WEBVTT - After Oath Keepers Verdict, Trump Allies May Be Next 0:00:03.160 --> 0:00:12.760 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:13.760 --> 0:00:16.239 It's the first time in almost thirty years that the 0:00:16.360 --> 0:00:20.479 Justice Department has convinced a jury to convict citizens of 0:00:20.560 --> 0:00:25.360 seditious conspiracy against the United States, convicting two members of 0:00:25.400 --> 0:00:29.040 the far right wing group the Oath Keepers, of conspiring 0:00:29.120 --> 0:00:34.600 to oppose by force the peaceful transfer of presidential power before, during, 0:00:34.600 --> 0:00:37.880 and after the attack on the Capitol. On January six, 0:00:38.520 --> 0:00:42.720 Attorney General Merrick Garland vowed to continue the prosecutions over 0:00:42.760 --> 0:00:46.040 the insurrection as a verdict of this case makes clear, 0:00:46.800 --> 0:00:51.120 the Department will work tirelessly to hold a countel those 0:00:51.200 --> 0:00:55.240 responsible for crimes relating to the attack on our democracy. 0:00:55.560 --> 0:00:59.040 On January six, in a marathon trial that stretched over 0:00:59.160 --> 0:01:03.480 seven weeks, the government displayed hundreds of messages, call logs, 0:01:03.560 --> 0:01:07.920 and video footage like this made by Oathkeepers founders Stuart 0:01:08.000 --> 0:01:12.120 Rhodes right after the election. We have been already stationed 0:01:12.120 --> 0:01:15.360 outside DC as a nuclear option in case the attempt 0:01:15.400 --> 0:01:17.840 to remove the president illegally, we will step in and 0:01:17.880 --> 0:01:21.520 stop it. My guest is former federal prosecutor Jimmy Grula, 0:01:21.760 --> 0:01:24.880 a professor at Notre Dame Law School Jimmy. The jury 0:01:24.920 --> 0:01:28.600 convicted only Rhodes and a top lieutenant of the seditious 0:01:28.640 --> 0:01:34.119 conspiracy charges. It convicted all five defendants of obstructing certification 0:01:34.200 --> 0:01:38.040 of the Electoral College vote and various other felonies. So 0:01:38.160 --> 0:01:41.200 just how significant is this verdict? I think it's important 0:01:41.200 --> 0:01:43.200 on a couple of levels. First, I think it's a 0:01:43.319 --> 0:01:47.680 very powerful rebuttal to the narrative that the January six 0:01:47.880 --> 0:01:52.440 rioters were so called patriots. What this verdict proves is 0:01:52.480 --> 0:01:55.480 in instead of patriots, many of these individuals, certainly, these 0:01:55.520 --> 0:01:59.600 five individuals that were convicted are criminals. And these individuals 0:01:59.600 --> 0:02:01.440 have been can evicted of some of the most serious 0:02:01.520 --> 0:02:04.880 crimes against the government, including two of them convicted of 0:02:04.920 --> 0:02:08.640 seditious conspiracy, which is second only in terms of its 0:02:08.639 --> 0:02:12.520 severity and important, second only to treason. And I think 0:02:12.600 --> 0:02:17.400 the other important takeaway is whether or not the convictions 0:02:17.600 --> 0:02:21.120 are going to motivate any of the five defendants to 0:02:21.160 --> 0:02:25.880 cooperate with the government. So all five defendants were convicted 0:02:25.919 --> 0:02:29.320 of obstructing an official proceeding. That's a very serious offense 0:02:29.360 --> 0:02:31.560 that carries a penalty up to twenty years in prison. 0:02:31.840 --> 0:02:35.680 So these individuals have a real incentive to try to 0:02:35.720 --> 0:02:40.600 reduce their criminal liability and term of imprisonment by cooperating 0:02:40.760 --> 0:02:43.080 with the government. So we'll have to wait and see 0:02:43.120 --> 0:02:46.840 what happens there, and then lastly, whether or not these 0:02:46.919 --> 0:02:50.160 verdicts are going to encourage others to cooperate with the government. 0:02:50.200 --> 0:02:52.680 So there are several individuals that have trials that are 0:02:52.760 --> 0:02:57.760 pending and again involving very serious felony charges, and it 0:02:57.760 --> 0:03:00.320 will be interesting to see whether they're motivated to operate 0:03:00.360 --> 0:03:03.240 with the government as well. The verdicts weren't a slam 0:03:03.360 --> 0:03:07.240 dunk for the prosecution. I mean they only found too 0:03:07.320 --> 0:03:10.560 guilty of the top charge, which is really the minimum 0:03:10.639 --> 0:03:14.079 number for a conspiracy. Yeah, that's true. There are ten 0:03:14.160 --> 0:03:17.560 counts that the jury considered. The fact that some were quitted, 0:03:17.680 --> 0:03:20.520 some were convicted. What a suggest to me is that 0:03:20.600 --> 0:03:24.320 it was a jury that really took its responsibilities seriously 0:03:24.520 --> 0:03:27.679 with respect to each count and the evidence as it 0:03:27.800 --> 0:03:30.600 retained to each individual. So they really called through the 0:03:30.639 --> 0:03:33.680 evidence and applied the evidence defended by defendant, and in 0:03:33.720 --> 0:03:36.560 some cases they just found that there was not sufficient 0:03:36.600 --> 0:03:39.600 evidence beyond a reasonable doubt of an agreement, which is 0:03:39.680 --> 0:03:45.760 the central element to establish conspiracy, including seditious conspiracy. Will 0:03:45.800 --> 0:03:50.040 these verdicts make other defendants more or less likely to 0:03:50.160 --> 0:03:53.040 try to reach a plea deal. I think they're going 0:03:53.120 --> 0:03:57.360 to have the effect of causing others to rethink whether 0:03:57.400 --> 0:03:59.840 they want to go to trial and whether they want 0:04:00.000 --> 0:04:03.360 to run the risk of being convicted. Now, again, it's 0:04:03.400 --> 0:04:05.840 going to depend upon the strength of the government's evidence 0:04:05.920 --> 0:04:08.520 in each of these other cases that are yet to 0:04:08.600 --> 0:04:11.840 be litigated at trial. But I think this is sending 0:04:11.840 --> 0:04:14.800 a very powerful message that you very well could be convicted, 0:04:15.240 --> 0:04:17.359 and if so, you could be looking at twenty, you know, 0:04:17.480 --> 0:04:20.880 plus years in prison, spending a substantial period of your 0:04:20.920 --> 0:04:22.760 life in prison. And so I think it's going to 0:04:22.880 --> 0:04:26.720 cause a number of defendants to pause and reconsider. I 0:04:26.720 --> 0:04:29.279 think it's going to cause their attorneys to reach out 0:04:29.320 --> 0:04:31.280 to them and say, you know what, let's think about this, 0:04:31.400 --> 0:04:33.680 let's talk through this. Are you sure you want to 0:04:33.760 --> 0:04:36.680 run the risk, because if you do, you could very 0:04:36.680 --> 0:04:41.240 well run the same fate that these five defendants, including 0:04:41.279 --> 0:04:46.560 Stewart Rhods have with reflected jury convictions. On Monday, four 0:04:46.600 --> 0:04:49.720 other members of the Oath Keepers are scheduled to go 0:04:49.800 --> 0:04:54.400 on trial on seditious conspiracy charges because a judge split 0:04:54.440 --> 0:04:57.680 the trial. So the question is whether a jury will 0:04:57.680 --> 0:05:01.800 hold them accountable for sedition. And even though none of 0:05:01.839 --> 0:05:04.479 them were leaders of the group and that seemed to 0:05:04.520 --> 0:05:07.280 make a difference. Here you raise a good point, and 0:05:07.320 --> 0:05:09.920 again it's very important that we not talk about these 0:05:09.920 --> 0:05:14.280 cases and broad generalities because with respect to criminal liability, 0:05:14.839 --> 0:05:17.960 it's going to turn on the evidence that is relevant 0:05:18.000 --> 0:05:21.160 to each defendant. And in this particular case, with respect 0:05:21.200 --> 0:05:24.599 to Rhodse and Meg's, there was compelling evidence of their 0:05:24.640 --> 0:05:28.839 involvement in a seditious conspiracy. So that evidence was largely 0:05:28.920 --> 0:05:33.320 their own words in various text messages and other communications. 0:05:33.360 --> 0:05:36.200 So that was the most compelling evidence against them that really, 0:05:36.440 --> 0:05:39.000 I think caused the jury to find them guilty. So 0:05:39.080 --> 0:05:41.440 the question is going to be, with respect of future 0:05:41.480 --> 0:05:44.159 cases and the four defendants in this upcoming case on 0:05:44.200 --> 0:05:49.360 seditious conspiracy, does the government have similar compelling evidence coming 0:05:49.400 --> 0:05:51.600 from their own words and their own statements and their 0:05:51.640 --> 0:05:55.000 own admissions. And so that's a critical question moving forward. 0:05:55.400 --> 0:05:59.520 We talked before about Stuart Rhodes being a graduate of 0:05:59.640 --> 0:06:03.279 Yelled Law School and deciding to take the stand in 0:06:03.480 --> 0:06:06.080 his own defense. Do you think that helped him at 0:06:06.120 --> 0:06:08.479 all with some of the charges he was found not 0:06:08.600 --> 0:06:11.280 guilty of. Well, it certainly didn't. Didn't help him with 0:06:11.320 --> 0:06:14.520 the most serious church you know, seditious conspiracy. So it's 0:06:14.600 --> 0:06:18.160 always a risk, it's a major risk whenever a defendant 0:06:18.320 --> 0:06:21.320 decides to testify in his own offense. Of course they 0:06:21.320 --> 0:06:23.960 have that right to do so, but it carries a 0:06:24.000 --> 0:06:27.640 substantial downside, and that is that the government then is 0:06:27.680 --> 0:06:30.520 going to be able to cross examine the witness, and 0:06:30.560 --> 0:06:33.039 that evidence that they used a cross examined could be 0:06:33.160 --> 0:06:36.719 very damaging against the defendant. And that was the case 0:06:36.760 --> 0:06:39.599 with Stuart Rhodes. I mean they confronted him time and 0:06:39.640 --> 0:06:43.360 time again with his own statements that again suggested that 0:06:43.400 --> 0:06:47.479 he was engaged in this conspiracy to use violence to 0:06:47.560 --> 0:06:51.280 prevent the peaceful transfer of power and the certification of 0:06:51.360 --> 0:06:55.400 the Electoral College votes. So yeah, I mean, it may 0:06:55.440 --> 0:06:58.039 have helped him with a couple of charges, but I think, 0:06:58.040 --> 0:07:00.320 to be honest with you, maybe it been of fitted 0:07:00.400 --> 0:07:02.560 him with the lesser charges. But you look at what 0:07:02.640 --> 0:07:05.159 I consider to be that the two most serious charge, 0:07:05.200 --> 0:07:08.719 or the sedition charge and the obstruction of official proceedings charge, 0:07:08.960 --> 0:07:11.200 which both carry a twenty years sentence, and he was 0:07:11.240 --> 0:07:14.360 convicted of both of those. The defendants attorneys said they're 0:07:14.360 --> 0:07:18.480 going to appeal. Any appellate issues stand out to you, No, 0:07:18.680 --> 0:07:21.200 not really, it'll be interesting to see. I mean, of course, 0:07:21.360 --> 0:07:23.160 the defense council is always going to say that, you know, 0:07:23.200 --> 0:07:25.120 we're going to appeal, and they certainly have a right 0:07:25.160 --> 0:07:27.640 to do so, but you're really, in reality, it's it's 0:07:27.800 --> 0:07:30.760 very rare and kind of extraordinary where the Court of 0:07:30.800 --> 0:07:33.960 Appeals will find that there was prejudice at the trial 0:07:34.160 --> 0:07:37.560 that would justify overturning the conviction of those cases are 0:07:37.680 --> 0:07:40.920 very rare, and there's nothing about the proceedings in this case, 0:07:41.680 --> 0:07:45.640 no major issue, no major controversial issue, a major procedural 0:07:45.800 --> 0:07:47.800 or of an injury issue that would cause me to 0:07:47.840 --> 0:07:50.480 believe that any of these convictions are going to be overturned. 0:07:50.760 --> 0:07:54.800 Throughout the trial, prosecutors highlighted the defendants links to key 0:07:54.840 --> 0:07:59.520 allies of former President Trump, such as Roger Stone Alley, 0:07:59.560 --> 0:08:04.000 Alex Ender, Michael Flynn, an attorney Sidney Powell, and Rudy Giuliani, 0:08:04.320 --> 0:08:07.680 and Rhodes. Attorney James Lee Bright said he expects the 0:08:07.800 --> 0:08:11.679 Justice Department to take this mixed verdict as a sign 0:08:11.760 --> 0:08:16.600 to move full speed ahead with prosecutions against others allegedly 0:08:16.680 --> 0:08:20.720 involved in planning January six. Do you agree with that? Yeah? 0:08:20.840 --> 0:08:22.600 I do. I think at the end of the day, 0:08:22.680 --> 0:08:24.640 even though it was a mixed verdie and the jury 0:08:24.640 --> 0:08:27.960 didn't convict all defendants and all charges, the reality is 0:08:28.000 --> 0:08:30.840 this is still a major victory for the Department of Justice. 0:08:30.880 --> 0:08:32.920 And I don't care how you try to spend it, 0:08:33.000 --> 0:08:35.520 you can't spend it away from that result. And so 0:08:35.600 --> 0:08:37.760 I think it's certainly going to encourage and in bolden 0:08:37.760 --> 0:08:40.280 the Department of Justice to move forward in a very 0:08:40.320 --> 0:08:43.800 aggressive manner. And then with respect to the cooperation, you know, 0:08:43.880 --> 0:08:47.240 the question is, well, what evidence might these five defendants 0:08:47.320 --> 0:08:49.720 or other defendants have that would be of value to 0:08:49.800 --> 0:08:52.959 the Department of Justice. So do they have valuable evidence 0:08:53.080 --> 0:08:56.160 against Roger Stone as a member of the conspiracy to 0:08:56.200 --> 0:08:59.040 commit sedition? What about Steve Bannon? What about Michael Flynn? 0:08:59.120 --> 0:09:01.960 What about Johnny Man. I do think that someone like 0:09:02.080 --> 0:09:06.840 Stuart Rhodes might have valuable, credible evidence to implicate these 0:09:06.880 --> 0:09:11.840 individuals and perhaps others in conspiratorial conduct. The question always 0:09:11.920 --> 0:09:16.160 ends up being will Trump be prosecuted by the Justice 0:09:16.200 --> 0:09:20.160 Department in this case? The defense lawyers said that nothing 0:09:20.200 --> 0:09:25.200 in all the information they got implicated Trump. Yeah, that's 0:09:25.320 --> 0:09:27.000 that's a very good point. It's a very good question. 0:09:27.280 --> 0:09:29.080 And so we don't want to read too much into 0:09:29.120 --> 0:09:32.720 these verdicts, and so well, again it's a major victory 0:09:32.840 --> 0:09:35.360 for further Department of Justice. I mean, I still think 0:09:35.360 --> 0:09:39.160 there's a long ways to go in terms of establishing 0:09:39.679 --> 0:09:43.640 sufficient evidence or in criminal charges against former President Trump, 0:09:43.640 --> 0:09:46.959 at least based upon the evidence that's been made available 0:09:47.200 --> 0:09:49.960 to the public. And even if Stuart Rhodes decided to 0:09:50.040 --> 0:09:53.960 cooperate fully cooperate with the Department of Justice, then the 0:09:54.040 --> 0:09:57.120 question is, does he have any any evidence, direct evidence, 0:09:57.160 --> 0:10:01.120 credible evidence that would directly implicate Trump. And that's a 0:10:01.120 --> 0:10:02.959 big question mark, and you know, I wouldn't want to 0:10:03.000 --> 0:10:06.720 speculate on that point. So for those that say, oh, well, 0:10:06.760 --> 0:10:09.600 now you know this verdict is really going to open 0:10:09.640 --> 0:10:13.439 the door to bringing criminal charges against former President Trump, 0:10:13.480 --> 0:10:15.400 I don't think we're there yet, and I think that 0:10:15.640 --> 0:10:17.880 at this point is premature to make those those types 0:10:17.880 --> 0:10:21.600 of claims. At the press conference, there are questions for 0:10:21.640 --> 0:10:26.079 Attorney General Merrick Garland about whether having a special counsel 0:10:26.080 --> 0:10:30.040 appointed is slowing down the investigation. That's a question that's 0:10:30.080 --> 0:10:32.920 been posed so many times and is there a real 0:10:33.000 --> 0:10:35.880 rush here? Well, the problem is is that we're now 0:10:36.400 --> 0:10:40.480 close to two years, you know, from the January six insurrection, 0:10:40.880 --> 0:10:44.400 and now with the appointment of a of a special council, 0:10:44.640 --> 0:10:46.360 I don't think there's any question that it's going to 0:10:46.480 --> 0:10:49.960 delay the investigation, which of course is going to delay 0:10:50.040 --> 0:10:53.880 any possible criminal charges. The real question for me is 0:10:53.960 --> 0:10:56.400 how long as the appointment of special council going to 0:10:56.559 --> 0:10:59.760 lay the proceedings? And it could be substantial, it could 0:10:59.760 --> 0:11:02.400 be a substantial delay and and and the reality is, 0:11:02.440 --> 0:11:05.240 I mean, we may not have a decision one way 0:11:05.320 --> 0:11:09.200 or the other even up to elections. I mean, it's 0:11:09.240 --> 0:11:11.679 it's conceivable. And I think that as we get closer 0:11:11.679 --> 0:11:14.520 and closer to the election, and of course, if former 0:11:14.600 --> 0:11:18.200 President Trump is the Republican nominee, I think that the 0:11:18.280 --> 0:11:21.160 Department of Justice is probably going to be even less 0:11:21.160 --> 0:11:25.320 inclined to bring criminal charges that would influence certainly the 0:11:25.320 --> 0:11:28.840 the outcome of the presidential election. And so I think 0:11:28.880 --> 0:11:31.480 this process is likely going to be delayed for a 0:11:31.520 --> 0:11:35.839 significant period of time and maybe even beyond election. It 0:11:35.920 --> 0:11:39.200 seems like they could move forward on Moral Lago, on 0:11:39.280 --> 0:11:45.160 the Moral Lago documents, because that's a sort of confined investigation. Yeah, 0:11:45.200 --> 0:11:46.920 I think a couple of things. So I think that's 0:11:46.920 --> 0:11:50.199 an excellent point. Coupled with, you know, maybe where the 0:11:50.400 --> 0:11:54.480 public is focusing too much on the Department of Justice investigation, 0:11:54.880 --> 0:11:57.960 and maybe in terms of criminal charges being brought, you know, 0:11:58.040 --> 0:12:00.480 sooner rather than later, those are going to be coming 0:12:00.520 --> 0:12:03.679 from state jurisdiction, stuff from the Department of Justice. So 0:12:03.720 --> 0:12:06.560 we may be looking at criminal charges coming out of Georgia, 0:12:06.840 --> 0:12:10.480 criminal charges coming out of New York, you know, before 0:12:10.600 --> 0:12:14.080 any federal criminal charges, if any, are filed by the 0:12:14.120 --> 0:12:18.480 Department of Justice. So maybe that should be the proper focus. Finally, 0:12:18.800 --> 0:12:22.640 there was a question about the January six Committee not 0:12:22.760 --> 0:12:27.320 giving all the transcripts and information to the Justice Department. 0:12:27.800 --> 0:12:30.720 What is their motive for holding back on those There's 0:12:30.760 --> 0:12:33.880 a couple of concerns, are I suspect, and that is, 0:12:34.040 --> 0:12:37.319 you know, maybe there's some concern that if these documents, 0:12:37.320 --> 0:12:41.480 these transcripts or discloses, somehow they may be leaked, and 0:12:41.600 --> 0:12:46.960 that would would interfere and obstruct the Congressional January six 0:12:47.000 --> 0:12:51.200 Committee investigation. So but again that that that's very speculative, 0:12:51.440 --> 0:12:54.280 you know, kind of kind of looking to, you know, 0:12:54.360 --> 0:12:57.040 what's the justification, trying to come up with some explanation 0:12:57.559 --> 0:13:00.160 for that. But on the other hand, what trouble to 0:13:00.240 --> 0:13:02.760 me too is that why is an Apartment of Justice 0:13:02.800 --> 0:13:06.440 having to rely upon a congressional committee to assist to 0:13:06.480 --> 0:13:09.599 them in their investigation. Why is it that the Congressional 0:13:09.600 --> 0:13:12.600 committee is taking the lead on this rather than the 0:13:12.600 --> 0:13:15.120 Department of Justice should be the other way around. Should 0:13:15.160 --> 0:13:17.640 be a Department of Justice that should be moving forward 0:13:18.080 --> 0:13:23.520 at at a more assertive, aggressive manner with respect to 0:13:23.559 --> 0:13:28.120 these serious, serious allegations. They shouldn't be reliant on on 0:13:28.160 --> 0:13:31.679 any congressional committee to assist them in their investigation. I mean, 0:13:31.760 --> 0:13:34.720 look at the resources, look at the look at the manpower, 0:13:34.800 --> 0:13:37.840 look at the the assets, you know, the FBI and 0:13:37.960 --> 0:13:41.160 d o J prosecutors that are available to assist in 0:13:41.200 --> 0:13:45.280 this investigation. And so I I don't find very I'm 0:13:45.280 --> 0:13:49.440 not very sympathetic to d o j's criticism that, oh, 0:13:50.000 --> 0:13:54.679 somehow their investigation is being delayed because the January six 0:13:54.720 --> 0:13:57.319 Committee is not fully complying. They should be taking the 0:13:57.440 --> 0:13:59.640 lead on this, and they shouldn't be relying upon a 0:13:59.679 --> 0:14:03.160 congre national committee to do their work. Good point, Thanks 0:14:03.200 --> 0:14:06.280 so much, Jimmy. That's Professor Jimmy Garule of Notre Dame 0:14:06.360 --> 0:14:11.400 Law School. The Senate has passed legislation to enshrine federal 0:14:11.440 --> 0:14:15.600 protection for same sex marriages, with a bipartisan vote that 0:14:15.679 --> 0:14:20.160 demonstrates the dramatic cultural shift in this country on the issue. 0:14:20.600 --> 0:14:23.680 The six to thirty six vote on Tuesday was a 0:14:23.800 --> 0:14:27.560 victory for Democrats, who have raised concerns that the conservative 0:14:27.640 --> 0:14:31.280 leaning Supreme Court could overturn the right to same sex 0:14:31.400 --> 0:14:35.000 marriage in the same way that it overturned the constitutional 0:14:35.120 --> 0:14:38.920 right to abortion in the Jobs decision. President Joe Biden 0:14:39.000 --> 0:14:43.680 has repeatedly expressed concern over the implications of the decision. 0:14:44.120 --> 0:14:48.480 The reasoning of this decision has an impact much beyond 0:14:48.680 --> 0:14:53.760 row and to the right to privacy more generally. Joining 0:14:53.800 --> 0:14:56.520 me is Michael Dorff, a professor of constitutional law and 0:14:56.600 --> 0:15:00.080 Cornell Law School, to talk about his recent article, Well 0:15:00.120 --> 0:15:04.880 the Supreme Court respect the Respect for Marriage Act? Explain 0:15:05.040 --> 0:15:08.840 why despite what Justice Alito wrote in the majority opinion 0:15:08.880 --> 0:15:13.200 in Dabbs. You feel that Justice Thomas was correct that 0:15:13.320 --> 0:15:18.400 the logic of Dobbs threatens O Burgha fell. The primary 0:15:18.600 --> 0:15:22.440 argument offered by Justice Alito and the majority opinion in 0:15:22.520 --> 0:15:30.240 Dobbs is that abortion was not deeply rooted in history 0:15:30.280 --> 0:15:34.480 and tradition as a constitutional right, and therefore Roe v. 0:15:34.680 --> 0:15:39.400 Wade was not just wrongly decided, but egregiously. So. It's 0:15:39.480 --> 0:15:43.720 true that when he comes to distinguishing other rights, he 0:15:43.880 --> 0:15:49.080 says that those other rights do not destroy a human 0:15:49.160 --> 0:15:52.600 life or a potential human life, but that distinction is 0:15:52.640 --> 0:15:56.240 something of a non sequitur, because that's not his primary 0:15:56.280 --> 0:15:59.320 basis for rejecting the right to abortion. The primary basis 0:15:59.360 --> 0:16:03.520 for rejecting the right is the lack of deep historical roots. 0:16:03.600 --> 0:16:06.760 And one could certainly say the same thing about same 0:16:06.800 --> 0:16:10.040 sex marriage, and for that matter, other rights such as 0:16:10.240 --> 0:16:16.080 interracial marriage, such as contraception, etcetera. And therefore Justice Thomas 0:16:16.160 --> 0:16:18.000 I think, does have a point when he says in 0:16:18.080 --> 0:16:21.800 his concurring opinion, I agree with the majority, and we 0:16:21.840 --> 0:16:25.720 should apply this same rationale to those other precedents and 0:16:25.760 --> 0:16:29.400 overrule them as well. As you point out the justices 0:16:29.400 --> 0:16:35.080 in the Dobbs majority who were on the court in Roberts, Thomas, 0:16:35.160 --> 0:16:39.920 and Alito all dissented in O. Burger Fell. Does that 0:16:40.400 --> 0:16:43.360 give us pause to think that they'll be ready to 0:16:44.160 --> 0:16:47.720 overturn O. Berger Fell? I think probably not. With respect 0:16:47.800 --> 0:16:51.280 to Chief Justice Roberts, who I should say I characterized 0:16:51.280 --> 0:16:53.360 in a column as in the Dobbs majority, and he 0:16:53.480 --> 0:16:55.640 was in the adopts majority with respect to the outcome, 0:16:55.640 --> 0:16:59.880 but he didn't join Justice Alito's opinion. And more general, 0:17:00.280 --> 0:17:04.320 I don't think Chief Justice Roberts is especially opposed to 0:17:04.359 --> 0:17:06.879 the outcome of A Burgher felt. He is uh seemed 0:17:06.880 --> 0:17:08.840 to have made his peace with it. I do think 0:17:09.000 --> 0:17:13.639 Justices Thomas and Alito would be prepared to overrule A 0:17:13.680 --> 0:17:16.480 Burger Felt. Certainly. Justice Thomas said as much in his 0:17:16.840 --> 0:17:20.760 Dobb's concurrence, And while Justice Alito didn't say that, I 0:17:20.800 --> 0:17:23.439 think that all he was saying was that this case 0:17:23.560 --> 0:17:27.120 doesn't overrule a Burgher felt. If enough of his colleagues 0:17:27.119 --> 0:17:29.679 were willing to reconsider it, I don't doubt that he 0:17:29.720 --> 0:17:34.280 would be in the majority to overturn. Did Justice Thomas 0:17:34.320 --> 0:17:38.760 mentioned interracial marriage when he was talking about cases that 0:17:38.880 --> 0:17:43.240 might be reversed? He did not, But I think Justice 0:17:43.280 --> 0:17:46.359 Thomas would say, as probably most of the justices in 0:17:46.440 --> 0:17:50.320 the majority would say, that the right interracial marriage recognize 0:17:50.359 --> 0:17:55.480 in Loving against Virginia can be independently justified as a 0:17:55.520 --> 0:17:58.639 matter of equal protection. So Justice Thomas has said that 0:17:58.680 --> 0:18:01.560 he doesn't think there's any constitutional right to marry at all, 0:18:02.040 --> 0:18:05.199 but I think he would probably say that if the 0:18:05.280 --> 0:18:08.840 state does recognize marriages, it can't discriminate on the basis 0:18:08.840 --> 0:18:11.520 of race because that would deny equal protection. So I 0:18:11.560 --> 0:18:15.520 don't think that interracial marriage is really at risk because 0:18:15.560 --> 0:18:19.840 it's independently protected by a different constitutional right. Now, explain 0:18:19.880 --> 0:18:24.240 what the Respect for Marriage Act does. The Second Marriage 0:18:24.280 --> 0:18:28.800 Act does three main things. First, it says that the 0:18:28.920 --> 0:18:32.600 definition of marriage for purposes of federal law, for example, 0:18:32.680 --> 0:18:37.000 federal income tax law, depends on whether a couple are 0:18:37.119 --> 0:18:40.560 married under state law. So if a same sex couple 0:18:40.680 --> 0:18:44.080 is married under Massachusetts law and they live in Massachusetts, 0:18:44.200 --> 0:18:47.560 then on their federal taxes, they're married for federal purposes. 0:18:47.840 --> 0:18:51.200 The second thing it does is it says that even 0:18:51.240 --> 0:18:54.520 if the state doesn't want to recognize same sex marriage 0:18:54.600 --> 0:18:58.600 on its own, it must give recognition to same sex 0:18:58.640 --> 0:19:02.280 marriages of people who were married in another state, and 0:19:02.320 --> 0:19:06.240 that includes both couples who lived in another state where 0:19:06.320 --> 0:19:08.600 same sex marriage was legal and then moved to the 0:19:08.600 --> 0:19:12.320 new state. Let's say they moved from New York to Louisiana. 0:19:12.400 --> 0:19:15.680 If Louisiana were to outlast same sex marriage after a 0:19:15.760 --> 0:19:18.520 burgher Fell were overruled, they would have to be treated 0:19:18.560 --> 0:19:21.400 as married by Louisiana, and so would a couple from 0:19:21.440 --> 0:19:26.080 Louisiana who went to New York to get married there. So, 0:19:26.119 --> 0:19:29.000 in that sense, it effectively makes it possible to have 0:19:29.000 --> 0:19:31.440 a same sex marriage anywhere in the country, at least 0:19:31.480 --> 0:19:33.720 if one is willing to travel to another state to 0:19:33.760 --> 0:19:35.720 get married and one has the wherewithal to do it. 0:19:35.880 --> 0:19:38.240 The third thing it does, and this is different in 0:19:38.280 --> 0:19:41.680 the Senate version that just passed from the original House version, 0:19:42.160 --> 0:19:47.800 is it includes a provision that allows nonprofit religious organizations 0:19:47.840 --> 0:19:52.600 to decline to provide services, accommodations, goods, et cetera to 0:19:53.119 --> 0:19:56.640 the wedding that of a same sex couple. The Respect 0:19:56.680 --> 0:20:01.560 from Marriage Act, why doesn't it require states to recognize 0:20:01.640 --> 0:20:06.320 same sex marriage no matter where the marriage is performed. 0:20:06.960 --> 0:20:10.520 Probably because it's not clear that Congress has the power 0:20:10.640 --> 0:20:13.480 to do that. The powers of Congress are set out 0:20:13.520 --> 0:20:16.399 in the Constitution, mostly in Article one, Section eight, but 0:20:16.440 --> 0:20:21.000 a few other places, and family law is generally deemed 0:20:21.040 --> 0:20:24.359 a matter of state law that is reserved to the 0:20:24.400 --> 0:20:27.760 states by the Tenth Amendment. So Congress probably doesn't have 0:20:27.800 --> 0:20:31.960 the affirmative power to create a nationwide law of marriage 0:20:32.240 --> 0:20:34.080 in the same way that it doesn't have the affirmative 0:20:34.080 --> 0:20:38.119 power to create a nationwide law of divorce or child 0:20:38.200 --> 0:20:41.000 custody or any of a number of other things. That's 0:20:41.000 --> 0:20:44.640 not to say there isn't federal power in the area, right, 0:20:44.720 --> 0:20:48.680 And so when federal power is being exercised, as for example, 0:20:48.760 --> 0:20:51.760 with respect to the tax code, and it implicates marriage, 0:20:52.080 --> 0:20:54.920 then the federal government can step in either with its 0:20:54.920 --> 0:20:58.320 own definition or as under the Respect for Marriage Act, 0:20:58.520 --> 0:21:02.480 and indeed under the current law by accepting the state definition. 0:21:03.040 --> 0:21:06.720 And why doesn't the full Faith and Credit clause require 0:21:06.840 --> 0:21:12.280 states to recognize marriages performed in other states even without 0:21:12.359 --> 0:21:15.960 this new law the r M A. Well, arguably it does, 0:21:16.359 --> 0:21:21.720 but there has long been a recognized exception to full 0:21:21.760 --> 0:21:25.920 faith and credit not expressly included in Article four of 0:21:25.960 --> 0:21:29.480 the Constitution, which is where that clause appears, but recognized 0:21:29.520 --> 0:21:34.960 by courts that states can refuse to recognize marriages and 0:21:35.200 --> 0:21:39.440 other provisions of state law where it violates the state's 0:21:39.480 --> 0:21:42.360 own public policy. To give us you have a relatively 0:21:42.400 --> 0:21:48.840 uncontroversial example. Imagine that a state recognizes child marriage, as 0:21:49.119 --> 0:21:54.440 California actually does, with the consent of parents. And so 0:21:54.520 --> 0:21:56.760 you have a twelve year old or a thirteen year 0:21:56.760 --> 0:22:00.160 old who's married in California, and then they move move 0:22:00.240 --> 0:22:02.919 to a state that sets as a minimum age for 0:22:03.000 --> 0:22:06.560 marriage sixteen or eighteen or something like that. The state 0:22:06.680 --> 0:22:11.040 would be entitled to use its public policy exception to say, well, 0:22:11.240 --> 0:22:13.840 you might be married in California, but here we regard 0:22:13.920 --> 0:22:17.720 that as against our public policy. So the key way 0:22:17.800 --> 0:22:21.320 in which the r m A is lacking then is 0:22:21.359 --> 0:22:24.720 that it doesn't give the protection that oh Burgherfel gives 0:22:24.760 --> 0:22:29.439 two marriages performed anywhere in the country. Yes, that's right. 0:22:29.480 --> 0:22:33.480 It doesn't mandate that every state legalize same sex marriage 0:22:33.600 --> 0:22:36.840 performed in that state, but it effectively reproduces much of 0:22:36.880 --> 0:22:40.080 that except as I say, and this is perhaps a 0:22:40.080 --> 0:22:43.359 pretty big exception, except for couples who can't afford to 0:22:43.400 --> 0:22:47.359 travel to another state, potentially a distant one. Because states 0:22:47.440 --> 0:22:51.399 tend to clump geographically with respect to social issues. So 0:22:51.400 --> 0:22:53.000 if they can't afford to travel to a state where 0:22:53.000 --> 0:22:55.560 the same six marriage is recognized, then they can't get 0:22:55.560 --> 0:22:57.840 married in their home state. So in that sense that 0:22:57.960 --> 0:23:00.200 that is a big difference. So now that the sane 0:23:00.600 --> 0:23:04.879 focus of your piece is whether the Supreme Court would 0:23:05.000 --> 0:23:08.880 respect the Respect for Marriage Act, So tell us about 0:23:08.960 --> 0:23:12.159 your conclusions there. Well, my conclusion is that if you 0:23:12.320 --> 0:23:18.159 straightforwardly apply the existing precedent, the answer is yes with 0:23:18.240 --> 0:23:22.560 respect to all three of the key elements of the 0:23:22.760 --> 0:23:27.200 r m A. First, Congress has wide latitude to define 0:23:27.600 --> 0:23:31.560 the meaning of terms in federal statutes, and sometimes it 0:23:31.600 --> 0:23:34.399 expressly does that. There's an actually a federal statute that 0:23:34.440 --> 0:23:37.480 goes by the name of the Dictionary Act that defines 0:23:37.760 --> 0:23:43.639 various words in all federal statutes unless particular context suggests otherwise. 0:23:44.040 --> 0:23:47.399 But it's also quite common that federal law will piggyback 0:23:47.480 --> 0:23:49.520 on state law in the way that the r m 0:23:49.560 --> 0:23:51.159 A does. I think there's a very little chance of 0:23:51.200 --> 0:23:54.280 the Supreme Court would say that that's unconstitutional. I think 0:23:54.280 --> 0:23:56.720 there's also very little chance that the Court would say 0:23:56.800 --> 0:24:02.480 that the provision giving religious nonprofit organizations are right to 0:24:02.640 --> 0:24:06.280 opt out of providing services is unconstitutional. Indeed, the only 0:24:06.560 --> 0:24:09.280