posner, 344 00:20:31,119 --> 00:20:33,600 Speaker 6: used to say that the Chief Justice really has no 345 00:20:33,720 --> 00:20:36,680 Speaker 6: power except you know, to decide who writes the opinion 346 00:20:36,800 --> 00:20:40,080 Speaker 6: when he's in the majority, and maybe some administrative rules. 347 00:20:40,240 --> 00:20:43,640 Speaker 6: So I have a theory about Chief Justice Roberts's vote 348 00:20:43,760 --> 00:20:46,719 Speaker 6: in the Obamacare case, which is that from two thousand 349 00:20:46,760 --> 00:20:51,120 Speaker 6: and five, when Justice Roberts became the chief to twenty twelve, 350 00:20:51,200 --> 00:20:53,960 Speaker 6: he had no power at all because Justice Kennedy held 351 00:20:54,000 --> 00:20:57,480 Speaker 6: all the power. In that first term, Justice Kennedy was 352 00:20:57,520 --> 00:20:59,880 Speaker 6: in the majority of one hundred percent of five votes, 353 00:21:00,160 --> 00:21:02,399 Speaker 6: and for the next seven years the court went the 354 00:21:02,440 --> 00:21:06,359 Speaker 6: way Justice Kennedy went. Supreme Court justice is a human beings. 355 00:21:06,520 --> 00:21:08,840 Speaker 6: They are people like us. Now they have better jobs 356 00:21:08,880 --> 00:21:11,400 Speaker 6: than most of us, but they aren't like us. And 357 00:21:11,760 --> 00:21:14,199 Speaker 6: you know, Chief Justice Roberts, I think always wanted to 358 00:21:14,240 --> 00:21:16,679 Speaker 6: be on the Supreme Court and always wanted to be 359 00:21:16,840 --> 00:21:18,679 Speaker 6: Chief Justice. I'm not saying he thought he would ever 360 00:21:18,760 --> 00:21:20,480 Speaker 6: get that, but you can't go any higher in the 361 00:21:20,520 --> 00:21:23,520 Speaker 6: law than he went. And he had no power because 362 00:21:23,640 --> 00:21:27,280 Speaker 6: Justice Kennedy had all the power. I think psychologically that 363 00:21:27,440 --> 00:21:30,840 Speaker 6: was a factor in his decision in twenty twelve in 364 00:21:30,880 --> 00:21:35,040 Speaker 6: the Obamacare case. So the story after twenty twelve became, oh, 365 00:21:35,520 --> 00:21:38,720 Speaker 6: Justice Roberts is a swing vote also wasn't really true. 366 00:21:38,880 --> 00:21:42,119 Speaker 6: Today he has very very little power. He has to 367 00:21:42,160 --> 00:21:45,920 Speaker 6: get either Justice Barrett or Justice Kavanaugh or Justice Gorsich 368 00:21:46,040 --> 00:21:48,679 Speaker 6: to agree with him when he doesn't want to rule 369 00:21:48,920 --> 00:21:51,440 Speaker 6: in a conservative fashion, because he's never getting the Leado 370 00:21:51,520 --> 00:21:54,320 Speaker 6: and Thomas to rule with him. So I would say 371 00:21:54,359 --> 00:21:57,960 Speaker 6: he has no more power than Gorsic, Kavanaugh, and Barrett. 372 00:21:58,320 --> 00:22:00,000 Speaker 6: And I'm not even sure he's more power than Justice 373 00:22:00,200 --> 00:22:03,280 Speaker 6: Barrett with the exception. And it's a big deal. When 374 00:22:03,359 --> 00:22:06,000 Speaker 6: he's in the majority, he gets to assign the opinion. 375 00:22:06,520 --> 00:22:10,240 Speaker 6: But other than that, his vote counts the same. And frankly, 376 00:22:10,480 --> 00:22:13,639 Speaker 6: I think he was a little bit scarred in the 377 00:22:13,680 --> 00:22:16,800 Speaker 6: first seven years on the bench when his vote counted 378 00:22:17,080 --> 00:22:19,320 Speaker 6: much less than Justice Kennedy's vote. 379 00:22:19,960 --> 00:22:23,080 Speaker 3: So how do you think he ranks as far as 380 00:22:23,200 --> 00:22:26,000 Speaker 3: chief justices who've led the court? 381 00:22:26,440 --> 00:22:28,560 Speaker 6: My guess is he's going to go down as one 382 00:22:28,600 --> 00:22:31,480 Speaker 6: of the worst chief Justices. And I say this for 383 00:22:31,520 --> 00:22:36,240 Speaker 6: the following reason. History has shown that when the Supreme 384 00:22:36,320 --> 00:22:39,760 Speaker 6: Court lurches far to the left or to the right, 385 00:22:40,119 --> 00:22:43,600 Speaker 6: eventually the political system goes the other direction. So when 386 00:22:43,600 --> 00:22:46,200 Speaker 6: the war In Court went too far to the left, 387 00:22:46,280 --> 00:22:49,080 Speaker 6: and I'm a liberal progressive who will say I think 388 00:22:49,080 --> 00:22:51,320 Speaker 6: the Warren Court went too far to the left, then 389 00:22:51,440 --> 00:22:54,560 Speaker 6: Richard Nixon runs on a law an order campaign run 390 00:22:54,560 --> 00:22:57,119 Speaker 6: a Reagan runs on Roe versus Wade, you know, and 391 00:22:57,200 --> 00:22:59,639 Speaker 6: Republicans hold power for most of that time period. In 392 00:22:59,680 --> 00:23:03,480 Speaker 6: the this Supreme Court, I think, and I think political 393 00:23:03,480 --> 00:23:06,880 Speaker 6: scientists think, is far to the right of the median 394 00:23:07,160 --> 00:23:11,119 Speaker 6: Republican voter, leaving aside the median Democrat voter. So my 395 00:23:11,200 --> 00:23:14,919 Speaker 6: guess is eventually there will be a cycle where the 396 00:23:14,920 --> 00:23:17,879 Speaker 6: political system lurches in the other direction, and then we 397 00:23:17,960 --> 00:23:22,359 Speaker 6: will see just how conservative his court has been. It 398 00:23:22,400 --> 00:23:28,120 Speaker 6: has been very, very conservative, and there are even conservatives today, scholars, 399 00:23:28,320 --> 00:23:32,440 Speaker 6: even from federalist society folks, who are saying things like this, 400 00:23:33,080 --> 00:23:37,320 Speaker 6: respect for precedent is not a conservative value. Right Conservatives 401 00:23:37,359 --> 00:23:40,640 Speaker 6: like the status quo. Progressives want to change the status quote. 402 00:23:40,840 --> 00:23:45,359 Speaker 6: The Roberts Court has been reversing important precedents at I 403 00:23:45,400 --> 00:23:48,679 Speaker 6: think a rate that's probably unheard of in American history. 404 00:23:48,960 --> 00:23:52,320 Speaker 6: I'm not saying they're reversing more cases. The importance is 405 00:23:52,680 --> 00:23:59,440 Speaker 6: are the reversing important cases guns, abortion, affirmative action, separation 406 00:23:59,520 --> 00:24:04,120 Speaker 6: of church and state, separation of powers, and even federalism, 407 00:24:04,280 --> 00:24:07,640 Speaker 6: which traditionally has been a very conservative value. Those areas 408 00:24:07,640 --> 00:24:12,840 Speaker 6: of the law have been dramatically rechhaped in two short decades. 409 00:24:13,040 --> 00:24:16,600 Speaker 6: There's no definition of conservative that I know that suggests 410 00:24:16,600 --> 00:24:18,080 Speaker 6: that judges should be the ones doing it. 411 00:24:18,320 --> 00:24:20,680 Speaker 3: And looking at the term coming up, there may be 412 00:24:20,840 --> 00:24:24,680 Speaker 3: more changes ahead. Thanks so much, Eric, that's professor Eric 413 00:24:24,720 --> 00:24:27,960 Speaker 3: Siegel of the Georgia State University coming up next on 414 00:24:27,960 --> 00:24:31,560 Speaker 3: the Bloomberg Law Show. They say that prosecutors can get 415 00:24:31,560 --> 00:24:35,240 Speaker 3: a grand jury to indict a ham sandwich. Well, it 416 00:24:35,320 --> 00:24:39,560 Speaker 3: seems that doesn't apply to the prosecutors in the DCUs 417 00:24:39,560 --> 00:24:43,600 Speaker 3: Attorney's office. I'm June Grosso and you're listening to Bloomberg. 418 00:24:44,560 --> 00:24:48,399 Speaker 3: You've probably heard the famous saying that prosecutors have so 419 00:24:48,520 --> 00:24:51,800 Speaker 3: much influence on grand juries they could get them to 420 00:24:51,920 --> 00:24:56,400 Speaker 3: indict a ham sandwich. Well maybe not if that prosecutor 421 00:24:56,520 --> 00:24:59,720 Speaker 3: is in the DCUs Attorney's office trying to get a 422 00:24:59,720 --> 00:25:04,879 Speaker 3: gret to indict someone overthrowing a salami sandwich at a 423 00:25:04,920 --> 00:25:10,479 Speaker 3: federal agent. DCUs attorney Janine Piro bragged about charging the 424 00:25:10,520 --> 00:25:14,080 Speaker 3: man who threw the sandwich with a felony of assaulting 425 00:25:14,119 --> 00:25:15,960 Speaker 3: a federal law enforcement officer. 426 00:25:16,520 --> 00:25:19,359 Speaker 4: And then he took a subway sandwich about this big 427 00:25:19,640 --> 00:25:22,520 Speaker 4: and took it and threw it at the officer. He 428 00:25:22,640 --> 00:25:25,440 Speaker 4: thought it was funny. Well, he doesn't think it's funny today, 429 00:25:25,440 --> 00:25:27,960 Speaker 4: because we charge it with a felony assault on a 430 00:25:27,960 --> 00:25:30,480 Speaker 4: police officer, and we're going to back. 431 00:25:30,280 --> 00:25:31,760 Speaker 5: The police to the hilt. 432 00:25:32,320 --> 00:25:35,919 Speaker 4: So there, stick your subway sandwich somewhere else. 433 00:25:36,760 --> 00:25:41,159 Speaker 3: But the grand jury apparently didn't get Piero's joke, and 434 00:25:41,240 --> 00:25:45,439 Speaker 3: the US Attorney's Office didn't get their felony indictment against 435 00:25:45,480 --> 00:25:50,199 Speaker 3: Sean Dunn, known now as the Sandwich Guy. Prosecutors have 436 00:25:50,320 --> 00:25:54,120 Speaker 3: now charged him with a misdemeanor of simple assault, which 437 00:25:54,200 --> 00:25:58,800 Speaker 3: doesn't require a grand jury's input. It's extraordinarily rare for 438 00:25:58,840 --> 00:26:02,159 Speaker 3: a grand jury to refuse to return an indictment, but 439 00:26:02,280 --> 00:26:06,040 Speaker 3: it's happened with DC grand juries at least seven times 440 00:26:06,359 --> 00:26:10,320 Speaker 3: since President Trump ordered a surge in patrols by federal 441 00:26:10,400 --> 00:26:13,919 Speaker 3: agents and troops in the nation's capital. Joining me is 442 00:26:13,960 --> 00:26:17,639 Speaker 3: former federal prosecutor Robert Mintz, a partner Mat Carter. In 443 00:26:17,720 --> 00:26:21,040 Speaker 3: English Bile, people know the basics of the workings of 444 00:26:21,080 --> 00:26:24,000 Speaker 3: a jury even if they haven't been on one, because 445 00:26:24,200 --> 00:26:27,120 Speaker 3: it's depicted so much in the movies and on TV, 446 00:26:27,720 --> 00:26:30,720 Speaker 3: but less so about the workings of a grand jury. 447 00:26:30,880 --> 00:26:32,879 Speaker 3: So tell us about the grand jury. 448 00:26:33,520 --> 00:26:37,640 Speaker 2: A grand jury proceeding is necessary when ever, prosecutors are 449 00:26:37,840 --> 00:26:41,160 Speaker 2: seeking to bring a felony charge. Under the Fifth Amendment, 450 00:26:41,520 --> 00:26:46,119 Speaker 2: there is a requirement for capital or otherwise infamous crime 451 00:26:46,480 --> 00:26:50,080 Speaker 2: to go before a grand jury, which in the federal 452 00:26:50,119 --> 00:26:54,240 Speaker 2: system is between sixteen and twenty two citizens, in order 453 00:26:54,280 --> 00:26:57,920 Speaker 2: to establish probable cause to bring the charge. But that 454 00:26:58,000 --> 00:27:02,159 Speaker 2: means is prosecutors have to ass thankfully present their case 455 00:27:02,440 --> 00:27:05,800 Speaker 2: to the grand jurors in order to bring the indictment, 456 00:27:06,160 --> 00:27:08,800 Speaker 2: and what goes on in the grand jury is entirely 457 00:27:08,880 --> 00:27:12,719 Speaker 2: controlled by prosecutors. It's a presentation in which only the 458 00:27:12,720 --> 00:27:16,800 Speaker 2: prosecutor is present. The defense lawyer is not allowed inside 459 00:27:16,800 --> 00:27:19,720 Speaker 2: the grand jury. The defendant does not get a right 460 00:27:19,800 --> 00:27:23,720 Speaker 2: to testify before the grand jury. It's really the prosecutor 461 00:27:24,119 --> 00:27:28,520 Speaker 2: asking questions of witnesses, who may summarize interviews on other 462 00:27:28,680 --> 00:27:32,040 Speaker 2: evidence that they've gathered, and allow for hear stake to 463 00:27:32,080 --> 00:27:35,040 Speaker 2: be presented to the grand jury to establish whether or 464 00:27:35,119 --> 00:27:37,920 Speaker 2: not there is probable cost to bring that charge. Now 465 00:27:37,960 --> 00:27:41,480 Speaker 2: bear in mind that probable cause is a very low bar. 466 00:27:42,040 --> 00:27:44,880 Speaker 2: It only means that there is a reason to proceed 467 00:27:44,960 --> 00:27:47,680 Speaker 2: with the case and that the prosecutor is able to 468 00:27:47,680 --> 00:27:50,439 Speaker 2: get an indictment and then that case will go to trial. 469 00:27:50,800 --> 00:27:54,400 Speaker 2: But prosecutors can only bring a case that they believe 470 00:27:54,600 --> 00:27:57,840 Speaker 2: that a reasonable jury can convict down the road on 471 00:27:57,880 --> 00:28:01,960 Speaker 2: the standard of trial is beyond reasonable doubt. So getting 472 00:28:02,080 --> 00:28:05,240 Speaker 2: an indictment in front of a grand jury is usually 473 00:28:05,400 --> 00:28:09,119 Speaker 2: a very easy task for prosecutors and is exceedingly rare 474 00:28:09,240 --> 00:28:12,359 Speaker 2: for prosecutors to present a case to a grand jury 475 00:28:12,640 --> 00:28:15,400 Speaker 2: and not have the grand jury return an indictment. 476 00:28:15,720 --> 00:28:16,760 Speaker 3: Has that ever happened to you? 477 00:28:17,440 --> 00:28:20,200 Speaker 2: I was a prosecutor for ten years and I never 478 00:28:20,240 --> 00:28:23,399 Speaker 2: had a single instance in which the grand jury refused 479 00:28:23,400 --> 00:28:25,800 Speaker 2: to indict, and while I was in the office, I 480 00:28:25,840 --> 00:28:28,520 Speaker 2: think it only happened about one time. So it is 481 00:28:28,720 --> 00:28:31,600 Speaker 2: very very rare, and it's rare for a couple of reasons. 482 00:28:31,720 --> 00:28:36,119 Speaker 2: Number One, prosecutors only bring cases where they believe there 483 00:28:36,240 --> 00:28:39,160 Speaker 2: is strong evidence, because again the case has to go 484 00:28:39,280 --> 00:28:42,600 Speaker 2: beyond the charging stage. Prosecutors have to believe that they 485 00:28:42,640 --> 00:28:47,240 Speaker 2: could ultimately convince a jury of proof beyond a reasonable doubt, 486 00:28:47,280 --> 00:28:51,040 Speaker 2: which is the highest standard we have in our legal system. 487 00:28:51,400 --> 00:28:54,240 Speaker 2: And so in order to be able to satisfy that standard, 488 00:28:54,440 --> 00:28:57,360 Speaker 2: there certainly has to at least be probable cause, which 489 00:28:57,440 --> 00:28:59,760 Speaker 2: is the very lowest standard we have in order to 490 00:28:59,800 --> 00:29:02,800 Speaker 2: bring the charges. The other reason is that prosecutors are 491 00:29:02,880 --> 00:29:05,760 Speaker 2: very selective in which cases they bring, and they tend 492 00:29:05,800 --> 00:29:08,840 Speaker 2: to bring cases in which there is overwhelming evidence and 493 00:29:08,960 --> 00:29:10,920 Speaker 2: they believe that they're be able to gain that conviction 494 00:29:11,040 --> 00:29:14,800 Speaker 2: that trial. Otherwise, prosecutors can decline to bring the case, 495 00:29:15,080 --> 00:29:17,760 Speaker 2: or they can bring different charges that would be easier 496 00:29:17,760 --> 00:29:19,080 Speaker 2: for them to prove at a trial. 497 00:29:19,400 --> 00:29:23,240 Speaker 3: And whereas at trial in a criminal case the jurors 498 00:29:23,240 --> 00:29:26,440 Speaker 3: have to be unanimous, in a grand jury, they don't 499 00:29:26,440 --> 00:29:27,280 Speaker 3: have to be unanimous. 500 00:29:27,360 --> 00:29:30,200 Speaker 2: Right, That's exactly right. A criminal trial does have to 501 00:29:30,240 --> 00:29:32,880 Speaker 2: be a unanimous verdict. In order to get what's called 502 00:29:32,880 --> 00:29:36,080 Speaker 2: a true bill, or have grand jurors return an indictment, 503 00:29:36,120 --> 00:29:38,920 Speaker 2: you only need twelve of those grand jurors to vote 504 00:29:38,920 --> 00:29:40,160 Speaker 2: in favor of the indictment. 505 00:29:40,520 --> 00:29:43,760 Speaker 3: One of the cases where the US Attorney's Office couldn't 506 00:29:43,800 --> 00:29:47,320 Speaker 3: get an indictment involved a woman who allegedly tried to 507 00:29:47,400 --> 00:29:51,960 Speaker 3: interfere with the transfer of two people into ice custody, 508 00:29:52,160 --> 00:29:55,080 Speaker 3: and the US Attorney's Office was trying to get an 509 00:29:55,080 --> 00:30:00,880 Speaker 3: indictment for felony assault against a federal officer. Three grand 510 00:30:00,960 --> 00:30:05,640 Speaker 3: juries refused three, so the office opted to charge a 511 00:30:05,680 --> 00:30:06,760 Speaker 3: misdemeanor instead. 512 00:30:07,280 --> 00:30:10,840 Speaker 2: It's very unusual. In order to sustain a charge of 513 00:30:10,880 --> 00:30:14,520 Speaker 2: assaulting a federal officer, prosecutors have to show that the 514 00:30:14,520 --> 00:30:19,240 Speaker 2: federal officer face a fear of death or serious bodily injury, 515 00:30:19,400 --> 00:30:21,440 Speaker 2: and it does carry a penalty of up to eight 516 00:30:21,520 --> 00:30:25,920 Speaker 2: years in prison. So it's very unusual for grand jurys 517 00:30:25,960 --> 00:30:28,640 Speaker 2: to be faced with a potential charge of assaulting a 518 00:30:28,680 --> 00:30:32,600 Speaker 2: federal officer and not return an indictment. There really are 519 00:30:32,800 --> 00:30:36,400 Speaker 2: two possible reasons why that happened, And again, what goes 520 00:30:36,440 --> 00:30:39,880 Speaker 2: on in a grand jury is entirely secret, so we 521 00:30:40,000 --> 00:30:43,160 Speaker 2: don't really know what their reasons are. And when a 522 00:30:43,200 --> 00:30:46,520 Speaker 2: grand jury decides not to return a true bill or 523 00:30:46,560 --> 00:30:49,000 Speaker 2: not to return an indictment, they don't have to give 524 00:30:49,040 --> 00:30:52,280 Speaker 2: any reasons and don't give any reasons. It's simply a 525 00:30:52,440 --> 00:30:56,320 Speaker 2: vote that either is twelve in favor of indictment or 526 00:30:56,400 --> 00:30:58,640 Speaker 2: not twelve in favor of indictment. So at the end 527 00:30:58,680 --> 00:31:02,120 Speaker 2: of the day, we don't really know the grand jury's reasoning, 528 00:31:02,360 --> 00:31:05,160 Speaker 2: but we can surmise that it's really one of two things. 529 00:31:05,200 --> 00:31:08,640 Speaker 2: Either prosecutors hadn't made out their case for probable cause, 530 00:31:08,960 --> 00:31:11,479 Speaker 2: which it only means there's evidence that a crime has 531 00:31:11,520 --> 00:31:14,880 Speaker 2: been committed and that the individual who prosecutors are seeking 532 00:31:14,920 --> 00:31:18,000 Speaker 2: to charge have committed that crime, or the other reason 533 00:31:18,120 --> 00:31:22,560 Speaker 2: is something called jury nullification, which really happens at trials 534 00:31:22,560 --> 00:31:25,400 Speaker 2: more than it happens in front of grand juries. And 535 00:31:25,520 --> 00:31:29,560 Speaker 2: what happens there is that sometimes jurors will hear a 536 00:31:29,640 --> 00:31:33,840 Speaker 2: case and jurors may actually believe that the prosecution has 537 00:31:34,000 --> 00:31:38,200 Speaker 2: met its burden of proof, but for other reasons decide 538 00:31:38,480 --> 00:31:40,840 Speaker 2: that they are not going to vote for a conviction. 539 00:31:41,200 --> 00:31:45,959 Speaker 2: That's something called jury nullification, and it generally happens when 540 00:31:46,000 --> 00:31:50,240 Speaker 2: there's some feeling among jurors that there's been some overreaching 541 00:31:50,360 --> 00:31:55,360 Speaker 2: by prosecutors or some improper conduct by prosecutors. Once again, 542 00:31:55,560 --> 00:31:58,880 Speaker 2: the jury system, just like the grand jury system, is 543 00:31:59,120 --> 00:32:03,280 Speaker 2: entirely secret, and prosecutors as a general rule, never find 544 00:32:03,320 --> 00:32:07,400 Speaker 2: out why jurors vote a particular way unless there is 545 00:32:07,440 --> 00:32:12,120 Speaker 2: some aleked impropriety in the jury process, but otherwise there's 546 00:32:12,160 --> 00:32:14,920 Speaker 2: no way of knowing why jurors vote a particular way. 547 00:32:15,240 --> 00:32:17,200 Speaker 2: All they will know is at the end of the day, 548 00:32:17,480 --> 00:32:20,360 Speaker 2: the jurors did not vote in favor of conviction. And 549 00:32:20,440 --> 00:32:24,880 Speaker 2: sometimes it happens because jurors simply believe that there's something 550 00:32:25,160 --> 00:32:29,000 Speaker 2: improper about the charge, about the nature of the prosecution, 551 00:32:29,480 --> 00:32:32,640 Speaker 2: about the way prosecutors handle the case, and so even 552 00:32:32,720 --> 00:32:36,360 Speaker 2: though prosecutors may have met the burden of proof, the 553 00:32:36,480 --> 00:32:40,560 Speaker 2: jury may decide not to convict. It really is kind 554 00:32:40,600 --> 00:32:43,840 Speaker 2: of an act of civil disobedience by juries, and it 555 00:32:44,040 --> 00:32:47,200 Speaker 2: very rarely happens, but it does happen on occasion. 556 00:32:48,240 --> 00:32:51,120 Speaker 3: You heard Pierro saying we're going to back our police 557 00:32:51,240 --> 00:32:54,920 Speaker 3: to the hilt. And these cases that we've been talking 558 00:32:55,000 --> 00:33:00,840 Speaker 3: about involve assaults of some kind on law enforcement. For example, 559 00:33:01,080 --> 00:33:05,080 Speaker 3: the guy who threw the subway sandwich at the federal officer, 560 00:33:05,440 --> 00:33:08,080 Speaker 3: and there was another case where a guy was accused 561 00:33:08,080 --> 00:33:12,320 Speaker 3: of swinging his arms at a park police officer. So 562 00:33:12,600 --> 00:33:17,320 Speaker 3: is this likely the grand jurys saying they're overcharging these cases. 563 00:33:17,960 --> 00:33:21,120 Speaker 2: Well, we don't really know why grand juries are refusing 564 00:33:21,200 --> 00:33:23,840 Speaker 2: to return indictments here, but I think it's a fair 565 00:33:24,120 --> 00:33:27,920 Speaker 2: assumption that the grand jurors are looking at these charges 566 00:33:28,320 --> 00:33:32,120 Speaker 2: and deciding that either there is no probable cause which 567 00:33:32,160 --> 00:33:36,160 Speaker 2: seems unlikely. The more likely conclusion I think we can 568 00:33:36,200 --> 00:33:39,959 Speaker 2: reach here is that the grandeurs are deciding that prosecutors 569 00:33:40,000 --> 00:33:43,240 Speaker 2: are overcharging, that they're looking at the body camera evidence 570 00:33:43,240 --> 00:33:45,880 Speaker 2: so they can see exactly what went on here and 571 00:33:46,000 --> 00:33:50,240 Speaker 2: asking themselves, while that may have been improper, while the 572 00:33:50,280 --> 00:33:53,440 Speaker 2: defendant may have touched a federal officer, while they may 573 00:33:53,480 --> 00:33:56,880 Speaker 2: have acted improperly, did they really assault them? Were they're 574 00:33:56,920 --> 00:34:00,680 Speaker 2: really intending death or serious bodily harm? And it may 575 00:34:00,720 --> 00:34:04,520 Speaker 2: well be that grandeurs are putting themselves in the shoes 576 00:34:04,560 --> 00:34:07,479 Speaker 2: of the defendant and saying, what would I do in 577 00:34:07,520 --> 00:34:11,560 Speaker 2: that circumstance where maybe I was very upset, or maybe 578 00:34:11,840 --> 00:34:15,440 Speaker 2: the defendant is placed in a situation where they felt 579 00:34:15,520 --> 00:34:18,520 Speaker 2: that what was going on by the National Guard or 580 00:34:18,520 --> 00:34:22,160 Speaker 2: by federal officers was somehow went proper And again, touching 581 00:34:22,160 --> 00:34:25,360 Speaker 2: of a federal officer or any way impeding what's going 582 00:34:25,400 --> 00:34:28,239 Speaker 2: on in terms of federal officers trying to conduct their 583 00:34:28,280 --> 00:34:31,880 Speaker 2: business is improper. But the question is does it amount 584 00:34:31,920 --> 00:34:35,680 Speaker 2: to assaulting a federal officer or is really some lesser 585 00:34:35,920 --> 00:34:39,040 Speaker 2: charge more appropriate. But I think what we can conclude 586 00:34:39,080 --> 00:34:44,040 Speaker 2: here is that in those instances, grandeurs believe that prosecutors 587 00:34:44,320 --> 00:34:48,000 Speaker 2: were overcharging those cases and that while the conduct may 588 00:34:48,040 --> 00:34:51,080 Speaker 2: have been inappropriate, it didn't rise to the level of 589 00:34:51,120 --> 00:34:52,480 Speaker 2: assaulting a federal officer. 590 00:34:52,920 --> 00:34:57,000 Speaker 3: Is a grand jury considered sort of a safeguard against 591 00:34:57,120 --> 00:34:58,920 Speaker 3: prosecutorial overreach. 592 00:35:00,000 --> 00:35:04,360 Speaker 2: Concept of an indictment is enshrined in the Fifth Amendment, 593 00:35:04,600 --> 00:35:08,520 Speaker 2: So even going back to the founding of this country, 594 00:35:08,760 --> 00:35:12,640 Speaker 2: there was always a concern about the government being able 595 00:35:12,680 --> 00:35:16,120 Speaker 2: to bring charges on its own, and that's why we 596 00:35:16,320 --> 00:35:19,360 Speaker 2: have this concept of the grand jury where they hear 597 00:35:19,480 --> 00:35:23,480 Speaker 2: evidence and prosecutors have to convince those grand jurors, who 598 00:35:23,560 --> 00:35:26,200 Speaker 2: are just like any other jurors out there. They are 599 00:35:26,280 --> 00:35:29,839 Speaker 2: randomly selected and then they are questioned and then they're 600 00:35:30,120 --> 00:35:32,359 Speaker 2: made a part of this grand jury and all they 601 00:35:32,400 --> 00:35:36,080 Speaker 2: do is hear evidence for possible charges, and it goes 602 00:35:36,120 --> 00:35:38,000 Speaker 2: on for about a year and a half while they 603 00:35:38,040 --> 00:35:41,000 Speaker 2: sit and hear these cases once a week. But they 604 00:35:41,080 --> 00:35:43,799 Speaker 2: are put in place pursue it to the intent of 605 00:35:43,840 --> 00:35:47,080 Speaker 2: the framers of the Constitution to act at the buffer 606 00:35:47,160 --> 00:35:50,960 Speaker 2: between the government and decisions to charge citizens. 607 00:35:51,239 --> 00:35:56,400 Speaker 3: And also a federal magistrate has criticized the DCUs attorney, 608 00:35:56,520 --> 00:36:00,640 Speaker 3: saying that people are being held in jail while the 609 00:36:00,760 --> 00:36:04,160 Speaker 3: US Attorney is trying to get these indictments from a 610 00:36:04,160 --> 00:36:04,840 Speaker 3: grand jury. 611 00:36:05,239 --> 00:36:09,560 Speaker 2: Again, this is really very unprecedented because usually indictments are 612 00:36:09,640 --> 00:36:13,480 Speaker 2: given very freely, and that really is pretty much the 613 00:36:13,560 --> 00:36:17,360 Speaker 2: case because of the way prosecutors control that whole proceeding. 614 00:36:17,640 --> 00:36:20,160 Speaker 2: So it's very unusual for prosecutors to have to go 615 00:36:20,239 --> 00:36:22,960 Speaker 2: in front of a grand jury multiple times in order 616 00:36:23,000 --> 00:36:25,440 Speaker 2: to try to get an indictment, and all the while 617 00:36:25,520 --> 00:36:29,120 Speaker 2: that's happening, the defendant is remaining in jail. What is 618 00:36:29,200 --> 00:36:33,920 Speaker 2: also extremely unusual is for the US Attorney in Washington, 619 00:36:34,040 --> 00:36:37,200 Speaker 2: d c. To name Piro to get into stick a 620 00:36:37,320 --> 00:36:41,359 Speaker 2: public dispute with a sitting magistrate judge where she is 621 00:36:41,440 --> 00:36:45,000 Speaker 2: calling him out by name and the magistrate judge is 622 00:36:45,080 --> 00:36:49,120 Speaker 2: so openly critical of the US Attorney's office. We rarely 623 00:36:49,160 --> 00:36:53,320 Speaker 2: see that kind of public display between prosecutors and judges. Generally, 624 00:36:53,800 --> 00:36:57,640 Speaker 2: there is a level of trust that judges have in 625 00:36:57,680 --> 00:37:00,399 Speaker 2: the federal government and particularly with regard to the US 626 00:37:00,440 --> 00:37:04,920 Speaker 2: Attorney's offices, and my experience, judges did show a degree 627 00:37:04,960 --> 00:37:08,920 Speaker 2: of deference to federal prosecutors. And when there comes a 628 00:37:09,000 --> 00:37:13,120 Speaker 2: time where judges are no longer trusting. It really does 629 00:37:13,280 --> 00:37:15,759 Speaker 2: throw stand to the gears of the justice. 630 00:37:15,480 --> 00:37:19,000 Speaker 3: System, and that's reportedly happening in other courtrooms as well. 631 00:37:19,200 --> 00:37:22,920 Speaker 3: Thanks Bob. That's Robert Mints of McCarter and English and 632 00:37:22,960 --> 00:37:25,120 Speaker 3: that's it for this edition of The Bloomberg Law Show. 633 00:37:25,440 --> 00:37:27,799 Speaker 3: Remember you can always get the latest legal news on 634 00:37:27,840 --> 00:37:32,120 Speaker 3: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 635 00:37:32,320 --> 00:37:37,360 Speaker 3: and at www dot bloomberg dot com, slash podcast Slash Law, 636 00:37:37,760 --> 00:37:40,320 Speaker 3: and remember to tune into The Bloomberg Law Show every 637 00:37:40,400 --> 00:37:44,280 Speaker 3: weeknight at ten pm Wall Street Time. I'm June Grosso 638 00:37:44,440 --> 00:37:46,040 Speaker 3: and you're listening to Bloomberg