1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio. 2 00:00:08,560 --> 00:00:12,200 Speaker 1: Elane Maxwell is serving a twenty year sentence for her 3 00:00:12,320 --> 00:00:15,920 Speaker 1: role in a scheme to sexually exploit and abuse minor 4 00:00:16,000 --> 00:00:20,240 Speaker 1: girls with Jeffrey Epstein. This week, Maxwell asked the Supreme 5 00:00:20,360 --> 00:00:23,400 Speaker 1: Court to take up her appeal of her federal sex 6 00:00:23,480 --> 00:00:27,440 Speaker 1: trafficking conviction. Her appeal is based on a non prosecution 7 00:00:27,600 --> 00:00:32,239 Speaker 1: agreement that Epstein struck with federal prosecutors in Miami in 8 00:00:32,280 --> 00:00:36,239 Speaker 1: two thousand and seven, and Maxwell argues it should have 9 00:00:36,320 --> 00:00:41,280 Speaker 1: barred her prosecution in New York fourteen years later. Joining 10 00:00:41,280 --> 00:00:45,000 Speaker 1: me is former federal prosecutor Robert Mintz, a partner Macarter 11 00:00:45,080 --> 00:00:49,440 Speaker 1: in English. Bob start by telling us about this broad 12 00:00:49,640 --> 00:00:55,600 Speaker 1: non prosecution agreement that Epstein reached with federal prosecutors in 13 00:00:55,640 --> 00:00:56,880 Speaker 1: two thousand and seven. 14 00:00:58,040 --> 00:01:01,400 Speaker 2: The document that's at the heart of the Galaine Maxwell 15 00:01:01,560 --> 00:01:05,560 Speaker 2: appeal to the Supreme Court is a non prosecution agreement 16 00:01:05,640 --> 00:01:09,600 Speaker 2: that was signed in two thousand and seven with the 17 00:01:09,720 --> 00:01:15,080 Speaker 2: US Attorney in Southern Florida involving Jeffrey Epstein, and in 18 00:01:15,080 --> 00:01:20,039 Speaker 2: that case he was facing both federal and potential state charges. 19 00:01:20,160 --> 00:01:23,839 Speaker 2: The deal that he ultimately Struck allowed him to plead 20 00:01:23,920 --> 00:01:28,240 Speaker 2: guilty to two Florida state charges, and in exchange for that, 21 00:01:28,280 --> 00:01:31,520 Speaker 2: the Department of Justice agreed not to bring any federal 22 00:01:31,640 --> 00:01:35,520 Speaker 2: charges against him. But the critical language in the agreement 23 00:01:35,840 --> 00:01:39,360 Speaker 2: said that the United States also agrees that it will 24 00:01:39,400 --> 00:01:44,480 Speaker 2: not institute any criminal charges against any potential co conspirators 25 00:01:44,600 --> 00:01:48,720 Speaker 2: of Epstein. And that is the language that Maxwell's lawyers 26 00:01:48,840 --> 00:01:53,200 Speaker 2: have lacked onto to argue that her subsequent sex trafsking 27 00:01:53,320 --> 00:01:57,280 Speaker 2: charges in New York were actually barred by that non 28 00:01:57,320 --> 00:01:58,440 Speaker 2: prosecution agreement. 29 00:01:58,800 --> 00:02:02,120 Speaker 1: How unusual is it to have a non prosecution agreement 30 00:02:02,720 --> 00:02:07,960 Speaker 1: made by one US attorney bind other US attorneys in 31 00:02:08,080 --> 00:02:09,200 Speaker 1: different districts. 32 00:02:09,800 --> 00:02:14,360 Speaker 2: That would be highly unusual. As a federal prosecutor, I 33 00:02:14,520 --> 00:02:18,000 Speaker 2: had been involved in hundreds of plea agreements, and the 34 00:02:18,040 --> 00:02:22,000 Speaker 2: standard language in all these plea agreements says that that 35 00:02:22,160 --> 00:02:26,240 Speaker 2: agreement is limited to the district that is prosecuting you 36 00:02:26,360 --> 00:02:28,720 Speaker 2: or potentially prosecuting you in that case, and that it 37 00:02:28,960 --> 00:02:33,000 Speaker 2: expressly does not bind any other district in the country. 38 00:02:33,280 --> 00:02:36,480 Speaker 2: So to have language as broad as that which says 39 00:02:36,520 --> 00:02:40,119 Speaker 2: that the US attorney in the southern districts of Florida 40 00:02:40,520 --> 00:02:44,359 Speaker 2: can bind every other judicial district in the United States 41 00:02:44,680 --> 00:02:48,280 Speaker 2: is something that would be highly unusual. But nonetheless, the 42 00:02:48,400 --> 00:02:51,320 Speaker 2: language that was in that agreement is on its face, 43 00:02:51,840 --> 00:02:54,440 Speaker 2: very broad, and that is at the heart of the 44 00:02:54,480 --> 00:02:56,560 Speaker 2: Maxwell appeal before the Supreme Court. 45 00:02:57,360 --> 00:03:00,160 Speaker 1: What about the fact that in Jeffrey Epstein's n on 46 00:03:00,240 --> 00:03:05,600 Speaker 1: prosecution agreement US attorney is also promising not to prosecute 47 00:03:05,639 --> 00:03:07,560 Speaker 1: anyone else? Does that happen? 48 00:03:08,560 --> 00:03:12,040 Speaker 2: Typically, what a plea ariement will say is that in 49 00:03:12,120 --> 00:03:16,800 Speaker 2: exchange for a plead or particular crime, the US Attorney's 50 00:03:16,840 --> 00:03:21,880 Speaker 2: office will not prosecute that individual for any other crimes 51 00:03:22,040 --> 00:03:26,760 Speaker 2: related to that criminal activity. It doesn't typically say anything 52 00:03:26,840 --> 00:03:31,400 Speaker 2: about not bringing charges against any other individual. So in 53 00:03:31,440 --> 00:03:35,160 Speaker 2: this case, that language is incredibly broad because it talks 54 00:03:35,200 --> 00:03:39,920 Speaker 2: about not bringing any other federal charges against any unspecified 55 00:03:40,000 --> 00:03:43,840 Speaker 2: co conspirators. It doesn't even list who those individuals may be, 56 00:03:44,280 --> 00:03:47,840 Speaker 2: So it makes that language incredibly broad. And that's why 57 00:03:48,040 --> 00:03:51,400 Speaker 2: when that case was first appeal to the Second Circuit 58 00:03:51,440 --> 00:03:55,520 Speaker 2: Court of appealed, the Second Circuit did not agree that 59 00:03:55,520 --> 00:03:59,120 Speaker 2: that plea agreement barred the prosecution in New York that 60 00:03:59,240 --> 00:04:01,440 Speaker 2: was ultimately against Gallaine Maxwell. 61 00:04:01,960 --> 00:04:07,240 Speaker 1: That Epstein non prosecution agreement has been widely criticized. In fact, 62 00:04:07,280 --> 00:04:10,600 Speaker 1: the Justice Department said in twenty twenty that then US 63 00:04:10,680 --> 00:04:15,360 Speaker 1: Attorney for the South District of Florida, alex Acosta, used 64 00:04:15,440 --> 00:04:19,279 Speaker 1: poor judgment in handling the case, and the Second Circuit 65 00:04:19,360 --> 00:04:22,960 Speaker 1: reviewed the NPA before upholding her conviction. 66 00:04:23,760 --> 00:04:26,840 Speaker 2: The central question raised by Maxwell's appeals to the Supreme 67 00:04:26,920 --> 00:04:29,440 Speaker 2: Court is whether a promise on behalf of the United 68 00:04:29,480 --> 00:04:33,000 Speaker 2: States that is made by one US attorney in one 69 00:04:33,040 --> 00:04:37,680 Speaker 2: district combined federal prosecutors in other districts. But it really 70 00:04:37,720 --> 00:04:41,200 Speaker 2: is more complex than even that, because here it involved 71 00:04:41,640 --> 00:04:45,440 Speaker 2: not a situation where the individual who pled guilty in 72 00:04:45,480 --> 00:04:49,120 Speaker 2: Florida is being prosecuted by another US attorney's office and 73 00:04:49,240 --> 00:04:52,679 Speaker 2: another part of the country. We're talking about another person 74 00:04:52,960 --> 00:04:55,919 Speaker 2: who was not even a party to that plea agreement 75 00:04:55,960 --> 00:04:59,880 Speaker 2: in Florida, arguing that the plea agreement with Jeffrey Epstein 76 00:05:00,279 --> 00:05:04,520 Speaker 2: somehow barres a prosecution of Glaine Maxwell in New York 77 00:05:04,760 --> 00:05:08,120 Speaker 2: many years later, So it would be an incredibly broad 78 00:05:08,200 --> 00:05:12,000 Speaker 2: reading of that language. And in fact, the Second Circuit 79 00:05:12,000 --> 00:05:15,479 Speaker 2: Court of Appeals looked at the plea agreement and said 80 00:05:15,520 --> 00:05:19,920 Speaker 2: that on its face, while it's possible that the United 81 00:05:19,920 --> 00:05:23,760 Speaker 2: States could conceivably refer to the entire federal government. When 82 00:05:23,800 --> 00:05:26,800 Speaker 2: they look at the context and the entirety of that 83 00:05:26,920 --> 00:05:30,440 Speaker 2: non prosecution agreement, it makes clear that when they refer 84 00:05:30,640 --> 00:05:34,440 Speaker 2: to the government or to the United States, they're only 85 00:05:34,520 --> 00:05:37,440 Speaker 2: referring to the US Attorney's office in the Southern District 86 00:05:37,440 --> 00:05:41,880 Speaker 2: of Florida. And therefore that language, as Glaine Maxwell' attorneys 87 00:05:41,880 --> 00:05:45,080 Speaker 2: are arguing, is really being taken out of context because 88 00:05:45,360 --> 00:05:48,960 Speaker 2: it really involved only the Southern District of Florida. But 89 00:05:49,040 --> 00:05:51,599 Speaker 2: once again, there's really two questions that are being raised here. 90 00:05:51,880 --> 00:05:54,360 Speaker 2: One is whether it could apply to other US Attorney's 91 00:05:54,400 --> 00:05:58,600 Speaker 2: offices as against the individual who's pleading guilty in Florida. 92 00:05:58,680 --> 00:06:02,479 Speaker 2: But also here talking about another individual, not even a 93 00:06:02,520 --> 00:06:05,000 Speaker 2: party to the Florida agreement, who's trying to use it 94 00:06:05,040 --> 00:06:07,239 Speaker 2: as a bart prostitution in another district. 95 00:06:07,839 --> 00:06:11,360 Speaker 1: The Justice Department file paper is asking the Supreme Court 96 00:06:11,880 --> 00:06:13,839 Speaker 1: not to take Maxwell's case. 97 00:06:14,520 --> 00:06:18,719 Speaker 2: Yeah, the Justice Department is opposing Maxwell's petition and essentially 98 00:06:18,960 --> 00:06:23,240 Speaker 2: arguing that it's clear in the context of that non 99 00:06:23,279 --> 00:06:26,800 Speaker 2: prosecution agreement that it was only referring to the Southern 100 00:06:26,800 --> 00:06:30,200 Speaker 2: District of Florida and was not attempting to bind other 101 00:06:30,320 --> 00:06:32,400 Speaker 2: judicial districts around the country. 102 00:06:32,839 --> 00:06:36,000 Speaker 1: Gleam Maxwell's attorneys are saying that there's a split in 103 00:06:36,040 --> 00:06:39,200 Speaker 1: the circuits, and that is something that the Supreme Court 104 00:06:39,600 --> 00:06:43,919 Speaker 1: often considers when taking a case. But they received thousands 105 00:06:43,960 --> 00:06:48,280 Speaker 1: of petitions every year, and they grant review in fewer 106 00:06:48,320 --> 00:06:51,560 Speaker 1: than one hundred, so the odds of the Supreme Court 107 00:06:51,600 --> 00:06:54,800 Speaker 1: granting review here are pretty slim. 108 00:06:55,440 --> 00:06:58,960 Speaker 2: So that's exactly right. It's very rare for the Supreme 109 00:06:59,000 --> 00:07:02,800 Speaker 2: Court to take these appeals. They do receive thousands of petitions, 110 00:07:03,120 --> 00:07:07,279 Speaker 2: it takes four justices to grant review, and it seems, 111 00:07:07,680 --> 00:07:11,200 Speaker 2: in my opinion, unlikely they're going to take this because 112 00:07:11,320 --> 00:07:14,640 Speaker 2: while there may be a split in the circuits around 113 00:07:14,680 --> 00:07:17,080 Speaker 2: the country, this is not an issue that comes up 114 00:07:17,080 --> 00:07:20,000 Speaker 2: on a regular basis, and I think in this case, 115 00:07:20,280 --> 00:07:23,360 Speaker 2: the Supreme Court is likely just to leave the Second 116 00:07:23,400 --> 00:07:25,880 Speaker 2: Circuit decision in place and not take it up. 117 00:07:26,720 --> 00:07:29,920 Speaker 1: This case is unusual in a lot of different ways, 118 00:07:30,760 --> 00:07:34,160 Speaker 1: one being that her attorney not only appeal to the 119 00:07:34,200 --> 00:07:39,000 Speaker 1: Supreme Court but also appeal to President Trump, saying, quote, 120 00:07:39,120 --> 00:07:42,320 Speaker 1: President Trump built his legacy in part on the power 121 00:07:42,320 --> 00:07:45,080 Speaker 1: of a deal, and surely he would agree that when 122 00:07:45,120 --> 00:07:48,760 Speaker 1: the United States gives its word, it must stand by it. 123 00:07:49,120 --> 00:07:51,679 Speaker 2: Yeah, so what we're seeing here really is the court 124 00:07:51,760 --> 00:07:55,080 Speaker 2: filing in the form of this petition to the United 125 00:07:55,120 --> 00:07:59,000 Speaker 2: States Supreme Court that, on his face, is fairly typical. 126 00:07:59,080 --> 00:08:01,920 Speaker 2: They're raising a le issue. They're arguing that there is 127 00:08:01,960 --> 00:08:04,840 Speaker 2: a split in the federal circuits, which is something that 128 00:08:04,880 --> 00:08:07,480 Speaker 2: the Supreme Court considers when it decides whether or not 129 00:08:07,480 --> 00:08:10,680 Speaker 2: to take a case, and they're trying to argue that 130 00:08:10,800 --> 00:08:14,160 Speaker 2: the question of whether one US attorney's office can in 131 00:08:14,200 --> 00:08:17,120 Speaker 2: fact bind the entire United States is something that's important 132 00:08:17,200 --> 00:08:19,480 Speaker 2: enough that the Supreme Court ought to take it up. 133 00:08:19,760 --> 00:08:23,240 Speaker 2: On the other hand, you cannot ignore the fact that 134 00:08:23,320 --> 00:08:27,040 Speaker 2: there is a political backdrop to this appeal, in that 135 00:08:27,080 --> 00:08:30,880 Speaker 2: there's been tremendous backlash against the Department of Justice and 136 00:08:30,960 --> 00:08:34,840 Speaker 2: some of President Trump's supporters regarding the decision, not really 137 00:08:35,000 --> 00:08:39,280 Speaker 2: additional information related to the Jeffrey Epstein prosecution, and all 138 00:08:39,360 --> 00:08:42,760 Speaker 2: of that is getting swept up in this Supreme Court appeal, 139 00:08:42,960 --> 00:08:46,320 Speaker 2: which is why we're seeing her lawyer appeal not only 140 00:08:46,520 --> 00:08:50,760 Speaker 2: to the Supreme Court, but expressly appealing to President Trump. 141 00:08:51,000 --> 00:08:53,880 Speaker 2: In the reply brief that was just recently filed with 142 00:08:53,960 --> 00:08:58,240 Speaker 2: the Supreme Court. Her lawyer specifically referenced not only the 143 00:08:58,360 --> 00:09:01,120 Speaker 2: United States Supreme Court where the brief was filed, but 144 00:09:01,280 --> 00:09:05,040 Speaker 2: also mans President Trump and said, we are appealing not 145 00:09:05,120 --> 00:09:08,359 Speaker 2: only to the Supreme Court, but to the President himself 146 00:09:08,720 --> 00:09:12,800 Speaker 2: to recognize how profoundly unjust it is to scapegoat Delanne 147 00:09:12,880 --> 00:09:17,120 Speaker 2: Maxwell for Epstein's crime, especially when the government promised he 148 00:09:17,160 --> 00:09:20,480 Speaker 2: would not be prosecuted. So this is a quite direct 149 00:09:20,480 --> 00:09:24,360 Speaker 2: appeal not only to the court but also to President 150 00:09:24,400 --> 00:09:27,199 Speaker 2: Trump in the hope that maybe he will pardon her 151 00:09:27,320 --> 00:09:31,200 Speaker 2: or reduce her sentence, because they know that it's unlike 152 00:09:31,320 --> 00:09:33,400 Speaker 2: the Supreme Court is going to take this appeal. 153 00:09:34,320 --> 00:09:37,520 Speaker 1: The court filing, of course, doesn't refer to the let's 154 00:09:37,559 --> 00:09:41,840 Speaker 1: say unusual out of court developments, like her meeting last 155 00:09:41,920 --> 00:09:46,320 Speaker 1: week with the Deputy Attorney General Todd Blanche for two days. 156 00:09:46,760 --> 00:09:50,920 Speaker 1: She was also subpoena to testify by the House Oversight Committee, 157 00:09:50,960 --> 00:09:54,480 Speaker 1: and her attorney put conditions on her testimony. In addition 158 00:09:54,520 --> 00:09:58,760 Speaker 1: to immunity, he wanted to be provided with the questions 159 00:09:58,840 --> 00:10:02,480 Speaker 1: the lawmakers inten to ask her, and he asked that 160 00:10:02,559 --> 00:10:07,920 Speaker 1: the deposition be rescheduled until after her appeal is resolved 161 00:10:07,960 --> 00:10:10,880 Speaker 1: before the Supreme Court. The court won't even be in 162 00:10:10,920 --> 00:10:14,679 Speaker 1: session until October. Are his requests within the scope of 163 00:10:14,760 --> 00:10:19,320 Speaker 1: what a defense attorney would normally request if his client 164 00:10:19,440 --> 00:10:22,439 Speaker 1: who was waiting on an appeal was asked to testify 165 00:10:22,559 --> 00:10:23,439 Speaker 1: before Congress. 166 00:10:23,880 --> 00:10:28,640 Speaker 2: Yeah, these are not really unusual requests given her circumstance. 167 00:10:29,120 --> 00:10:32,200 Speaker 2: But there also requests that the House Oversight Committee has 168 00:10:32,240 --> 00:10:35,880 Speaker 2: already determined they would not grant. What the defense lawyer 169 00:10:35,920 --> 00:10:38,320 Speaker 2: here is really trying to do is to protect his 170 00:10:38,520 --> 00:10:43,080 Speaker 2: client who is actively seeking post conviction relief, both in 171 00:10:43,120 --> 00:10:46,200 Speaker 2: the pending petition before the United States Supreme Court and 172 00:10:46,400 --> 00:10:49,320 Speaker 2: in a habeas petition they intend to file, and he 173 00:10:49,440 --> 00:10:53,680 Speaker 2: is arguing that her testimony before the committee could compromise 174 00:10:53,720 --> 00:10:57,800 Speaker 2: her constitutional rights to prejudice her legal claims and could 175 00:10:57,800 --> 00:11:01,920 Speaker 2: potentially take a future jury if the Supreme Court were 176 00:11:01,920 --> 00:11:04,760 Speaker 2: to take the case and overturn the lower course decision 177 00:11:04,760 --> 00:11:08,200 Speaker 2: and remand the case for another trial. So those requests 178 00:11:08,240 --> 00:11:11,840 Speaker 2: are really not unusual, but it was also highly unlikely 179 00:11:11,880 --> 00:11:14,480 Speaker 2: that they were going to be granted by the committee. 180 00:11:14,720 --> 00:11:19,480 Speaker 2: The most significant in condition that Maxwell's attorneys put on 181 00:11:19,559 --> 00:11:22,719 Speaker 2: her agreement to testify before Congress, was this grant a 182 00:11:22,840 --> 00:11:27,680 Speaker 2: formal immunity that witness immunity comes in several forms, or 183 00:11:27,679 --> 00:11:30,760 Speaker 2: something called transactional immunity, which is a blanket or a 184 00:11:30,840 --> 00:11:34,720 Speaker 2: total immunity which completely protects a witness from future prosecution 185 00:11:35,120 --> 00:11:38,440 Speaker 2: for crimes related to their testimony. Then there's something called 186 00:11:38,559 --> 00:11:41,880 Speaker 2: use or derivative use community, which means that you can't 187 00:11:41,960 --> 00:11:45,760 Speaker 2: use the witness's testimony or any evidence derived from that 188 00:11:45,880 --> 00:11:51,040 Speaker 2: testimony against that witness, but does allow prosecutors to prosecute 189 00:11:51,120 --> 00:11:56,199 Speaker 2: for evidence that is independently derived separate from the witness's testimony. 190 00:11:56,480 --> 00:11:59,559 Speaker 2: But what's happening here was that her lawyers were asking 191 00:11:59,640 --> 00:12:04,040 Speaker 2: Congress to grant this broad immunity in exchange for her testimony, 192 00:12:04,280 --> 00:12:07,800 Speaker 2: and that's something that Congress was likely unwilling to do, 193 00:12:07,920 --> 00:12:12,120 Speaker 2: and in fact, the Committee has already rejected that request, Bob. 194 00:12:12,200 --> 00:12:14,800 Speaker 1: Another thing that's been going on is that the Justice 195 00:12:14,840 --> 00:12:20,160 Speaker 1: Department has asked judges in Florida and Manhattan to unseal 196 00:12:20,280 --> 00:12:25,119 Speaker 1: grand jury transcripts in both the Jeffrey Epstein and Galaine 197 00:12:25,120 --> 00:12:29,160 Speaker 1: Maxwell cases. And we've talked before about how you're not 198 00:12:29,200 --> 00:12:32,800 Speaker 1: going to learn much in those grand jury transcripts, And 199 00:12:32,840 --> 00:12:37,080 Speaker 1: now we found out that the grand jury transcripts that 200 00:12:37,440 --> 00:12:41,880 Speaker 1: the Justice Department is seeking only include testimony from two witnesses, 201 00:12:42,000 --> 00:12:46,840 Speaker 1: both of them law enforcement officers. Law enforcement officers often testify, 202 00:12:46,960 --> 00:12:49,440 Speaker 1: but what kind of information are you going to get 203 00:12:49,480 --> 00:12:50,280 Speaker 1: from them? 204 00:12:50,720 --> 00:12:54,000 Speaker 2: So there are essentially two ways of prosecutors use grand curies. 205 00:12:54,040 --> 00:12:57,800 Speaker 2: One is as an investigative tool. The other is as 206 00:12:57,840 --> 00:13:01,960 Speaker 2: a means for obtaining and a diet. Most of the time, 207 00:13:02,280 --> 00:13:06,480 Speaker 2: prosecutors use the grand jury for that second purpose, simply 208 00:13:06,600 --> 00:13:10,880 Speaker 2: to obtain an indictment, because under the constitution, prosecutors do 209 00:13:10,920 --> 00:13:14,400 Speaker 2: not have the ability to bring charges directly against individuals. 210 00:13:14,679 --> 00:13:17,720 Speaker 2: Only a federal grand jury can do that in federal 211 00:13:17,760 --> 00:13:21,200 Speaker 2: criminal cases. So what prosecutors have to do when they're 212 00:13:21,200 --> 00:13:24,000 Speaker 2: ready to present their case and ready to bring charges 213 00:13:24,040 --> 00:13:28,320 Speaker 2: against an individual is bring a witness into the grand jury, 214 00:13:28,600 --> 00:13:32,239 Speaker 2: generally a law enforcement officer, an FBI agent, a dasent, 215 00:13:32,400 --> 00:13:35,160 Speaker 2: or some other representative of a federal agency, and that 216 00:13:35,200 --> 00:13:39,880 Speaker 2: witness can effectively summarize the entire case and the evidence. 217 00:13:40,240 --> 00:13:43,320 Speaker 2: And by doing that, they can summarize witness testimony, they 218 00:13:43,320 --> 00:13:46,560 Speaker 2: can talk about documents they reviewed. But that is really 219 00:13:46,760 --> 00:13:50,040 Speaker 2: a high level summary of the evidence, and it is 220 00:13:50,280 --> 00:13:53,720 Speaker 2: just enough for prosecutors to obtain that indictment. It is 221 00:13:53,760 --> 00:13:56,400 Speaker 2: by no means a complete recitation of all of the 222 00:13:56,440 --> 00:13:59,640 Speaker 2: evidence the prosecutors have, and it is certainly not a 223 00:13:59,640 --> 00:14:03,200 Speaker 2: complete recitation of all of the witness interviews that were 224 00:14:03,200 --> 00:14:06,920 Speaker 2: done in connection with the investigation. So it really is 225 00:14:06,960 --> 00:14:10,280 Speaker 2: a very targeted presentation in front of the grand jury. 226 00:14:10,600 --> 00:14:15,040 Speaker 2: Sometimes witnesses are used in order to actually conduct an investigation, 227 00:14:15,400 --> 00:14:18,240 Speaker 2: but it's unusual, and it's usually done in order to 228 00:14:18,320 --> 00:14:21,800 Speaker 2: lock in witness testimony. If a prosecutor believes that there 229 00:14:21,840 --> 00:14:24,720 Speaker 2: is an uncooperative witness that they don't want to be 230 00:14:24,800 --> 00:14:27,640 Speaker 2: surprised what they're going to say at a trial, if 231 00:14:27,640 --> 00:14:29,960 Speaker 2: they might testify the trial, they bring them into the 232 00:14:30,000 --> 00:14:33,400 Speaker 2: grand jury. They let them testify, even if prosecutors believe 233 00:14:33,560 --> 00:14:37,000 Speaker 2: that that testimony may be false, but it locks them in. 234 00:14:37,400 --> 00:14:39,520 Speaker 2: So whatever their story is in front of the grand jury, 235 00:14:39,560 --> 00:14:42,000 Speaker 2: they can't change it down the road at a trial. 236 00:14:42,600 --> 00:14:46,680 Speaker 1: So a Florida judge has already rejected request for the 237 00:14:46,720 --> 00:14:52,040 Speaker 1: grand jury transcripts of Epstein's proceedings down there, How likely 238 00:14:52,280 --> 00:14:55,320 Speaker 1: is it that the New York judges will do the same. 239 00:14:56,000 --> 00:14:59,400 Speaker 2: Well. For a judge to unseal grand jury testimony is 240 00:14:59,560 --> 00:15:02,400 Speaker 2: really an usual Now it is less largely to the 241 00:15:02,480 --> 00:15:05,400 Speaker 2: discretion of the judge, but a judge would have to 242 00:15:05,440 --> 00:15:09,600 Speaker 2: find extraordinary circumstances, and the fact that there is a 243 00:15:09,640 --> 00:15:13,480 Speaker 2: strong public desire to get more information about this case 244 00:15:14,080 --> 00:15:17,400 Speaker 2: really is probably not enough for a judge to agree 245 00:15:17,600 --> 00:15:20,600 Speaker 2: to release that grand jury testimony. And there's good reason 246 00:15:20,680 --> 00:15:23,680 Speaker 2: for that, because lots of information and lots of testimony 247 00:15:23,880 --> 00:15:27,120 Speaker 2: and lots of evidence that's presented in front of a 248 00:15:27,160 --> 00:15:31,800 Speaker 2: grand jury may mention other individuals who ultimately are not charged. 249 00:15:32,240 --> 00:15:35,680 Speaker 2: It may mention victims and other sensitive information. And the 250 00:15:35,720 --> 00:15:39,200 Speaker 2: whole reason that testimony in front of a grand jury 251 00:15:39,440 --> 00:15:42,400 Speaker 2: is protected by a federal rule known as dix E 252 00:15:43,280 --> 00:15:46,800 Speaker 2: is because there is a decision that's made. An information 253 00:15:46,960 --> 00:15:50,000 Speaker 2: that does not ultimately lead to an indictment so an 254 00:15:50,000 --> 00:15:54,080 Speaker 2: individual has an opportunity to respond to those charges is 255 00:15:54,120 --> 00:15:56,840 Speaker 2: not information that ought to be revealed to the public, 256 00:15:57,120 --> 00:16:00,880 Speaker 2: because if it is revealed, those people whose names may 257 00:16:00,880 --> 00:16:03,240 Speaker 2: be mentioned, who have come up in the course of 258 00:16:03,280 --> 00:16:07,120 Speaker 2: an investigation really have no opportunity to clear their name 259 00:16:07,280 --> 00:16:09,440 Speaker 2: since they'll never be a trial they'll never be a 260 00:16:09,440 --> 00:16:13,680 Speaker 2: core proceeding, and it really is simply a guilt by 261 00:16:13,720 --> 00:16:17,600 Speaker 2: association in some cases, which is what the grand jury 262 00:16:17,880 --> 00:16:20,080 Speaker 2: is designed expressly to prevent. 263 00:16:20,360 --> 00:16:25,080 Speaker 1: A lot of issues around these Epstein files. Thanks so much, Bob. 264 00:16:25,920 --> 00:16:29,880 Speaker 1: That's former federal prosecutor Robert Mints of Macarter and English. 265 00:16:30,560 --> 00:16:33,840 Speaker 1: In a set back to abortion opponents, a federal judge 266 00:16:33,880 --> 00:16:38,960 Speaker 1: this week ruled that Planned Parenthood clinics nationwide must continue 267 00:16:39,040 --> 00:16:43,480 Speaker 1: to be reimbursed for Medicaid funding. A provision in President 268 00:16:43,480 --> 00:16:48,400 Speaker 1: Trump's signature tax legislation was written to prohibit Planned Parenthood 269 00:16:48,440 --> 00:16:52,280 Speaker 1: from receiving any Medicaid funds even when abortions are not 270 00:16:52,360 --> 00:16:57,200 Speaker 1: being provided. Massachusetts judge in Derah Talwani found that the 271 00:16:57,240 --> 00:17:01,920 Speaker 1: provision likely violates the Constitution in three different ways. My 272 00:17:02,000 --> 00:17:05,760 Speaker 1: guest is reproductive rights expert Mary Ziegler, a professor at 273 00:17:05,840 --> 00:17:09,440 Speaker 1: UC Davis Law School. Mary, how would the medicaid cuts 274 00:17:09,680 --> 00:17:13,119 Speaker 1: in Chump's tax bill affect Planned Parenthood? 275 00:17:13,720 --> 00:17:13,800 Speaker 2: So? 276 00:17:13,960 --> 00:17:16,760 Speaker 3: I think there are knowns and unknowns. We are pretty 277 00:17:16,800 --> 00:17:19,639 Speaker 3: sure that it would take away about a third of 278 00:17:19,680 --> 00:17:23,199 Speaker 3: Planned Parenthood's funding, and what that would translate into in 279 00:17:23,280 --> 00:17:26,000 Speaker 3: terms of closures is a little bit more complicated and 280 00:17:26,040 --> 00:17:28,880 Speaker 3: may not be evenly distributed across the universe of planed 281 00:17:28,880 --> 00:17:31,679 Speaker 3: paranoid affiliates. It'll depend on a variety of things, like 282 00:17:32,160 --> 00:17:35,680 Speaker 3: whether fundraising can cover some of those losses, whether Planned 283 00:17:35,720 --> 00:17:37,760 Speaker 3: Parenthood can try to run out the cloth. Because at 284 00:17:37,840 --> 00:17:40,800 Speaker 3: least at the moment, the Big Beautiful build that provision 285 00:17:40,800 --> 00:17:42,760 Speaker 3: of it is set to expire in a year, just 286 00:17:42,840 --> 00:17:45,400 Speaker 3: in time for the midterms. It could obviously be extended, 287 00:17:45,440 --> 00:17:47,679 Speaker 3: but at the moment it hasn't been, so we do 288 00:17:47,760 --> 00:17:50,280 Speaker 3: know it's going to have some pretty devastating effects on 289 00:17:50,320 --> 00:17:53,480 Speaker 3: plan Parenthood. We've already seen some affiliates close, but exactly 290 00:17:53,840 --> 00:17:56,040 Speaker 3: what beyond that, I think we still have to see. 291 00:17:56,440 --> 00:17:59,600 Speaker 1: Planned Parenthood went to court and argued that the laws 292 00:17:59,680 --> 00:18:05,320 Speaker 1: paw on medicaid reimbursements amount to a targeted exclusion that 293 00:18:05,480 --> 00:18:09,080 Speaker 1: violates the Constitution. Tell us about their arguments. 294 00:18:09,320 --> 00:18:12,679 Speaker 3: They argued first that the Big Beautiful Bill was actually 295 00:18:12,720 --> 00:18:16,800 Speaker 3: punishing Planned Parenthood for its expression and its speech. So 296 00:18:16,920 --> 00:18:19,919 Speaker 3: the argument was that the bill was penalizing affiliates not 297 00:18:20,000 --> 00:18:24,000 Speaker 3: for performing abortions, but for associating with Planned Parenthood, an 298 00:18:24,080 --> 00:18:27,240 Speaker 3: organization that advocates for reproductive rights, and the logic was 299 00:18:27,359 --> 00:18:29,879 Speaker 3: Planned Parenthood can't get the money back, and affiliate couldn't 300 00:18:29,920 --> 00:18:32,639 Speaker 3: get the money back by simply not providing abortions itself. 301 00:18:32,640 --> 00:18:35,439 Speaker 3: It would have to disaffiliate from Planned Parenthood. There was 302 00:18:35,680 --> 00:18:38,520 Speaker 3: a related argument under the equal protection cause, and then 303 00:18:38,560 --> 00:18:40,600 Speaker 3: the final argument that this amounted to what's called a 304 00:18:40,640 --> 00:18:45,159 Speaker 3: bill of attainder, which is when the legislature punishes someone 305 00:18:45,200 --> 00:18:48,200 Speaker 3: for past conduct without a trial. So Planned Parenthood was 306 00:18:48,280 --> 00:18:50,760 Speaker 3: arguing that this bill amounted to a punishment of Planned 307 00:18:50,800 --> 00:18:54,719 Speaker 3: Parenthood for having done abortions in the past or advocated 308 00:18:54,720 --> 00:18:57,360 Speaker 3: for abortions in the past. So those were the arguments 309 00:18:57,359 --> 00:18:58,640 Speaker 3: that are really at the center. 310 00:18:58,440 --> 00:18:58,920 Speaker 2: Of the case. 311 00:18:59,320 --> 00:19:01,919 Speaker 1: And why did the judge fine for Planned Parenthood. 312 00:19:02,600 --> 00:19:06,080 Speaker 3: Yeah, the judge agreed with Planned Parenthood on all three arguments, 313 00:19:06,320 --> 00:19:09,800 Speaker 3: essentially in joining the big beautiful builds permanently on all 314 00:19:09,840 --> 00:19:12,240 Speaker 3: three grounds. So this was, you know, at the moment, 315 00:19:12,240 --> 00:19:14,159 Speaker 3: as big of a win as Planned Parenthood could have 316 00:19:14,160 --> 00:19:14,560 Speaker 3: asked for. 317 00:19:15,280 --> 00:19:19,640 Speaker 1: Was Planned Parenthood saying if the Medicaid reimbursements were stopped, 318 00:19:19,640 --> 00:19:21,040 Speaker 1: they'd go out of business. 319 00:19:21,600 --> 00:19:25,280 Speaker 3: There's varying estimates. I mean, I've heard that a significant 320 00:19:25,359 --> 00:19:29,240 Speaker 3: number of affiliates would close. It's not really that Planned 321 00:19:29,280 --> 00:19:32,480 Speaker 3: Parenthood altogether would go out of business, because, as the 322 00:19:32,520 --> 00:19:35,320 Speaker 3: case makes clear, Planned Parenthood is not just a health 323 00:19:35,359 --> 00:19:38,560 Speaker 3: care provider, it's also an advocacy grow and there's no 324 00:19:38,600 --> 00:19:41,120 Speaker 3: reason to think that every single affiliate will go out 325 00:19:41,119 --> 00:19:43,200 Speaker 3: of business as a result of the big, beautiful build. 326 00:19:43,240 --> 00:19:45,800 Speaker 3: But Planned Parenthood does receive a significant portion of its 327 00:19:45,840 --> 00:19:48,560 Speaker 3: funding from Medicaid, so we would expect to see a 328 00:19:48,600 --> 00:19:50,800 Speaker 3: lot of clinic shutter. But how many, I think, we 329 00:19:50,880 --> 00:19:53,560 Speaker 3: won't know unless you're until really the bill goes into 330 00:19:53,560 --> 00:19:55,000 Speaker 3: affect it for long enough. 331 00:19:55,840 --> 00:19:59,879 Speaker 1: The judges July twenty first Order preliminary Order has already 332 00:20:00,000 --> 00:20:02,480 Speaker 1: appealed to the First Circuit. Do you think the First 333 00:20:02,480 --> 00:20:05,360 Speaker 1: Circuit is likely to affirm this ruling? 334 00:20:05,960 --> 00:20:08,600 Speaker 3: It's hard to say, right, I mean, the First Circuit 335 00:20:08,680 --> 00:20:11,800 Speaker 3: is not known to be a particularly conservative circuit. But 336 00:20:12,600 --> 00:20:15,680 Speaker 3: some of these arguments are more of a stretch than 337 00:20:15,720 --> 00:20:20,240 Speaker 3: you might expect. So that unconstitutional conditions doctrine, which is 338 00:20:20,359 --> 00:20:22,520 Speaker 3: part of what the judge relied on, right, is essentially 339 00:20:22,600 --> 00:20:25,119 Speaker 3: not that Planned Parenthood has a right to Medicaid funding, 340 00:20:25,160 --> 00:20:28,639 Speaker 3: but rather that if Planned Parenthood is eligible for Medicaid funding. 341 00:20:28,640 --> 00:20:31,080 Speaker 3: You can't have that taken away because it exercised this 342 00:20:31,200 --> 00:20:35,200 Speaker 3: constitutional right to associate. The problem there is that unconstitutional 343 00:20:35,200 --> 00:20:38,159 Speaker 3: conditions doctrine is just a mess. Like most colors agree, 344 00:20:38,160 --> 00:20:41,080 Speaker 3: it's convoluted. It doesn't make a lot of sense, which 345 00:20:41,160 --> 00:20:43,440 Speaker 3: leaves a lot of room for judges to disagree about 346 00:20:43,480 --> 00:20:45,880 Speaker 3: how to apply it. And the fight here is really 347 00:20:45,880 --> 00:20:50,640 Speaker 3: about whether the bill was penalizing Planned Parenthood for providing 348 00:20:50,680 --> 00:20:54,720 Speaker 3: abortions or whether it was penalizing Planned Parenthood affiliates for 349 00:20:54,800 --> 00:20:58,280 Speaker 3: associating with an organization that advocated for abortions. And it's 350 00:20:58,280 --> 00:21:00,280 Speaker 3: hard to predict which way the first circuit it is 351 00:21:00,320 --> 00:21:02,160 Speaker 3: going to come down on that. Some of the tainder 352 00:21:02,240 --> 00:21:04,240 Speaker 3: cases are kind of the same, so there's not a 353 00:21:04,240 --> 00:21:06,680 Speaker 3: lot of law there. It's a little unpredictable. 354 00:21:07,080 --> 00:21:10,000 Speaker 1: Just to be clear, Medicaid funds are not used for 355 00:21:10,119 --> 00:21:12,320 Speaker 1: abortions at Planned Parenthood. 356 00:21:12,000 --> 00:21:15,000 Speaker 3: So since the nineteen seventy six High Amendment, Planned Parenthood 357 00:21:15,000 --> 00:21:18,240 Speaker 3: has been unable to use Medicaid dollars for abortions. This 358 00:21:18,359 --> 00:21:23,320 Speaker 3: is just punalizing organizations that provide abortions by depriving them 359 00:21:23,320 --> 00:21:24,840 Speaker 3: of Medicaid dollars. For other service. 360 00:21:25,119 --> 00:21:31,400 Speaker 1: So some states have already cut Planned Parenthood's Medicaid funding, 361 00:21:31,840 --> 00:21:37,320 Speaker 1: including Texas and Louisiana. And did the Supreme Court open 362 00:21:37,359 --> 00:21:39,320 Speaker 1: the gate for more states to do that? 363 00:21:40,680 --> 00:21:41,240 Speaker 2: Right? Exactly? 364 00:21:41,320 --> 00:21:45,000 Speaker 3: Yeah, So in a case last June called Medina, the 365 00:21:45,040 --> 00:21:50,200 Speaker 3: Supreme Court made it easier for conservative states to kick 366 00:21:50,320 --> 00:21:52,560 Speaker 3: Planned Parenthood out of their own Medicaid program. So, just 367 00:21:52,600 --> 00:21:56,399 Speaker 3: to be clear, Medicaid is a joint state federal program, 368 00:21:56,760 --> 00:22:01,680 Speaker 3: so states have their own Medicaid reimbursement process, as does 369 00:22:01,720 --> 00:22:05,600 Speaker 3: the federal government. So what states had been looking to 370 00:22:05,600 --> 00:22:09,600 Speaker 3: do was to prevent Planned Parenthood from getting Medicaid reimbursement 371 00:22:09,680 --> 00:22:13,440 Speaker 3: for non abortion services. It had been unclear until June 372 00:22:13,440 --> 00:22:16,399 Speaker 3: about whether that was permissible, and the Supreme Court just 373 00:22:16,440 --> 00:22:19,960 Speaker 3: clarified that it is. So one of the upshots of 374 00:22:20,000 --> 00:22:22,199 Speaker 3: that is that, really, regardless of what happens with the 375 00:22:22,200 --> 00:22:25,920 Speaker 3: big beautiful Bill, either in court or in Congress, right, 376 00:22:25,960 --> 00:22:28,280 Speaker 3: because this thing is set to expire and we don't 377 00:22:28,280 --> 00:22:31,920 Speaker 3: know if Republicans are going to renew it or let 378 00:22:31,960 --> 00:22:34,920 Speaker 3: it expire because it would hurt them in the midterms. 379 00:22:35,440 --> 00:22:37,760 Speaker 3: Regardless of what happens with that, we do expect to 380 00:22:37,800 --> 00:22:40,920 Speaker 3: see more conservative states taking aim at planned parenthood when 381 00:22:40,920 --> 00:22:42,520 Speaker 3: it comes to state a kate dollars. 382 00:22:42,920 --> 00:22:47,800 Speaker 1: So let's turn out to this wrongful death lawsuit. A 383 00:22:47,880 --> 00:22:51,680 Speaker 1: Texas man whose girlfriend used abortion pills to end her 384 00:22:51,720 --> 00:22:57,200 Speaker 1: pregnancies is suing a California doctor who allegedly mailed her 385 00:22:57,240 --> 00:22:59,800 Speaker 1: the medication. Tell us about this lawsuit. 386 00:23:00,080 --> 00:23:03,919 Speaker 3: So this is another interesting lawsuit. It's being brought by 387 00:23:04,000 --> 00:23:08,639 Speaker 3: Jonathan Mitchell, who is a famous anti abortion attorney who's 388 00:23:08,760 --> 00:23:12,359 Speaker 3: probably best known as being the architect of Sbaight, the 389 00:23:12,480 --> 00:23:13,760 Speaker 3: Texas Bounty Bill. 390 00:23:14,280 --> 00:23:16,240 Speaker 2: But it was filed in federal. 391 00:23:15,920 --> 00:23:19,639 Speaker 3: Court, which is interesting, and it argues that a California 392 00:23:19,680 --> 00:23:23,240 Speaker 3: doctor mailed pills not only to a woman, but a 393 00:23:23,240 --> 00:23:26,439 Speaker 3: woman and her kind of estranged ex husband who is 394 00:23:26,480 --> 00:23:30,359 Speaker 3: pressuring her to have an abortion allegedly, and that happens 395 00:23:30,480 --> 00:23:35,000 Speaker 3: and constituted a wrongful death. It's interesting for a number 396 00:23:35,000 --> 00:23:37,760 Speaker 3: of reasons, because why was it a wrongful death if 397 00:23:37,920 --> 00:23:40,800 Speaker 3: in fact it's not a crime in Texas for a 398 00:23:40,840 --> 00:23:43,720 Speaker 3: woman to and her own pregnancy. The answer that the 399 00:23:43,800 --> 00:23:48,120 Speaker 3: lawsuit offers is complicated, but partly that federal law makes 400 00:23:48,160 --> 00:23:52,760 Speaker 3: it a crime allegedly to male abortion pills at all. Right, 401 00:23:52,840 --> 00:23:55,680 Speaker 3: So this is an effort to turn the Comstock Act, 402 00:23:55,920 --> 00:23:59,600 Speaker 3: this nineteenth century obscenity law, into an abortion man. It's 403 00:23:59,600 --> 00:24:02,080 Speaker 3: a vehicle for that, and it's also I think a 404 00:24:02,200 --> 00:24:05,879 Speaker 3: vehicle for abortion opponents who are impatient with some of 405 00:24:05,920 --> 00:24:09,520 Speaker 3: the lawsuits we've already seen. So Texas, for example, has 406 00:24:09,600 --> 00:24:13,000 Speaker 3: parted it a New York abortion doctor for violating Texas 407 00:24:13,000 --> 00:24:16,439 Speaker 3: state laws. But that's been going quite slowly, right. The 408 00:24:16,480 --> 00:24:18,920 Speaker 3: action hasn't moved to federal court there, and I think 409 00:24:18,960 --> 00:24:21,960 Speaker 3: this is an effort to kind of start process in 410 00:24:22,080 --> 00:24:24,919 Speaker 3: federal court and maybe expedise the resolution of some of 411 00:24:24,920 --> 00:24:27,439 Speaker 3: these questions of otus, especially when it comes to the 412 00:24:27,480 --> 00:24:29,080 Speaker 3: Comstock Act. But not only to that. 413 00:24:29,520 --> 00:24:32,560 Speaker 1: Mary, We've talked before about the threat posed by the 414 00:24:32,600 --> 00:24:36,720 Speaker 1: Comstock Act on the mailing of abortion pills. It hasn't 415 00:24:36,760 --> 00:24:41,280 Speaker 1: been used. What in decades does it still stand? Are 416 00:24:41,280 --> 00:24:44,800 Speaker 1: there any problems with the Comstock Act itself? 417 00:24:45,480 --> 00:24:48,520 Speaker 3: Yeah, so it's complicated, right, I mean, the Comstock Act 418 00:24:48,600 --> 00:24:51,439 Speaker 3: has been enforced in recent decades, but only really in 419 00:24:51,560 --> 00:24:54,760 Speaker 3: kind of a rare handful of cases involving things like 420 00:24:54,880 --> 00:24:58,600 Speaker 3: child pornography, So it hasn't been enforced in cases involving 421 00:24:58,960 --> 00:25:04,119 Speaker 3: abortion much to speak of at all since the nineteen teens. So, 422 00:25:04,520 --> 00:25:06,840 Speaker 3: you know, there are a number of problems with the argument. 423 00:25:06,920 --> 00:25:09,840 Speaker 3: It's not clear that the Kombstock Act was intended to 424 00:25:10,040 --> 00:25:13,720 Speaker 3: ban the mailing of all abortion related items. That doesn't 425 00:25:13,760 --> 00:25:16,440 Speaker 3: seem to have been what courts thought in the nineteenth 426 00:25:16,520 --> 00:25:21,760 Speaker 3: or early twentieth centuries. Then there's just whether it's constitutionally 427 00:25:21,840 --> 00:25:25,160 Speaker 3: permissible to have a zombie law like this pick back 428 00:25:25,200 --> 00:25:27,800 Speaker 3: in and criminalize a bunch of conduct that everybody thought 429 00:25:27,880 --> 00:25:31,560 Speaker 3: was fine. Whether that raises due process or fairness concerns 430 00:25:31,560 --> 00:25:35,520 Speaker 3: is something the courts would have to resolve too. But again, 431 00:25:35,600 --> 00:25:38,080 Speaker 3: you know, it's not obvious that this case will we'll 432 00:25:38,119 --> 00:25:41,560 Speaker 3: get all the way to the Supreme Court anyway. Jonathan 433 00:25:41,560 --> 00:25:43,720 Speaker 3: Mitchell and other abortion opponents have been trying to find 434 00:25:43,720 --> 00:25:45,959 Speaker 3: a vehicle to get the Comstock Act of the Supreme 435 00:25:45,960 --> 00:25:49,400 Speaker 3: Court for several years now and yet without any success. 436 00:25:49,480 --> 00:25:50,880 Speaker 2: Right So, whether this proves to. 437 00:25:50,840 --> 00:25:52,320 Speaker 3: Be the magic blow, we'll. 438 00:25:52,160 --> 00:25:56,240 Speaker 1: Just have to see. And so he's tried other lawsuits, 439 00:25:56,320 --> 00:26:01,359 Speaker 1: these wrongful death kind of lawsuits over abortions in state court. 440 00:26:01,600 --> 00:26:05,679 Speaker 1: Is this a new attempt to take it to federal court? 441 00:26:06,240 --> 00:26:08,240 Speaker 3: Yeah, it's a new attempt to take it to federal court. 442 00:26:08,240 --> 00:26:11,760 Speaker 3: It's also significant who the plaintiff is in this case. 443 00:26:11,800 --> 00:26:16,280 Speaker 3: A previous wrongful death suit that mister Mitchell filed similarly 444 00:26:16,320 --> 00:26:19,040 Speaker 3: a kind of man suing his partner. The man ended 445 00:26:19,080 --> 00:26:23,520 Speaker 3: up having a pretty unsavory background. There were lots of 446 00:26:23,600 --> 00:26:27,960 Speaker 3: text messages and other data indicating that he had been controlling, 447 00:26:28,040 --> 00:26:31,520 Speaker 3: that he had done a lot of unflattering and worrisome 448 00:26:31,560 --> 00:26:33,879 Speaker 3: things that kind of painted the lawsuit in a pretty 449 00:26:34,160 --> 00:26:36,359 Speaker 3: damning light. So I think this is an attempt to 450 00:26:36,400 --> 00:26:38,880 Speaker 3: go to federal court to get the comstock question addressed 451 00:26:38,880 --> 00:26:43,199 Speaker 3: directly with a plaintiff who isn't as unappealing as the 452 00:26:43,280 --> 00:26:45,480 Speaker 3: last plaintiff. Right, there's an attempt. I don't know if 453 00:26:45,480 --> 00:26:49,480 Speaker 3: it will work. This is kind of an abersion coercion situation. 454 00:26:50,040 --> 00:26:53,439 Speaker 3: The lawsuit alleges that the woman having these abortions was 455 00:26:53,520 --> 00:26:57,760 Speaker 3: being pressured by her estranged husband and to some extent 456 00:26:57,800 --> 00:27:00,159 Speaker 3: by his family, and that she would have preferred to 457 00:27:00,160 --> 00:27:04,440 Speaker 3: carry these pregnancies to terms. The old lawsuit was very 458 00:27:05,320 --> 00:27:08,520 Speaker 3: critical of the woman who had the abortion in her friends, 459 00:27:08,520 --> 00:27:10,280 Speaker 3: so it was sort of, you know, it looked like 460 00:27:10,640 --> 00:27:13,320 Speaker 3: men telling women what to do. This lawsuit is sort 461 00:27:13,320 --> 00:27:18,040 Speaker 3: of presenting itself as men defending women against coercive men. 462 00:27:18,119 --> 00:27:20,840 Speaker 3: Whether a judge sees it that way or whether the 463 00:27:20,880 --> 00:27:23,080 Speaker 3: facts bear that narrative out remains to be seen. 464 00:27:23,640 --> 00:27:26,600 Speaker 1: It seems like the facts are a little odd. She's 465 00:27:26,600 --> 00:27:29,840 Speaker 1: still married to someone else. Does the boyfriend even have 466 00:27:30,000 --> 00:27:31,399 Speaker 1: standing to sue? 467 00:27:31,760 --> 00:27:34,480 Speaker 3: Right? I mean, genetically, there's an interesting question. I mean, 468 00:27:34,880 --> 00:27:37,159 Speaker 3: I think obviously, you know, we're in an era now 469 00:27:37,200 --> 00:27:41,040 Speaker 3: where biological fathers can have rights. You know, it's not 470 00:27:41,119 --> 00:27:44,000 Speaker 3: just the sort of old knaws of marital fathers are 471 00:27:44,040 --> 00:27:46,679 Speaker 3: the only people with rights in this situation. But to 472 00:27:46,720 --> 00:27:49,200 Speaker 3: your point, they are interesting questions about whether the plaintiff 473 00:27:49,280 --> 00:27:52,080 Speaker 3: is in fact a biological father. I'm not sure how 474 00:27:52,119 --> 00:27:53,760 Speaker 3: that could have been determined. 475 00:27:54,640 --> 00:27:58,360 Speaker 1: The facts here seemed to leave a lot of open questions. 476 00:27:58,800 --> 00:28:01,160 Speaker 1: So why bring a suit that you want to gain 477 00:28:01,200 --> 00:28:03,600 Speaker 1: attention with this fact pattern? 478 00:28:03,920 --> 00:28:06,439 Speaker 3: I think the goal is to have a story about 479 00:28:06,840 --> 00:28:11,280 Speaker 3: abortion coercion, But like you said, it's kind of complicated. 480 00:28:11,320 --> 00:28:14,200 Speaker 3: A lot of things are unclear, right, like who who 481 00:28:14,359 --> 00:28:17,800 Speaker 3: was the father of the fetuses or unborn children who 482 00:28:17,800 --> 00:28:18,600 Speaker 3: are being aborted? 483 00:28:18,760 --> 00:28:18,960 Speaker 2: Right? 484 00:28:19,359 --> 00:28:22,359 Speaker 3: And how is that being determined? To what extent was 485 00:28:22,400 --> 00:28:24,879 Speaker 3: their coercion or to what extent was this just a 486 00:28:24,960 --> 00:28:28,840 Speaker 3: woman in a complicated romantic entanglement who wasn't sure what 487 00:28:28,880 --> 00:28:30,399 Speaker 3: the right thing to do with It was hard to 488 00:28:30,400 --> 00:28:33,960 Speaker 3: figure out what was exactly going on, even though this 489 00:28:34,119 --> 00:28:37,080 Speaker 3: was just the plaintiff's version of events. So I imagine that 490 00:28:37,080 --> 00:28:39,880 Speaker 3: if the plaintiff's version of events is this hard to understand, 491 00:28:39,880 --> 00:28:41,960 Speaker 3: their reality is that much more complicated. 492 00:28:42,880 --> 00:28:46,880 Speaker 1: You mentioned Czechis and Louisiana are pursuing legal actions against 493 00:28:46,920 --> 00:28:50,800 Speaker 1: a New York doctor who prescribed abortion pills to patients 494 00:28:50,800 --> 00:28:54,280 Speaker 1: in those states. New York has a shield law, so 495 00:28:54,520 --> 00:28:57,720 Speaker 1: is it a question of which state's law to follow? 496 00:28:58,080 --> 00:29:00,880 Speaker 1: Can one state tell another story what to do. 497 00:29:01,480 --> 00:29:04,000 Speaker 3: Yeah, that's part of the complexity of both the Strongfold 498 00:29:04,000 --> 00:29:07,800 Speaker 3: death suit and the Texas and previous Louisiana cases that 499 00:29:08,320 --> 00:29:12,240 Speaker 3: we've spoken about before. So when one state is fighting 500 00:29:12,280 --> 00:29:15,440 Speaker 3: another state, things get complicated under the full faith and 501 00:29:15,480 --> 00:29:17,680 Speaker 3: credit clause and also choice of law. So the full 502 00:29:17,680 --> 00:29:20,920 Speaker 3: faith and Credit claus is generally that when the courts 503 00:29:20,960 --> 00:29:23,200 Speaker 3: of one state reach a final judgment, the courts of 504 00:29:23,240 --> 00:29:26,280 Speaker 3: the other state have to honor that judgment. That's generally 505 00:29:26,320 --> 00:29:29,920 Speaker 3: how things work, but it gets complicated because there's sometimes 506 00:29:29,920 --> 00:29:33,640 Speaker 3: exceptions to that rule, and there can be complexities when 507 00:29:33,720 --> 00:29:37,120 Speaker 3: they're multiple dueling judgments. You could have courts and different 508 00:29:37,120 --> 00:29:40,480 Speaker 3: states reaching different outcomes, and then those courts have to 509 00:29:40,520 --> 00:29:44,560 Speaker 3: decide which state's law even apply when they're resolving these questions. 510 00:29:44,600 --> 00:29:48,720 Speaker 3: So far, the Texas and Louisiana suits haven't gone very 511 00:29:48,760 --> 00:29:52,360 Speaker 3: far in resolving these questions. They haven't even asked federal 512 00:29:52,360 --> 00:29:54,640 Speaker 3: courts to get involved. So I think part of what 513 00:29:54,680 --> 00:29:57,080 Speaker 3: you're seeing in this case is Jonathan Mitchell trying to 514 00:29:57,120 --> 00:30:01,400 Speaker 3: go directly to federal courts, even though a lot of 515 00:30:01,400 --> 00:30:03,360 Speaker 3: what he's asking this federal court to weigh in on 516 00:30:03,480 --> 00:30:06,320 Speaker 3: is state law questions, because a lot of his case 517 00:30:06,480 --> 00:30:09,040 Speaker 3: is saying this is a wrongful death because of Texas 518 00:30:09,120 --> 00:30:11,720 Speaker 3: state law. Even though there is this Comstock Act claim, 519 00:30:12,000 --> 00:30:13,800 Speaker 3: a lot of the rest of why it's supposed to 520 00:30:13,840 --> 00:30:16,120 Speaker 3: have been a wrongful death is based on Texas state law. 521 00:30:16,160 --> 00:30:18,320 Speaker 3: So it's a little odd that of federal judges the 522 00:30:18,320 --> 00:30:22,240 Speaker 3: first person being pasked with resolving those questions. But strategically 523 00:30:22,280 --> 00:30:26,000 Speaker 3: I think it's again because mister Mitchell's interested in seeing 524 00:30:26,080 --> 00:30:29,480 Speaker 3: federal judges weigh in on the Comstock Act and is 525 00:30:29,520 --> 00:30:33,800 Speaker 3: probably frustrated that Texas and Louisiana haven't yet escalated their 526 00:30:33,880 --> 00:30:35,000 Speaker 3: cases to federal court. 527 00:30:35,520 --> 00:30:39,280 Speaker 1: So another abortion related decision, the Court of Appeals for 528 00:30:39,320 --> 00:30:43,840 Speaker 1: the Fourth Circuit rule that West Virginia can block access 529 00:30:43,960 --> 00:30:46,040 Speaker 1: to myth of pristone. Yeah. 530 00:30:46,080 --> 00:30:49,120 Speaker 3: So, there had been a several lawsuits that had proceeded 531 00:30:49,160 --> 00:30:53,520 Speaker 3: in the Biden years arguing that the FDA's rules permitting 532 00:30:53,560 --> 00:30:58,880 Speaker 3: access to myth of pristone under certain circumstances preempted contradictory 533 00:30:58,960 --> 00:31:03,200 Speaker 3: state laws criminalsing myth of pristone, including West Virginia's abortion ban. 534 00:31:04,080 --> 00:31:09,400 Speaker 3: And the theory was that FDA rules that a uniform 535 00:31:09,480 --> 00:31:12,800 Speaker 3: federal standard that's meant to govern nationwide and that state 536 00:31:12,880 --> 00:31:15,880 Speaker 3: laws you know, which are trumped by federal law couldn't 537 00:31:15,880 --> 00:31:20,040 Speaker 3: conflict with that. And the Fourth Circuit disagreed with that. 538 00:31:20,840 --> 00:31:24,200 Speaker 3: It certainly doesn't permanently resolve the question. I mean, the 539 00:31:24,240 --> 00:31:27,720 Speaker 3: plaintiffs in that case could appeal. There are other circuits 540 00:31:27,720 --> 00:31:31,040 Speaker 3: that could resolve such a question, but it was one 541 00:31:31,080 --> 00:31:34,240 Speaker 3: of the ways that works and rights supporters were hoping 542 00:31:34,280 --> 00:31:38,480 Speaker 3: to use the FDA's current rules on mytha pristone to 543 00:31:38,640 --> 00:31:42,680 Speaker 3: limit state bans, and that hasn't worked to date, and so. 544 00:31:43,000 --> 00:31:47,040 Speaker 1: What could the state do to make it harder for 545 00:31:47,400 --> 00:31:50,240 Speaker 1: women to get MYTHI pristone or since it's going through 546 00:31:50,240 --> 00:31:52,160 Speaker 1: the mail, right, So. 547 00:31:52,080 --> 00:31:56,280 Speaker 3: We're seeing a whole bunch of efforts to answer that question. Actually, 548 00:31:56,320 --> 00:31:59,920 Speaker 3: as we speak, one of the most important is taking 549 00:32:00,080 --> 00:32:04,760 Speaker 3: place in Texas. Texas had a kind of what you'd 550 00:32:04,800 --> 00:32:11,239 Speaker 3: consider a model bill to target abortion pills. It is 551 00:32:12,040 --> 00:32:17,320 Speaker 3: kind of a massive pill that touches on everything from 552 00:32:17,840 --> 00:32:24,880 Speaker 3: the advertising of abortion providers, to internet servers that carry 553 00:32:25,120 --> 00:32:29,240 Speaker 3: information about abortion, to abortion funds that help low income 554 00:32:29,320 --> 00:32:33,720 Speaker 3: patients to address abortion, to creating a state law equivalent 555 00:32:33,760 --> 00:32:35,920 Speaker 3: of the Comstock Act. This was sort of like an 556 00:32:35,960 --> 00:32:42,800 Speaker 3: abortion pill megabill, right. And surprisingly, this legislation had been 557 00:32:42,840 --> 00:32:46,360 Speaker 3: introduced during a regular legislative setition in Texas and it 558 00:32:46,400 --> 00:32:51,000 Speaker 3: didn't pass. So the governor of Texas announced a special 559 00:32:51,120 --> 00:32:54,520 Speaker 3: session and it's expected that the bill will be taken 560 00:32:54,640 --> 00:32:59,960 Speaker 3: up again. Then again, it's unclear whether this bill will pass, 561 00:33:00,040 --> 00:33:02,480 Speaker 3: but if it does, it could be a model for 562 00:33:02,640 --> 00:33:06,640 Speaker 3: other states trying to take on abortion pills. The challenge, 563 00:33:06,640 --> 00:33:10,400 Speaker 3: as you mentioned, is that ultimately these pills are coming 564 00:33:10,400 --> 00:33:14,760 Speaker 3: from out of state, and without some kind of federal action, 565 00:33:14,960 --> 00:33:17,600 Speaker 3: either from a federal court or from the Trump administration, 566 00:33:17,760 --> 00:33:20,200 Speaker 3: and most likely from both, states are still going to 567 00:33:20,200 --> 00:33:23,320 Speaker 3: be somewhat hindered in their ability to take on abortion pills. 568 00:33:23,840 --> 00:33:28,320 Speaker 1: And what's been happening with the abortion trafficking bills in 569 00:33:28,360 --> 00:33:29,160 Speaker 1: some states. 570 00:33:29,800 --> 00:33:33,360 Speaker 3: There have been a bunch of developments. Idaho reached a 571 00:33:33,400 --> 00:33:36,800 Speaker 3: settlement where it wouldn't prosecute people for referring for out 572 00:33:36,800 --> 00:33:40,040 Speaker 3: of state abortions. There have been a number of challenges 573 00:33:40,040 --> 00:33:42,880 Speaker 3: to those bills on the free speech side of things 574 00:33:42,920 --> 00:33:45,360 Speaker 3: that have been kind of going either subtle or going 575 00:33:45,400 --> 00:33:49,400 Speaker 3: the way of abortion providers. So that's another thing to watch, 576 00:33:49,520 --> 00:33:54,160 Speaker 3: especially as this abortion pill megabill moves forward in Texas. 577 00:33:54,400 --> 00:33:57,120 Speaker 3: There's an interesting question about whether that will raise free 578 00:33:57,120 --> 00:34:00,120 Speaker 3: speech concerns that will eventually do this because we're seeing 579 00:34:00,240 --> 00:34:03,479 Speaker 3: kind of warning signs both in these settlements and in 580 00:34:04,120 --> 00:34:07,840 Speaker 3: litigation when it comes to free speech and access data 581 00:34:07,880 --> 00:34:08,560 Speaker 3: state aborsion. 582 00:34:09,120 --> 00:34:12,760 Speaker 1: It's hard to keep track of all the different abortion 583 00:34:13,239 --> 00:34:17,120 Speaker 1: related issues going on across the country. Thanks so much, 584 00:34:17,239 --> 00:34:21,480 Speaker 1: Mary Best. Professor Mary Ziegler of UC Davis Law School 585 00:34:22,400 --> 00:34:24,760 Speaker 1: and that's it for this edition of The Bloomberg Law Show. 586 00:34:25,080 --> 00:34:27,400 Speaker 1: Remember you can always get the latest legal news on 587 00:34:27,440 --> 00:34:31,759 Speaker 1: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, 588 00:34:31,920 --> 00:34:36,959 Speaker 1: and at www dot bloomberg dot com slash podcast Slash Law, 589 00:34:37,360 --> 00:34:39,960 Speaker 1: And remember to tune into The Bloomberg Law Show every 590 00:34:40,000 --> 00:34:43,920 Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso 591 00:34:44,040 --> 00:34:45,640 Speaker 1: and you're listening to Bloomberg