1 00:00:00,560 --> 00:00:13,760 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio 2 00:00:14,000 --> 00:00:18,239 Speaker 1: from the South. You won't hear choirs at church services 3 00:00:18,239 --> 00:00:21,400 Speaker 1: in California this Sunday. In a six or three decision, 4 00:00:21,480 --> 00:00:25,840 Speaker 1: the Supreme Court stopped California from enforcing COVID restrictions on 5 00:00:25,920 --> 00:00:30,640 Speaker 1: indoor church services, but kept in place restrictions on singing, chanting, 6 00:00:30,680 --> 00:00:35,239 Speaker 1: and capacity limitations. In its four splintered opinions, did the 7 00:00:35,280 --> 00:00:39,360 Speaker 1: courts signal a doctrinal change in the future one expanding 8 00:00:39,360 --> 00:00:43,040 Speaker 1: religious rights? Joining me as Rick Garnett, a professor at 9 00:00:43,040 --> 00:00:46,559 Speaker 1: Notre Dame Law School. Rick described the decision of the 10 00:00:46,600 --> 00:00:50,400 Speaker 1: majority here, Yeah, so at the tricky question right out 11 00:00:50,440 --> 00:00:52,920 Speaker 1: of the gate, because of course these decisions didn't come 12 00:00:52,960 --> 00:00:55,840 Speaker 1: in the context of a case that the Court has 13 00:00:55,880 --> 00:00:59,279 Speaker 1: agreed to hear and has held oral arguments and all that. 14 00:00:59,320 --> 00:01:02,680 Speaker 1: This is Sizurally. What's happening is that the church claimants 15 00:01:02,720 --> 00:01:06,440 Speaker 1: are asking the Court to review a lower court decision 16 00:01:06,440 --> 00:01:09,479 Speaker 1: which had upheld a bunch of these restrictions on gatherings 17 00:01:09,480 --> 00:01:11,160 Speaker 1: and so on. And what the Court did was to 18 00:01:11,400 --> 00:01:15,440 Speaker 1: basically enter and order for the time being. That left 19 00:01:15,480 --> 00:01:18,039 Speaker 1: some of the California restrictions in place, but also lifted 20 00:01:18,080 --> 00:01:20,680 Speaker 1: some of them while the case is playing out, so 21 00:01:20,840 --> 00:01:24,440 Speaker 1: the situation is still very much fluid. This isn't you know, 22 00:01:24,480 --> 00:01:27,839 Speaker 1: a Merit's decision like the kind you get in June 23 00:01:27,840 --> 00:01:30,160 Speaker 1: at the end of the court's term. This is basically 24 00:01:30,200 --> 00:01:32,920 Speaker 1: the Court trying to sort of freeze the status quo 25 00:01:33,480 --> 00:01:36,760 Speaker 1: until they can decide whether or not to take the 26 00:01:36,800 --> 00:01:39,399 Speaker 1: full case. And I think it's tricky because on the 27 00:01:39,440 --> 00:01:41,440 Speaker 1: one hand, you know, they want to provide guidance to 28 00:01:41,480 --> 00:01:44,080 Speaker 1: the lower courts, but on the other hand, these aren't 29 00:01:44,080 --> 00:01:46,560 Speaker 1: full opinions. And so one way to think about what 30 00:01:46,600 --> 00:01:49,360 Speaker 1: these different opinions are is the justices are trying to 31 00:01:49,400 --> 00:01:53,480 Speaker 1: tell the lower courts what they're thinking right now. So 32 00:01:53,520 --> 00:01:56,240 Speaker 1: the lower courts, when they get some more of these 33 00:01:56,360 --> 00:01:59,240 Speaker 1: church closure cases, and they probably will, that they have 34 00:01:59,280 --> 00:02:01,240 Speaker 1: a sense of what the Supreme Court wants them to do. 35 00:02:01,920 --> 00:02:04,400 Speaker 1: Would you say that the way they came out is 36 00:02:04,440 --> 00:02:08,519 Speaker 1: sort of a middle ground between the restrictions that California 37 00:02:08,639 --> 00:02:12,320 Speaker 1: has and no restrictions all right, So the Court is 38 00:02:12,560 --> 00:02:16,000 Speaker 1: leaving in place some of California's restrictions. They said, we 39 00:02:16,040 --> 00:02:19,120 Speaker 1: don't have enough information to get rid of California's limits 40 00:02:19,200 --> 00:02:22,280 Speaker 1: on indoor singing. For example, California had some of the 41 00:02:22,320 --> 00:02:25,440 Speaker 1: strictest limits on in person religious gatherings the country, like 42 00:02:25,919 --> 00:02:29,239 Speaker 1: essentially in some parts of the state, all religious gatherings, 43 00:02:29,520 --> 00:02:31,520 Speaker 1: you know, forget about a hundred people where there are 44 00:02:31,560 --> 00:02:34,040 Speaker 1: zero people, as Chief says, as Roberts pointed out, we're 45 00:02:34,040 --> 00:02:36,799 Speaker 1: not permitted. And so I think it was that kind 46 00:02:36,800 --> 00:02:40,359 Speaker 1: of outlier nature of that part of California's order that 47 00:02:40,520 --> 00:02:43,960 Speaker 1: the Court said, you know, we're we're enjoining that that 48 00:02:44,040 --> 00:02:46,680 Speaker 1: can't be enforced. That's too strict. But there's still plenty 49 00:02:46,720 --> 00:02:50,840 Speaker 1: of time for more information to be gathered and presented. 50 00:02:51,280 --> 00:02:53,239 Speaker 1: I'm sure the state will want to show why it's 51 00:02:53,320 --> 00:02:56,639 Speaker 1: various restrictions limits on gathering, its limits on how many 52 00:02:56,680 --> 00:02:59,200 Speaker 1: people can be in a place are necessary. And the 53 00:02:59,240 --> 00:03:01,320 Speaker 1: Court made it pretty clear that it wants the state 54 00:03:01,720 --> 00:03:07,880 Speaker 1: to demonstrate that it's treating religious gatherings fairly. That is, 55 00:03:07,919 --> 00:03:11,400 Speaker 1: that it's not treating religious gatherings worse than other kinds 56 00:03:11,400 --> 00:03:14,000 Speaker 1: of gathering. So you know, the court's concerned as well 57 00:03:14,040 --> 00:03:16,000 Speaker 1: if you're you're allowing people to go to big box 58 00:03:16,080 --> 00:03:19,320 Speaker 1: retail stores, but you're not even allowing you know, five 59 00:03:19,440 --> 00:03:22,720 Speaker 1: people to worship in a cathedral. They worry about that 60 00:03:22,919 --> 00:03:26,320 Speaker 1: disparate treatment, that perhaps discriminatory treatment. So that's going to 61 00:03:26,440 --> 00:03:28,760 Speaker 1: be the real issue, I think going forward. And that 62 00:03:28,840 --> 00:03:31,679 Speaker 1: was the concern that especially just as Gorset spelled out 63 00:03:31,720 --> 00:03:35,120 Speaker 1: in his opinion that as he saw it, California was 64 00:03:35,480 --> 00:03:38,920 Speaker 1: acting in too sweeping of a manner and it wasn't 65 00:03:39,160 --> 00:03:45,160 Speaker 1: fairly comparing religious gatherings indoors to things like grocery shopping 66 00:03:45,280 --> 00:03:48,360 Speaker 1: or what I do. So on one side of the 67 00:03:48,400 --> 00:03:53,720 Speaker 1: spectrum of opinions, Justices Neil Gorst, Clarence Thomas, and Samuel 68 00:03:53,720 --> 00:03:57,400 Speaker 1: Alito would have lifted all the restrictions on church services. 69 00:03:58,600 --> 00:04:01,960 Speaker 1: Let's discuss the four separate opinion. So the most supportive 70 00:04:01,960 --> 00:04:05,560 Speaker 1: of religion, the most to the right, perhaps would be 71 00:04:05,960 --> 00:04:09,960 Speaker 1: the opinion by Justice score such joined by Clarence Thomas 72 00:04:10,200 --> 00:04:15,080 Speaker 1: and Samuel Lecho. So what just highlight what that opinion 73 00:04:15,120 --> 00:04:18,120 Speaker 1: was about. Yeah, it's interesting that in today's categories, I 74 00:04:18,120 --> 00:04:20,400 Speaker 1: suppose we're calling those opinions the ones that are on 75 00:04:20,480 --> 00:04:23,239 Speaker 1: the right. But the method of analysis that those justices 76 00:04:23,279 --> 00:04:25,320 Speaker 1: are applying, it's one that we can trace to kind 77 00:04:25,360 --> 00:04:27,160 Speaker 1: of the Court's liberals in the sixties, you know, and 78 00:04:27,480 --> 00:04:30,360 Speaker 1: people like Justice William Brennan, where you know, Justice Brennan 79 00:04:30,400 --> 00:04:34,880 Speaker 1: insisted that, um, when the government is regulating religious conduct, yeah, 80 00:04:34,960 --> 00:04:38,320 Speaker 1: we're not just going to defer to regulator statements that 81 00:04:38,360 --> 00:04:40,560 Speaker 1: these regulations are a good idea. We want evidence, We 82 00:04:40,640 --> 00:04:44,359 Speaker 1: want actual demonstration that these regulations are nest to promote 83 00:04:44,400 --> 00:04:47,120 Speaker 1: a compelling interest. And that was the case that Justice, 84 00:04:47,160 --> 00:04:50,080 Speaker 1: course it's joined by some others, as you said, wanted 85 00:04:50,120 --> 00:04:52,359 Speaker 1: to lay out. He concluded on the basis of the 86 00:04:52,360 --> 00:04:55,360 Speaker 1: record that we have that California was asking for too 87 00:04:55,440 --> 00:04:57,960 Speaker 1: much deference, that it was asking just for a rubber stamp, 88 00:04:58,080 --> 00:05:00,440 Speaker 1: and that when you're talking about fundamental rights, romans have 89 00:05:00,560 --> 00:05:04,160 Speaker 1: to provide more evidence. And his view, although obviously he's 90 00:05:04,200 --> 00:05:06,720 Speaker 1: not an epidemiologist and he conceded as much, of course, 91 00:05:07,120 --> 00:05:10,880 Speaker 1: his view was that California appears to be much more 92 00:05:11,080 --> 00:05:14,800 Speaker 1: strict with gatherings of a religious nature and much less 93 00:05:14,839 --> 00:05:17,960 Speaker 1: flexible with gatherings of a religious nature than it is 94 00:05:17,960 --> 00:05:20,440 Speaker 1: with other times. So he points out, for example, look 95 00:05:20,480 --> 00:05:23,720 Speaker 1: if what the experts are worried about is singing, which 96 00:05:23,760 --> 00:05:27,560 Speaker 1: can spread the droplets and put people at risk for COVID. Well, 97 00:05:27,600 --> 00:05:29,440 Speaker 1: you could have a restriction that said, well, okay, you 98 00:05:29,480 --> 00:05:31,720 Speaker 1: can't have singing and indoor worship, but they didn't do that. 99 00:05:31,839 --> 00:05:35,200 Speaker 1: They just prohibited all indoor worship. You could imagine, just 100 00:05:35,360 --> 00:05:37,240 Speaker 1: as course it said a restriction that said, you know, 101 00:05:37,279 --> 00:05:39,840 Speaker 1: no more than x number of people, or there has 102 00:05:39,880 --> 00:05:43,040 Speaker 1: to be social distancing or masking or plexi glass shields 103 00:05:43,120 --> 00:05:46,000 Speaker 1: or what have you. But what I think attracted Justice 104 00:05:46,160 --> 00:05:49,800 Speaker 1: Course is just concerned was that the regulations on these 105 00:05:49,839 --> 00:05:54,360 Speaker 1: indoor religious gatherings seemed so sweeping and absolute, and he 106 00:05:54,400 --> 00:05:57,719 Speaker 1: says that that can't be justified on this record. This 107 00:05:57,880 --> 00:06:01,440 Speaker 1: is just as any Coney Barrett's first separate opinions since 108 00:06:01,440 --> 00:06:04,400 Speaker 1: she's been on the bench. So why did she write 109 00:06:04,400 --> 00:06:07,400 Speaker 1: a separate opinion? Yeah, I've heard some of that. I 110 00:06:07,400 --> 00:06:11,200 Speaker 1: guess I would just urge people to think critically about 111 00:06:11,240 --> 00:06:14,599 Speaker 1: these labels and how they apply to cases involving fundamental rights. 112 00:06:14,640 --> 00:06:17,120 Speaker 1: It's not obvious to me that it's conservative rather than 113 00:06:17,160 --> 00:06:20,040 Speaker 1: liberal to want to protect religious exercise rights. And then 114 00:06:20,040 --> 00:06:22,400 Speaker 1: the other point, we just be that the disagreement that 115 00:06:22,560 --> 00:06:26,080 Speaker 1: Justice Sperrit and Justice Kavanaugh had with Justice Scores such 116 00:06:26,120 --> 00:06:28,600 Speaker 1: as opinion is not a particularly big one. I mean, 117 00:06:28,839 --> 00:06:32,680 Speaker 1: all nine justices, including Justice Kagan, they all agree that 118 00:06:32,720 --> 00:06:37,000 Speaker 1: religious exercise is important, and they all agree that governments 119 00:06:37,200 --> 00:06:43,320 Speaker 1: can't target religious activities for burdensome regulations. The disagreement really 120 00:06:43,400 --> 00:06:46,480 Speaker 1: has to do with the amount of deference that courts 121 00:06:46,480 --> 00:06:49,640 Speaker 1: should give to government officials when government officials claim that 122 00:06:49,680 --> 00:06:53,120 Speaker 1: regulations are necessary, and the disagreement is just about which 123 00:06:53,160 --> 00:06:56,359 Speaker 1: activities are really comparable to others. Is the church service 124 00:06:56,520 --> 00:06:58,599 Speaker 1: more like a concert or is it more like going 125 00:06:58,600 --> 00:07:01,320 Speaker 1: to home depot that kind of thing. These disagreements are, 126 00:07:01,640 --> 00:07:06,320 Speaker 1: they're significant, but I don't believe they're dramatic ideological differences. 127 00:07:06,360 --> 00:07:09,279 Speaker 1: They reflect more, I think, just the difference of opinion 128 00:07:09,320 --> 00:07:12,240 Speaker 1: about how to interpret the factual record. You know. I 129 00:07:12,280 --> 00:07:14,440 Speaker 1: think what I see in Justice Parrett's opinion is not 130 00:07:14,480 --> 00:07:16,640 Speaker 1: an attack on what Justice Course such is saying. But 131 00:07:16,680 --> 00:07:20,320 Speaker 1: it's just coming to a different conclusion, a different inference 132 00:07:20,800 --> 00:07:28,600 Speaker 1: about some disputed facts. And now what about Justice Robert's opinion, Well, 133 00:07:28,640 --> 00:07:31,720 Speaker 1: I take him to be pretty much on the same 134 00:07:31,760 --> 00:07:38,040 Speaker 1: page as Justices Um, Barrett, and Kavanaugh. That is, some 135 00:07:38,160 --> 00:07:40,840 Speaker 1: of these California He goes out of his way to 136 00:07:40,880 --> 00:07:44,760 Speaker 1: say yes, of course, it's true the deference to public officials, 137 00:07:44,840 --> 00:07:48,240 Speaker 1: especially when you're dealing with an emergency, is important. And 138 00:07:48,280 --> 00:07:51,680 Speaker 1: of course it's true that you know, in in good 139 00:07:51,760 --> 00:07:55,120 Speaker 1: judicial conservative style, that judges shouldn't be in the business 140 00:07:55,280 --> 00:07:59,160 Speaker 1: of thinking that they can second guess all policy decisions. 141 00:07:59,200 --> 00:08:01,040 Speaker 1: So he wants to he wants to make that very clear. 142 00:08:01,520 --> 00:08:03,280 Speaker 1: But then he just he points to the kind of 143 00:08:03,360 --> 00:08:07,840 Speaker 1: extreme outlier nature of California's restriction that that you know, 144 00:08:08,400 --> 00:08:12,480 Speaker 1: even in the the huge Los Angeles Catholic Cathedral, which 145 00:08:12,520 --> 00:08:16,320 Speaker 1: could set you know, thousands of people, you still can't 146 00:08:16,400 --> 00:08:18,920 Speaker 1: have any in person worship. He just does he doesn't 147 00:08:19,000 --> 00:08:23,560 Speaker 1: think that the record reflects that California is actually exercising 148 00:08:24,560 --> 00:08:29,840 Speaker 1: epidemiological epidemiological judgment. That it's instead it's just kind of 149 00:08:29,920 --> 00:08:32,559 Speaker 1: again doing a rubber stamp and taking the easy way 150 00:08:32,559 --> 00:08:37,040 Speaker 1: out and imposing a blanket restriction. So that's why um uh, 151 00:08:37,600 --> 00:08:40,240 Speaker 1: he does what he does. He he wants to make 152 00:08:40,280 --> 00:08:43,080 Speaker 1: it very clear that he doesn't think judges can or 153 00:08:43,120 --> 00:08:49,480 Speaker 1: should micromanage local government's responses to diseases. Um But again 154 00:08:49,480 --> 00:08:52,040 Speaker 1: he's being down a marker that at some point judicial 155 00:08:52,080 --> 00:08:55,440 Speaker 1: scrutiny is crucial when you have regulations that appear to 156 00:08:55,480 --> 00:09:01,319 Speaker 1: be disregarding fundamental rights. Justice Elena Kagan wrote an opinion 157 00:09:01,679 --> 00:09:06,480 Speaker 1: for the Liberals, and it was really impassioned and seemed 158 00:09:06,520 --> 00:09:11,880 Speaker 1: to be critical of her colleagues are conservative colleagues in 159 00:09:11,920 --> 00:09:15,439 Speaker 1: a way she doesn't usually do so. Justice Kagan is 160 00:09:15,600 --> 00:09:18,360 Speaker 1: a great writer, has always and I do think there's 161 00:09:18,440 --> 00:09:22,040 Speaker 1: a certain amount of passion and kind of urgency that 162 00:09:22,120 --> 00:09:24,280 Speaker 1: comes through in her descent. But I don't think it 163 00:09:24,280 --> 00:09:27,360 Speaker 1: crossed any lines in terms of not being respectful. I mean, 164 00:09:27,440 --> 00:09:29,480 Speaker 1: I think she tends to always observe that line. But 165 00:09:29,640 --> 00:09:33,839 Speaker 1: basically her disagreement is not on the importance of religious exercise. 166 00:09:34,120 --> 00:09:36,120 Speaker 1: You know, she opens her opinion by saying, yeah, of course, 167 00:09:36,120 --> 00:09:38,600 Speaker 1: you can't treat religious exercise worse than you treat comparable 168 00:09:38,600 --> 00:09:42,280 Speaker 1: psycular activities. But her two main teams are, first, we 169 00:09:42,320 --> 00:09:46,960 Speaker 1: should be more deferential to California state officials. And again, 170 00:09:47,000 --> 00:09:49,440 Speaker 1: this is a disagreement with cors who's saying, look, yes, 171 00:09:49,480 --> 00:09:51,839 Speaker 1: some difference is important, but we're talking about fundamental rights. 172 00:09:51,880 --> 00:09:54,080 Speaker 1: We don't just defer to the cops when it comes to, 173 00:09:54,400 --> 00:09:56,640 Speaker 1: you know, whether or not they have to respect Force 174 00:09:56,679 --> 00:09:58,520 Speaker 1: fifth and six of moment rights, and so he wants 175 00:09:58,559 --> 00:10:01,400 Speaker 1: to insist that we can't defer to the government when 176 00:10:01,400 --> 00:10:03,520 Speaker 1: it says that these regulations are necessary. So the first 177 00:10:03,559 --> 00:10:05,599 Speaker 1: disagreement is on the theme of deference. She thinks the 178 00:10:05,640 --> 00:10:08,440 Speaker 1: course not being deferential enough, and she has several lines 179 00:10:08,480 --> 00:10:11,120 Speaker 1: and paragraphs where she kind of challenges, she kind of 180 00:10:11,120 --> 00:10:13,640 Speaker 1: pokes the justices that they're being activists. And the second 181 00:10:13,679 --> 00:10:18,160 Speaker 1: disagreement have to do with these comparison points. She thinks 182 00:10:18,600 --> 00:10:23,880 Speaker 1: church services, indoor religious gatherings are not comparable to things 183 00:10:24,000 --> 00:10:26,640 Speaker 1: like going to the home depot, going shopping, going to 184 00:10:26,679 --> 00:10:28,960 Speaker 1: a grocery store, and so on. So she thinks that 185 00:10:29,120 --> 00:10:34,280 Speaker 1: religious gatherings are not being treated worse than comparable secular gatherings, 186 00:10:34,360 --> 00:10:38,000 Speaker 1: whereas the justices who are in the majority did think 187 00:10:38,280 --> 00:10:41,440 Speaker 1: that religious gatherings are being treated worse. In my own view, 188 00:10:41,440 --> 00:10:44,880 Speaker 1: I don't think Justice Kagan took enough account of Justice 189 00:10:45,040 --> 00:10:49,240 Speaker 1: Gorsuges point that California doesn't seem to have been very flexible. 190 00:10:49,400 --> 00:10:52,000 Speaker 1: That again, if you're worried about singing indoors, and it 191 00:10:52,040 --> 00:10:53,839 Speaker 1: seems to be that that is something to worry about, 192 00:10:53,920 --> 00:10:57,360 Speaker 1: you can simply say no singing during religious gatherings, or 193 00:10:57,400 --> 00:10:59,959 Speaker 1: if you're worried about people in close proximity, you can 194 00:11:00,080 --> 00:11:04,079 Speaker 1: require distancing. Again, Justice Courses concern was California had kind 195 00:11:04,080 --> 00:11:06,839 Speaker 1: of taken the easy way out, just the blanket no 196 00:11:07,040 --> 00:11:10,040 Speaker 1: gatherings proposal, and he doesn't want to defer to that. 197 00:11:10,080 --> 00:11:13,720 Speaker 1: The Justice Cagan does. The case seems to be following 198 00:11:13,760 --> 00:11:17,600 Speaker 1: the New York case last November, after Justice Barrett joined 199 00:11:17,600 --> 00:11:21,240 Speaker 1: the Court, in which the Court barred capacity limits on 200 00:11:21,360 --> 00:11:25,120 Speaker 1: houses of worship, a change of direction from prior cases 201 00:11:25,160 --> 00:11:29,280 Speaker 1: on that issue and more expansive of religious rights. So 202 00:11:29,320 --> 00:11:32,200 Speaker 1: do you see this case as being a step further 203 00:11:32,640 --> 00:11:35,160 Speaker 1: I don't think it's so much a step further from 204 00:11:35,160 --> 00:11:38,480 Speaker 1: the Brooklyn case. But I do think that these COVID 205 00:11:38,520 --> 00:11:42,920 Speaker 1: restriction cases as a general matter have been fascinating because 206 00:11:42,920 --> 00:11:47,760 Speaker 1: they do suggest, I think that the Court's free exercise 207 00:11:48,160 --> 00:11:51,760 Speaker 1: doctrine is moving from where it was, you know, thirty 208 00:11:51,800 --> 00:11:55,400 Speaker 1: years ago in the famous Smith case. It does suggest, 209 00:11:55,440 --> 00:11:58,559 Speaker 1: and this is relevant to the upcoming Philadelphia adoption case, 210 00:11:58,640 --> 00:12:01,120 Speaker 1: the Fulting case, that then that you've been falling. It 211 00:12:01,160 --> 00:12:04,600 Speaker 1: appears that you know, there's a majority of justices who 212 00:12:04,600 --> 00:12:09,440 Speaker 1: are willing to apply more scrutiny to regulations, even well 213 00:12:09,480 --> 00:12:14,400 Speaker 1: meaning regulations that burden religious exercise, and depending on where 214 00:12:14,440 --> 00:12:17,400 Speaker 1: the justices land, depending on how much scrutiny they end 215 00:12:17,440 --> 00:12:20,800 Speaker 1: up being willing to apply, we could see this year 216 00:12:21,240 --> 00:12:24,559 Speaker 1: a doctrinal change in the tests that the Court uses 217 00:12:24,840 --> 00:12:28,280 Speaker 1: in the free exercise of religion context. What kind of 218 00:12:28,400 --> 00:12:33,720 Speaker 1: change exactly? A change expanding religious rights. So the change 219 00:12:33,760 --> 00:12:37,120 Speaker 1: would be in the direction of providing more protection to 220 00:12:37,240 --> 00:12:41,680 Speaker 1: religious exercise than the Court's Smith decision thirty years ago, 221 00:12:41,920 --> 00:12:46,920 Speaker 1: provided with four different opinions, Does this case give any 222 00:12:46,960 --> 00:12:49,600 Speaker 1: guidance to the lower courts about what to do in 223 00:12:49,640 --> 00:12:53,640 Speaker 1: these cases? Or is it just too scattered? Yeah? So, 224 00:12:53,920 --> 00:12:55,760 Speaker 1: as I think you pointed out, some critics have been 225 00:12:55,800 --> 00:12:58,200 Speaker 1: frustrated that, you know, since it's well we have here 226 00:12:58,200 --> 00:13:01,319 Speaker 1: are four opinions that are added to an order, we 227 00:13:01,360 --> 00:13:05,480 Speaker 1: don't really have a full like merit decision. That lower 228 00:13:05,520 --> 00:13:09,320 Speaker 1: courts and regulators are not totally sure what they're supposed 229 00:13:09,360 --> 00:13:10,840 Speaker 1: to be doing, and this is true of the Brooklyn 230 00:13:10,840 --> 00:13:13,240 Speaker 1: case too. Instead, they have to kind of read these 231 00:13:13,240 --> 00:13:18,280 Speaker 1: separate opinions and infer what the justices views are. And 232 00:13:18,360 --> 00:13:20,960 Speaker 1: I think there's something to that criticism I mean, on 233 00:13:21,000 --> 00:13:23,480 Speaker 1: the one hand, the court have to decide these interim 234 00:13:23,520 --> 00:13:26,360 Speaker 1: cases all the time, and they can't always right full 235 00:13:26,360 --> 00:13:30,120 Speaker 1: opinions and have you know, full or arguments before them. 236 00:13:30,320 --> 00:13:33,400 Speaker 1: I think what we're seeing in a sense is little 237 00:13:33,480 --> 00:13:37,680 Speaker 1: previews of the opinions that will get in a few months. 238 00:13:38,280 --> 00:13:41,360 Speaker 1: In the Philadelphia adoption case, thanks for being on the show, Rick, 239 00:13:41,679 --> 00:13:45,199 Speaker 1: that's Rick Garnett, a professor nore Dame Law School. And 240 00:13:45,280 --> 00:13:49,560 Speaker 1: in that Philadelphia case, a Catholic religious charity refused to 241 00:13:49,600 --> 00:13:53,760 Speaker 1: place foster children with same sex couples, presenting a conflict 242 00:13:53,800 --> 00:13:59,320 Speaker 1: between religious rights and gay rights. House prosecutors concluded their 243 00:13:59,360 --> 00:14:02,720 Speaker 1: case for victing Donald Trump and he sent an impeachment trial, 244 00:14:03,160 --> 00:14:06,200 Speaker 1: saying they've proven that the former president is guilty of 245 00:14:06,240 --> 00:14:09,920 Speaker 1: inciting an insurrection when a mob of his supporters stormed 246 00:14:09,920 --> 00:14:13,600 Speaker 1: the US capital on January six to stop the peaceful 247 00:14:13,640 --> 00:14:17,760 Speaker 1: transfer of power. The House managers spent three days highlighting 248 00:14:17,800 --> 00:14:21,720 Speaker 1: Trump's own tweets, speeches, and comments to argue that it 249 00:14:21,800 --> 00:14:24,840 Speaker 1: was a month's long campaign to stoke anger about the 250 00:14:24,840 --> 00:14:29,040 Speaker 1: November third election he lost to Democrat Joe Biden. Trump's 251 00:14:29,120 --> 00:14:32,240 Speaker 1: lawyers are expected to present their defense tomorrow and may 252 00:14:32,320 --> 00:14:35,120 Speaker 1: only need one day for their arguments, which will include 253 00:14:35,200 --> 00:14:39,280 Speaker 1: video presentations after house managers played gripping footage of the 254 00:14:39,280 --> 00:14:43,080 Speaker 1: assault on the capitol and violent attacks on police officers. 255 00:14:43,480 --> 00:14:46,200 Speaker 1: Joining me is Jimmy Garoula, a professor at Notre Dame 256 00:14:46,280 --> 00:14:49,320 Speaker 1: Law School. What is the big picture strategy of the 257 00:14:49,320 --> 00:14:53,400 Speaker 1: house managers and how well are they carrying it out? Well? 258 00:14:53,400 --> 00:14:56,400 Speaker 1: I think that the house managers, so the impecial managers, 259 00:14:56,400 --> 00:15:00,360 Speaker 1: have done a very good job in a methodical way, 260 00:15:00,720 --> 00:15:04,520 Speaker 1: presenting their theory of the case. And it's interesting to 261 00:15:04,560 --> 00:15:07,120 Speaker 1: note that their theory of the case isn't limited to 262 00:15:07,760 --> 00:15:12,800 Speaker 1: what occurred on January six. They've gone back several months 263 00:15:13,320 --> 00:15:17,640 Speaker 1: making the case that this is something that President Trump 264 00:15:18,200 --> 00:15:22,560 Speaker 1: had a plan that he had concocted that was initiated 265 00:15:22,640 --> 00:15:27,000 Speaker 1: going back to before the actual election in November. He 266 00:15:27,040 --> 00:15:31,760 Speaker 1: had stated prior to the election date that if he 267 00:15:32,000 --> 00:15:36,560 Speaker 1: lost the only reason for him to lose would be 268 00:15:36,720 --> 00:15:40,680 Speaker 1: that the election was stolen. So he planted the seed 269 00:15:41,280 --> 00:15:46,080 Speaker 1: regarding the big lie well before the actual election and 270 00:15:46,160 --> 00:15:52,920 Speaker 1: the election results themselves, and over several months again leading 271 00:15:53,000 --> 00:15:57,960 Speaker 1: up to January six, he continued to repeat that false 272 00:15:58,040 --> 00:16:00,640 Speaker 1: statement that the election was going to be stolen. The 273 00:16:00,640 --> 00:16:02,280 Speaker 1: election was going to be stolen. The only way he 274 00:16:02,280 --> 00:16:04,440 Speaker 1: could lose as if the election was stolen. And as 275 00:16:04,440 --> 00:16:08,040 Speaker 1: a result, I mean, he convinced a significant number of 276 00:16:08,080 --> 00:16:13,200 Speaker 1: his followers that that lie was true. And so when 277 00:16:13,320 --> 00:16:17,400 Speaker 1: the election results were finally tallied in favor of President 278 00:16:17,440 --> 00:16:21,120 Speaker 1: elect Joe Biden, then he was able to say, see, 279 00:16:21,160 --> 00:16:24,240 Speaker 1: I told you so, it was stolen. I'm the victim 280 00:16:24,280 --> 00:16:28,040 Speaker 1: of this terrible wrong and it needs to be redressed. 281 00:16:28,560 --> 00:16:30,520 Speaker 1: And the only way it can be redressed as you've 282 00:16:30,560 --> 00:16:34,600 Speaker 1: got to go to the capital on January six, the 283 00:16:34,680 --> 00:16:38,680 Speaker 1: day that the election results were being certified and stop it. 284 00:16:38,760 --> 00:16:41,400 Speaker 1: You know, you've got to stop the steal and take 285 00:16:41,440 --> 00:16:44,200 Speaker 1: back the country. And so I thought that was very effective. 286 00:16:44,520 --> 00:16:49,880 Speaker 1: This wasn't a spontaneous event that occurred on January six, 287 00:16:49,960 --> 00:16:53,040 Speaker 1: but again there were several months and it was being 288 00:16:53,080 --> 00:16:56,760 Speaker 1: directed and orchestrated. Events were being directed and orchestrated by 289 00:16:56,800 --> 00:17:00,000 Speaker 1: the president behind the scenes for several months leading up 290 00:17:00,080 --> 00:17:04,520 Speaker 1: to up to January six. Now, having said having said that, 291 00:17:04,560 --> 00:17:07,080 Speaker 1: I would just add, you know, one one additional point 292 00:17:07,680 --> 00:17:11,560 Speaker 1: isn't going to make a difference in terms of convincing 293 00:17:11,600 --> 00:17:17,560 Speaker 1: Republicans to impeach President Trump. I don't think so. I 294 00:17:17,600 --> 00:17:24,880 Speaker 1: think that Republicans had their mind made up before the 295 00:17:24,960 --> 00:17:30,680 Speaker 1: impeachment hearing began, and I don't think that there's anything 296 00:17:30,920 --> 00:17:38,080 Speaker 1: the impeachment managers could present to the Senate to cost 297 00:17:38,280 --> 00:17:42,760 Speaker 1: seventeen members of the Republican Senate to vote in favor 298 00:17:43,400 --> 00:17:46,600 Speaker 1: of impeachment. You know what you were talking about them 299 00:17:46,600 --> 00:17:51,720 Speaker 1: bringing out this month long strategy, is that to try 300 00:17:51,760 --> 00:17:55,159 Speaker 1: to get over the hurdle of what I would consider 301 00:17:55,200 --> 00:17:58,000 Speaker 1: the biggest turtle. I don't know if you do showing 302 00:17:58,080 --> 00:18:02,359 Speaker 1: that President Trump actually caused the insurrection, that the reason 303 00:18:02,440 --> 00:18:06,520 Speaker 1: they went to the capital was because of President Oh yeah, yeah, 304 00:18:06,760 --> 00:18:12,280 Speaker 1: exactly because it it certainly the President's involvement or or 305 00:18:12,520 --> 00:18:18,120 Speaker 1: the causal relationship between President Trump's conduct and the violence 306 00:18:18,200 --> 00:18:22,200 Speaker 1: that that that the world witnessed on January six wasn't 307 00:18:22,280 --> 00:18:27,800 Speaker 1: limited to the President's participation in the rally on January six, 308 00:18:27,880 --> 00:18:31,760 Speaker 1: the morning before the assault on the Capitol. That wasn't 309 00:18:31,760 --> 00:18:38,639 Speaker 1: the summon substance of his involvement in the insurrection, The 310 00:18:38,760 --> 00:18:43,359 Speaker 1: role that he played in causing his followers to march 311 00:18:43,560 --> 00:18:48,240 Speaker 1: up to the Capitol and an assault and engage in 312 00:18:48,280 --> 00:18:52,800 Speaker 1: this uh act of insurrection that resulted in violence and 313 00:18:52,840 --> 00:18:58,200 Speaker 1: the death of five of five people. His his participation, 314 00:18:58,440 --> 00:19:04,760 Speaker 1: his involvement, his role well exceeded and began well before 315 00:19:05,240 --> 00:19:11,200 Speaker 1: January six, and there trying to to highlight his culpability 316 00:19:11,240 --> 00:19:14,480 Speaker 1: and the extent of his culpability, the extent of his participation, 317 00:19:14,600 --> 00:19:19,360 Speaker 1: the extent of his responsibility for the violence that occurred 318 00:19:19,560 --> 00:19:23,080 Speaker 1: on January six. And it's not limited simply to the 319 00:19:23,240 --> 00:19:28,480 Speaker 1: rally itself that morning and then his tweets that followed 320 00:19:28,560 --> 00:19:32,280 Speaker 1: later in the afternoon. How effective were the use of 321 00:19:32,320 --> 00:19:36,120 Speaker 1: the clips of the rioters themselves. So for at least 322 00:19:36,200 --> 00:19:40,560 Speaker 1: two months, two months prior, the president had been repeating 323 00:19:40,600 --> 00:19:43,640 Speaker 1: this light and it's been repeating it daily and repeatedly, 324 00:19:44,160 --> 00:19:48,440 Speaker 1: you know, to his followers. In the process, again, there 325 00:19:48,520 --> 00:19:52,480 Speaker 1: was this kind of rage that began to build within 326 00:19:52,560 --> 00:19:57,639 Speaker 1: his followers again that erupted on January six. And you 327 00:19:57,760 --> 00:20:03,199 Speaker 1: know that because the video recordings of the attack, you 328 00:20:03,440 --> 00:20:07,800 Speaker 1: hear the demonstrators saying Trump has told us this, Trump 329 00:20:07,880 --> 00:20:10,720 Speaker 1: said this. You know, we're doing this for Trump. You know, 330 00:20:10,800 --> 00:20:13,960 Speaker 1: Trump's the boss, and we're you know, we're responding that 331 00:20:14,080 --> 00:20:18,879 Speaker 1: they were following the directions of their leader, President Trump, 332 00:20:19,040 --> 00:20:21,320 Speaker 1: and they admit it. Caught on video, you know, we 333 00:20:21,320 --> 00:20:25,640 Speaker 1: can hear them saying it, and then even tweets by 334 00:20:25,680 --> 00:20:30,199 Speaker 1: the President after the assault on the capital began. Those 335 00:20:30,240 --> 00:20:35,760 Speaker 1: tweets are actually being communicated on on a bullhorn to 336 00:20:35,960 --> 00:20:40,240 Speaker 1: the writers live, I mean, in real time, and they're 337 00:20:40,280 --> 00:20:43,000 Speaker 1: responding to the President said that. The President said that 338 00:20:43,320 --> 00:20:45,520 Speaker 1: the Mike Bence didn't have the courage and it's his 339 00:20:45,640 --> 00:20:47,800 Speaker 1: fault and because he didn't stand up and do the 340 00:20:47,880 --> 00:20:50,920 Speaker 1: right thing and overturn the election results. And so it's 341 00:20:51,000 --> 00:20:55,720 Speaker 1: very clear that they're following his lead throughout and then 342 00:20:55,760 --> 00:20:59,919 Speaker 1: that ultimately culminates when they decide to to leave the 343 00:21:00,080 --> 00:21:04,560 Speaker 1: Capital buildings. Why, because we just heard this recorded statement 344 00:21:05,119 --> 00:21:08,199 Speaker 1: by the President that he wants us to return in peace. 345 00:21:08,960 --> 00:21:13,240 Speaker 1: So it's clear that they're reacting and responding to the 346 00:21:13,280 --> 00:21:16,400 Speaker 1: President's directives, you know, from the beginning all the way 347 00:21:16,480 --> 00:21:19,880 Speaker 1: through into the evening of January six one. Eventually they 348 00:21:19,920 --> 00:21:22,760 Speaker 1: deciders why did they decide to return because Trump told 349 00:21:22,800 --> 00:21:25,040 Speaker 1: him it was time for them to go home. After 350 00:21:25,280 --> 00:21:28,680 Speaker 1: the first day's presentation, Senator Ted Cruz said it was 351 00:21:28,760 --> 00:21:32,680 Speaker 1: powerful and emotional reliving a terrorist attack on our nation's capital, 352 00:21:33,000 --> 00:21:36,119 Speaker 1: but very little was said about how specific conduct of 353 00:21:36,160 --> 00:21:40,080 Speaker 1: the president satisfies the legal standard of convicting him of 354 00:21:40,160 --> 00:21:44,280 Speaker 1: high crimes and misdemeanors. Is there a legal standard, I 355 00:21:44,280 --> 00:21:47,160 Speaker 1: mean a criminal trial, you know, beyond a reasonable doubt 356 00:21:47,240 --> 00:21:50,080 Speaker 1: and the civil triality, the conderance of the evidence. What 357 00:21:50,200 --> 00:21:53,080 Speaker 1: is it? I think, I think it's an important distinction 358 00:21:53,160 --> 00:21:57,040 Speaker 1: to make. Impeachment is a political process, it's not a 359 00:21:57,080 --> 00:22:04,679 Speaker 1: criminal justice process. The Constitute should authorizes Congress authorize as 360 00:22:04,680 --> 00:22:08,680 Speaker 1: a house to impeach for high crimes and misdemeanors. And 361 00:22:08,840 --> 00:22:11,440 Speaker 1: that term is a term of art, and it's been 362 00:22:11,480 --> 00:22:15,680 Speaker 1: interpreted to not necessarily mean or be restricted or limited 363 00:22:15,720 --> 00:22:20,119 Speaker 1: to a specific federal statute, a specific federal crime. It 364 00:22:20,200 --> 00:22:23,640 Speaker 1: hasn't been limited that way, but instead has been interpreted 365 00:22:23,680 --> 00:22:27,480 Speaker 1: more broadly to mean abuse of power by the president. 366 00:22:27,800 --> 00:22:31,280 Speaker 1: The president abused his power and in the process, you know, 367 00:22:31,440 --> 00:22:34,240 Speaker 1: he's threatened our government. You know he's threatened the democracy 368 00:22:34,440 --> 00:22:38,360 Speaker 1: as a result. And so it shouldn't be equated with 369 00:22:38,600 --> 00:22:43,000 Speaker 1: you or the standards shouldn't be well, does the president's 370 00:22:43,200 --> 00:22:51,160 Speaker 1: conduct on January six and before Constitute a crime under 371 00:22:51,240 --> 00:22:55,000 Speaker 1: federal law and meet those elements, each and every one 372 00:22:55,040 --> 00:22:58,120 Speaker 1: of the elements of the alleged offense beyond a reasonable doubt. 373 00:22:58,400 --> 00:23:02,200 Speaker 1: That's a criminal legal standard, and that's a wrong standard 374 00:23:02,200 --> 00:23:06,639 Speaker 1: to apply instead the standard here. This is a political process, 375 00:23:07,119 --> 00:23:11,920 Speaker 1: not a not a criminal law process, and that distinction 376 00:23:12,640 --> 00:23:14,880 Speaker 1: is an important distinction, and it shouldn't be blurred because 377 00:23:14,880 --> 00:23:17,720 Speaker 1: they're not one and the same. And so Congress is 378 00:23:17,760 --> 00:23:22,200 Speaker 1: free to determine whether or not the president is engaged 379 00:23:22,280 --> 00:23:26,280 Speaker 1: in abuse of power that is so severe, so serious 380 00:23:26,320 --> 00:23:30,240 Speaker 1: that it justifies is removal from office or his disqualification 381 00:23:30,320 --> 00:23:34,080 Speaker 1: from holding office in the future. The indication is that 382 00:23:34,560 --> 00:23:38,000 Speaker 1: the house managers are not going to call witnesses, but 383 00:23:38,400 --> 00:23:42,000 Speaker 1: it seems as if on a few points you almost 384 00:23:42,040 --> 00:23:46,959 Speaker 1: need witnesses, which is President Trump's reaction to the riot 385 00:23:47,600 --> 00:23:52,840 Speaker 1: and his failure to move quicker to stop things. Well, 386 00:23:52,880 --> 00:23:56,080 Speaker 1: I think that that the most important, the most critical 387 00:23:56,119 --> 00:24:00,119 Speaker 1: witness in this case and the impeachment trial is the 388 00:24:00,160 --> 00:24:03,320 Speaker 1: president himself. Now, now, could there be other witnesses that 389 00:24:03,359 --> 00:24:08,400 Speaker 1: could be helpful to the UH and piecement managers. Certainly 390 00:24:08,560 --> 00:24:11,640 Speaker 1: there are some, But I think that the most critical 391 00:24:11,640 --> 00:24:17,000 Speaker 1: witnesses the President himself, and I think that the piece 392 00:24:17,040 --> 00:24:20,439 Speaker 1: of managers have been a masterful job of using the 393 00:24:20,480 --> 00:24:24,280 Speaker 1: president's on his own words on January six, and before 394 00:24:25,200 --> 00:24:28,959 Speaker 1: and later that afternoon and evening on January six as 395 00:24:29,000 --> 00:24:33,199 Speaker 1: well against the president. And not only that, it's not 396 00:24:33,280 --> 00:24:36,400 Speaker 1: only what the president said and what the president did 397 00:24:36,480 --> 00:24:40,040 Speaker 1: on January six, it's important, but also what he didn't do, 398 00:24:41,200 --> 00:24:46,120 Speaker 1: and his inaction and his failure to to stop the insurrection, 399 00:24:46,680 --> 00:24:52,240 Speaker 1: his failure to communicate to his followers that he condemned 400 00:24:52,240 --> 00:24:56,800 Speaker 1: their conduct and he wanted them to stop. His statement 401 00:24:56,840 --> 00:24:59,920 Speaker 1: about stopping and going home, and I love you and 402 00:25:00,000 --> 00:25:03,119 Speaker 1: your great people and and all of your special people. 403 00:25:03,160 --> 00:25:06,639 Speaker 1: All of that I mean that occurred some four hours 404 00:25:06,960 --> 00:25:11,800 Speaker 1: or so after the assault on the Capitol was initiated, 405 00:25:11,920 --> 00:25:15,560 Speaker 1: and so for four hours there was no communication by 406 00:25:15,600 --> 00:25:20,040 Speaker 1: the President of his followers that he condemned their conduct. 407 00:25:20,560 --> 00:25:24,440 Speaker 1: In fact, he seemed to acquiesce, and through his inaction 408 00:25:24,600 --> 00:25:27,840 Speaker 1: and through his lack of condemnation, I think that is 409 00:25:27,880 --> 00:25:33,280 Speaker 1: acquiescence in their conduct and demonstrated his approval of their conduct. 410 00:25:33,760 --> 00:25:37,600 Speaker 1: Trump's impeachment team intends to lean heavily on his use 411 00:25:37,760 --> 00:25:41,800 Speaker 1: of the words peacefully and patriotically. In the speech, he said, 412 00:25:42,359 --> 00:25:45,120 Speaker 1: I know that everyone here will soon be marching over 413 00:25:45,160 --> 00:25:48,760 Speaker 1: to the Capitol Building to peacefully and patriotically make your 414 00:25:48,840 --> 00:25:53,880 Speaker 1: voices heard. Does that mixed message help the defense, Well, 415 00:25:53,920 --> 00:25:55,960 Speaker 1: I think you've got to take that statement. You need 416 00:25:56,000 --> 00:25:59,199 Speaker 1: to examine that statement in its totality, and so you 417 00:25:59,200 --> 00:26:02,040 Speaker 1: can't examine it in isolation to say, well, look, we 418 00:26:02,119 --> 00:26:05,560 Speaker 1: know that the president at the rally before the assault 419 00:26:05,640 --> 00:26:09,639 Speaker 1: on the Capitol, he spoke for approximately seventy minutes, and 420 00:26:09,720 --> 00:26:15,159 Speaker 1: during that seventy minute presentation, the word peaceful was used 421 00:26:15,320 --> 00:26:19,400 Speaker 1: once one time by the president. But at the same time, 422 00:26:19,480 --> 00:26:23,800 Speaker 1: during that seventy minute speech by the president, he used attack, 423 00:26:24,040 --> 00:26:26,520 Speaker 1: He used you got to be strong. I mean, he 424 00:26:26,640 --> 00:26:33,400 Speaker 1: used language that conveyed to his followers that he wanted 425 00:26:33,440 --> 00:26:38,600 Speaker 1: them to act in a very aggressive, forceful way to 426 00:26:38,800 --> 00:26:42,600 Speaker 1: stop the certification of the election. So I think it's 427 00:26:42,680 --> 00:26:47,520 Speaker 1: a relatively weak argument to point to one word in 428 00:26:47,560 --> 00:26:50,800 Speaker 1: a seventy minutes speech and say, oh, that vindicates the 429 00:26:50,840 --> 00:26:54,560 Speaker 1: president therefore he never intended for his followers to act 430 00:26:54,640 --> 00:26:58,600 Speaker 1: in a violent or aggressive way. When the other evidence, 431 00:26:59,200 --> 00:27:03,080 Speaker 1: which I think is white overwhelming, is to the contrary 432 00:27:03,240 --> 00:27:05,040 Speaker 1: that he was telling him, you've got to fight, you've 433 00:27:05,040 --> 00:27:07,399 Speaker 1: got to fight hard, you've got to be strong, you 434 00:27:07,440 --> 00:27:10,760 Speaker 1: can't be weak. These are all terms that are certainly 435 00:27:10,840 --> 00:27:15,920 Speaker 1: inconsistent with a peaceful protest, and so I think the 436 00:27:15,960 --> 00:27:18,040 Speaker 1: president's lawyers are going to do the best they can. 437 00:27:18,160 --> 00:27:20,960 Speaker 1: Of course, they're gonna seize on that one term or 438 00:27:21,000 --> 00:27:23,480 Speaker 1: that one sentence in the seventy minute speech. They're going 439 00:27:23,520 --> 00:27:25,040 Speaker 1: to try to make a big deal out of it. 440 00:27:25,119 --> 00:27:28,199 Speaker 1: But I think that the kind of reverence imploring his 441 00:27:28,320 --> 00:27:33,760 Speaker 1: followers to act in this violent way really offsets this 442 00:27:33,920 --> 00:27:38,280 Speaker 1: claim that his intent was was only for a peaceful demonstration. 443 00:27:38,600 --> 00:27:42,479 Speaker 1: They're going to use clips of Democrats using words like 444 00:27:42,640 --> 00:27:47,600 Speaker 1: fight and calling for protests of Trump's actions to argue 445 00:27:47,640 --> 00:27:51,920 Speaker 1: that he's being held to a double standard for his rhetoric. Yeah, 446 00:27:51,960 --> 00:27:54,000 Speaker 1: I think it's a false equivalency, and I think it's 447 00:27:54,080 --> 00:27:56,720 Speaker 1: kind of a common defense tactic. You know, when when 448 00:27:56,760 --> 00:27:59,400 Speaker 1: the facts are in your favor, when the law isn't 449 00:27:59,440 --> 00:28:01,919 Speaker 1: in your favor, were then you try to direct the 450 00:28:02,000 --> 00:28:05,760 Speaker 1: jury's attention away from the defendant's conduct, away from the 451 00:28:05,800 --> 00:28:09,440 Speaker 1: defendant's actions to someone else. And so you'll see this, 452 00:28:09,520 --> 00:28:12,199 Speaker 1: you know, the defense lawyers will blame the police. You know, 453 00:28:12,359 --> 00:28:14,439 Speaker 1: wasn't my client that committed the crown look at what 454 00:28:14,480 --> 00:28:17,040 Speaker 1: the police officers did, and look what they did or 455 00:28:17,080 --> 00:28:19,600 Speaker 1: they didn't do. And so I think this falls along 456 00:28:19,680 --> 00:28:23,480 Speaker 1: those lines. It's a diversion tactic. It's an attempt to 457 00:28:23,640 --> 00:28:28,480 Speaker 1: divert the jury's attention away from the facts and the 458 00:28:28,600 --> 00:28:31,560 Speaker 1: issue and where what really matters in this case, and 459 00:28:31,600 --> 00:28:34,080 Speaker 1: for obvious reasons. I mean, the last thing they want 460 00:28:34,320 --> 00:28:38,040 Speaker 1: the senators to do is to focus on what actually 461 00:28:38,120 --> 00:28:42,760 Speaker 1: happened on January six and President Trump's role in causing 462 00:28:42,840 --> 00:28:46,520 Speaker 1: that that insurrection. They really don't have to do anything 463 00:28:46,960 --> 00:28:50,360 Speaker 1: because you know, it's baked in already. As you mentioned before, 464 00:28:50,600 --> 00:28:52,600 Speaker 1: it doesn't seem like they're going to be in the 465 00:28:53,040 --> 00:28:58,640 Speaker 1: seventeen Republican senators to vote for impeachment. Right. Well, I 466 00:28:59,080 --> 00:29:04,560 Speaker 1: think what's happening here again is that Trump's lawyers are 467 00:29:04,640 --> 00:29:11,680 Speaker 1: trying to give the Republican senators some reason to not convict, 468 00:29:12,000 --> 00:29:16,320 Speaker 1: some reason to not hold him accountable. And they're they're 469 00:29:16,320 --> 00:29:21,360 Speaker 1: throwing out there any number of legal reasons and justification 470 00:29:21,880 --> 00:29:25,600 Speaker 1: for voting to acquit the president. There's arguments that, oh, 471 00:29:25,640 --> 00:29:29,080 Speaker 1: what the president said was protected under the First Amendment. 472 00:29:29,400 --> 00:29:33,240 Speaker 1: It's freedom of speech. So if you buy that argument, yeah, 473 00:29:33,280 --> 00:29:37,520 Speaker 1: you can hang your head on that argument to acquit. Oh, 474 00:29:37,640 --> 00:29:42,680 Speaker 1: the Senate can't try a former president. That's unconstitutional. Oh 475 00:29:42,720 --> 00:29:44,400 Speaker 1: how about that argument. You know, if you don't like 476 00:29:44,480 --> 00:29:47,120 Speaker 1: the First Amendment argument, here's another argument you can you 477 00:29:47,160 --> 00:29:50,160 Speaker 1: can hang your head on that. Oh. And if if 478 00:29:50,240 --> 00:29:52,640 Speaker 1: neither one of those arguments appeal to you, what about 479 00:29:52,720 --> 00:29:57,160 Speaker 1: this argument of hypocrisy that the Democrats are being hypocritical 480 00:29:57,240 --> 00:29:59,520 Speaker 1: because look what they said, look what they've done in 481 00:29:59,560 --> 00:30:03,440 Speaker 1: the past, and therefore that maybe to give you a 482 00:30:03,480 --> 00:30:07,280 Speaker 1: reason or justification to vote to equip and so so 483 00:30:07,320 --> 00:30:11,200 Speaker 1: I think that they're trying to give the Republican senators 484 00:30:11,240 --> 00:30:15,720 Speaker 1: some legal cover, some legal reason or some reason hope 485 00:30:15,720 --> 00:30:19,560 Speaker 1: could be legal, some reason to justify their action so 486 00:30:19,640 --> 00:30:21,760 Speaker 1: that they can say, well, yeah, this is all terrible 487 00:30:21,760 --> 00:30:25,280 Speaker 1: what happened, and I condemn it, and I condemned the protesters. 488 00:30:25,600 --> 00:30:28,480 Speaker 1: But the president is not responsible or the president shouldn't 489 00:30:28,480 --> 00:30:31,920 Speaker 1: be convicted, shouldn't be impeached because of these reasons. That's 490 00:30:31,920 --> 00:30:35,480 Speaker 1: Professor Jimmy Grule of Notre Dame Law School, And that's 491 00:30:35,480 --> 00:30:38,080 Speaker 1: it for this edition of the Bloomberg Lawn Podcast, I'm 492 00:30:38,160 --> 00:30:41,240 Speaker 1: June Grosso. Thanks so much for listening, and remember you 493 00:30:41,240 --> 00:30:43,680 Speaker 1: can always get the latest legal news on our Bloomberg 494 00:30:43,720 --> 00:30:47,440 Speaker 1: Lawn podcast. You can find them on Apple Podcasts, Spotify, 495 00:30:47,640 --> 00:30:51,280 Speaker 1: and wherever you get your favorite podcasts. You're listening to 496 00:30:51,320 --> 00:30:51,840 Speaker 1: Bloomberg