1 00:00:03,200 --> 00:00:17,240 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:19,520 --> 00:00:23,759 Speaker 2: Demonstrations against the Israel Hamas war have wreaked havoc on 3 00:00:23,920 --> 00:00:28,800 Speaker 2: college campuses across the country, escalating in recent weeks as 4 00:00:28,880 --> 00:00:34,840 Speaker 2: pro Palestinian demonstrators refused to remove encampments and administrators turned 5 00:00:34,840 --> 00:00:38,559 Speaker 2: to police to clear them by force, often resulting in 6 00:00:38,640 --> 00:00:39,680 Speaker 2: violent clashes. 7 00:00:40,640 --> 00:00:43,559 Speaker 1: I'm Gontain Daywen Gibson, the police captain for the University 8 00:00:43,560 --> 00:00:46,479 Speaker 1: of Colboy of Los Angels and your right deplayers to 9 00:00:46,520 --> 00:00:50,360 Speaker 1: be about mamos bring up. Maybe you do not do so, 10 00:00:50,840 --> 00:00:53,600 Speaker 1: you may be arrested or subject to other constructions. 11 00:00:54,360 --> 00:00:58,040 Speaker 2: At UCLA's campus in Los Angeles, police warned the more 12 00:00:58,080 --> 00:01:02,360 Speaker 2: than one thousand protesters for over a loud speakers that 13 00:01:02,440 --> 00:01:06,160 Speaker 2: there would be arrests if they didn't disperse. Chaotic scenes 14 00:01:06,200 --> 00:01:09,880 Speaker 2: played out in the pre dawn hours today when officers 15 00:01:09,920 --> 00:01:15,000 Speaker 2: in riot gear confronted demonstrators who wore helmets and gas masks. 16 00:01:15,160 --> 00:01:17,920 Speaker 2: At least two hundred people were arrested and from the 17 00:01:17,959 --> 00:01:22,240 Speaker 2: White House, President Joe Biden, in warning against violence, said 18 00:01:22,280 --> 00:01:26,520 Speaker 2: the protests put to the task two fundamental American principles. 19 00:01:26,959 --> 00:01:30,480 Speaker 2: The first is the right to free speech and for 20 00:01:30,560 --> 00:01:33,320 Speaker 2: people to peacefully assemble and make their voices heard. 21 00:01:34,000 --> 00:01:38,640 Speaker 1: The second is the rule of law. Both must be upheld. 22 00:01:39,720 --> 00:01:43,640 Speaker 2: The protests spotlight the difficulty of balancing the right to 23 00:01:43,720 --> 00:01:46,800 Speaker 2: free speech with the need to provide a space where 24 00:01:46,880 --> 00:01:51,040 Speaker 2: students feel safe joining me is constitutional scholar Michael Dorf, 25 00:01:51,120 --> 00:01:54,480 Speaker 2: a professor at Cornell Law School. Let's start with the basics. Mike, 26 00:01:54,640 --> 00:01:59,000 Speaker 2: explain the difference between First Amendment rights at public versus 27 00:01:59,080 --> 00:02:01,200 Speaker 2: private college universities. 28 00:02:01,680 --> 00:02:06,640 Speaker 3: Sure, the Constitution applies to the government with respect to 29 00:02:07,120 --> 00:02:12,520 Speaker 3: state universities. That's pretty clear. Because state universities are arms 30 00:02:12,639 --> 00:02:17,360 Speaker 3: of the state. Private universities are not bound by the 31 00:02:17,480 --> 00:02:21,400 Speaker 3: Constitution and therefore not bound by the First Amendment. However, 32 00:02:21,760 --> 00:02:24,600 Speaker 3: there are at least two ways in which we need 33 00:02:24,639 --> 00:02:29,120 Speaker 3: to qualify that. First, most colleges and universities in the 34 00:02:29,200 --> 00:02:35,239 Speaker 3: United States, as a matter of their own internal organizing principles, 35 00:02:35,360 --> 00:02:39,440 Speaker 3: some of which is protected by contract with students, faculty members, 36 00:02:39,440 --> 00:02:44,440 Speaker 3: et cetera, adhere to First Amendment or First Amendment like principles. 37 00:02:44,680 --> 00:02:46,919 Speaker 3: That is to say, freedom of speech is not only 38 00:02:47,040 --> 00:02:50,680 Speaker 3: part of our constitutional system, but it's an important value 39 00:02:51,280 --> 00:02:55,520 Speaker 3: for higher education you see it in practices like academic 40 00:02:55,639 --> 00:02:59,239 Speaker 3: freedom and so forth. So in that sense, whether it's 41 00:02:59,280 --> 00:03:04,079 Speaker 3: imposed the government or voluntarily undertaken, and principles of free 42 00:03:04,080 --> 00:03:08,200 Speaker 3: speech are pretty much universal on college and university's campusits. 43 00:03:08,280 --> 00:03:10,080 Speaker 3: The second way in which I would qualify it is 44 00:03:10,080 --> 00:03:13,600 Speaker 3: that in some places that's actually imposed by law. So, 45 00:03:13,800 --> 00:03:17,200 Speaker 3: for example, in California, there is a state law called 46 00:03:17,200 --> 00:03:22,800 Speaker 3: the Leonard Law that says that even private universities must 47 00:03:22,840 --> 00:03:27,480 Speaker 3: abide by the strictures of the First Amendment, at least 48 00:03:27,520 --> 00:03:31,440 Speaker 3: with respect to matters of student discipline. And so you know, 49 00:03:31,560 --> 00:03:36,680 Speaker 3: the unrest you saw at UCLA and USC isn't really 50 00:03:36,800 --> 00:03:39,120 Speaker 3: very different in terms of how we think about that 51 00:03:39,160 --> 00:03:42,160 Speaker 3: in terms of free speech in virtue of that state law, 52 00:03:42,280 --> 00:03:46,000 Speaker 3: even though UCLA is a state university and USC is private. 53 00:03:46,920 --> 00:03:49,680 Speaker 2: Let's talk about what the First Amendment protects and what 54 00:03:49,760 --> 00:03:53,640 Speaker 2: it doesn't protect. It doesn't protect unlawful conduct. 55 00:03:54,120 --> 00:03:56,520 Speaker 3: That's a little circular, right, that is to say, of course, 56 00:03:56,560 --> 00:03:59,600 Speaker 3: it doesn't protect unlawful conduct. But part of the point 57 00:03:59,640 --> 00:04:02,840 Speaker 3: of the First Amment is it tells us what conduct 58 00:04:02,960 --> 00:04:06,160 Speaker 3: can be made unlawful. The way I would put it 59 00:04:06,240 --> 00:04:13,160 Speaker 3: is that the First Amendment protects speech and other expressive activity, 60 00:04:14,040 --> 00:04:20,000 Speaker 3: primarily against government interference or where it's voluntarily undertaken, private 61 00:04:20,080 --> 00:04:26,520 Speaker 3: university interference that is based on the content of the speech. Right. 62 00:04:26,560 --> 00:04:30,640 Speaker 3: So the critical distinction is between what are sometimes called time, 63 00:04:30,680 --> 00:04:34,680 Speaker 3: place and manner restrictions. Right, you can have your rally 64 00:04:34,760 --> 00:04:37,039 Speaker 3: in this place but not that place, at this time, 65 00:04:37,080 --> 00:04:41,480 Speaker 3: but not that time without amplification except under certain circumstances. 66 00:04:41,520 --> 00:04:44,680 Speaker 3: Those are about how you are making your point, and 67 00:04:44,880 --> 00:04:49,680 Speaker 3: generally the government has considerable leeway to restrict that so 68 00:04:49,800 --> 00:04:54,080 Speaker 3: long as it does so reasonably, versus content based restrictions. 69 00:04:54,120 --> 00:04:57,400 Speaker 3: You can't have a rally for this side, but you 70 00:04:57,440 --> 00:05:00,320 Speaker 3: can have it for the other side. Right, And that's 71 00:05:00,400 --> 00:05:04,640 Speaker 3: the sort of basic principle that's operating here. The government 72 00:05:04,880 --> 00:05:09,960 Speaker 3: can restrict speech, but not based on its content, and 73 00:05:10,000 --> 00:05:12,120 Speaker 3: when it does so, it has to do so reasonably, 74 00:05:12,520 --> 00:05:17,200 Speaker 3: meaning leave open adequate alternative channels of communication and so forth. 75 00:05:17,440 --> 00:05:21,120 Speaker 2: Let me give you an example, an anti Semitic chant. 76 00:05:21,760 --> 00:05:24,000 Speaker 2: Would that be protected under the First Amendment? 77 00:05:24,680 --> 00:05:26,599 Speaker 3: Strange as it may sound, the answer to that question 78 00:05:26,680 --> 00:05:31,320 Speaker 3: is yes. In most constitutional democracies the answer would be no. 79 00:05:32,040 --> 00:05:34,880 Speaker 3: But in the United States, what is sometime is called 80 00:05:34,920 --> 00:05:39,640 Speaker 3: hate speech, is not unprotected in virtue of the fact 81 00:05:40,040 --> 00:05:43,040 Speaker 3: that it is hate speech. The leading case is a 82 00:05:43,080 --> 00:05:45,839 Speaker 3: case from the US Supreme Court in nineteen ninety two 83 00:05:46,000 --> 00:05:50,160 Speaker 3: called rav against City of Saint Paul, which said that 84 00:05:50,560 --> 00:05:54,040 Speaker 3: the First Amendment does not include an exception for hate speech. Now, 85 00:05:54,160 --> 00:05:58,359 Speaker 3: I should qualify that by saying that an anti Semitic chant, 86 00:05:58,920 --> 00:06:05,280 Speaker 3: under certain circums stances could be proscribable harassment. So if 87 00:06:05,320 --> 00:06:08,599 Speaker 3: you think about racial or sexual harassment at the workplace, 88 00:06:08,960 --> 00:06:12,320 Speaker 3: which is forbidden by Title seven that's the nineteen sixty 89 00:06:12,360 --> 00:06:16,640 Speaker 3: four Civil Rights Act, or at a federally funded college 90 00:06:16,720 --> 00:06:19,400 Speaker 3: or university, which means just about every college and university 91 00:06:19,400 --> 00:06:24,360 Speaker 3: in the country. Racial harassment is prescribed if a college 92 00:06:24,480 --> 00:06:27,000 Speaker 3: university takes federal funds. It's just what all of them do. 93 00:06:27,720 --> 00:06:31,720 Speaker 3: They're not permitted to tolerate racial harassment. And Department of 94 00:06:31,839 --> 00:06:37,800 Speaker 3: Education guidelines define anti semitism, Islamophobia, and various other forms 95 00:06:37,839 --> 00:06:40,479 Speaker 3: of hatred that you might think correlate with religion but 96 00:06:40,600 --> 00:06:43,640 Speaker 3: have some sort of ethnic and therefore racial component. It 97 00:06:43,720 --> 00:06:48,680 Speaker 3: defines those as covered by Title six. So if the 98 00:06:49,360 --> 00:06:53,280 Speaker 3: chant rises to the level of harassment, then it is 99 00:06:53,680 --> 00:06:57,360 Speaker 3: forbidden by Title six, and the university is not only permitted, 100 00:06:57,600 --> 00:07:01,720 Speaker 3: but obligated to stop it. And now the question that 101 00:07:02,120 --> 00:07:06,919 Speaker 3: naturally raises is does the First Amendment contain an exception 102 00:07:07,760 --> 00:07:12,400 Speaker 3: for harassment? The Supreme Court has never decided that question. 103 00:07:13,080 --> 00:07:16,040 Speaker 3: Lower courts have assumed that the answer to that is yes, 104 00:07:16,440 --> 00:07:18,720 Speaker 3: and I think that is the correct answer. That is 105 00:07:18,720 --> 00:07:22,240 Speaker 3: to say that what is defined as harassment, which is 106 00:07:22,280 --> 00:07:26,640 Speaker 3: sort of creating a hostile environment based on raise or 107 00:07:26,760 --> 00:07:30,160 Speaker 3: sex and so forth, is proscribable. That is to say, 108 00:07:30,200 --> 00:07:32,760 Speaker 3: the First Moment doesn't protect that. And you have to ask, well, 109 00:07:32,760 --> 00:07:35,880 Speaker 3: what's the reason for that. Why is it that if 110 00:07:36,080 --> 00:07:39,000 Speaker 3: there is no exception to the First Moment for hate speech, 111 00:07:39,000 --> 00:07:42,400 Speaker 3: why is it that the government can forbid harassment that 112 00:07:42,480 --> 00:07:45,960 Speaker 3: takes the form of hate speech. The answer to that, 113 00:07:46,040 --> 00:07:51,840 Speaker 3: I think is that the government can't forbid harassment generally 114 00:07:52,320 --> 00:07:57,960 Speaker 3: where harassment consists simply of saying offensive things, But it 115 00:07:58,040 --> 00:08:02,600 Speaker 3: can do so when it's targeted in circumstances where someone 116 00:08:02,640 --> 00:08:06,240 Speaker 3: can't just sort of look the other way. So if 117 00:08:06,360 --> 00:08:10,360 Speaker 3: a neo Nazi group or white supremacists want to have 118 00:08:10,440 --> 00:08:16,000 Speaker 3: a march through Charlottesville, for example, they're protected by the 119 00:08:16,000 --> 00:08:19,320 Speaker 3: First moment in doing so. But if they want to 120 00:08:19,360 --> 00:08:25,000 Speaker 3: do that at the workplace of particular individuals, then those 121 00:08:25,200 --> 00:08:28,080 Speaker 3: people are a kind of captive audience at work. And 122 00:08:28,600 --> 00:08:33,320 Speaker 3: the crucial question, then, I think, for current purposes, is 123 00:08:33,360 --> 00:08:37,240 Speaker 3: to what extent is a college or university campus more 124 00:08:37,360 --> 00:08:40,400 Speaker 3: like a workplace where there's a kind of captive audience 125 00:08:40,520 --> 00:08:46,400 Speaker 3: rationale for restricting what would otherwise be offensive but first 126 00:08:46,760 --> 00:08:52,120 Speaker 3: protected speech versus more like just the public streets and 127 00:08:52,240 --> 00:08:54,200 Speaker 3: public parks and so forth. I think that's a question 128 00:08:54,200 --> 00:08:56,760 Speaker 3: to which we don't have an answer, but it's sort 129 00:08:56,800 --> 00:09:00,839 Speaker 3: of at the heart of the clash between the First 130 00:09:00,840 --> 00:09:03,400 Speaker 3: Amendment and antidiscrimination principles. 131 00:09:04,040 --> 00:09:06,720 Speaker 2: There have been protests on college campuses all the way 132 00:09:06,720 --> 00:09:10,200 Speaker 2: back to the nineteen twenties, I think, perhaps reaching a 133 00:09:10,280 --> 00:09:13,920 Speaker 2: height in the protests against the Vietnam War in the sixties. 134 00:09:14,240 --> 00:09:18,160 Speaker 2: But are the current protests different because many Jewish students 135 00:09:18,160 --> 00:09:23,160 Speaker 2: feel threatened by the anti Semitism that's sweeping across college 136 00:09:23,200 --> 00:09:25,880 Speaker 2: campuses and these protests, so. 137 00:09:26,679 --> 00:09:29,959 Speaker 3: Yes, to the extent, and there is a real extent 138 00:09:30,200 --> 00:09:35,000 Speaker 3: that the demonstrations and the encampments include anti Semitic speech 139 00:09:35,640 --> 00:09:41,439 Speaker 3: that does distinguish nineteen sixties Vietnam War era campus activism, 140 00:09:42,040 --> 00:09:46,400 Speaker 3: where there were certainly students who didn't oppose the Vietnam 141 00:09:46,440 --> 00:09:52,480 Speaker 3: War and may have therefore disagreed with other students' protests, 142 00:09:52,720 --> 00:09:55,720 Speaker 3: but they didn't feel like they were the target of 143 00:09:55,760 --> 00:09:59,360 Speaker 3: those protests. So that is a distinction. But let me 144 00:09:59,400 --> 00:10:03,280 Speaker 3: then also say that, you know, the fact that people 145 00:10:04,000 --> 00:10:09,200 Speaker 3: feel threatened by something is of course always unfortunate, but 146 00:10:10,000 --> 00:10:14,000 Speaker 3: that usually isn't enough to shut down other people's speech 147 00:10:14,520 --> 00:10:17,760 Speaker 3: if it isn't actually threatening. And so I think it 148 00:10:17,800 --> 00:10:22,120 Speaker 3: would be important to distinguish people who are saying or 149 00:10:22,240 --> 00:10:27,280 Speaker 3: doing actually threatening things or things that create a hostile 150 00:10:27,400 --> 00:10:31,360 Speaker 3: environment because they're anti Semitic, from people who are there 151 00:10:31,400 --> 00:10:35,600 Speaker 3: simply opposing the Gaza war and urging divestment or whatever 152 00:10:35,600 --> 00:10:39,439 Speaker 3: it is that they're demanding of the colleges and universities. So, yes, 153 00:10:39,559 --> 00:10:42,199 Speaker 3: that is a distinction, but I don't think it distinguishes 154 00:10:42,320 --> 00:10:45,560 Speaker 3: all of what's going on now from earlier periods of 155 00:10:45,600 --> 00:10:47,640 Speaker 3: campus activism. Coming up next on. 156 00:10:47,600 --> 00:10:50,840 Speaker 2: The Bloomberg Law Show, I'll continue this conversation with Professor 157 00:10:50,880 --> 00:10:55,000 Speaker 2: Michael Dwarf of Cornell Law School. Have the courts provided 158 00:10:55,040 --> 00:10:58,959 Speaker 2: a clearly defined line to mark when's speech and protests 159 00:10:59,200 --> 00:11:03,000 Speaker 2: are no longer peaceful and lose First Amendment protection. And 160 00:11:03,080 --> 00:11:05,560 Speaker 2: later in the show, we'll talk about day six in 161 00:11:05,600 --> 00:11:08,559 Speaker 2: the hush money trial of Donald Trump. I'm June Gross. 162 00:11:08,559 --> 00:11:13,480 Speaker 2: When you're listening to Bloomberg. Demonstrations against the Israel Hamas 163 00:11:13,520 --> 00:11:17,280 Speaker 2: war have reached havoc on college campuses across the country, 164 00:11:17,800 --> 00:11:21,600 Speaker 2: escalating in recent weeks, and police have arrested more than 165 00:11:21,640 --> 00:11:25,480 Speaker 2: two thousand people, according to the Associated Press. I've been 166 00:11:25,480 --> 00:11:28,920 Speaker 2: talking to Professor Michael Dorf of Cornell Law School, what 167 00:11:29,080 --> 00:11:32,480 Speaker 2: about these encampments that have sprung up, I think starting 168 00:11:32,480 --> 00:11:35,800 Speaker 2: at Columbia, but I've sprung up across the country. Some 169 00:11:36,480 --> 00:11:42,080 Speaker 2: campus protesters consider their encampments to be a form of speech. 170 00:11:42,160 --> 00:11:46,120 Speaker 3: So that actually is just not true. I mean, of 171 00:11:46,200 --> 00:11:50,360 Speaker 3: course they mean to express a message through the encampments, 172 00:11:50,960 --> 00:11:55,400 Speaker 3: and it's a demonstration of their seriousness of purpose, So 173 00:11:55,440 --> 00:11:58,840 Speaker 3: I don't want to deny that. Of course they're doing 174 00:11:58,880 --> 00:12:03,640 Speaker 3: it to make up. But that doesn't mean that colleges 175 00:12:03,679 --> 00:12:10,120 Speaker 3: and universities lack content neutral grounds for objecting to the encampments. Right. 176 00:12:10,280 --> 00:12:14,040 Speaker 3: I mentioned earlier that it is permissible for the government 177 00:12:14,240 --> 00:12:16,800 Speaker 3: or in the context of a private university committed to 178 00:12:16,840 --> 00:12:23,040 Speaker 3: freedom of speech, the university administration to enforce content neutral, time, place, 179 00:12:23,080 --> 00:12:27,160 Speaker 3: and manner restrictions. And one form of manner restriction is 180 00:12:27,800 --> 00:12:31,280 Speaker 3: if you want to use the public space to have 181 00:12:31,400 --> 00:12:35,280 Speaker 3: a rally or to habits and speeches, you apply for 182 00:12:35,320 --> 00:12:38,120 Speaker 3: a permit, You do so at a time when it's 183 00:12:38,160 --> 00:12:41,160 Speaker 3: not going to be totally disruptive to the rest of 184 00:12:41,200 --> 00:12:44,560 Speaker 3: campus life, and you know, and then they have to 185 00:12:44,600 --> 00:12:46,360 Speaker 3: issue it to you if and they can't deny it 186 00:12:46,400 --> 00:12:48,880 Speaker 3: to you because they disagree with your message. Depths fair enough, 187 00:12:49,200 --> 00:12:51,840 Speaker 3: and in the encampments all as far as I know, 188 00:12:52,360 --> 00:12:57,640 Speaker 3: violate the colleges and universities content neutral rules. Now that's 189 00:12:57,679 --> 00:13:00,720 Speaker 3: not to say that they're being enforced necessarily in a 190 00:13:00,720 --> 00:13:03,760 Speaker 3: content neutral manner. It is to say that there is 191 00:13:04,040 --> 00:13:10,280 Speaker 3: a completely legitimate rationale for saying you can't have an encampment, 192 00:13:10,360 --> 00:13:14,839 Speaker 3: regardless of what side of whatever issue you're supporting. There's 193 00:13:14,880 --> 00:13:18,640 Speaker 3: a Supreme Court case that involves almost literally that question. 194 00:13:18,720 --> 00:13:22,280 Speaker 3: Is the case called Clark against Community for Creative Non Violence, 195 00:13:22,720 --> 00:13:26,360 Speaker 3: the case in which a group of people wanted to 196 00:13:27,000 --> 00:13:30,439 Speaker 3: also did set up an encampment on the Washington Mall 197 00:13:30,880 --> 00:13:36,000 Speaker 3: to dramatize the problem of homelessness in America. So it's 198 00:13:36,000 --> 00:13:39,079 Speaker 3: certainly a worthy cause, and you can see how setting 199 00:13:39,120 --> 00:13:43,079 Speaker 3: up an encampment would express that message. But it violated 200 00:13:43,120 --> 00:13:46,520 Speaker 3: a National Parks rule. But you couldn't camp accept in 201 00:13:46,559 --> 00:13:49,480 Speaker 3: designated areas in the National Parks, and the Washington DC 202 00:13:49,679 --> 00:13:52,439 Speaker 3: Mall is run by the Park Service. The case goes 203 00:13:52,520 --> 00:13:54,480 Speaker 3: up to the Supreme Court, and the Supreme Court said, yes, 204 00:13:54,520 --> 00:13:58,880 Speaker 3: they're expressing a message, but the no camping rule is 205 00:13:58,920 --> 00:14:01,920 Speaker 3: a content neutral rule, and here there hadn't been a 206 00:14:02,040 --> 00:14:06,960 Speaker 3: showing that the government was telling the protesters, don't have 207 00:14:07,040 --> 00:14:11,319 Speaker 3: your encampment because of hostility to their message. So if 208 00:14:11,840 --> 00:14:16,280 Speaker 3: the current protesters want to make a persuasive case that 209 00:14:16,720 --> 00:14:19,680 Speaker 3: they've got a first moment right to be there, I 210 00:14:19,720 --> 00:14:22,280 Speaker 3: think they would need to show that the colleges and 211 00:14:22,360 --> 00:14:25,880 Speaker 3: universities that are telling them they can't be there are 212 00:14:25,960 --> 00:14:31,360 Speaker 3: doing so because of disagreement with their hostility to their message. 213 00:14:31,400 --> 00:14:33,160 Speaker 3: And it's you know, I don't have a view about 214 00:14:33,160 --> 00:14:35,440 Speaker 3: whether that showing they could make. I would need to 215 00:14:35,480 --> 00:14:37,880 Speaker 3: know a lot more of the facts at you know, 216 00:14:37,920 --> 00:14:40,960 Speaker 3: each of the places where there was that kind of conflict. 217 00:14:41,520 --> 00:14:45,360 Speaker 2: There have been more than two thousand arrests across the country. 218 00:14:45,440 --> 00:14:48,720 Speaker 2: Let's use Columbia, though, as an example, because I think 219 00:14:48,800 --> 00:14:53,120 Speaker 2: that's where the arrests started. Let's say these students are charged, 220 00:14:53,720 --> 00:14:57,760 Speaker 2: Do they have any defense based on the First Amendment? 221 00:14:57,840 --> 00:15:04,120 Speaker 3: Say so, that's a complicated question, because their right to 222 00:15:04,320 --> 00:15:09,360 Speaker 3: free speech as against Columbia is of course contractual right. 223 00:15:09,400 --> 00:15:13,840 Speaker 3: Because I said that Columbia adopt free speech principles voluntarily, 224 00:15:13,840 --> 00:15:16,280 Speaker 3: it's not imposed by the First Amendment. There is a 225 00:15:16,440 --> 00:15:22,640 Speaker 3: New York State law that governs discipline for various reasons, 226 00:15:22,720 --> 00:15:26,240 Speaker 3: but it doesn't really create a free speech right if 227 00:15:26,240 --> 00:15:28,680 Speaker 3: they are prosecuted. And my understanding is a lot of 228 00:15:28,800 --> 00:15:31,320 Speaker 3: people are being released. Although I don't know what's happening 229 00:15:31,360 --> 00:15:33,520 Speaker 3: with the latest rounds of arrests, I know that was 230 00:15:33,560 --> 00:15:36,560 Speaker 3: true of the earlier round. But if they are prosecuted, 231 00:15:36,640 --> 00:15:41,920 Speaker 3: in order to have a successful First Amendment defense, they 232 00:15:41,960 --> 00:15:46,800 Speaker 3: would need to show that they were being selectively prosecuted 233 00:15:47,000 --> 00:15:49,920 Speaker 3: by New York State or New York City because of 234 00:15:50,120 --> 00:15:54,560 Speaker 3: their message, as opposed to because they were engaged in 235 00:15:54,640 --> 00:15:57,680 Speaker 3: criminal trespass and we're told to leave and give an 236 00:15:57,720 --> 00:16:02,280 Speaker 3: opportunity to leave didn't and it's notoriously difficult to make 237 00:16:02,320 --> 00:16:06,680 Speaker 3: out a successful case of selective prosecution, and so I 238 00:16:06,720 --> 00:16:11,240 Speaker 3: think the answer is very likely no, especially because my 239 00:16:11,360 --> 00:16:14,360 Speaker 3: understanding is the New York City Police only moved in 240 00:16:14,400 --> 00:16:18,400 Speaker 3: at Columbia's invitation. So even if we think Columbia is 241 00:16:18,800 --> 00:16:21,840 Speaker 3: acting because they don't like the messages, I don't think 242 00:16:21,880 --> 00:16:24,640 Speaker 3: it's established. But even if we thought that, that doesn't 243 00:16:24,640 --> 00:16:27,200 Speaker 3: mean that New York City is proceeding because they don't 244 00:16:27,280 --> 00:16:29,600 Speaker 3: like the message. As I said, the NYPD only goes 245 00:16:29,640 --> 00:16:32,320 Speaker 3: in once they're invited. You can think of it in 246 00:16:32,360 --> 00:16:35,080 Speaker 3: the following way, right, that is, there is a law 247 00:16:35,120 --> 00:16:39,440 Speaker 3: against criminal trespass. If somebody comes into your apartment when 248 00:16:39,440 --> 00:16:41,840 Speaker 3: you're not there, and then you ask them to leave, 249 00:16:41,840 --> 00:16:43,880 Speaker 3: and they refuse to leave, and you call the cops, 250 00:16:44,320 --> 00:16:47,640 Speaker 3: the police come and they remove them, doesn't matter what 251 00:16:47,680 --> 00:16:50,680 Speaker 3: your reason was for calling the cops. Maybe you didn't 252 00:16:50,720 --> 00:16:52,400 Speaker 3: like that they were there because they were saying things 253 00:16:52,400 --> 00:16:56,720 Speaker 3: that you found offensive. That wouldn't convert the police action 254 00:16:56,840 --> 00:17:00,360 Speaker 3: in removing that person into a violation of the First Amendment. 255 00:17:01,320 --> 00:17:04,879 Speaker 2: As far as what the administrators are doing here, do 256 00:17:04,960 --> 00:17:06,679 Speaker 2: you think there's a better. 257 00:17:06,480 --> 00:17:10,840 Speaker 3: Way for of course, yes right, I'm not endorsing the 258 00:17:10,960 --> 00:17:16,760 Speaker 3: calling of the comps as a wise ways for Columbia 259 00:17:16,960 --> 00:17:20,280 Speaker 3: or UCLA or any of these other places, certainly not 260 00:17:20,320 --> 00:17:23,040 Speaker 3: the University of Texas, where you know, the governor seems 261 00:17:23,080 --> 00:17:25,720 Speaker 3: to have sent them in. But I'm not saying that 262 00:17:25,720 --> 00:17:30,480 Speaker 3: that's the best way for an administration to handle these demonstrations. 263 00:17:31,080 --> 00:17:32,800 Speaker 3: At the very least, you would want there to be 264 00:17:33,320 --> 00:17:37,840 Speaker 3: lots of de escalatory steps taken. You know, I understand 265 00:17:37,920 --> 00:17:41,600 Speaker 3: that in some of these campuses there were negotiations that 266 00:17:41,640 --> 00:17:44,639 Speaker 3: were going on, and apparently they didnt lead to very much. 267 00:17:44,800 --> 00:17:49,160 Speaker 3: But again, that's a question for university administrators. I think 268 00:17:49,320 --> 00:17:55,000 Speaker 3: it's a tough question because part of having content neutral 269 00:17:55,160 --> 00:17:59,000 Speaker 3: rules means enforcing them in a content neutral manner. And 270 00:17:59,080 --> 00:18:04,600 Speaker 3: so while of course you want to avoid suspending, much 271 00:18:04,680 --> 00:18:08,399 Speaker 3: less subjecting to criminal prosecution your own students, if you 272 00:18:08,600 --> 00:18:13,320 Speaker 3: don't enforce the rules even handedly, you potentially set yourself 273 00:18:13,400 --> 00:18:17,760 Speaker 3: up for a free speech challenge in some later case. 274 00:18:18,440 --> 00:18:21,040 Speaker 3: So again, you know, I'm not sure what the right 275 00:18:21,080 --> 00:18:25,600 Speaker 3: answer is. I'm kind of glad I'm not in university administration. 276 00:18:25,640 --> 00:18:28,199 Speaker 3: I think it's a very difficult position to be in 277 00:18:28,920 --> 00:18:32,160 Speaker 3: at any time, but especially now, because there are all 278 00:18:32,200 --> 00:18:35,600 Speaker 3: sorts of conflicting pressures. I'm just trying to give you 279 00:18:35,640 --> 00:18:39,639 Speaker 3: what I understand to be the background law on the question. 280 00:18:40,040 --> 00:18:42,359 Speaker 2: I mean, as part of the problem here, there's so much, 281 00:18:42,800 --> 00:18:47,719 Speaker 2: you know, political pressure, starting with the hearings in Congress. 282 00:18:47,600 --> 00:18:51,720 Speaker 3: That's right. I mean, arguably everything we're seeing over the 283 00:18:51,800 --> 00:18:58,440 Speaker 3: last couple of weeks is a consequence of the House Committee, 284 00:18:58,920 --> 00:19:04,280 Speaker 3: specially represent in that of Stephonic calling the Columbia University 285 00:19:04,320 --> 00:19:10,920 Speaker 3: president to testify and her then giving answers that sort 286 00:19:10,960 --> 00:19:14,280 Speaker 3: of didn't really satisfy anybody, but put her in a 287 00:19:14,320 --> 00:19:19,119 Speaker 3: position where I think she felt she had committed to 288 00:19:19,800 --> 00:19:23,280 Speaker 3: cracking down, and then the crackdown, which of course was 289 00:19:23,359 --> 00:19:29,240 Speaker 3: completely counterproductive and led to the encampments sprouting up all 290 00:19:29,240 --> 00:19:31,800 Speaker 3: across the country. Now that's not to say that some 291 00:19:31,840 --> 00:19:35,199 Speaker 3: other triggering event might not have caused this, or not 292 00:19:35,320 --> 00:19:41,680 Speaker 3: to detegrate the underlying concern of the protesters about the 293 00:19:41,720 --> 00:19:45,520 Speaker 3: conduct of the Gaza war, but it is to say 294 00:19:45,560 --> 00:19:51,800 Speaker 3: that there are lots of politicians, administrators, and others who 295 00:19:51,840 --> 00:19:56,040 Speaker 3: have acted in ways that seem to have heightened the 296 00:19:56,080 --> 00:20:00,359 Speaker 3: conflict rather than attempted to have a conversation. 297 00:20:00,160 --> 00:20:04,159 Speaker 2: What's the hardest part of this analysis of what the 298 00:20:04,200 --> 00:20:07,560 Speaker 2: First Amendment protects and what it doesn't. 299 00:20:08,320 --> 00:20:14,119 Speaker 3: I mean, I think the truly difficult pieces we've already 300 00:20:14,160 --> 00:20:18,320 Speaker 3: talked about. That is, you know, the place at which 301 00:20:19,080 --> 00:20:26,760 Speaker 3: you draw the line between permissible free speech and prescribable harassment. 302 00:20:27,480 --> 00:20:30,560 Speaker 3: The one thing I would add to that is that 303 00:20:30,960 --> 00:20:35,959 Speaker 3: it's complicated by the fact that there are you know, 304 00:20:36,119 --> 00:20:40,199 Speaker 3: many participants in these encampments, and so you know, in 305 00:20:40,280 --> 00:20:43,760 Speaker 3: New York, you know, you saw Mayor Adams complaining yesterday 306 00:20:43,800 --> 00:20:48,720 Speaker 3: about outside agitators sort of infiltrating the Columbia takeover of 307 00:20:48,760 --> 00:20:53,520 Speaker 3: Hamilton Hall and the protests generally. And you know, that's 308 00:20:53,560 --> 00:20:58,320 Speaker 3: an old problem, especially on the political left, that you 309 00:20:58,480 --> 00:21:03,560 Speaker 3: have movements that attract people who have views that are 310 00:21:03,640 --> 00:21:08,439 Speaker 3: sort of within a range of sort of within a 311 00:21:08,480 --> 00:21:13,000 Speaker 3: standard deviation or two of the center of public opinion, 312 00:21:13,359 --> 00:21:15,879 Speaker 3: and then you have people who are truly radical, and 313 00:21:15,920 --> 00:21:17,840 Speaker 3: not just radical in their substance views, but in the 314 00:21:17,920 --> 00:21:21,200 Speaker 3: means that they want to use, who then attach themselves 315 00:21:21,760 --> 00:21:26,159 Speaker 3: to these movements, and that can then undercut the other folks. 316 00:21:26,160 --> 00:21:28,119 Speaker 3: And so, you know, in addition, to the question of 317 00:21:28,160 --> 00:21:33,159 Speaker 3: how do you protect students who feel, in some cases 318 00:21:33,280 --> 00:21:37,480 Speaker 3: justifiably threatened by the protests without you know, shutting down 319 00:21:37,520 --> 00:21:40,760 Speaker 3: people's right to express themselves. There's also the question of 320 00:21:41,119 --> 00:21:44,679 Speaker 3: how do you separate out the people who are really 321 00:21:44,720 --> 00:21:48,800 Speaker 3: engaged in harassment or threats what have you, from people 322 00:21:48,840 --> 00:21:51,520 Speaker 3: who are just there legitimately to protest. And I think 323 00:21:51,560 --> 00:21:53,119 Speaker 3: that's a very very hard question. 324 00:21:53,440 --> 00:21:55,840 Speaker 2: The line is not clear. The Supreme Court has never 325 00:21:55,880 --> 00:21:57,840 Speaker 2: clarified the line between the two. 326 00:21:58,400 --> 00:22:00,480 Speaker 3: No, I mean, so the scrit has never face to 327 00:22:00,600 --> 00:22:05,640 Speaker 3: case in which the issue was somebody is being charged 328 00:22:05,720 --> 00:22:09,399 Speaker 3: with racial or sexual harassment, whether it's an employer for 329 00:22:09,440 --> 00:22:12,600 Speaker 3: failing to shut it down, whatever, and there's a claim 330 00:22:12,640 --> 00:22:14,639 Speaker 3: of free speech. On the other side, there are lower 331 00:22:14,680 --> 00:22:16,879 Speaker 3: court cases that in Supreme Ware cases that seem to 332 00:22:16,920 --> 00:22:21,560 Speaker 3: just accept that it's permissible for the government to require 333 00:22:22,000 --> 00:22:26,240 Speaker 3: private employers, private universities, et cetera, to restrict harassment, or 334 00:22:26,280 --> 00:22:30,320 Speaker 3: even public universities to restrict harassment and harassment includes creating 335 00:22:30,320 --> 00:22:34,879 Speaker 3: a hostile environment. But they don't directly address the question 336 00:22:35,119 --> 00:22:39,080 Speaker 3: of you know, well, what if the basis for finding 337 00:22:39,280 --> 00:22:43,560 Speaker 3: that it's a hostile environment is that people are engaged 338 00:22:43,760 --> 00:22:47,919 Speaker 3: in protests that you know, express a viewpoint but also 339 00:22:48,400 --> 00:22:50,680 Speaker 3: hit home with other people in the community. Yeah, that 340 00:22:50,760 --> 00:22:54,320 Speaker 3: is unexplored territory. There's academic writing on it, but again 341 00:22:54,440 --> 00:22:57,879 Speaker 3: no definitive Supreme Court case. So two other things. One is, 342 00:22:58,000 --> 00:22:59,919 Speaker 3: I want to be clear, I'm speaking on my bi 343 00:23:00,160 --> 00:23:03,640 Speaker 3: half as a constitutional scholar. I am in no way 344 00:23:03,680 --> 00:23:07,160 Speaker 3: representing the views of Cornell University or its administration, which 345 00:23:07,400 --> 00:23:10,000 Speaker 3: you know I think that's always true, but especially now, 346 00:23:10,000 --> 00:23:12,760 Speaker 3: I want that to be clear. And the second thing 347 00:23:12,840 --> 00:23:16,960 Speaker 3: is I very rarely give legal advice on air, but 348 00:23:17,000 --> 00:23:19,800 Speaker 3: I am now going to give legal advice to all 349 00:23:19,920 --> 00:23:24,680 Speaker 3: university presidents throughout the country. If you're asked to testify 350 00:23:24,880 --> 00:23:28,320 Speaker 3: before Congress about any of this stuff, don't do it 351 00:23:28,640 --> 00:23:31,240 Speaker 3: unless you have a subpoena. That's my advice, because no 352 00:23:31,280 --> 00:23:32,920 Speaker 3: good can possibly come of it. 353 00:23:32,960 --> 00:23:35,800 Speaker 2: Sounds like good advice, because it certainly hasn't in the 354 00:23:35,880 --> 00:23:39,320 Speaker 2: latest cases. Thanks so much for your insights, Mike. That's 355 00:23:39,359 --> 00:23:42,800 Speaker 2: Professor Michael Dwarf of Cornell Law School. Coming up next 356 00:23:42,800 --> 00:23:45,040 Speaker 2: on the Bloomberg Law Show. We'll take a look at 357 00:23:45,119 --> 00:23:47,880 Speaker 2: day six, So the Trump hush money trial. I'm June 358 00:23:47,920 --> 00:23:51,879 Speaker 2: Grosso and you're listening to Bloomberg. Juris in day six 359 00:23:52,000 --> 00:23:55,160 Speaker 2: of Donald Trump's hush money trial heard perhaps the most 360 00:23:55,160 --> 00:23:58,800 Speaker 2: colorful piece of evidence presented to them so far to 361 00:23:58,880 --> 00:24:01,720 Speaker 2: connect Trump to the money payments at the center of 362 00:24:01,760 --> 00:24:04,959 Speaker 2: his criminal trial in Manhattan. It was a recording of 363 00:24:05,040 --> 00:24:09,280 Speaker 2: Trump discussing with his then lawyer and personal fixer, Michael Cohen, 364 00:24:09,800 --> 00:24:12,679 Speaker 2: a plan to purchase the silence of a playboy model 365 00:24:12,960 --> 00:24:15,720 Speaker 2: who said she had an affair with the former president. 366 00:24:15,960 --> 00:24:17,280 Speaker 3: And I spoke to Alan about it. 367 00:24:17,359 --> 00:24:20,520 Speaker 4: When it comes time for the financing, which will be listening, 368 00:24:21,680 --> 00:24:25,439 Speaker 4: you will have to no no, no, no no, I 369 00:24:25,440 --> 00:24:26,720 Speaker 4: got no no no. 370 00:24:26,840 --> 00:24:29,520 Speaker 2: Joining me is Dave Ahrenberg, the state attorney for Palm 371 00:24:29,520 --> 00:24:34,320 Speaker 2: Beach County. This morning there was a hearing, another contempt hearing, 372 00:24:34,560 --> 00:24:39,919 Speaker 2: and part of what Trump's defense showed was all the 373 00:24:39,960 --> 00:24:43,359 Speaker 2: times that Michael Cohen had attacked Trump, and their theory 374 00:24:43,480 --> 00:24:46,920 Speaker 2: is Trump is allowed to respond to these kinds of attacks. 375 00:24:47,359 --> 00:24:47,560 Speaker 3: Yeah. 376 00:24:47,600 --> 00:24:50,600 Speaker 4: The reason why you have this gag order is in 377 00:24:50,680 --> 00:24:54,119 Speaker 4: part to protect witnesses. It's also to protect jurors, but 378 00:24:54,359 --> 00:24:57,760 Speaker 4: it's to protect witnesses from intimidation. And what Trump's lawyers 379 00:24:57,760 --> 00:25:00,360 Speaker 4: are saying is that you can't intimidate Michael Cohen. He 380 00:25:00,400 --> 00:25:02,840 Speaker 4: gives as good as he gets, And I think that's 381 00:25:02,880 --> 00:25:05,840 Speaker 4: actually a decent argument. Michael Conan is not your typical witness. 382 00:25:06,119 --> 00:25:09,040 Speaker 4: He's not going to shy away from the spotlight because 383 00:25:09,119 --> 00:25:10,719 Speaker 4: of what Trump says about him, because they've been going 384 00:25:10,760 --> 00:25:13,080 Speaker 4: at each other for a while. So I think this 385 00:25:13,119 --> 00:25:16,320 Speaker 4: is another reason why if Trump is sanctioned for the 386 00:25:16,400 --> 00:25:19,080 Speaker 4: violations of the gag order, because he is violating it, 387 00:25:19,080 --> 00:25:21,480 Speaker 4: it'll be these small fines. He's not going to be 388 00:25:21,480 --> 00:25:23,240 Speaker 4: wearing an orange jumpsuit anytime soon. 389 00:25:23,960 --> 00:25:27,359 Speaker 2: Also, you know, he didn't criticize David Pecker, who was 390 00:25:27,359 --> 00:25:29,840 Speaker 2: the first witness, the former publisher of the National Choir, 391 00:25:29,960 --> 00:25:32,800 Speaker 2: but he said things like, David Pecker be nice. 392 00:25:33,400 --> 00:25:36,679 Speaker 4: David Pecker is a really compelling witness because he and 393 00:25:36,720 --> 00:25:39,399 Speaker 4: Trump have remained friends over the years. He doesn't have 394 00:25:39,440 --> 00:25:42,200 Speaker 4: an AXA grind. The only potential bias with David Pecker 395 00:25:42,240 --> 00:25:45,119 Speaker 4: is that he's under a non prosecution agreement. So Trump's 396 00:25:45,160 --> 00:25:47,320 Speaker 4: lawyers have said that, ay, you're doing this is save 397 00:25:47,359 --> 00:25:50,760 Speaker 4: your own hide. But Pecker referred to Trump as a mentor, 398 00:25:50,880 --> 00:25:53,520 Speaker 4: and he still considered him a friend in his testimony, 399 00:25:53,640 --> 00:25:56,399 Speaker 4: which makes his testimony even more powerful. But the bigger 400 00:25:56,480 --> 00:25:59,560 Speaker 4: question is one you raise, why isn't Trump attacking Pecker 401 00:25:59,600 --> 00:26:02,560 Speaker 4: because he attacks everyone who goes against him, and Pecker 402 00:26:02,600 --> 00:26:04,960 Speaker 4: has been a devastating witness. And I think the answer 403 00:26:05,080 --> 00:26:08,720 Speaker 4: is Trump is transactional. He doesn't want to attack someone 404 00:26:08,720 --> 00:26:11,359 Speaker 4: who knows where the bodies are buried. He worries that 405 00:26:11,359 --> 00:26:14,000 Speaker 4: if he goes after Pecker, Pecker could come after him 406 00:26:14,320 --> 00:26:16,160 Speaker 4: even more strongly than he has already. 407 00:26:16,680 --> 00:26:20,280 Speaker 2: An unusual thing that's going on here is I believe 408 00:26:20,280 --> 00:26:26,080 Speaker 2: it was the fourth witness, Ronograph, Trump's longtime personal assistant. 409 00:26:26,640 --> 00:26:28,639 Speaker 2: Trump is paying her legal fees. 410 00:26:28,880 --> 00:26:31,680 Speaker 4: We've seen this before. He paid Alan Weislberg's attorney's fees 411 00:26:31,720 --> 00:26:36,040 Speaker 4: while Weisselberg was supposedly testifying against Trump in the previous 412 00:26:36,080 --> 00:26:39,280 Speaker 4: criminal trial in Manhattan, and so we've seen this before. 413 00:26:39,320 --> 00:26:41,760 Speaker 4: But it does get disclosed to the jury. The jury 414 00:26:41,960 --> 00:26:44,520 Speaker 4: hears that and can judge her credibility based on the 415 00:26:44,520 --> 00:26:47,840 Speaker 4: fact that the defendant is paying for her lawyers. She 416 00:26:47,880 --> 00:26:50,800 Speaker 4: didn't give much up except for the fact that she 417 00:26:51,160 --> 00:26:54,879 Speaker 4: had Stormy Daniels and Karen McDougall in the Trump organization's books. 418 00:26:54,920 --> 00:26:57,080 Speaker 4: Why he said that he never had an affair with 419 00:26:57,280 --> 00:26:59,720 Speaker 4: either of them. He still maintains it, why are they 420 00:26:59,720 --> 00:27:02,879 Speaker 4: in the corporations books. Defense also says, well, you know, 421 00:27:02,960 --> 00:27:06,320 Speaker 4: she was trying out for the Apprentice. That's why Stormy 422 00:27:06,359 --> 00:27:08,359 Speaker 4: Daniels at least was in the book. Doesn't explain why 423 00:27:08,400 --> 00:27:12,160 Speaker 4: Careren McDougal is. But Jeremy Daniels said in her documentary 424 00:27:12,240 --> 00:27:15,560 Speaker 4: that she was trying out for The Apprentice, and that's 425 00:27:15,560 --> 00:27:19,119 Speaker 4: when Donald Trump was trying to pretend that, you know, 426 00:27:19,200 --> 00:27:21,480 Speaker 4: he was going to help her get on the show 427 00:27:21,720 --> 00:27:24,680 Speaker 4: if she would get closer to him. So it does 428 00:27:24,800 --> 00:27:26,520 Speaker 4: feed into her own story. 429 00:27:26,880 --> 00:27:30,200 Speaker 2: Pat Heurtado, who's our reporter who's in the courtroom, said 430 00:27:30,200 --> 00:27:34,720 Speaker 2: that when Ronograf got off the stand, Trump got up 431 00:27:34,880 --> 00:27:38,840 Speaker 2: sort of to go shake her hand and then realized that, oh, 432 00:27:38,880 --> 00:27:41,480 Speaker 2: I'm in a courtroom. I think it sort of shows 433 00:27:41,520 --> 00:27:44,480 Speaker 2: you how his you know, I'm the former president's side, 434 00:27:44,560 --> 00:27:48,320 Speaker 2: I'm the billionaire side, and I'm a defendant. 435 00:27:48,720 --> 00:27:51,560 Speaker 4: That was a mistake by Trump because maybe that works 436 00:27:52,080 --> 00:27:55,919 Speaker 4: in court of public opinion outside the courthouse to your followers, 437 00:27:56,000 --> 00:27:58,159 Speaker 4: shows your gentleman, you do that in front of the 438 00:27:58,200 --> 00:28:00,480 Speaker 4: jury and it looks like the witness is by towards you, 439 00:28:00,520 --> 00:28:02,040 Speaker 4: and it looks like you're sucking up to the witness. 440 00:28:02,240 --> 00:28:04,159 Speaker 4: It's not a good look for either the defendant or 441 00:28:04,200 --> 00:28:06,359 Speaker 4: the witness. When the defendant is getting up from his 442 00:28:06,440 --> 00:28:08,119 Speaker 4: chair and wants to give the witness a hug or 443 00:28:08,119 --> 00:28:09,240 Speaker 4: a handshake, it's. 444 00:28:09,040 --> 00:28:09,760 Speaker 1: Not a good look. 445 00:28:10,119 --> 00:28:13,440 Speaker 4: So any credibility that she had, at least in favoring 446 00:28:13,440 --> 00:28:16,440 Speaker 4: Trump is out the window. And it also gives more 447 00:28:16,440 --> 00:28:19,120 Speaker 4: credibility to the negative stuff she said about Trump, which 448 00:28:19,119 --> 00:28:21,879 Speaker 4: is when I say negative, I mean saying that Stormy 449 00:28:21,920 --> 00:28:25,000 Speaker 4: Daniels and Caer McDougal were in the books of the 450 00:28:25,080 --> 00:28:28,199 Speaker 4: Trump organization. So it makes her testimony against Trump that 451 00:28:28,320 --> 00:28:29,160 Speaker 4: much more powerful. 452 00:28:29,880 --> 00:28:33,919 Speaker 2: There have been a lot of reports about Trump's demeanor 453 00:28:34,440 --> 00:28:38,960 Speaker 2: in the courtroom, perhaps nodding off at different points or 454 00:28:39,000 --> 00:28:43,760 Speaker 2: looking uninterested. So the jury is watching him every second, 455 00:28:43,840 --> 00:28:44,280 Speaker 2: aren't they. 456 00:28:44,480 --> 00:28:48,880 Speaker 4: Oh yeah, jurors are very perceptive. They are watching everything, 457 00:28:49,120 --> 00:28:52,240 Speaker 4: and when Trump is dozing off, you know, I don't 458 00:28:52,240 --> 00:28:55,280 Speaker 4: know how they're going to perceive that, but I can 459 00:28:55,280 --> 00:28:57,560 Speaker 4: tell you that makes it harder for Trump after the 460 00:28:57,600 --> 00:29:01,280 Speaker 4: fact to say that he's running against sleepy Joe Biden. 461 00:29:01,320 --> 00:29:03,360 Speaker 4: I mean, it sort of guts his attack on the 462 00:29:03,400 --> 00:29:05,560 Speaker 4: president by call him sleepy Joe when you're the one 463 00:29:05,600 --> 00:29:08,280 Speaker 4: sleeping in this courtroom seemingly every day of the trial. 464 00:29:08,760 --> 00:29:13,960 Speaker 2: Another interesting thing, the second witness was the archivist at 465 00:29:14,080 --> 00:29:20,080 Speaker 2: c SPAN and apparently the defense is not stipulating to 466 00:29:20,200 --> 00:29:23,880 Speaker 2: any kind of evidence. So explain why the prosecution has 467 00:29:23,880 --> 00:29:24,760 Speaker 2: to call these people. 468 00:29:25,640 --> 00:29:29,320 Speaker 4: Normally you just have a stipulation that you could introduce 469 00:29:29,360 --> 00:29:34,400 Speaker 4: certain records because they're obviously real, they're legit. But the 470 00:29:34,440 --> 00:29:37,760 Speaker 4: defense is trying to block them at every step of 471 00:29:37,800 --> 00:29:41,360 Speaker 4: the way, forcing people to come in and testify to 472 00:29:41,480 --> 00:29:45,160 Speaker 4: things that were stipulated to. In the last Trump trial, 473 00:29:45,200 --> 00:29:47,920 Speaker 4: the one with Leticia James, they were stipulating the things 474 00:29:47,920 --> 00:29:50,000 Speaker 4: all the time over there, but in this one he's not. 475 00:29:50,200 --> 00:29:52,600 Speaker 4: And it just shows you that he wants to delay 476 00:29:52,720 --> 00:29:55,320 Speaker 4: this matter. That's his best defense, and this is his 477 00:29:55,520 --> 00:29:57,320 Speaker 4: attempt at delaying. You know how I also know that 478 00:29:57,320 --> 00:29:59,920 Speaker 4: delay is his strategy. Aside from everything we've learned thus far, 479 00:30:00,440 --> 00:30:02,400 Speaker 4: is the fact that he's complaining that the trial's going 480 00:30:02,440 --> 00:30:04,560 Speaker 4: too quickly, the jury selection is going too quickly. But 481 00:30:04,600 --> 00:30:06,480 Speaker 4: at the same time he's saying, but I can't be 482 00:30:06,560 --> 00:30:09,200 Speaker 4: on the campaign trail. This trial's keep me from the 483 00:30:09,200 --> 00:30:11,520 Speaker 4: campaign trail well, which is it is a trial going 484 00:30:11,600 --> 00:30:12,760 Speaker 4: too quickly or too slowly. 485 00:30:13,200 --> 00:30:15,880 Speaker 2: And also it does slow down the trial. I mean 486 00:30:15,880 --> 00:30:18,240 Speaker 2: that is a tactic of the defense too, so that 487 00:30:18,280 --> 00:30:21,160 Speaker 2: the jurors are not so interested in these witnesses. But 488 00:30:21,200 --> 00:30:23,600 Speaker 2: I think the prosecution is trying to balance that with 489 00:30:23,920 --> 00:30:26,400 Speaker 2: witnesses who are interesting, like the lawyer who's on the 490 00:30:26,440 --> 00:30:31,160 Speaker 2: stand who represented both Stormy Daniels and Karen McDougall. 491 00:30:31,400 --> 00:30:33,239 Speaker 4: The prosecution is doing a great job, and I think 492 00:30:33,280 --> 00:30:36,920 Speaker 4: the case is going much better than most people had expected. 493 00:30:37,280 --> 00:30:39,920 Speaker 4: David Pecker, the first witness, was really powerful, and that 494 00:30:40,040 --> 00:30:42,400 Speaker 4: is a good lesson for those young lawyers out there 495 00:30:42,440 --> 00:30:44,320 Speaker 4: and those in law school. You want to put on 496 00:30:44,480 --> 00:30:47,760 Speaker 4: your best witnesses first and last. You want to have 497 00:30:47,800 --> 00:30:50,120 Speaker 4: an initial shock, and then you want to leave them 498 00:30:50,240 --> 00:30:52,520 Speaker 4: the jurors with something in between. You can do the 499 00:30:52,600 --> 00:30:56,000 Speaker 4: nuts and bolts, the more boring witnesses, the archivists, the 500 00:30:56,120 --> 00:30:59,800 Speaker 4: banker who talked about how the loan was structured, that 501 00:30:59,880 --> 00:31:02,880 Speaker 4: was given to Michael Cohen. But occasionally, to keep the 502 00:31:02,960 --> 00:31:06,720 Speaker 4: jurors awake, you want to put in the really compelling witnesses, 503 00:31:06,800 --> 00:31:10,000 Speaker 4: like Keith Davidson, he's been great. Now the big witness 504 00:31:10,040 --> 00:31:12,840 Speaker 4: to consider it'll be Michael Cohen. I think he'll be 505 00:31:13,240 --> 00:31:15,560 Speaker 4: a middle end, but not at the end. You don't 506 00:31:15,560 --> 00:31:18,640 Speaker 4: want to leave with him because that's the last gasp 507 00:31:18,680 --> 00:31:20,560 Speaker 4: I think for the defense, which it's not going well 508 00:31:20,560 --> 00:31:23,400 Speaker 4: for them, But if they can expose Michael Cohen as 509 00:31:23,440 --> 00:31:25,920 Speaker 4: a liar and a perjurer and a felon, and the 510 00:31:26,000 --> 00:31:29,040 Speaker 4: jury goes along with that, then the prosecution's entire case 511 00:31:29,040 --> 00:31:29,760 Speaker 4: could be in trouble. 512 00:31:30,560 --> 00:31:35,880 Speaker 2: It seems like Michael Cohen is an easy witness for 513 00:31:35,960 --> 00:31:39,240 Speaker 2: the defense to cross. I mean, everything's out there. 514 00:31:39,520 --> 00:31:43,640 Speaker 4: Correct, but there's something called corroboration. You may not believe 515 00:31:43,680 --> 00:31:45,880 Speaker 4: Michael Cohen, and he may have lied in the past, 516 00:31:46,000 --> 00:31:48,360 Speaker 4: but he's got all his corroboration now. And by the way, 517 00:31:48,480 --> 00:31:51,240 Speaker 4: the reason why he was convicted of perjury previously was 518 00:31:51,280 --> 00:31:54,320 Speaker 4: because he was lying to protect Donald Trump, So that'll 519 00:31:54,320 --> 00:31:58,080 Speaker 4: come out. But also you now have the Keith Davidson, 520 00:31:58,280 --> 00:32:01,360 Speaker 4: you have David Pecker, who have corroberated what Michael con 521 00:32:01,440 --> 00:32:04,680 Speaker 4: is going to testify to. So is everyone lying or 522 00:32:04,720 --> 00:32:07,880 Speaker 4: maybe just maybe Michael Cohen is telling the truth under oath, 523 00:32:07,960 --> 00:32:10,720 Speaker 4: and so far, everything I've seen from him in interviews 524 00:32:10,760 --> 00:32:14,160 Speaker 4: outside the courthouse shown him to be a pretty credible 525 00:32:14,200 --> 00:32:15,360 Speaker 4: and compelling witness. 526 00:32:16,960 --> 00:32:19,280 Speaker 2: So then do you think the defense has to sort 527 00:32:19,280 --> 00:32:22,320 Speaker 2: of prod him enough for him to lose his temper? 528 00:32:22,840 --> 00:32:22,959 Speaker 3: Oh? 529 00:32:23,040 --> 00:32:25,640 Speaker 4: Yeah, they're going to try to get under his skin, 530 00:32:25,960 --> 00:32:29,720 Speaker 4: and the prosecution will be working with him to try 531 00:32:29,720 --> 00:32:33,120 Speaker 4: to prepare him for what's coming. But it's different when 532 00:32:33,160 --> 00:32:34,920 Speaker 4: it's for all the marbles and you're on the stand 533 00:32:34,960 --> 00:32:37,320 Speaker 4: and this is it and you feel like you're being 534 00:32:37,400 --> 00:32:40,640 Speaker 4: unfairly attacked by a person that he hates, a person 535 00:32:40,680 --> 00:32:42,760 Speaker 4: who led him to prison. That's why he went to prison. 536 00:32:42,960 --> 00:32:44,800 Speaker 4: Donald Trump did not go to prison for the thing 537 00:32:44,840 --> 00:32:47,680 Speaker 4: that Michael Cohen went to prison for, even though Trump 538 00:32:47,720 --> 00:32:50,320 Speaker 4: was an unindicted co conspirator at the time. So you 539 00:32:50,360 --> 00:32:52,320 Speaker 4: can see why Michael Cohen is en rage and he 540 00:32:52,400 --> 00:32:54,480 Speaker 4: just god has to chill and he has to just 541 00:32:54,520 --> 00:32:57,320 Speaker 4: answer the questions that are asked and not come across 542 00:32:57,760 --> 00:33:01,400 Speaker 4: as unlikable, because if he's unlikable to the jury, the 543 00:33:01,480 --> 00:33:04,400 Speaker 4: jury just may say the entire case is unlikable and unwinnable. 544 00:33:04,440 --> 00:33:07,760 Speaker 2: Do you think Stormy Daniels comes before Michael Cohen or after. 545 00:33:08,240 --> 00:33:11,280 Speaker 4: Oh, that's a good question. I don't know that answer. 546 00:33:11,480 --> 00:33:14,240 Speaker 4: But the Stormy Daniels testament will not be the last 547 00:33:14,240 --> 00:33:17,120 Speaker 4: one either, because she also is a flawed witness. I mean, 548 00:33:17,200 --> 00:33:20,680 Speaker 4: she has in the past sent letters swearing that she 549 00:33:21,000 --> 00:33:23,360 Speaker 4: didn't have an affair with Donald Trump. She is an 550 00:33:23,360 --> 00:33:26,000 Speaker 4: adult film actress, so whatever you want to say about 551 00:33:26,040 --> 00:33:27,680 Speaker 4: that line of work, it doesn't have a lot of 552 00:33:27,760 --> 00:33:32,560 Speaker 4: jury appeal. And she also has some unusual thinkings about 553 00:33:32,600 --> 00:33:35,840 Speaker 4: like what like space aliens or like goes or ghouls 554 00:33:35,920 --> 00:33:38,440 Speaker 4: or something, So they're gonna bring out all that stuff. 555 00:33:38,880 --> 00:33:41,880 Speaker 4: But just like Michael Cohen, she comes across as credible 556 00:33:41,920 --> 00:33:44,880 Speaker 4: when you see her in outside interviews. I don't know 557 00:33:44,920 --> 00:33:47,440 Speaker 4: whether she goes before Michael Cohen or after. I think 558 00:33:47,480 --> 00:33:50,760 Speaker 4: they want to put Michael Cohen in where she's sandwiched 559 00:33:50,800 --> 00:33:53,760 Speaker 4: in with other helpful witnesses, so that that's not the 560 00:33:53,800 --> 00:33:57,040 Speaker 4: last impression you have of the key witness who also 561 00:33:57,160 --> 00:33:58,200 Speaker 4: has a lot of flaws. 562 00:33:58,320 --> 00:34:01,160 Speaker 2: So tell us about Keith Davison as a witness. Why 563 00:34:01,200 --> 00:34:01,720 Speaker 2: is he there? 564 00:34:02,320 --> 00:34:05,200 Speaker 4: Well, he's there because he not only represented Stormy Daniels, 565 00:34:05,280 --> 00:34:08,720 Speaker 4: he represented Karen McDougall. This shows that there was a pattern. 566 00:34:09,160 --> 00:34:11,319 Speaker 4: It wasn't just a one off with a payment to 567 00:34:11,320 --> 00:34:16,600 Speaker 4: Stormy Daniels. This was about protecting Trump's election chances. And 568 00:34:16,600 --> 00:34:19,000 Speaker 4: that's what Davidson is testifying to that this was not 569 00:34:19,040 --> 00:34:23,640 Speaker 4: about protecting Milania or Avanka from finding out about an affair. 570 00:34:23,800 --> 00:34:28,640 Speaker 4: This is a coordinated attempt through Keith Davidson, through David Pecker, 571 00:34:28,760 --> 00:34:31,560 Speaker 4: through Donald Trump, and through Michael Cohen to help Trump 572 00:34:31,600 --> 00:34:34,560 Speaker 4: win the election. And there's this very powerful text message 573 00:34:34,600 --> 00:34:38,480 Speaker 4: that came out in trial where Keith Davidson texted, what 574 00:34:38,840 --> 00:34:42,480 Speaker 4: have we done after Trump wins the election? Acknowledging that 575 00:34:42,560 --> 00:34:45,320 Speaker 4: everything they did was to help his election and now 576 00:34:45,560 --> 00:34:48,280 Speaker 4: it came to fruition and now there's buyer's remorse. 577 00:34:48,719 --> 00:34:51,960 Speaker 2: In most cases, the defendant's family members are there at 578 00:34:52,040 --> 00:34:55,240 Speaker 2: trial in a show of support for the defendant. For example, 579 00:34:55,239 --> 00:34:58,160 Speaker 2: think about Sam Benkman Freed. His parents were there every 580 00:34:58,239 --> 00:35:01,439 Speaker 2: day of the trial, sitting behind. In this case, we're 581 00:35:01,440 --> 00:35:04,640 Speaker 2: on day six and there was only one day when 582 00:35:04,760 --> 00:35:09,240 Speaker 2: someone from Trump's family, his son Eric, showed up at trial. 583 00:35:09,920 --> 00:35:11,959 Speaker 2: I mean, I have to ask why aren't they there? 584 00:35:12,080 --> 00:35:14,120 Speaker 2: And does it matter? Well? 585 00:35:14,160 --> 00:35:17,200 Speaker 4: It does matter because you said earlier correctly, that jurors 586 00:35:17,200 --> 00:35:21,040 Speaker 4: notice these things. Yes, jurors notice when your family's not 587 00:35:21,040 --> 00:35:25,040 Speaker 4: there to support you. Why aren't they there? I mean 588 00:35:25,080 --> 00:35:27,120 Speaker 4: they have to ask Donald Trump about his relationship with 589 00:35:27,160 --> 00:35:31,120 Speaker 4: his family, because when your father, when your husband is 590 00:35:31,160 --> 00:35:34,200 Speaker 4: on trial. Maybe they don't think that this really poses 591 00:35:34,239 --> 00:35:37,439 Speaker 4: an existential threat to his future freedom. Maybe they don't 592 00:35:37,480 --> 00:35:39,359 Speaker 4: really think this is going to lead to any prison time. 593 00:35:39,680 --> 00:35:42,640 Speaker 4: But if that guilty verdict has read, then it's a 594 00:35:42,680 --> 00:35:44,880 Speaker 4: game changer. He may never serve prison time for this, 595 00:35:45,000 --> 00:35:47,759 Speaker 4: but the polls show that a guilty verdict would swing 596 00:35:47,880 --> 00:35:50,799 Speaker 4: enough voters to prevent him from returning to the White House. 597 00:35:50,840 --> 00:35:51,680 Speaker 4: So it is a big deal. 598 00:35:52,000 --> 00:35:57,040 Speaker 2: Tomorrow, Day seven. Thanks so much, Dave. That's Dave Ahrenberg, 599 00:35:57,120 --> 00:36:00,520 Speaker 2: Palm Beach County State Attorney. And that's it this edition 600 00:36:00,560 --> 00:36:03,560 Speaker 2: of the Bloomberg Law Podcast. Remember you can always get 601 00:36:03,600 --> 00:36:06,279 Speaker 2: the latest legal news by subscribing and listening to the 602 00:36:06,360 --> 00:36:10,400 Speaker 2: show on Apple Podcasts, Spotify, and at Bloomberg dot com, 603 00:36:10,440 --> 00:36:14,680 Speaker 2: Slash podcast, Slash Law. I'm June Grosso and this is 604 00:36:14,719 --> 00:36:15,319 Speaker 2: Bloomberg