WEBVTT - Movie Armorer & SCOTUS Polarized 0:00:03.200 --> 0:00:08.320 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.920 --> 0:00:13.600 To find the defendant Anddutiers guilty of involuntary manslaughter as 0:00:13.640 --> 0:00:18.560 Carshan count one. We find the dependent Andiboutiers not guilty. 0:00:18.680 --> 0:00:21.920 Put Tambre evidence chart should come too. After just two 0:00:22.000 --> 0:00:25.360 and a half hours of deliberations, a new Mexico jury 0:00:25.400 --> 0:00:29.040 found Hanna Guccierrez read the armorer on the set of 0:00:29.040 --> 0:00:33.160 the movie Rust, guilty of involuntary manslaughter for the death 0:00:33.200 --> 0:00:37.199 of cinematographer Helena Hutchins. She was shot and killed when 0:00:37.240 --> 0:00:40.000 a live round from a gun held by actor Alec 0:00:40.080 --> 0:00:44.840 Baldwin fired during rehearsal. In twenty twenty one, Jura Alberto 0:00:44.960 --> 0:00:49.040 Sanchez explained why they came to their decision pretty much. 0:00:49.000 --> 0:00:52.000 Is just that all the never did the safety checks, 0:00:52.360 --> 0:00:54.840 never checked the rounds, to pull him out, to look 0:00:54.880 --> 0:00:57.840 at him, shake them. I mean, if you'd have done that, 0:00:57.880 --> 0:00:58.600 this wouldn't happen. 0:00:58.880 --> 0:01:02.360 The defense had argued that Guccierrez Reid was a fall 0:01:02.400 --> 0:01:08.200 guy and the ultimate responsibility rested with producers, including Baldwin. 0:01:08.640 --> 0:01:12.319 Hanas being made a skatego for are deliberate heerrors and 0:01:12.400 --> 0:01:14.279 mistakes by production. 0:01:14.440 --> 0:01:19.119 Now all eyes turned to Baldwin's own involuntary manslaughter trial, 0:01:19.160 --> 0:01:23.039 which begins on July tenth. Joining me is former prosecutor 0:01:23.160 --> 0:01:26.920 Joshua Castenberg, a professor at the University of New Mexico 0:01:27.040 --> 0:01:32.040 Law School. A two week trial, very short jury deliberations, 0:01:32.319 --> 0:01:35.000 what was the critical prosecution evidenced. 0:01:35.240 --> 0:01:37.800 I think one is the prosecution did a very good 0:01:37.920 --> 0:01:41.840 job of proving that Hanna Goudiers Read had a duty 0:01:42.160 --> 0:01:45.600 and that she failed to perform the basic functions of 0:01:45.600 --> 0:01:48.120 that duty, and that is to make sure the firearms 0:01:48.160 --> 0:01:51.480 are safe. Now, the prosecution had not only the normal 0:01:51.680 --> 0:01:54.960 hurdle of proof beyond a reasonable doubt, they also understood 0:01:55.000 --> 0:01:57.640 that one of the defenses would be that, look, other 0:01:57.680 --> 0:02:00.720 people had access to the guns and the armor isn't 0:02:00.760 --> 0:02:04.000 the only one responsible for this. But they focused on 0:02:04.360 --> 0:02:07.680 her specific responsibilities and they were able to get in 0:02:07.880 --> 0:02:10.840 some evidence of drug use, and I think those were 0:02:10.880 --> 0:02:13.840 the two strengths of the case. And frankly, the defense 0:02:13.880 --> 0:02:16.800 didn't put up a compelling defense, even though it's not 0:02:16.880 --> 0:02:18.880 their burden to do so. They didn't. 0:02:19.200 --> 0:02:21.919 So one of the jurors said that they'd easily reached 0:02:21.960 --> 0:02:25.480 their decision by determining that Gucciera's Read had failed to 0:02:25.560 --> 0:02:29.240 properly carry out gun safety checks. The big question has 0:02:29.280 --> 0:02:32.120 been why was their live ammunition on the movie set, 0:02:32.200 --> 0:02:37.040 which is strictly forbidden. The prosecution said that Gucciera's Read 0:02:37.080 --> 0:02:40.920 brought the live rounds to the set and showed some 0:02:41.120 --> 0:02:42.480 photos to prove that. 0:02:43.120 --> 0:02:47.560 Yeah, so, you know, I think there is evidence, you know, 0:02:47.560 --> 0:02:50.480 where the live rounds came from. I don't think it's 0:02:50.520 --> 0:02:53.679 you know, it's conclusive beyond a reasonable doubt, but there 0:02:53.720 --> 0:02:56.080 is evidence that it came from her. I think what 0:02:56.160 --> 0:02:59.800 that evidence really proved if she knew of the possibility 0:02:59.840 --> 0:03:02.760 that live rounds would be in the vicinity of the 0:03:02.760 --> 0:03:05.320 weapon and fail to do anything to stop it from 0:03:05.440 --> 0:03:08.080 entering the weapon or keeping it in the weapon. 0:03:08.320 --> 0:03:11.200 I mean, let's talk about how this affects Baldwin's trial. 0:03:11.360 --> 0:03:14.640 If she's responsible for the live ammunition on the set, 0:03:14.960 --> 0:03:16.160 that helps him, doesn't it. 0:03:16.600 --> 0:03:19.600 Well, his attorneys have looked at this case, I have 0:03:19.720 --> 0:03:23.920 no doubt, very carefully, and not only very carefully, but 0:03:24.240 --> 0:03:27.239 with an eye towards presenting evidence in their own case. 0:03:27.400 --> 0:03:30.960 And I think, ironically, the stronger the prosecution's case is 0:03:31.000 --> 0:03:34.800 against Hanne Goodyear's read the weaker it is against Baldwin, 0:03:34.920 --> 0:03:37.520 even though those are two separate trials with two different 0:03:37.560 --> 0:03:38.440 theories of guilt. 0:03:38.720 --> 0:03:42.920 Does this verdict in any way absolve Baldwin of negligence, Well. 0:03:42.720 --> 0:03:45.360 It doesn't absolve him of negligence, because you can have 0:03:45.400 --> 0:03:48.440 a criminal negligence series of crimes where there are multiple 0:03:48.480 --> 0:03:52.760 people who had duties to perform or avoid performing certain things, 0:03:52.760 --> 0:03:56.080 and yet they're all guilty, even though those duties are desparate. 0:03:56.480 --> 0:03:59.280 But then there's the human logic, and the human logic 0:03:59.400 --> 0:04:02.920 will go some thing like this, the more guilty she is, 0:04:03.000 --> 0:04:06.560 the less he is, because really, what was his role? Now, 0:04:06.600 --> 0:04:10.360 the prosecution did a great job in this first trial. 0:04:10.640 --> 0:04:13.960 Their next focus has to be getting to the point 0:04:14.000 --> 0:04:17.520 where the individual who last had their hand on the 0:04:17.600 --> 0:04:21.040 gun had an independent responsibility to make sure the gun 0:04:21.160 --> 0:04:24.600 was safeguarded. That's a true statement, but whether it rises 0:04:24.640 --> 0:04:27.440 to the level of a crime, the failure to do 0:04:27.520 --> 0:04:29.680 that or not, that's a tough mountain to climb. 0:04:30.200 --> 0:04:34.320 The prosecutors used videos from the set to portray a 0:04:34.360 --> 0:04:40.200 breakdown of movie industry firearms safety standards. The defense tried 0:04:40.200 --> 0:04:43.360 to show that the producers were trying to cut costs, 0:04:43.560 --> 0:04:46.320 They rushed the crew, They gave her too many things 0:04:46.320 --> 0:04:48.960 to do because she was both a part time armorer 0:04:49.000 --> 0:04:53.120 and a prop assistant. That's the producer's fault. But Baldwin 0:04:53.360 --> 0:04:54.480 is one of the producers. 0:04:54.960 --> 0:04:58.520 And you know, if the prosecution pursues that line, they 0:04:58.560 --> 0:05:01.440 go up against Baldwin. He's not just an actor. He 0:05:01.520 --> 0:05:03.920 had a greater role in the movie, on the Russ 0:05:04.040 --> 0:05:07.359 movie that than a normal actor would have, and they'll 0:05:07.560 --> 0:05:11.040 try to tie him in as being complicit in those failures, 0:05:11.120 --> 0:05:13.360 and there's a possibility they'll be able to do so. 0:05:13.800 --> 0:05:17.240 What I found interesting is that there was testimony that 0:05:17.440 --> 0:05:21.640 he exerted a disproportionate amount of power because he was 0:05:21.680 --> 0:05:25.200 serving as producer, writer, and lead actor. He was described 0:05:25.200 --> 0:05:28.039 by one witness as the boss and no one says 0:05:28.120 --> 0:05:28.680 no to him. 0:05:29.160 --> 0:05:33.839 That's important, it's very important. Yeah, I mean, he's not 0:05:34.360 --> 0:05:37.360 just the lead act. You know that Hollywood is not 0:05:37.440 --> 0:05:40.800 the military, but there are defined leadership roles in the 0:05:40.839 --> 0:05:43.719 movie industry, and it's clear that he took one of them, 0:05:44.279 --> 0:05:47.640 and so there's responsibility that comes with taking one of them. 0:05:48.000 --> 0:05:52.080 A firearms expert said that Balwin was basically instructing the 0:05:52.279 --> 0:05:54.200 armorer how to do their job. 0:05:54.960 --> 0:05:58.039 Yeah, you know, the armorer would have an independent duty 0:05:58.080 --> 0:06:01.760 to push back. But I think the prosecution tried to 0:06:01.839 --> 0:06:07.440 tailor this case against Hannah Goodear as reeds preserving enough 0:06:08.160 --> 0:06:12.920 strong evidence against Baldwin to go after him in that trial, 0:06:13.160 --> 0:06:15.920 and I think they did a pretty good job of 0:06:16.080 --> 0:06:18.520 doing it. It's just that the prosecution of Alec Baldwin 0:06:18.600 --> 0:06:21.760 is going to be considerably harder than it was against 0:06:21.800 --> 0:06:22.440 the armorer. 0:06:23.120 --> 0:06:26.360 I sort of wonder why they're going after Baldwin since 0:06:26.400 --> 0:06:28.640 they found out that the armorer, or they believe the 0:06:28.720 --> 0:06:31.800 armorer brought the ammunition to the set, she didn't do 0:06:32.040 --> 0:06:34.920 proper safety checks before the incident. 0:06:35.480 --> 0:06:38.440 You're going to hear competing theories about why they're going 0:06:38.480 --> 0:06:42.800 after Baldwin. For example, one theory is they want publicity. 0:06:43.080 --> 0:06:45.640 I don't believe that's true, but that is going to 0:06:45.680 --> 0:06:48.520 be something that's advocating that he's a big person to 0:06:48.600 --> 0:06:51.400 take down in the like. You're going to hear another 0:06:51.520 --> 0:06:54.480 competing theory, which is we only have one system of 0:06:54.640 --> 0:06:58.200 justice in this country, and there's been this unfortunate narrative 0:06:58.320 --> 0:07:01.159 that there's two systems of us as one for the 0:07:01.200 --> 0:07:03.760 top one percent and one for the rest of us. 0:07:04.040 --> 0:07:08.000 But I also think that there's a fundamental issue here, 0:07:08.200 --> 0:07:11.240 and that is the person who had their finger on 0:07:11.320 --> 0:07:14.560 the trigger, it should have the justice system focused on 0:07:14.720 --> 0:07:17.360 them as well at a fairness, because they're the one 0:07:17.360 --> 0:07:19.880 who pulled the trigger without looking at the gun, without 0:07:19.880 --> 0:07:22.920 doing the final safety check and the like. And I 0:07:23.000 --> 0:07:26.239 actually think that's the most basic and real reason why 0:07:26.280 --> 0:07:29.200 the prosecution is going forward on it. Having said that, 0:07:29.520 --> 0:07:33.880 Baldwin is very gifted defense Council and you know, they're 0:07:33.880 --> 0:07:37.400 going to make an equation to for example, you rent 0:07:37.440 --> 0:07:39.960 a car when you land at the airport from a 0:07:40.160 --> 0:07:44.040 reputable cart rental company. Your assumption when you turn the 0:07:44.120 --> 0:07:46.240 ignition in on the car is the car is up 0:07:46.240 --> 0:07:50.000 to safety standards, you know, And so that's what they're 0:07:50.000 --> 0:07:50.920 going to equate it to. 0:07:51.800 --> 0:07:56.480 Baldwin maintains and has maintained since day one, that he 0:07:56.600 --> 0:07:59.920 didn't pull the trigger, and there's going to be test 0:08:00.000 --> 0:08:04.400 stamoni from gun experts that it couldn't have fired without 0:08:04.480 --> 0:08:07.120 pulling the trigger. How important is that? 0:08:07.640 --> 0:08:11.440 Well, that cuts both ways, because if you have an FBI, 0:08:11.760 --> 0:08:15.040 or you have a firearms expert or real expert saying, look, 0:08:15.960 --> 0:08:20.040 this gun was fired because the trigger was depressed, and 0:08:20.120 --> 0:08:24.640 it makes it appear that Baldwin wasn't telling the truth. 0:08:25.320 --> 0:08:27.760 That can hurt him. On the other hand, what I'd 0:08:27.800 --> 0:08:31.440 say about it is maybe he absolutely believes that he 0:08:31.480 --> 0:08:35.120 didn't pull the trigger. Because the human mind is fallible, 0:08:35.360 --> 0:08:39.520 and that's why, for example, when a railroad accident occurs, 0:08:39.640 --> 0:08:44.040 or a plane crash accident occurs, the National Transportation Safety Board, 0:08:44.120 --> 0:08:46.760 when they do mass interviews with people, they don't give 0:08:46.800 --> 0:08:50.680 the interviews individualized credibility because everybody has a different story 0:08:50.720 --> 0:08:54.040 as to what they saw in Our minds are conditioned, 0:08:54.360 --> 0:08:59.480 particularly during a stressful moment, to capture and retain data 0:08:59.520 --> 0:09:01.920 and then show the data in a manner that makes 0:09:01.920 --> 0:09:04.360 sense to us, even though it may not be an 0:09:04.440 --> 0:09:08.240 accurate reflection of what occurred. And so, if you remember, 0:09:08.280 --> 0:09:11.240 there was a plane after nine to eleven that crashed 0:09:11.240 --> 0:09:13.599 in Long Island. There were witnesses. They said there was 0:09:13.640 --> 0:09:16.480 a giant fireball. There were witnesses they said the wings 0:09:16.480 --> 0:09:19.840 fell off the airplane. All kinds of stories as to 0:09:19.880 --> 0:09:22.880 what happened. It turned out there was no fireball, there 0:09:22.960 --> 0:09:26.320 was no explosion. There was a plane crash because the 0:09:26.360 --> 0:09:29.600 plane broke apart. But if you're the person with your 0:09:29.600 --> 0:09:34.199 finger on the trigger, your brain may actually synthesize the 0:09:34.320 --> 0:09:36.480 data that occurred, you know, the recall to say you 0:09:36.520 --> 0:09:38.320 had nothing to do with it. It just went off, 0:09:38.400 --> 0:09:40.559 even though your finger did it, you know. So I 0:09:41.559 --> 0:09:44.040 don't think that the prosecution is going to spend a 0:09:44.080 --> 0:09:46.480 lot of time trying to paint Baldwin as a liar. 0:09:46.480 --> 0:09:48.599 They're going to try to paint them as irresponsible. 0:09:49.480 --> 0:09:52.960 And in this case, Hannah Gucciras Reid did not take 0:09:53.000 --> 0:09:57.280 the witness stand. But do we expect that Alec Ballwin 0:09:57.520 --> 0:09:58.840 will take the witness stand? 0:09:59.600 --> 0:10:02.920 Well, you know, taking the witness stand is ultimately a 0:10:02.960 --> 0:10:06.480 defendant's choice, and it's not the defense council's choice. I mean, 0:10:06.520 --> 0:10:11.120 they can just advise. And it's a risk for him 0:10:11.120 --> 0:10:13.240 to take the stand. It's also a risk for him 0:10:13.280 --> 0:10:16.800 not to. The judge instructs the jury that they're to 0:10:16.920 --> 0:10:21.120 infer no guilt whatsoever from any defendant who does not 0:10:21.280 --> 0:10:25.920 testify in their own defense. That's true, But he's an actor, 0:10:26.360 --> 0:10:31.000 and him taking the witness stand, the risk is he 0:10:31.080 --> 0:10:34.199 has to be genuine as to who he is. If 0:10:34.200 --> 0:10:37.120 he takes the stand and tells the truth as he 0:10:37.240 --> 0:10:39.960 sees it, but if the jury thinks he's acting through it, 0:10:40.000 --> 0:10:42.000 they're going to hold it a tense him. But he's 0:10:42.040 --> 0:10:45.520 in the most unique category of defendant that I could 0:10:45.520 --> 0:10:45.880 think of. 0:10:46.720 --> 0:10:48.720 Looking at the evidence that came in and how it 0:10:48.800 --> 0:10:51.640 was received by the jury, which side do you think 0:10:51.679 --> 0:10:55.320 has the advantage, the prosecution or Baldwin Well. 0:10:55.520 --> 0:11:00.560 I think that the prosecution tried to put deserve as 0:11:00.679 --> 0:11:03.080 much of the strength as they could in the evidence 0:11:03.160 --> 0:11:07.040 to be used against Baldwin. Having said that, I could 0:11:07.080 --> 0:11:12.360 see that Baldwin's attorneys might call the new Mexico OSHA 0:11:12.440 --> 0:11:17.440 person to testify. They may call witnesses who brought in 0:11:17.600 --> 0:11:22.600 evidence about Hanne Goudiera's read drug use to say that, look, 0:11:22.880 --> 0:11:25.640 my client wasn't aware that he was under the influence 0:11:25.679 --> 0:11:29.600 of marijuana or cocaine during this time on the movie set. 0:11:29.720 --> 0:11:34.000 So I think that it felt slightly in favor of Baldwin. 0:11:34.440 --> 0:11:36.880 I mean, you could still get a conviction out of 0:11:36.960 --> 0:11:40.560 this evidence, but it's much harder to do so we'll find. 0:11:40.360 --> 0:11:43.880 Out in July. Thanks so much, josh Deft. Professor Joshua 0:11:44.000 --> 0:11:47.840 Castenberg at the University of New Mexico Law School coming 0:11:47.920 --> 0:11:52.040 up next. What the liberal justices were worried about in 0:11:52.120 --> 0:11:55.959 the Supreme Court's decision keeping Trump on the ballot. I'm 0:11:56.000 --> 0:11:59.800 June Grosso and you're listening to Bloomberg. On the surface, 0:12:00.000 --> 0:12:03.360 the Supreme Court was unanimous on Monday in ruling that 0:12:03.440 --> 0:12:08.040 Donald Trump can appear on presidential ballots, but just below 0:12:08.120 --> 0:12:12.680 the surface, there was plenty of conflict. In a procureum opinion, 0:12:13.000 --> 0:12:17.480 all nine justices concluded that states can't enforce the insurrection 0:12:17.679 --> 0:12:21.440 clause to bar federal candidates from the ballot, But the 0:12:21.520 --> 0:12:26.320 three liberal justices wrote a caustic concurrence which read like 0:12:26.360 --> 0:12:30.000 a dissent, saying the five conservatives had gone too far, 0:12:30.559 --> 0:12:34.320 and Conservative Justice Amy Cony Barrett wrote her own, more 0:12:34.360 --> 0:12:38.640 restrained concurrence joining me. Is Jessica Levinson, a professor at 0:12:38.679 --> 0:12:42.400 Loyola Law School and host of the Passing Judgment podcast. 0:12:43.080 --> 0:12:47.719 Jessica explained the reasoning of the procureum opinion, which all 0:12:47.800 --> 0:12:52.760 nine justices agreed to. Why they decided that Donald Trump 0:12:52.760 --> 0:12:54.760 should remain on the ballot. 0:12:55.360 --> 0:12:58.120 So I wouldn't frame this so much as should Donald 0:12:58.200 --> 0:13:01.560 Trump for me in on the ballot? Does any single 0:13:01.679 --> 0:13:04.840 state have the power under section three of the fourteenth 0:13:04.880 --> 0:13:10.040 Amendment to say that a presidential candidate is ineligible for office. 0:13:10.640 --> 0:13:13.800 And the top line here is that nine of the 0:13:13.960 --> 0:13:18.520 justices agreed that when it comes to a state, they 0:13:18.559 --> 0:13:23.760 do not have the power for federal officials, particularly for 0:13:23.840 --> 0:13:28.000 the president, to say that they're disqualified for office having 0:13:28.520 --> 0:13:33.120 been previously serving in government, engaging in insurrection, and then 0:13:33.200 --> 0:13:35.040 trying to once again serve in government. 0:13:35.640 --> 0:13:38.960 You have two concurrences, one by all three of the 0:13:39.000 --> 0:13:43.120 liberal justices and one by Amy Cony Barrett in the 0:13:43.160 --> 0:13:46.440 Liberal justice is concurrence that read more like a dissent. 0:13:47.240 --> 0:13:51.280 They said that the five conservatives went too far further 0:13:51.360 --> 0:13:56.000 than they needed to go. Explain they decide novel constitutional 0:13:56.080 --> 0:14:01.359 questions to insulate this court and petitioner that's trump future controversy. 0:14:01.720 --> 0:14:04.120 Explain what they were concerned about there. 0:14:04.920 --> 0:14:07.520 So I think what the concurrence, which really does read 0:14:07.559 --> 0:14:11.000 more like a descent, is concerned about is one that 0:14:11.080 --> 0:14:15.400 the Court answered a question that wasn't asked. That they said, 0:14:15.559 --> 0:14:20.760 not only can a stake not by itself say that 0:14:21.080 --> 0:14:25.280 there's a federal candidate whose ineligible profice under section three 0:14:25.280 --> 0:14:29.120 of the fourteenth amendments. But here's who can It's just Congress, 0:14:29.160 --> 0:14:32.480 and it's just through a certain type of legislation. And 0:14:32.560 --> 0:14:36.240 so the first problem the concurrence has, it's this idea 0:14:36.440 --> 0:14:39.760 that in fact, the procureum and as they phrased it, 0:14:39.840 --> 0:14:44.160 the majority is just going too far and they're answering 0:14:44.160 --> 0:14:46.560 a question that they didn't need to, and that that 0:14:47.200 --> 0:14:51.520 violates the principle of judicial restraint. And then the second 0:14:51.560 --> 0:14:55.360 thing they're saying about insulating, and I think this wasn't clear, 0:14:55.400 --> 0:14:58.120 and I wish they had just said what they mean. 0:14:58.480 --> 0:15:01.080 But I suspect what they mean is that by the 0:15:01.080 --> 0:15:06.320 majority saying here's the way that you enforced Section three, 0:15:06.520 --> 0:15:12.520 it's congressional legislation that is specifically aimed at and narrowly 0:15:12.560 --> 0:15:16.520 tailored aimed at the issue the Constitution lays out. What 0:15:16.560 --> 0:15:20.240 they're saying is does that mean then if Donald Trump, 0:15:20.320 --> 0:15:23.920 for instance, was to win the election and then Congress 0:15:24.040 --> 0:15:28.000 was to try not to certify under a different statute 0:15:28.160 --> 0:15:31.400 under the Electoral Count Act, would Congress then laugh the 0:15:31.480 --> 0:15:33.800 power to do that under this majority opinion? 0:15:34.440 --> 0:15:38.760 And during the oral arguments, the lawyer for the Colorado 0:15:38.880 --> 0:15:43.000 voters had said that a rule requiring Congressional action to 0:15:43.080 --> 0:15:46.960 implement Section three could leave the door open to a 0:15:47.000 --> 0:15:51.120 renewed fight over trying to use the provision to disqualify 0:15:51.200 --> 0:15:54.080 Trump in the event that he wins the election. So 0:15:54.440 --> 0:15:57.400 those five conservatives knew what they were doing. 0:15:57.800 --> 0:16:00.400 I think this conservatives did know what they were doing. 0:16:00.440 --> 0:16:04.320 This was discussed in oral arguments. I think that there's 0:16:04.600 --> 0:16:07.800 a question as to whether or not it's appropriate or 0:16:07.880 --> 0:16:11.680 not for the picureum to have gone further than just 0:16:11.880 --> 0:16:16.160 Colorado lacks this power. But it certainly is the case 0:16:16.360 --> 0:16:19.800 that there was a conversation about whether or not a 0:16:19.920 --> 0:16:22.880 specific type of judicial decision would just kick the can 0:16:23.000 --> 0:16:27.040 down the road. And I think that's what the concurrence 0:16:27.080 --> 0:16:29.760 is really arguing her. The concurrence by the liberals, which is, 0:16:30.400 --> 0:16:35.240 you're just pushing off some big and complicated questions until later, 0:16:36.160 --> 0:16:41.080 and specifically those big questions, you're actually tilting the scale 0:16:41.240 --> 0:16:44.840 in favor of saying that Congress would lack the power 0:16:44.960 --> 0:16:48.760 to take any action outside of a new piece of legislation, 0:16:49.080 --> 0:16:52.440 and that that's helpful not just for Trump but for 0:16:52.560 --> 0:16:56.160 the Court itself in avoiding future controversy. 0:16:56.800 --> 0:17:00.600 Well, do you think that there was a push, you know, 0:17:00.640 --> 0:17:04.800 to speak with one voice, and so the three liberals 0:17:05.160 --> 0:17:09.360 went along with that. Was this really a unanimous decision. 0:17:09.840 --> 0:17:14.360 It really was a unanimous decision that was deeply fractured 0:17:14.520 --> 0:17:19.440 on everything else other than the one line of the outcome. 0:17:19.720 --> 0:17:21.920 So on the one hand, you can see that there's 0:17:21.920 --> 0:17:25.879 this enormous pressure because of the case with huge political 0:17:25.920 --> 0:17:31.040 consequences and huge consequences on an issue that really divides 0:17:31.080 --> 0:17:35.639 our country, that the court not look like they're policymakers. 0:17:35.720 --> 0:17:38.160 So the court look like they are judges, They are 0:17:38.200 --> 0:17:41.119 resolving disputes, they are not putting their thumb on the 0:17:41.160 --> 0:17:44.320 scale of an election. And so I think that's how 0:17:44.359 --> 0:17:48.560 we do get to that one line saying based on federalism, 0:17:48.680 --> 0:17:52.320 based on all of these concerns about patchworks and chaos, 0:17:52.520 --> 0:17:55.159 we're going to say Colorado went outside of its power. 0:17:55.720 --> 0:18:00.600 But then the agreement dissipates, and that's where we lose 0:18:00.760 --> 0:18:06.000 all consensus, and that's where you have the majority, I 0:18:06.000 --> 0:18:09.200 think taking a very different stance thing, and here's exactly 0:18:09.240 --> 0:18:12.920 how you apply Section three. And the concurrent thing, why 0:18:12.960 --> 0:18:16.040 are you going so far? And you're doing this in 0:18:16.080 --> 0:18:19.320 a way that not just avoids judicial restraints, but you're 0:18:19.400 --> 0:18:23.240 kind of tipping the scales in favor of somebody like 0:18:23.480 --> 0:18:24.520 the former president. 0:18:25.480 --> 0:18:30.080 Justice amy Cony Barrett, in her separate, more temperate Concurrence, wrote, 0:18:30.480 --> 0:18:33.040 the Court has settled a politically charged issue in the 0:18:33.119 --> 0:18:37.800 volatile season of a presidential election, particularly in this circumstances, 0:18:37.880 --> 0:18:41.040 writings on the Court should turn the national temperature down, 0:18:41.440 --> 0:18:43.480 not up, but then goes on to say, well, the 0:18:43.520 --> 0:18:44.600 main messages. 0:18:44.200 --> 0:18:47.400 We all agreed, right, And I think this is an 0:18:47.520 --> 0:18:52.720 understandable message by Justice Barrett, because she's very cognism of 0:18:52.720 --> 0:18:55.080 the past that she doesn't want this to be a 0:18:55.080 --> 0:18:59.040 bush by Gore reduct where it looks like by a 0:18:59.400 --> 0:19:04.240 thinly de court divided along ideological lines of who appointed 0:19:04.280 --> 0:19:08.720 the justices, that they make a decision that has huge 0:19:08.720 --> 0:19:12.560 effects on the presidential election. So what she's saying is 0:19:13.040 --> 0:19:16.840 he understands the concern that the majority went too far, 0:19:17.359 --> 0:19:20.560 but she wishes that. I think the dissent gives me 0:19:20.760 --> 0:19:26.359 the Freudian slips with the concurrence hadn't used such strident language. 0:19:26.560 --> 0:19:29.560 And I wonder if there was some world in which 0:19:30.000 --> 0:19:32.840 the liberals actually could have gotten Justice Barrett to sign 0:19:32.920 --> 0:19:37.720 on if the tenor of the Concurrence had maybe been 0:19:38.200 --> 0:19:39.000 slightly different. 0:19:40.080 --> 0:19:43.200 Well, she hasn't been sitting in those liberal seats for 0:19:43.240 --> 0:19:47.359 so long, particularly so to Mayor, and the emotion, shall 0:19:47.400 --> 0:19:50.879 we say or anger building up. Is Barrett on a 0:19:50.960 --> 0:19:54.560 sort of a mission because she appeared with Sonya so 0:19:54.680 --> 0:19:57.679 to Mayor at the National Conference of Governors to say, 0:19:58.040 --> 0:20:01.400 there are not Republican judges or democratic judges. We all 0:20:01.400 --> 0:20:04.840 wear black robes, not red, not blue. But she on 0:20:04.840 --> 0:20:07.000 a mission that you usually see the Chief Justice on. 0:20:07.720 --> 0:20:11.200 I think that it's Justice Barrett, it's Justice Sonia Sodamayor, 0:20:11.280 --> 0:20:15.040 who's also spoken warmly about Justice Clarence Thomas. It's the 0:20:15.160 --> 0:20:19.440 Chief Justice, it's Elena Kagan, all of whom have said 0:20:19.520 --> 0:20:23.560 some version of please know that we're judges, not politicians 0:20:23.600 --> 0:20:26.760 and robes. And of course they need that right. The 0:20:26.800 --> 0:20:31.040 Supreme Court depends on our respect and it depends on 0:20:31.600 --> 0:20:35.520 us viewing them as something different from just political actors, 0:20:35.720 --> 0:20:39.239 because ultimately they get their power from us. Saying that 0:20:39.560 --> 0:20:41.679 they have that power, I mean, they don't have an 0:20:41.800 --> 0:20:44.480 army to send in, they don't have a group of 0:20:44.520 --> 0:20:48.119 police officers to send in to enforce their opinions. In 0:20:48.200 --> 0:20:50.680 the sense that they have the power of the pen, 0:20:50.840 --> 0:20:52.880 and if we ignore that, then we have a real 0:20:52.960 --> 0:20:54.720 problem with our third branch. 0:20:54.880 --> 0:20:58.080 So they don't want to appear as political actors. They 0:20:58.080 --> 0:21:00.919 want to appear as judges. Yet, over the space of 0:21:01.040 --> 0:21:05.840 six days, they gave Trump this outright victory in Colorado 0:21:06.080 --> 0:21:10.280 and a victory in putting off his criminal case after 0:21:10.560 --> 0:21:16.120 waiting for two weeks to decide whether or not they 0:21:16.119 --> 0:21:20.520 were going to take his claim of presidential immuni from prosecution, 0:21:21.240 --> 0:21:25.480 which may mean, probably will mean that he won't be 0:21:25.640 --> 0:21:28.879 tried in the election interference case because there won't be time. 0:21:29.640 --> 0:21:30.960 How is that not political? 0:21:31.680 --> 0:21:34.960 I think what the justices would say is like, we 0:21:35.080 --> 0:21:39.480 decided to take this case because we decide big constitutional 0:21:39.560 --> 0:21:42.359 questions that are matters of first impression, and this is 0:21:42.400 --> 0:21:46.719 a big constitutional question that we've never confronted before. And 0:21:46.920 --> 0:21:50.040 I think what they might also say is, Jasonuth came 0:21:50.040 --> 0:21:52.159 to us in December and asked us to said this 0:21:52.320 --> 0:21:55.840 for arguments in March. We instead said you don't get 0:21:55.880 --> 0:21:58.520 to jump the line, and we set arguments for the 0:21:58.600 --> 0:22:02.479 end of April. Now is the end of April quite different? 0:22:02.560 --> 0:22:05.520 In fact, when it comes to the court calendar and 0:22:05.560 --> 0:22:08.280 the electoral calendar than the beginning of March. Of course 0:22:08.320 --> 0:22:10.879 it is, but they can also say, look, we had 0:22:10.920 --> 0:22:14.560 a full calendar. We didn't push this off until next term. 0:22:15.400 --> 0:22:20.160 And they might say it's not our responsibility to make 0:22:20.200 --> 0:22:24.520 sure that this case can occur before the election. Now, 0:22:24.680 --> 0:22:27.440 on the other hand, of course, one would say, well, 0:22:27.480 --> 0:22:33.720 are they actually unnecessarily delaying things by setting this particular pace. 0:22:33.960 --> 0:22:37.040 But I think the justices would say, actually, we're moving 0:22:37.119 --> 0:22:38.360 for us quite quickly. 0:22:39.160 --> 0:22:41.800 Well, they set it for the last possible day they 0:22:41.800 --> 0:22:45.359 could for all arguments, and we saw how fast they 0:22:45.359 --> 0:22:49.520 did the Colorado case and that Trump immunity case has 0:22:49.600 --> 0:22:52.760 been briefed and rebriefed. I don't know what else there 0:22:52.800 --> 0:22:53.440 is left. 0:22:53.240 --> 0:22:55.800 To say, right, I mean, what's left is the Supreme 0:22:55.800 --> 0:22:58.639 Court decision. And I think what we do need to 0:22:59.040 --> 0:23:01.760 think about is that we could get a decision that 0:23:02.080 --> 0:23:04.360 isn't just an up or down. It's not just there 0:23:04.440 --> 0:23:06.879 is absolute immunity or there isn't. We could get a 0:23:06.880 --> 0:23:10.920 decision that says, for instance, there is qualified immunity and 0:23:11.119 --> 0:23:14.200 send the case back to Judge chuckin the trial court 0:23:14.280 --> 0:23:18.080 judge in the DC case dealing with election interference and 0:23:18.160 --> 0:23:21.959 tell her to apply that standard that could also present 0:23:22.119 --> 0:23:23.440 a delay, and. 0:23:23.440 --> 0:23:28.080 None of the justices dissented from that order delaying Trump's 0:23:28.080 --> 0:23:28.800 trial either. 0:23:29.600 --> 0:23:32.000 One thing I would offer is, I know we're all 0:23:32.080 --> 0:23:34.959 very much focused on the question of whether or not 0:23:35.040 --> 0:23:39.600 the DC case, that election interference case does move forward 0:23:39.680 --> 0:23:44.199 before the election. But there's also another question looming in 0:23:44.240 --> 0:23:47.600 that case, in an unrelated case before the Supreme Court, 0:23:47.680 --> 0:23:51.600 dealing with whether or not the federal statute that Trump 0:23:51.680 --> 0:23:53.520 is charged under, at least for I think half of 0:23:53.560 --> 0:23:56.480