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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: This was a frightening, well planned, targeted murder that was

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Speaker 2: intended to cause shock and attention and intimidation. It incurred

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Speaker 2: in one of the most bustling parts of our city,

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Speaker 2: threatening the safety of local residents and tourists alike, commuters

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Speaker 2: and business people just starting out on their day.

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Speaker 3: Manhattan District Attorney Alvin Bragg announced the indictment of Luigi

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Speaker 3: Mangioni on first degree murder charges for the fatal shooting

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Speaker 3: of United Healthcare CEO Brian Thompson. Prosecutors elevated the case

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Speaker 3: to first degree murder, saying the shooting was a carefully

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Speaker 3: choreographed act of terrorism.

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Speaker 2: This was a killing that was intended to evoke terror,

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Speaker 2: and we've seen that reaction.

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Speaker 3: He is also charged with one count of murder in

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Speaker 3: the second degree as a crime of terrorism, and another

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Speaker 3: count of second degree murder. In the last few weeks,

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Speaker 3: we've seen the celebration of Mangioni on social media, treating

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Speaker 3: him like a folk hero and an avenger with a

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Speaker 3: superhero type name of the Adjuster. Memes show him as

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Speaker 3: a saint with a Halo songs, praise him on TikTok,

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Speaker 3: there's the hashtag free Luigi movement, and merchandise from t

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Speaker 3: shirts to tote bags, perhaps in part the public's response

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Speaker 3: to a broken healthcare system that many have struggled with.

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Speaker 3: New York Police Commissioner Jessica Tish condemned the lionization of Mangioni.

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Speaker 4: Let me say this plainly. There is no heroism in

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Speaker 4: what Mangioni did. This was a senseless act of violence.

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Speaker 4: It was a cold and calculated crime that stole a

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Speaker 4: life and put New Yorkers at risk. We don't celebrate

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Speaker 4: murders and don't lionize the killing of anyone.

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Speaker 3: Joining me is criminal defense attorney Jeremy saland a former

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Speaker 3: Manhattan prosecutor, Jeremy How unusual is this first degree murder

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Speaker 3: charge in furtherance of terrorism?

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Speaker 1: Well, it's very atypical. Though. First degree murder in and

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Speaker 1: of itself is not meaning if someone is accused of

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Speaker 1: killing a police officer, for example, someone is accused of

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Speaker 1: killing a potential witness in a criminal case, killing someone

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Speaker 1: for hire. There's certain broken out areas of law that

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Speaker 1: allow for certain murders to qualify its first degree. One

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Speaker 1: of those is terrorism and committing a terrorist act, and

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Speaker 1: that's specifically defined in the Penal Law of New York

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Speaker 1: in forty nine point h five of the Penal Law,

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Speaker 1: and it's broken out to three sections, and the DA's

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Speaker 1: office listed them all, so that gives them some leeway

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Speaker 1: to argue that, you know, this was some effort to

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Speaker 1: intimidate the public purse of this agenda that he has.

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Speaker 1: I don't know. I think it's part of a stretch

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Speaker 1: in my opinion, when we think of a terrorist in

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Speaker 1: a sort of general sense, it doesn't have to be

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Speaker 1: someone who's a foreign actor. Can certainly be someone who's

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Speaker 1: in the United States and even locally. But I also

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Speaker 1: think that most people would see that as somebody who

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Speaker 1: is an individual or with a group of people who

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Speaker 1: maybe want to attack our transportation system to send a

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Speaker 1: message to the United States, as opposed to sending a

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Speaker 1: message to United healthcare and insurance suppliers and providers that

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Speaker 1: be warned. The other concern I have with this, and

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Speaker 1: this ties into the insanity defense or lack thereof, that

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Speaker 1: even if Lui Demandioni's mental state is lacking for the

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Speaker 1: purpose of someone we would think would be completely mentally

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Speaker 1: healthy and stable. It may not necessarily rise to a

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Speaker 1: legal defense of insanity. But when I look at it

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Speaker 1: in the view of terrorism, I think of someone or

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Speaker 1: a group of an organization that has been doing this

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Speaker 1: for years or even dec aid in furthering this agenda

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Speaker 1: that they have as opposed to someone who it appears

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Speaker 1: as right a normal, healthy life until relatively recently, and

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Speaker 1: whether there's some trauma an injury that caused this or

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Speaker 1: something else. But in the past few months or even

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Speaker 1: a year, he lost that mental health that he had,

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Speaker 1: So it's just really a terroristic act and just what

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Speaker 1: we think of him as a terrorist. I get the

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Speaker 1: District Attorney's office wants to send a message that you

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Speaker 1: cannot lionize this man's actions, that it's never acceptable to

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Speaker 1: hunt someone down if true because of their career and

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Speaker 1: the services that they provide as a public is galvanized

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Speaker 1: behind them to some extent. But merely because you want

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Speaker 1: to send a message does not mean that the elements

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Speaker 1: of the crimes fit it. And I don't really believe

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Speaker 1: necessarily that calling him a quote unquote terrorist and the

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Speaker 1: purpose of the penal law is applicable or appropriate it's

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Speaker 1: a little bit of a stretch or a lot of

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Speaker 1: bit of a stretch, and it gives them sort of

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Speaker 1: a hammer now that they can really reeld against this

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Speaker 1: young man. True or not that he committed this.

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Speaker 3: Crime, and brag said a couple of times that the

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Speaker 3: shooting took place in one of the most bustling parts

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Speaker 3: of our city, threatening the safety of local residents and

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Speaker 3: tourists alike, and commuters and business people. That seems to

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Speaker 3: be something of an exaggeration of the dangers, because the

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Speaker 3: shooting happened very early in the morning and the street

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Speaker 3: wasn't crowded.

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Speaker 1: So I'm going to interrupt on that point and just

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Speaker 1: say that that's neither here nor there really in terms

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Speaker 1: of whether he was acting or committing a terrorist act.

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Speaker 1: Then charged with reckless danger and because you could have

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Speaker 1: hurt somebody else, right, there's a colony for that merely

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Speaker 1: because of when and where he did it, that and

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Speaker 1: of itself should not all of a sudden elevate it

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Speaker 1: to a terrorist act. Because if I'm someone who lives,

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Speaker 1: whether it's Battery Park all the way uptown in Harlem,

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Speaker 1: anywhere in the city of New York, in this case, Manhattan.

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Speaker 1: If a loved one is killed, my cousin, my brother,

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Speaker 1: my sister, my aunt, my uncle, why did the CEO

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Speaker 1: cus killer get treated differently than someone who's dodging, you know,

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Speaker 1: drugs in the street or someone who's killed in a

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Speaker 1: domestic case for example? Why does the CEO get treated

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Speaker 1: differently in terms of who he is? And a message

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Speaker 1: was certainly there from Luigi if you believe it as

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Speaker 1: true and as alleged, but is that elevated to actually

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Speaker 1: and terrorist Act by law? It seems to be a

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Speaker 1: pushing of the statute. And what it does for prosecutors

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Speaker 1: is it goes from generally, on a murder two, you're

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Speaker 1: looking at fifteen to twenty five years to life, meaning

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Speaker 1: you can get sentenced in that fifteen to twenty five

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Speaker 1: year period, but then you're eligible for parole after that.

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Speaker 1: So let's just make it up that to say it's

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Speaker 1: twenty five you know you're eligible for parole. There, twenty

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Speaker 1: six you're eligible parole, twenty seven year eligible for parole.

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Speaker 1: So there is that tags on. Now with the murder one,

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Speaker 1: it elevates it to twenty to twenty five as supposed

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Speaker 1: to fifteen to twenty five and it's still the life side,

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Speaker 1: but there's an alternative of life without parole. Once you

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Speaker 1: go into terrorist, whether it's second or first degree, you

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Speaker 1: have that without pole backside of it. That's a huge hammer.

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Speaker 1: Now it's an overcharge possibly, and if there is a

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Speaker 1: site defense, one of the things that it does is

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Speaker 1: that it sort of forces the hand of the defense

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Speaker 1: and the accused to say, am I going to really

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Speaker 1: risk life without pool? There may be a plea in

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Speaker 1: this case, regardless, I can't tell you what's going to happen.

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Speaker 1: There may be a difficult but viable insanity defense, and

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Speaker 1: difficult for sure. But once you throw out on a

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Speaker 1: twenty six year old person, or anyone for that matter,

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Speaker 1: life without parole, it changes the conversation.

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Speaker 3: Are they trying this strategy of you know, if the

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Speaker 3: jury doesn't go for the top charge murder one, they

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Speaker 3: may compromise on the second degree murder. Although that strategy

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Speaker 3: didn't seem to work in the Daniel Penny choke hold case.

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Speaker 1: Daniel Penny is vastly different. Vastly different because it clearly

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Speaker 1: was not an intentional homicide, even if you believed everything.

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Speaker 1: The question is whether it was reckless as a matter

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Speaker 1: of law or criminally negligent, and we don't need to

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Speaker 1: describe those mental states or lack thereof. This is different

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Speaker 1: because you're either going to believe that he had a

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Speaker 1: site defense and he could mentally was aware of what

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Speaker 1: was happening it was his intent or not. So there's

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Speaker 1: still the quote unquote regular murder two that's in there

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Speaker 1: as well. I think it's a waste of an alliplications.

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Speaker 1: If you believed he was mentally incapacitated and had a

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Speaker 1: mental defect or ate in't and if he didn't, then

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Speaker 1: you believe he had the intent, you know, which is

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Speaker 1: hard to overcome, then you've got your murder. So you know,

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Speaker 1: I don't think they have to parse through that. To me,

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Speaker 1: it's the DA's office taking an extra step that I

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Speaker 1: think is unnecessary to say, you don't come to New York,

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Speaker 1: you don't commit these crimes. We should all be safe,

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Speaker 1: and you know what, anyone's standing behind this young man

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Speaker 1: really should be ashamed and understand if you're going to

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Speaker 1: copycat this and mimic this, something wicked. This way comes

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Speaker 1: for you in the four corners of the law. But

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Speaker 1: I do believe that it's a stretch because a murder

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Speaker 1: too is when I say, just as bad. If anyone

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Speaker 1: knows understand the consequences, they're not going to say, oh

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Speaker 1: wait a second. I mean I could face life in

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Speaker 1: prison as opposed to thirty five years before I get parrolled.

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Speaker 1: That's not part of someone's calculus.

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Speaker 3: So, Jeremy, you said that it's a stretch. But does

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Speaker 3: the prosecution lose anything by having that first degree murder charge?

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Speaker 3: Is there any downside?

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Speaker 1: They don't lose anything other than possibly credibility, not credibility

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Speaker 1: in the merits of the prosecution, not credibility in the

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Speaker 1: heart of the case. But I go back to what

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Speaker 1: I said before. Let's just say I live in a

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Speaker 1: community and I'm avoiding, you know, drug dealers, and someone

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Speaker 1: comes out to get me, or I'm a victim of

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Speaker 1: domestic violence, or for whatever reason, someone's you murdered, either

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Speaker 1: you're driving uber or a taxi. My life is equal

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Speaker 1: to mister Thompson's life, and he is a victim no

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Speaker 1: matter what the outcome of this case. But the person

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Speaker 1: who is accused of that homicide, that murder should be

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Speaker 1: treated equally and not greater. Because we want to send

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Speaker 1: a message, we should always be sending a message that

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Speaker 1: homicide is wrong. I get it. I get it. We

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Speaker 1: don't want copycac I totally understand that. We don't want

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Speaker 1: to lie. I someone if true about their misconduct, so

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Speaker 1: they don't lose anything necessarily in the eyes of the law.

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Speaker 1: But to the public, I think if you went out

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Speaker 1: and you pulled one hundred people, you'd have some people saying, wait,

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Speaker 1: this is not okay. There needs to be accountability. But

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Speaker 1: this charge is not the right charge.

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Speaker 3: So you mentioned not guilty by reason of insanity, and

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Speaker 3: his attorney, Karen Friedman Agnifilo, suggested that defense before she

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Speaker 3: became his attorney. How difficult is an insanity defense?

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Speaker 1: It is very difficult, depending on your sort of facts

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Speaker 1: and evidence here, there's going to be difficulty because if

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Speaker 1: you believe as alleged and what's being shared, this has

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Speaker 1: been something that was not spur of the moment, but premeditated.

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Speaker 1: There's words that were written and said. I'm not talking

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Speaker 1: just about on the shellcasing, but terms of writing things

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Speaker 1: that he has said about this why and acknowledgment. There's

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Speaker 1: conversation about the unibomber, you know, understanding the gravity of

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Speaker 1: what he did. So all of this doesn't help your

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Speaker 1: insanity defense because one of the hallmarks of your insanity

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Speaker 1: defense is I could not formulate that intent because I

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Speaker 1: had this mental defect, and this mental defect that I

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Speaker 1: had prevented me from being aware and understanding the consequences

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Speaker 1: of my actions. So it's quite difficult in this scenario.

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Speaker 1: But at the same time, one could plan, and one

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Speaker 1: could prepare, and one could take a position as to

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Speaker 1: why they're doing something and understand the gravity of it,

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Speaker 1: and still suffer from a mental infirmity that doesn't allow

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Speaker 1: him to fully comprehend the consequences morally, legally of their actions.

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Speaker 1: It's a heavy lift, but I will say this, it

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Speaker 1: looks less and less like a case like this will

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Speaker 1: go to trial, especially on a murder one. Though maybe

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Speaker 1: they can succeed in getting it thrown out when the

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Speaker 1: judge reviews a grand jury minutes and Karen challenges that,

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Speaker 1: which I believe is wife for a challenge success or not,

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Speaker 1: it's right for a challenge, but the mitigation view, So

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Speaker 1: whether or not it rises to the insanity defense as

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Speaker 1: a matter of law, there has to be a reason

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Speaker 1: DA's office that a young man of twenty six years old,

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Speaker 1: who is incredibly bright at giving regular kid made this

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Speaker 1: change and something went awry. What was the catalyst that

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Speaker 1: clauses to happen? If I understand correctly, it's not as

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Speaker 1: if his family was victimized if you will or hurt

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Speaker 1: or not covered by some insurance or something like that,

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Speaker 1: and so it's just some anger that you'll hurt me personally.

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Speaker 1: So there's some sort of mental defect during confirmity that

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Speaker 1: was caused at some point that should bear into what

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Speaker 1: ultimately happens in this case, meaning to lower the potential

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Speaker 1: sentence and plea, even if as a matter of law

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Speaker 1: that wouldn't necessarily negate his intent.

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Speaker 3: If it does go to trial, do you think that

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Speaker 3: one of the possibilities that the defense will be looking

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Speaker 3: for is dury nullification. I mean you see this outpouring

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Speaker 3: of sympathy and sometimes praise for Mangione on social media

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Speaker 3: and elsewhere.

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Speaker 1: Yeah, if you're going in for jury nullification and that's

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Speaker 1: your only defense in this case, and it may have

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Speaker 1: to be part of it, you've lost because to hope

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Speaker 1: that you're going to get ultimately, let's just say you

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Speaker 1: do get one or two. The DA's office is not

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Speaker 1: going to turn around and say, you know, we're just

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Speaker 1: going to walk away. Mistrial does not just give him

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Speaker 1: cleaned hands and it's done. This will proceed. Someone has died,

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Speaker 1: so you may win a battle but lose the war.

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Speaker 1: At the same time, there could very well be someone

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Speaker 1: in that jury pool who tells you I will be

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Speaker 1: you know, objective. I will listen to the judges he

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Speaker 1: or she instructs me on the law. I will follow

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Speaker 1: the evidence as presented. But inside they're saying, damn Bee

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Speaker 1: and you know, mister Thompson in the insurance industry, and

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Speaker 1: really be that sort of Manchurian candidate, if well, juror

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Speaker 1: who is really in there for the wrong reasons, with

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Speaker 1: his own agenda. That's not what's being present. There is

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Speaker 1: a risk of that. There was a risk of that,

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Speaker 1: I thought during the Trump trial, but in a different way,

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Speaker 1: meaning that someone might got on who would really just

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Speaker 1: want to convict because they don't like Trump. This is

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Speaker 1: sort of the opposite. I want to acquit because I

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Speaker 1: like what he did, or I believe in what he did,

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Speaker 1: which is more powerful, because all you need is one

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Speaker 1: person to say I'm not convicting and that the trial

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Speaker 1: jury gets hung.

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Speaker 3: Do you see any other defenses that she could raise?

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Speaker 3: The evidence is overwhelming as far as we know.

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Speaker 1: Yeah, from what I have seen, overwhelming is being conservatives.

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Speaker 1: From what I have seen, you have the ghost gun,

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Speaker 1: you have the matching ammunition that it allegedly been shot

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Speaker 1: from that firearm. You have the ID, you have his

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Speaker 1: response at the time. You know there was a lot

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Speaker 1: there that you have the video obviously surveillance of something.

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Speaker 1: So there's a lot there. I don't believe the defenses

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Speaker 1: it wasn't me. So if it wasn't me, and there's

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Speaker 1: no legal challenge to the problem cause to arrest him

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Speaker 1: and search him or whatever they did and recover these items,

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Speaker 1: you're looking at that mental state. The best way I

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Speaker 1: would couch this is an angle here is I may

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Speaker 1: have committed the act, but I did not commit the crime.

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Speaker 1: I may have committed the act, meaning yeah, I may

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Speaker 1: be the guy who pulled that trigger, but I didn't

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Speaker 1: commit the crime because of that mental defect, that insanity

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Speaker 1: defense that I lack to be able to formulate that

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Speaker 1: full and accurate intense. So it's a sort of law

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Speaker 1: school issue. But anyone who's in that courthouse would know

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Speaker 1: you need the physical act and you need the mental state.

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Speaker 1: Physical act as they are, the mental state is lacking.

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Speaker 1: That to me has to be your best defense, whether

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Speaker 1: it mitigates or ultimately or successful in as a matter

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Speaker 1: of law, to say there's an insanity of defense.

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Speaker 3: Do you think it's more likely than not that this

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Speaker 3: will end in a guilty play, that there won't be

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Speaker 3: a trial.

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Speaker 1: If the prosecution is successful with the murder one with

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Speaker 1: the terrorist piece of it, even the murder two with

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Speaker 1: the terrorist piece to it. That reality of a potential

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Speaker 1: life without parole is enormous. It incentivizes, if that's the

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Speaker 1: right term, a plea. That being said, I would expect

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Speaker 1: there likely, well, I shouldn't say I would expect. I've

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Speaker 1: been around the block long enough not to expect. There

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Speaker 1: is certainly a likelihood that there would be a plea regardless,

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Speaker 1: because I do believe the insanity defense is very, very difficult,

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Speaker 1: and we may find out, though we won't hear about

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Speaker 1: it in real time. The parties are negotiating somewhere in

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Speaker 1: that fifteen to twenty five to life range, trying to

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Speaker 1: get closer to fifteen or twenty as opposed to twenty five.

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Speaker 3: It's anticipated that Manngioni is going to waive extradition tomorrow.

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Speaker 3: Is there any point in not waiving extradition.

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Speaker 1: Not really. You can conceive of a situation where he's

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Speaker 1: in a stable place. You know where he is. He's

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Speaker 1: not on Rikers, which is a headache for both him

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Speaker 1: and your council. You're getting more opportun community to get

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Speaker 1: evidence and formulate and strategize, getting more opportunity to meet

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Speaker 1: with him to really understand and prepare and get all

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Speaker 1: of your experts ready to go. But that's nominally helpful

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Speaker 1: because when I'm a New York attorney, as Karen is,

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Speaker 1: I want my client near me. Her being so far

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Speaker 1: away does not help his defense does not help her

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Speaker 1: When she's not by her home based office with the

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Speaker 1: people who are supporting her as an attorney, whether it's

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Speaker 1: the experts, support staff, the other attorneys are involved in this.

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Speaker 1: You want to be at your own home base. There's

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Speaker 1: really nothing valuable, and I believe that Dicky's response of

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Speaker 1: Belle should be a million dollars or five million dollars.

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Speaker 1: I haven't seen the evidence that there's nothing connecting my

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Speaker 1: client and substance was really poor form, not to take

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Speaker 1: a shot at him personally. That's not meant. I just

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Speaker 1: think that sometimes you just got to let your strategy

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Speaker 1: evolve and be more vague in what you're doing until

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Speaker 1: you know what you're doing. This isn't about fighting bail.

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Speaker 1: He's going to be Roman returns to New York. But

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Speaker 1: I believe at this point you get him back and

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Speaker 1: we try to change that narrative if I'm Karen, and

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Speaker 1: get him back here and start working on that defense,

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Speaker 1: which I'm sure she's already started.

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Speaker 3: Always a pleasure to talk to you, Jeremy, Thanks so much.

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Speaker 3: That's criminal defense attorney Jeremy Salande. You may remember the

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Speaker 3: flag flap over Justice Samuel Alito's flying of flags outside

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Speaker 3: his homes in Virginia and New Jersey that were also

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Speaker 3: carried by Donald Trump supporters during the January sixth Capital riots.

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Speaker 3: There were calls for Alito to recuse himself from two

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Speaker 3: January sixth related cases, but the Justice refused to do

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Speaker 3: so and suffered no consequences. So who has suffered consequences

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Speaker 3: over the incident. A federal judge who wrote an essay

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Speaker 3: critical of Alito's flag flying has been found guilty of

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Speaker 3: misconduct joining me is an expert in legal ethics. Steven

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Speaker 3: Giller is a professor at NYU Law School. This essay

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Speaker 3: by federal Judge Michael Ponzer was entitled a federal judge wonders,

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Speaker 3: How could Alito have been so foolish? Did this essay

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Speaker 3: stand out?

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Speaker 5: Yeah, I mean, the essay was a mistake, a minor mistake.

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Speaker 5: Worst has happened. But Judge consur should have refrained from

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Speaker 5: jumping into its political play and that generated the complaint.

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Speaker 3: Yeah, And the complaint was filed by a conservative advocacy

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Speaker 3: group run by a Trump ally, And the complaint was

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Speaker 3: handled by Chief Judge Albert Diaz of the Federal Appeals

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Speaker 3: Court in Richmond, Virginia. What did he say was wrong

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Speaker 3: with the essay?

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Speaker 5: Well, I mean, in any since, this issue comes down

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Speaker 5: to the following. On the one hand, judges are encouraged

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Speaker 5: to speak out in a way that will improve the

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Speaker 5: law and the administration of justice. Judges are especially knowledgeable

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Speaker 5: about those things, so the Code of Judicial Conduct encourages

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Speaker 5: them to contribute to the development of the law. On

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Speaker 5: the other hand, in what they say, they have to

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Speaker 5: be careful not to undermine public confidence in the integrity

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Speaker 5: and independence of the court, and so they have to

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Speaker 5: walk a kind of fine line between what they say

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Speaker 5: and how they say it and where they say it.

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Speaker 5: For Judge Consor, he used certain inflammatory language, at least

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Speaker 5: inflammatory when judges use it. And he published his accusation

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Speaker 5: on the op ed page of the New York Times,

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Speaker 5: which is about the most public place you can imagine

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Speaker 5: for an opinion about a Supreme Court justice. So that

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Speaker 5: was a mistake. I mean, he could have said pretty

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Speaker 5: much the same things in different language, different tone at

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Speaker 5: a judicial conference or a law school panel discussion. But

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Speaker 5: he had a certain tone and certain word choice, using

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Speaker 5: the words foolish and describing Justice Alito's conduct, and he

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Speaker 5: did it in a very public way, and that created

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Speaker 5: the problem.

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Speaker 3: Judge says something at a judicial conference that rarely gets

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Speaker 3: out to the public. If no one makes any comments,

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Speaker 3: then you would think that what Alito did was perfectly fine.

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Speaker 3: With members of the federal.

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Speaker 5: Bench, well, a lot of people were saying a lot

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Speaker 5: about Alito's flag. So the question is not whether anyone

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Speaker 5: says anything. The question is where the lower court judges

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Speaker 5: should attack publicly attack in the language Judge constra use

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Speaker 5: Alito's flag issue in the manner that Judge Consor did. Yes,

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Speaker 5: it's true that statements made at a conference are not

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Speaker 5: discovered by the public. But when you become a judge,

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Speaker 5: you give up certain First Amendment rights. You have a

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Speaker 5: right to criticize the justice in the way that Judge

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Speaker 5: Ponsor did if you are not a judge. But judges are,

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Speaker 5: just like lawyers, are restricted in what they may publicly

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Speaker 5: say consistent with the First Amendment.

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Speaker 3: I'm confused about what the exact reason was, because there

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Speaker 3: were some things I read that said it was because

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Speaker 3: it might have been considered to be connected to a case, and.

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Speaker 5: Yeah, yeah, I mean that's part of it. There are

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Speaker 5: several layers here, and Judge Diaz's opinion. One of the

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Speaker 5: problems he pointed out was that at the time that

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Speaker 5: Ponso wrote, almost contemporaneous with the op eds, there was

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Speaker 5: debate about whether or not the flag controversy would require

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Speaker 5: Justice Alito to refuse himself from the January sixth cases.

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Speaker 5: So that was in the news, and that aggravated the situation.

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Speaker 5: It was a politically fraught subject. And if there's one

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Speaker 5: thing we know that judicial ethics, it's that judges should

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Speaker 5: stay out of politics or even the illusion that they

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Speaker 5: are mixing it up with a political question. So that

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Speaker 5: was the case the January sixth cases and Alito's possible

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Speaker 5: need to recuse, And at that moment it comes Judge

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Speaker 5: Consor calling his conduct in regard to the flag controversy foolish,

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Speaker 5: and that could be seen even though Judge Ponsor says

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Speaker 5: he did not mean to say this, He did not

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Speaker 5: mean to connect it to the January sixth cases. It's

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Speaker 5: his job to realize how the public might hear it,

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Speaker 5: and the public might hear it as a judge weighing

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Speaker 5: in on Alito's need to recuse, which is a quasi

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Speaker 5: political question in this context.

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Speaker 3: He also wrote twenty twenty three opinion column entitled a

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Speaker 3: Federal judge asks, does the Supreme Court realize how bad

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Speaker 3: it smells? So there was no misconduct complaints filed about that.

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Speaker 5: This is a good example of how work choice matters.

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Speaker 5: There's nothing wrong with the judge writing an out ed saying, hey,

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Speaker 5: we're in trouble. The courts have suffered in public opinions.

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Speaker 5: Critical to the country is the public's perception of the

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Speaker 5: legitimacy of the court that could be in an op ed,

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Speaker 5: a widely circulated up ed in the mainstream media. That's

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Speaker 5: all true, but when you use words like smell or

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Speaker 5: other highly charged words, it takes on a different character. Now,

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Speaker 5: judge sponsor might say, well, I didn't choose the headline,

435
00:24:40,640 --> 00:24:43,439
Speaker 5: and maybe that's true, although I think for a judge

436
00:24:43,440 --> 00:24:46,160
Speaker 5: to write and not sare he should have at least

437
00:24:46,240 --> 00:24:50,840
Speaker 5: veto power over the headline because he has responsibilities that

438
00:24:50,880 --> 00:24:53,760
Speaker 5: the headline writer is not. So yes, it could have

439
00:24:53,880 --> 00:24:57,399
Speaker 5: been the basis, but it was more abstract than the

440
00:24:57,520 --> 00:25:01,520
Speaker 5: later ed and probably would not have resulted in any

441
00:25:01,640 --> 00:25:04,679
Speaker 5: kind of timing of impropriety coming up.

442
00:25:04,800 --> 00:25:07,640
Speaker 3: Public opinion of the judiciary at an all time low.

443
00:25:07,880 --> 00:25:12,560
Speaker 3: This is Bloomberg. I've been talking to NYU law professor

444
00:25:12,600 --> 00:25:16,280
Speaker 3: Stephen Gillers about a decision that a federal judge committed

445
00:25:16,400 --> 00:25:22,080
Speaker 3: judicial misconduct in criticizing Justice Samuel Alito's flying of flags

446
00:25:22,160 --> 00:25:25,920
Speaker 3: outside his home that were also carried by Donald Trumps

447
00:25:25,920 --> 00:25:29,719
Speaker 3: supporters during the January sixth, twenty twenty one riots at

448
00:25:29,720 --> 00:25:35,280
Speaker 3: the Capitol. So what strikes me as unfair and a

449
00:25:35,320 --> 00:25:39,960
Speaker 3: bit hypocritical is that Poncer violated the code of conduct

450
00:25:40,000 --> 00:25:44,160
Speaker 3: that applies to all federal judges except Supreme Court justices.

451
00:25:44,680 --> 00:25:48,480
Speaker 3: And we have had over the last few years instances

452
00:25:48,520 --> 00:25:53,680
Speaker 3: where Supreme Court justices appear to have violated ethical rules

453
00:25:53,960 --> 00:25:56,879
Speaker 3: and they don't suffer any consequences, and yet a judge

454
00:25:56,880 --> 00:25:59,959
Speaker 3: who writes an article suffers consequences.

455
00:26:00,720 --> 00:26:03,720
Speaker 5: Yeah, that's true. A justice could have written the same

456
00:26:03,760 --> 00:26:07,840
Speaker 5: outbed about another justice and there'd be no code of

457
00:26:07,880 --> 00:26:12,520
Speaker 5: conduct that could be used to sanction or discipline the justice.

458
00:26:13,119 --> 00:26:17,879
Speaker 5: So justices and judges do not work on a level

459
00:26:17,960 --> 00:26:23,159
Speaker 5: playing field because there's no mechanism as a realistic matter

460
00:26:23,480 --> 00:26:28,000
Speaker 5: for disciplining a justice as there is for a lower

461
00:26:28,000 --> 00:26:33,000
Speaker 5: court judge, and that they seem unfair and may seem wrong.

462
00:26:33,560 --> 00:26:36,720
Speaker 5: But there are also arguments in favor of that, and

463
00:26:36,720 --> 00:26:40,280
Speaker 5: that is that it's very hard to create a disciplinary

464
00:26:40,400 --> 00:26:44,919
Speaker 5: apparatus for a justice. It's not impossible, and it's been discussed,

465
00:26:45,119 --> 00:26:48,399
Speaker 5: but it's not the same as a disciplinary system for

466
00:26:48,520 --> 00:26:52,360
Speaker 5: lower court judges who could be judged by higher court judges.

467
00:26:52,440 --> 00:26:55,720
Speaker 5: There are no higher court justices over the Supreme Court,

468
00:26:55,760 --> 00:26:57,879
Speaker 5: and that's where the number of the problem is.

469
00:26:58,119 --> 00:27:00,440
Speaker 3: The Supreme Court ethics go that they had done opted

470
00:27:00,880 --> 00:27:03,879
Speaker 3: has no tease to it right. But some of the justices,

471
00:27:03,920 --> 00:27:08,920
Speaker 3: I believe Elena Kagan and Katanji Brown Jackson have said

472
00:27:08,960 --> 00:27:13,880
Speaker 3: that they would agree to having some kind of enforcement mechanism.

473
00:27:13,720 --> 00:27:16,920
Speaker 5: Would answer that could be an answer. We have to

474
00:27:17,200 --> 00:27:21,800
Speaker 5: get the details. The details matter, and even justices and

475
00:27:22,000 --> 00:27:26,399
Speaker 5: scholars who urge some kinds of disciplinary apparatus for the

476
00:27:26,600 --> 00:27:31,760
Speaker 5: justices have disagree among themselves about the details or have

477
00:27:31,880 --> 00:27:36,000
Speaker 5: not been precise about how the details would work. There's

478
00:27:36,000 --> 00:27:40,480
Speaker 5: another aspect here, a bigger story that, to my mind,

479
00:27:40,720 --> 00:27:44,840
Speaker 5: is more consequential. We have, of late the results of

480
00:27:44,880 --> 00:27:49,320
Speaker 5: the Gallop Poles showing that the American judiciary is held

481
00:27:49,359 --> 00:27:54,960
Speaker 5: in very low repute towards the basement among nations in

482
00:27:55,080 --> 00:28:00,680
Speaker 5: the public confidence in their judiciaris. And I fear that

483
00:28:00,840 --> 00:28:06,960
Speaker 5: the vitriol and anger a name calling that has infected

484
00:28:07,359 --> 00:28:12,520
Speaker 5: the political discourse in this country might spill over to

485
00:28:12,680 --> 00:28:18,000
Speaker 5: how we talk about judges, the motives we attribute to judges,

486
00:28:18,400 --> 00:28:21,639
Speaker 5: how judges talk about other judges, and that would be

487
00:28:21,760 --> 00:28:25,159
Speaker 5: just awful. I mean, that could lower the estimation of

488
00:28:25,200 --> 00:28:30,000
Speaker 5: the public's confidence in the American judiciary even more so.

489
00:28:30,359 --> 00:28:35,800
Speaker 5: One value of what Judge Diaz wrote in his disciplinary opinion,

490
00:28:36,520 --> 00:28:41,080
Speaker 5: and what Judge Constor did in accepting the accuracy of

491
00:28:41,320 --> 00:28:45,680
Speaker 5: what Judge Dias identified. One value is to draw a

492
00:28:45,720 --> 00:28:49,440
Speaker 5: bright line we are not politics. This is not political.

493
00:28:50,000 --> 00:28:53,440
Speaker 5: We will not be tempted to behave the way that

494
00:28:54,040 --> 00:28:58,760
Speaker 5: members of Congress or state legislatures or candidates for political

495
00:28:58,800 --> 00:29:03,960
Speaker 5: office behaved. We have to ask differently. And that's the

496
00:29:04,040 --> 00:29:08,200
Speaker 5: message that comes out of the finding by Judge Dias

497
00:29:08,240 --> 00:29:11,600
Speaker 5: and the acquiescence by Judge Console.

498
00:29:12,440 --> 00:29:15,840
Speaker 3: Don't you think that a large part of the blame

499
00:29:15,960 --> 00:29:19,880
Speaker 3: for the way the public views the judiciary is from

500
00:29:20,040 --> 00:29:23,520
Speaker 3: recent Supreme Court actions where the Court has chosen to

501
00:29:23,560 --> 00:29:28,760
Speaker 3: get involved in very political issues. And you've seen sixty

502
00:29:28,880 --> 00:29:32,400
Speaker 3: three decisions over and over again on these hot button

503
00:29:32,440 --> 00:29:35,840
Speaker 3: issues and consequential issues, and you have, you know, the

504
00:29:35,880 --> 00:29:39,000
Speaker 3: abortion decision, And it's the Supreme Court decisions that the

505
00:29:39,040 --> 00:29:43,560
Speaker 3: public hears about most, not lower court judges decisions. So,

506
00:29:43,760 --> 00:29:47,080
Speaker 3: I mean it seems like there is politics infused in

507
00:29:47,160 --> 00:29:48,960
Speaker 3: the Supreme Court.

508
00:29:49,160 --> 00:29:53,760
Speaker 5: Yeah, the Court is suffering from the fact that many

509
00:29:53,840 --> 00:29:56,760
Speaker 5: of its decisions of late and more to come are

510
00:29:57,800 --> 00:30:03,400
Speaker 5: dramatic and consequential and generate a lot of disagreement among

511
00:30:03,480 --> 00:30:07,320
Speaker 5: the public. That problem is not about ethics. That problem

512
00:30:07,400 --> 00:30:12,040
Speaker 5: is about policy differences, where the Court's decisions are seen

513
00:30:12,160 --> 00:30:16,200
Speaker 5: as going too far among members of the public, leading

514
00:30:16,240 --> 00:30:21,360
Speaker 5: to a lower estimation of the court in the public's mind.

515
00:30:21,880 --> 00:30:25,360
Speaker 5: But you know, that's kind of avoidable if we assume,

516
00:30:26,120 --> 00:30:29,680
Speaker 5: as we should, as I hope we can, that even

517
00:30:29,760 --> 00:30:32,800
Speaker 5: the justices to participate in that in those six to

518
00:30:32,880 --> 00:30:37,200
Speaker 5: three opinions are honestly saying what they believe is true.

519
00:30:37,360 --> 00:30:42,040
Speaker 5: Even if we disagree with their conclusions. Fundamentally, they're doing

520
00:30:42,080 --> 00:30:45,400
Speaker 5: their job applying the law as they see it, which

521
00:30:45,440 --> 00:30:50,920
Speaker 5: is their responsibility. There's no corrective. The public and anger

522
00:30:51,080 --> 00:30:54,760
Speaker 5: at what they're doing. Disagree with what they're doing, but

523
00:30:55,240 --> 00:30:59,840
Speaker 5: they haven't done anything wrong. It's the job to make decisions.

524
00:31:00,520 --> 00:31:03,000
Speaker 5: During the Warrant Court era, there was a lot of

525
00:31:03,200 --> 00:31:09,640
Speaker 5: possibility to the Warrant Court's rulings on protections for criminal

526
00:31:09,680 --> 00:31:17,000
Speaker 5: accused persons Miranda, you know, generated enormous anger and perhaps

527
00:31:17,080 --> 00:31:19,600
Speaker 5: some of the listeners will remember the signs along the

528
00:31:19,720 --> 00:31:23,480
Speaker 5: highway and peach Earl Lawren. So it goes both ways.

529
00:31:23,560 --> 00:31:27,800
Speaker 5: It could be liberal decisions, it could be conservative decisions

530
00:31:27,800 --> 00:31:31,280
Speaker 5: that generate public anger. But that's not about ethics, that's

531
00:31:31,280 --> 00:31:33,640
Speaker 5: about policy, and the only way to correct for that

532
00:31:34,440 --> 00:31:35,520
Speaker 5: is by voting.

533
00:31:36,440 --> 00:31:40,680
Speaker 3: I mean, what about Fifth Circuit Judge James Hoe, who

534
00:31:40,720 --> 00:31:43,239
Speaker 3: hasn't been shyt on or off the bench about his

535
00:31:43,480 --> 00:31:48,520
Speaker 3: conservative viewpoints. He's been publicly outspoken about not hiring law

536
00:31:48,560 --> 00:31:53,080
Speaker 3: clerks from Stanford, Yale or Columbia. Some say he's trying

537
00:31:53,080 --> 00:31:55,680
Speaker 3: out for the Supreme Court. No one's filing this conduct

538
00:31:55,720 --> 00:31:57,160
Speaker 3: complaints against him.

539
00:31:57,680 --> 00:31:59,920
Speaker 5: Well, trying out for the Supreme Court. And what you

540
00:32:00,240 --> 00:32:03,040
Speaker 5: say and the right has a long stand and pedigree,

541
00:32:03,400 --> 00:32:06,160
Speaker 5: so there's nothing new there. Again, it depends where you

542
00:32:06,200 --> 00:32:08,880
Speaker 5: say it, in the words you use, something said in

543
00:32:08,920 --> 00:32:11,840
Speaker 5: the law review article or in an opinion of the court.

544
00:32:11,960 --> 00:32:15,000
Speaker 5: There are two places judges can speak their mind freely

545
00:32:15,280 --> 00:32:19,080
Speaker 5: within certain limitations. One is in their opinions. I mean,

546
00:32:19,320 --> 00:32:24,080
Speaker 5: lower court judge can criticize a justice's opinion in the

547
00:32:24,160 --> 00:32:28,480
Speaker 5: lower court judge's own opinion. That's not uncommon. Or you

548
00:32:28,480 --> 00:32:34,160
Speaker 5: could participate in a law review panel and make the

549
00:32:34,240 --> 00:32:38,720
Speaker 5: same criticisms. Again, paying attention to the language you use,

550
00:32:38,760 --> 00:32:41,520
Speaker 5: of the tone, and all of that is okay, judge,

551
00:32:41,920 --> 00:32:44,800
Speaker 5: Judge Ponzer could have said pretty much the same thing

552
00:32:44,920 --> 00:32:48,959
Speaker 5: as in his second op ed if he had chosen

553
00:32:49,000 --> 00:32:52,360
Speaker 5: the right words and the right forum. It matters where

554
00:32:52,400 --> 00:32:55,840
Speaker 5: you say it, It matters how you say it. And

555
00:32:55,880 --> 00:32:58,640
Speaker 5: that's where pants Or crossed the line.

556
00:32:59,400 --> 00:33:03,520
Speaker 3: I mean, all cyclical. Do you see any hope for

557
00:33:03,680 --> 00:33:07,880
Speaker 3: the public's trust in the judiciary to improve? They went

558
00:33:07,920 --> 00:33:11,400
Speaker 3: down twenty four percentage points since twenty twenty to a

559
00:33:11,600 --> 00:33:15,160
Speaker 3: historic low of thirty five percent. Anyway, those are going

560
00:33:15,240 --> 00:33:16,920
Speaker 3: to come up anytime soon?

561
00:33:17,640 --> 00:33:21,239
Speaker 5: I don't think so. Those. The low repute of the

562
00:33:21,280 --> 00:33:24,719
Speaker 5: courts generally and the Supreme Court in particular, is a

563
00:33:24,760 --> 00:33:30,360
Speaker 5: product of policy disagreements, obviously, abortion, affirmative action, rights of

564
00:33:30,440 --> 00:33:33,040
Speaker 5: immigrants and those. That's not going to change. We're going

565
00:33:33,080 --> 00:33:35,160
Speaker 5: to get more of those in the years ahead. That

566
00:33:35,400 --> 00:33:38,960
Speaker 5: six to three majority is not going to change. Even

567
00:33:39,000 --> 00:33:42,800
Speaker 5: if Thomas and Alito retire in the next two years,

568
00:33:43,080 --> 00:33:46,560
Speaker 5: they'll be replaced by a young version of each of them,

569
00:33:47,040 --> 00:33:52,520
Speaker 5: by a Senate dominated by Republicans and the President who

570
00:33:52,600 --> 00:33:55,920
Speaker 5: is a Republican. So what we see now is the

571
00:33:55,960 --> 00:33:59,840
Speaker 5: six to three lopsided nature of the court is going

572
00:34:00,080 --> 00:34:03,560
Speaker 5: to continue for years to come. It would take some

573
00:34:03,960 --> 00:34:08,920
Speaker 5: a really remarkable set of circumstances, some justice changing his

574
00:34:09,520 --> 00:34:13,600
Speaker 5: view of things before we get out of this six '

575
00:34:13,680 --> 00:34:18,640
Speaker 5: three dilemma. And so because of that, and because the

576
00:34:18,680 --> 00:34:22,160
Speaker 5: public's trust in the administration of justice is at least

577
00:34:22,239 --> 00:34:26,600
Speaker 5: in part a product of how it agrees or disagrees

578
00:34:26,640 --> 00:34:29,880
Speaker 5: with court rulings, it's only to to get worse. And

579
00:34:29,920 --> 00:34:33,200
Speaker 5: if it gets worse, because the justices are voting based

580
00:34:33,200 --> 00:34:36,400
Speaker 5: on what they honestly believe is the correct answer, but

581
00:34:36,640 --> 00:34:39,520
Speaker 5: we want them to do even if we disagree with

582
00:34:39,600 --> 00:34:43,560
Speaker 5: how they vote, there's no way of preventing that.

583
00:34:44,120 --> 00:34:48,120
Speaker 3: Well, it looks like those disapproval numbers of the Judiciary

584
00:34:48,160 --> 00:34:51,720
Speaker 3: and the Supreme Court are not going up anytime soon.

585
00:34:52,360 --> 00:34:54,960
Speaker 3: Thanks so much for being on the show. That's Professor

586
00:34:54,960 --> 00:34:58,000
Speaker 3: Stephen Gillers of NYU Law School. And that's it for

587
00:34:58,040 --> 00:35:01,080
Speaker 3: this edition of the Bloomberg Law Podcast. Remember you can

588
00:35:01,120 --> 00:35:04,080
Speaker 3: always get the latest legal news by subscribing and listening

589
00:35:04,080 --> 00:35:07,759
Speaker 3: to the show on Apple Podcasts, Spotify, and at Bloomberg

590
00:35:07,840 --> 00:35:11,880
Speaker 3: dot com, Slash podcast, Slash Law. I'm June Grosso and

591
00:35:12,000 --> 00:35:13,279
Speaker 3: this is Bloomberg