Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio
Speaker 1: from the South. You won't hear choirs at church services
Speaker 1: in California this Sunday. In a six or three decision,
Speaker 1: the Supreme Court stopped California from enforcing COVID restrictions on
Speaker 1: indoor church services, but kept in place restrictions on singing, chanting,
Speaker 1: and capacity limitations. In its four splintered opinions, did the
Speaker 1: courts signal a doctrinal change in the future one expanding
Speaker 1: religious rights? Joining me as Rick Garnett, a professor at
Speaker 1: Notre Dame Law School. Rick described the decision of the
Speaker 1: majority here, Yeah, so at the tricky question right out
Speaker 1: of the gate, because of course these decisions didn't come
Speaker 1: in the context of a case that the Court has
Speaker 1: agreed to hear and has held oral arguments and all that.
Speaker 1: This is Sizurally. What's happening is that the church claimants
Speaker 1: are asking the Court to review a lower court decision
Speaker 1: which had upheld a bunch of these restrictions on gatherings
Speaker 1: and so on. And what the Court did was to
Speaker 1: basically enter and order for the time being. That left
Speaker 1: some of the California restrictions in place, but also lifted
Speaker 1: some of them while the case is playing out, so
Speaker 1: the situation is still very much fluid. This isn't you know,
Speaker 1: a Merit's decision like the kind you get in June
Speaker 1: at the end of the court's term. This is basically
Speaker 1: the Court trying to sort of freeze the status quo
Speaker 1: until they can decide whether or not to take the
Speaker 1: full case. And I think it's tricky because on the
Speaker 1: one hand, you know, they want to provide guidance to
Speaker 1: the lower courts, but on the other hand, these aren't
Speaker 1: full opinions. And so one way to think about what
Speaker 1: these different opinions are is the justices are trying to
Speaker 1: tell the lower courts what they're thinking right now. So
Speaker 1: the lower courts, when they get some more of these
Speaker 1: church closure cases, and they probably will, that they have
Speaker 1: a sense of what the Supreme Court wants them to do.
Speaker 1: Would you say that the way they came out is
Speaker 1: sort of a middle ground between the restrictions that California
Speaker 1: has and no restrictions all right, So the Court is
Speaker 1: leaving in place some of California's restrictions. They said, we
Speaker 1: don't have enough information to get rid of California's limits
Speaker 1: on indoor singing. For example, California had some of the
Speaker 1: strictest limits on in person religious gatherings the country, like
Speaker 1: essentially in some parts of the state, all religious gatherings,
Speaker 1: you know, forget about a hundred people where there are
Speaker 1: zero people, as Chief says, as Roberts pointed out, we're
Speaker 1: not permitted. And so I think it was that kind
Speaker 1: of outlier nature of that part of California's order that
Speaker 1: the Court said, you know, we're we're enjoining that that
Speaker 1: can't be enforced. That's too strict. But there's still plenty
Speaker 1: of time for more information to be gathered and presented.
Speaker 1: I'm sure the state will want to show why it's
Speaker 1: various restrictions limits on gathering, its limits on how many
Speaker 1: people can be in a place are necessary. And the
Speaker 1: Court made it pretty clear that it wants the state
Speaker 1: to demonstrate that it's treating religious gatherings fairly. That is,
Speaker 1: that it's not treating religious gatherings worse than other kinds
Speaker 1: of gathering. So you know, the court's concerned as well
Speaker 1: if you're you're allowing people to go to big box
Speaker 1: retail stores, but you're not even allowing you know, five
Speaker 1: people to worship in a cathedral. They worry about that
Speaker 1: disparate treatment, that perhaps discriminatory treatment. So that's going to
Speaker 1: be the real issue, I think going forward. And that
Speaker 1: was the concern that especially just as Gorset spelled out
Speaker 1: in his opinion that as he saw it, California was
Speaker 1: acting in too sweeping of a manner and it wasn't
Speaker 1: fairly comparing religious gatherings indoors to things like grocery shopping
Speaker 1: or what I do. So on one side of the
Speaker 1: spectrum of opinions, Justices Neil Gorst, Clarence Thomas, and Samuel
Speaker 1: Alito would have lifted all the restrictions on church services.
Speaker 1: Let's discuss the four separate opinion. So the most supportive
Speaker 1: of religion, the most to the right, perhaps would be
Speaker 1: the opinion by Justice score such joined by Clarence Thomas
Speaker 1: and Samuel Lecho. So what just highlight what that opinion
Speaker 1: was about. Yeah, it's interesting that in today's categories, I
Speaker 1: suppose we're calling those opinions the ones that are on
Speaker 1: the right. But the method of analysis that those justices
Speaker 1: are applying, it's one that we can trace to kind
Speaker 1: of the Court's liberals in the sixties, you know, and
Speaker 1: people like Justice William Brennan, where you know, Justice Brennan
Speaker 1: insisted that, um, when the government is regulating religious conduct, yeah,
Speaker 1: we're not just going to defer to regulator statements that
Speaker 1: these regulations are a good idea. We want evidence, We
Speaker 1: want actual demonstration that these regulations are nest to promote
Speaker 1: a compelling interest. And that was the case that Justice,
Speaker 1: course it's joined by some others, as you said, wanted
Speaker 1: to lay out. He concluded on the basis of the
Speaker 1: record that we have that California was asking for too
Speaker 1: much deference, that it was asking just for a rubber stamp,
Speaker 1: and that when you're talking about fundamental rights, romans have
Speaker 1: to provide more evidence. And his view, although obviously he's
Speaker 1: not an epidemiologist and he conceded as much, of course,
Speaker 1: his view was that California appears to be much more
Speaker 1: strict with gatherings of a religious nature and much less
Speaker 1: flexible with gatherings of a religious nature than it is
Speaker 1: with other times. So he points out, for example, look
Speaker 1: if what the experts are worried about is singing, which
Speaker 1: can spread the droplets and put people at risk for COVID. Well,
Speaker 1: you could have a restriction that said, well, okay, you
Speaker 1: can't have singing and indoor worship, but they didn't do that.
Speaker 1: They just prohibited all indoor worship. You could imagine, just
Speaker 1: as course it said a restriction that said, you know,
Speaker 1: no more than x number of people, or there has
Speaker 1: to be social distancing or masking or plexi glass shields
Speaker 1: or what have you. But what I think attracted Justice
Speaker 1: Course is just concerned was that the regulations on these
Speaker 1: indoor religious gatherings seemed so sweeping and absolute, and he
Speaker 1: says that that can't be justified on this record. This
Speaker 1: is just as any Coney Barrett's first separate opinions since
Speaker 1: she's been on the bench. So why did she write
Speaker 1: a separate opinion? Yeah, I've heard some of that. I
Speaker 1: guess I would just urge people to think critically about
Speaker 1: these labels and how they apply to cases involving fundamental rights.
Speaker 1: It's not obvious to me that it's conservative rather than
Speaker 1: liberal to want to protect religious exercise rights. And then
Speaker 1: the other point, we just be that the disagreement that
Speaker 1: Justice Sperrit and Justice Kavanaugh had with Justice Scores such
Speaker 1: as opinion is not a particularly big one. I mean,
Speaker 1: all nine justices, including Justice Kagan, they all agree that
Speaker 1: religious exercise is important, and they all agree that governments
Speaker 1: can't target religious activities for burdensome regulations. The disagreement really
Speaker 1: has to do with the amount of deference that courts
Speaker 1: should give to government officials when government officials claim that
Speaker 1: regulations are necessary, and the disagreement is just about which
Speaker 1: activities are really comparable to others. Is the church service
Speaker 1: more like a concert or is it more like going
Speaker 1: to home depot that kind of thing. These disagreements are,
Speaker 1: they're significant, but I don't believe they're dramatic ideological differences.
Speaker 1: They reflect more, I think, just the difference of opinion
Speaker 1: about how to interpret the factual record. You know. I
Speaker 1: think what I see in Justice Parrett's opinion is not
Speaker 1: an attack on what Justice Course such is saying. But
Speaker 1: it's just coming to a different conclusion, a different inference
Speaker 1: about some disputed facts. And now what about Justice Robert's opinion, Well,
Speaker 1: I take him to be pretty much on the same
Speaker 1: page as Justices Um, Barrett, and Kavanaugh. That is, some
Speaker 1: of these California He goes out of his way to
Speaker 1: say yes, of course, it's true the deference to public officials,
Speaker 1: especially when you're dealing with an emergency, is important. And
Speaker 1: of course it's true that you know, in in good
Speaker 1: judicial conservative style, that judges shouldn't be in the business
Speaker 1: of thinking that they can second guess all policy decisions.
Speaker 1: So he wants to he wants to make that very clear.
Speaker 1: But then he just he points to the kind of
Speaker 1: extreme outlier nature of California's restriction that that you know,
Speaker 1: even in the the huge Los Angeles Catholic Cathedral, which
Speaker 1: could set you know, thousands of people, you still can't
Speaker 1: have any in person worship. He just does he doesn't
Speaker 1: think that the record reflects that California is actually exercising
Speaker 1: epidemiological epidemiological judgment. That it's instead it's just kind of
Speaker 1: again doing a rubber stamp and taking the easy way
Speaker 1: out and imposing a blanket restriction. So that's why um uh,
Speaker 1: he does what he does. He he wants to make
Speaker 1: it very clear that he doesn't think judges can or
Speaker 1: should micromanage local government's responses to diseases. Um But again
Speaker 1: he's being down a marker that at some point judicial
Speaker 1: scrutiny is crucial when you have regulations that appear to
Speaker 1: be disregarding fundamental rights. Justice Elena Kagan wrote an opinion
Speaker 1: for the Liberals, and it was really impassioned and seemed
Speaker 1: to be critical of her colleagues are conservative colleagues in
Speaker 1: a way she doesn't usually do so. Justice Kagan is
Speaker 1: a great writer, has always and I do think there's
Speaker 1: a certain amount of passion and kind of urgency that
Speaker 1: comes through in her descent. But I don't think it
Speaker 1: crossed any lines in terms of not being respectful. I mean,
Speaker 1: I think she tends to always observe that line. But
Speaker 1: basically her disagreement is not on the importance of religious exercise.
Speaker 1: You know, she opens her opinion by saying, yeah, of course,
Speaker 1: you can't treat religious exercise worse than you treat comparable
Speaker 1: psycular activities. But her two main teams are, first, we
Speaker 1: should be more deferential to California state officials. And again,
Speaker 1: this is a disagreement with cors who's saying, look, yes,
Speaker 1: some difference is important, but we're talking about fundamental rights.
Speaker 1: We don't just defer to the cops when it comes to,
Speaker 1: you know, whether or not they have to respect Force
Speaker 1: fifth and six of moment rights, and so he wants
Speaker 1: to insist that we can't defer to the government when
Speaker 1: it says that these regulations are necessary. So the first
Speaker 1: disagreement is on the theme of deference. She thinks the
Speaker 1: course not being deferential enough, and she has several lines
Speaker 1: and paragraphs where she kind of challenges, she kind of
Speaker 1: pokes the justices that they're being activists. And the second
Speaker 1: disagreement have to do with these comparison points. She thinks
Speaker 1: church services, indoor religious gatherings are not comparable to things
Speaker 1: like going to the home depot, going shopping, going to
Speaker 1: a grocery store, and so on. So she thinks that
Speaker 1: religious gatherings are not being treated worse than comparable secular gatherings,
Speaker 1: whereas the justices who are in the majority did think
Speaker 1: that religious gatherings are being treated worse. In my own view,
Speaker 1: I don't think Justice Kagan took enough account of Justice
Speaker 1: Gorsuges point that California doesn't seem to have been very flexible.
Speaker 1: That again, if you're worried about singing indoors, and it
Speaker 1: seems to be that that is something to worry about,
Speaker 1: you can simply say no singing during religious gatherings, or
Speaker 1: if you're worried about people in close proximity, you can
Speaker 1: require distancing. Again, Justice Courses concern was California had kind
Speaker 1: of taken the easy way out, just the blanket no
Speaker 1: gatherings proposal, and he doesn't want to defer to that.
Speaker 1: The Justice Cagan does. The case seems to be following
Speaker 1: the New York case last November, after Justice Barrett joined
Speaker 1: the Court, in which the Court barred capacity limits on
Speaker 1: houses of worship, a change of direction from prior cases
Speaker 1: on that issue and more expansive of religious rights. So
Speaker 1: do you see this case as being a step further
Speaker 1: I don't think it's so much a step further from
Speaker 1: the Brooklyn case. But I do think that these COVID
Speaker 1: restriction cases as a general matter have been fascinating because
Speaker 1: they do suggest, I think that the Court's free exercise
Speaker 1: doctrine is moving from where it was, you know, thirty
Speaker 1: years ago in the famous Smith case. It does suggest,
Speaker 1: and this is relevant to the upcoming Philadelphia adoption case,
Speaker 1: the Fulting case, that then that you've been falling. It
Speaker 1: appears that you know, there's a majority of justices who
Speaker 1: are willing to apply more scrutiny to regulations, even well
Speaker 1: meaning regulations that burden religious exercise, and depending on where
Speaker 1: the justices land, depending on how much scrutiny they end
Speaker 1: up being willing to apply, we could see this year
Speaker 1: a doctrinal change in the tests that the Court uses
Speaker 1: in the free exercise of religion context. What kind of
Speaker 1: change exactly? A change expanding religious rights. So the change
Speaker 1: would be in the direction of providing more protection to
Speaker 1: religious exercise than the Court's Smith decision thirty years ago,
Speaker 1: provided with four different opinions, Does this case give any
Speaker 1: guidance to the lower courts about what to do in
Speaker 1: these cases? Or is it just too scattered? Yeah? So,
Speaker 1: as I think you pointed out, some critics have been
Speaker 1: frustrated that, you know, since it's well we have here
Speaker 1: are four opinions that are added to an order, we
Speaker 1: don't really have a full like merit decision. That lower
Speaker 1: courts and regulators are not totally sure what they're supposed
Speaker 1: to be doing, and this is true of the Brooklyn
Speaker 1: case too. Instead, they have to kind of read these
Speaker 1: separate opinions and infer what the justices views are. And
Speaker 1: I think there's something to that criticism I mean, on
Speaker 1: the one hand, the court have to decide these interim
Speaker 1: cases all the time, and they can't always right full
Speaker 1: opinions and have you know, full or arguments before them.
Speaker 1: I think what we're seeing in a sense is little
Speaker 1: previews of the opinions that will get in a few months.
Speaker 1: In the Philadelphia adoption case, thanks for being on the show, Rick,
Speaker 1: that's Rick Garnett, a professor nore Dame Law School. And
Speaker 1: in that Philadelphia case, a Catholic religious charity refused to
Speaker 1: place foster children with same sex couples, presenting a conflict
Speaker 1: between religious rights and gay rights. House prosecutors concluded their
Speaker 1: case for victing Donald Trump and he sent an impeachment trial,
Speaker 1: saying they've proven that the former president is guilty of
Speaker 1: inciting an insurrection when a mob of his supporters stormed
Speaker 1: the US capital on January six to stop the peaceful
Speaker 1: transfer of power. The House managers spent three days highlighting
Speaker 1: Trump's own tweets, speeches, and comments to argue that it
Speaker 1: was a month's long campaign to stoke anger about the
Speaker 1: November third election he lost to Democrat Joe Biden. Trump's
Speaker 1: lawyers are expected to present their defense tomorrow and may
Speaker 1: only need one day for their arguments, which will include
Speaker 1: video presentations after house managers played gripping footage of the
Speaker 1: assault on the capitol and violent attacks on police officers.
Speaker 1: Joining me is Jimmy Garoula, a professor at Notre Dame
Speaker 1: Law School. What is the big picture strategy of the
Speaker 1: house managers and how well are they carrying it out? Well?
Speaker 1: I think that the house managers, so the impecial managers,
Speaker 1: have done a very good job in a methodical way,
Speaker 1: presenting their theory of the case. And it's interesting to
Speaker 1: note that their theory of the case isn't limited to
Speaker 1: what occurred on January six. They've gone back several months
Speaker 1: making the case that this is something that President Trump
Speaker 1: had a plan that he had concocted that was initiated
Speaker 1: going back to before the actual election in November. He
Speaker 1: had stated prior to the election date that if he
Speaker 1: lost the only reason for him to lose would be
Speaker 1: that the election was stolen. So he planted the seed
Speaker 1: regarding the big lie well before the actual election and
Speaker 1: the election results themselves, and over several months again leading
Speaker 1: up to January six, he continued to repeat that false
Speaker 1: statement that the election was going to be stolen. The
Speaker 1: election was going to be stolen. The only way he
Speaker 1: could lose as if the election was stolen. And as
Speaker 1: a result, I mean, he convinced a significant number of
Speaker 1: his followers that that lie was true. And so when
Speaker 1: the election results were finally tallied in favor of President
Speaker 1: elect Joe Biden, then he was able to say, see,
Speaker 1: I told you so, it was stolen. I'm the victim
Speaker 1: of this terrible wrong and it needs to be redressed.
Speaker 1: And the only way it can be redressed as you've
Speaker 1: got to go to the capital on January six, the
Speaker 1: day that the election results were being certified and stop it.
Speaker 1: You know, you've got to stop the steal and take
Speaker 1: back the country. And so I thought that was very effective.
Speaker 1: This wasn't a spontaneous event that occurred on January six,
Speaker 1: but again there were several months and it was being
Speaker 1: directed and orchestrated. Events were being directed and orchestrated by
Speaker 1: the president behind the scenes for several months leading up
Speaker 1: to up to January six. Now, having said having said that,
Speaker 1: I would just add, you know, one one additional point
Speaker 1: isn't going to make a difference in terms of convincing
Speaker 1: Republicans to impeach President Trump. I don't think so. I
Speaker 1: think that Republicans had their mind made up before the
Speaker 1: impeachment hearing began, and I don't think that there's anything
Speaker 1: the impeachment managers could present to the Senate to cost
Speaker 1: seventeen members of the Republican Senate to vote in favor
Speaker 1: of impeachment. You know what you were talking about them
Speaker 1: bringing out this month long strategy, is that to try
Speaker 1: to get over the hurdle of what I would consider
Speaker 1: the biggest turtle. I don't know if you do showing
Speaker 1: that President Trump actually caused the insurrection, that the reason
Speaker 1: they went to the capital was because of President Oh yeah, yeah,
Speaker 1: exactly because it it certainly the President's involvement or or
Speaker 1: the causal relationship between President Trump's conduct and the violence
Speaker 1: that that that the world witnessed on January six wasn't
Speaker 1: limited to the President's participation in the rally on January six,
Speaker 1: the morning before the assault on the Capitol. That wasn't
Speaker 1: the summon substance of his involvement in the insurrection, The
Speaker 1: role that he played in causing his followers to march
Speaker 1: up to the Capitol and an assault and engage in
Speaker 1: this uh act of insurrection that resulted in violence and
Speaker 1: the death of five of five people. His his participation,
Speaker 1: his involvement, his role well exceeded and began well before
Speaker 1: January six, and there trying to to highlight his culpability
Speaker 1: and the extent of his culpability, the extent of his participation,
Speaker 1: the extent of his responsibility for the violence that occurred
Speaker 1: on January six. And it's not limited simply to the
Speaker 1: rally itself that morning and then his tweets that followed
Speaker 1: later in the afternoon. How effective were the use of
Speaker 1: the clips of the rioters themselves. So for at least
Speaker 1: two months, two months prior, the president had been repeating
Speaker 1: this light and it's been repeating it daily and repeatedly,
Speaker 1: you know, to his followers. In the process, again, there
Speaker 1: was this kind of rage that began to build within
Speaker 1: his followers again that erupted on January six. And you
Speaker 1: know that because the video recordings of the attack, you
Speaker 1: hear the demonstrators saying Trump has told us this, Trump
Speaker 1: said this. You know, we're doing this for Trump. You know,
Speaker 1: Trump's the boss, and we're you know, we're responding that
Speaker 1: they were following the directions of their leader, President Trump,
Speaker 1: and they admit it. Caught on video, you know, we
Speaker 1: can hear them saying it, and then even tweets by
Speaker 1: the President after the assault on the capital began. Those
Speaker 1: tweets are actually being communicated on on a bullhorn to
Speaker 1: the writers live, I mean, in real time, and they're
Speaker 1: responding to the President said that. The President said that
Speaker 1: the Mike Bence didn't have the courage and it's his
Speaker 1: fault and because he didn't stand up and do the
Speaker 1: right thing and overturn the election results. And so it's
Speaker 1: very clear that they're following his lead throughout and then
Speaker 1: that ultimately culminates when they decide to to leave the
Speaker 1: Capital buildings. Why, because we just heard this recorded statement
Speaker 1: by the President that he wants us to return in peace.
Speaker 1: So it's clear that they're reacting and responding to the
Speaker 1: President's directives, you know, from the beginning all the way
Speaker 1: through into the evening of January six one. Eventually they
Speaker 1: deciders why did they decide to return because Trump told
Speaker 1: him it was time for them to go home. After
Speaker 1: the first day's presentation, Senator Ted Cruz said it was
Speaker 1: powerful and emotional reliving a terrorist attack on our nation's capital,
Speaker 1: but very little was said about how specific conduct of
Speaker 1: the president satisfies the legal standard of convicting him of
Speaker 1: high crimes and misdemeanors. Is there a legal standard, I
Speaker 1: mean a criminal trial, you know, beyond a reasonable doubt
Speaker 1: and the civil triality, the conderance of the evidence. What
Speaker 1: is it? I think, I think it's an important distinction
Speaker 1: to make. Impeachment is a political process, it's not a
Speaker 1: criminal justice process. The Constitute should authorizes Congress authorize as
Speaker 1: a house to impeach for high crimes and misdemeanors. And
Speaker 1: that term is a term of art, and it's been
Speaker 1: interpreted to not necessarily mean or be restricted or limited
Speaker 1: to a specific federal statute, a specific federal crime. It
Speaker 1: hasn't been limited that way, but instead has been interpreted
Speaker 1: more broadly to mean abuse of power by the president.
Speaker 1: The president abused his power and in the process, you know,
Speaker 1: he's threatened our government. You know he's threatened the democracy
Speaker 1: as a result. And so it shouldn't be equated with
Speaker 1: you or the standards shouldn't be well, does the president's
Speaker 1: conduct on January six and before Constitute a crime under
Speaker 1: federal law and meet those elements, each and every one
Speaker 1: of the elements of the alleged offense beyond a reasonable doubt.
Speaker 1: That's a criminal legal standard, and that's a wrong standard
Speaker 1: to apply instead the standard here. This is a political process,
Speaker 1: not a not a criminal law process, and that distinction
Speaker 1: is an important distinction, and it shouldn't be blurred because
Speaker 1: they're not one and the same. And so Congress is
Speaker 1: free to determine whether or not the president is engaged
Speaker 1: in abuse of power that is so severe, so serious
Speaker 1: that it justifies is removal from office or his disqualification
Speaker 1: from holding office in the future. The indication is that
Speaker 1: the house managers are not going to call witnesses, but
Speaker 1: it seems as if on a few points you almost
Speaker 1: need witnesses, which is President Trump's reaction to the riot
Speaker 1: and his failure to move quicker to stop things. Well,
Speaker 1: I think that that the most important, the most critical
Speaker 1: witness in this case and the impeachment trial is the
Speaker 1: president himself. Now, now, could there be other witnesses that
Speaker 1: could be helpful to the UH and piecement managers. Certainly
Speaker 1: there are some, But I think that the most critical
Speaker 1: witnesses the President himself, and I think that the piece
Speaker 1: of managers have been a masterful job of using the
Speaker 1: president's on his own words on January six, and before
Speaker 1: and later that afternoon and evening on January six as
Speaker 1: well against the president. And not only that, it's not
Speaker 1: only what the president said and what the president did
Speaker 1: on January six, it's important, but also what he didn't do,
Speaker 1: and his inaction and his failure to to stop the insurrection,
Speaker 1: his failure to communicate to his followers that he condemned
Speaker 1: their conduct and he wanted them to stop. His statement
Speaker 1: about stopping and going home, and I love you and
Speaker 1: your great people and and all of your special people.
Speaker 1: All of that I mean that occurred some four hours
Speaker 1: or so after the assault on the Capitol was initiated,
Speaker 1: and so for four hours there was no communication by
Speaker 1: the President of his followers that he condemned their conduct.
Speaker 1: In fact, he seemed to acquiesce, and through his inaction
Speaker 1: and through his lack of condemnation, I think that is
Speaker 1: acquiescence in their conduct and demonstrated his approval of their conduct.
Speaker 1: Trump's impeachment team intends to lean heavily on his use
Speaker 1: of the words peacefully and patriotically. In the speech, he said,
Speaker 1: I know that everyone here will soon be marching over
Speaker 1: to the Capitol Building to peacefully and patriotically make your
Speaker 1: voices heard. Does that mixed message help the defense, Well,
Speaker 1: I think you've got to take that statement. You need
Speaker 1: to examine that statement in its totality, and so you
Speaker 1: can't examine it in isolation to say, well, look, we
Speaker 1: know that the president at the rally before the assault
Speaker 1: on the Capitol, he spoke for approximately seventy minutes, and
Speaker 1: during that seventy minute presentation, the word peaceful was used
Speaker 1: once one time by the president. But at the same time,
Speaker 1: during that seventy minute speech by the president, he used attack,
Speaker 1: He used you got to be strong. I mean, he
Speaker 1: used language that conveyed to his followers that he wanted
Speaker 1: them to act in a very aggressive, forceful way to
Speaker 1: stop the certification of the election. So I think it's
Speaker 1: a relatively weak argument to point to one word in
Speaker 1: a seventy minutes speech and say, oh, that vindicates the
Speaker 1: president therefore he never intended for his followers to act
Speaker 1: in a violent or aggressive way. When the other evidence,
Speaker 1: which I think is white overwhelming, is to the contrary
Speaker 1: that he was telling him, you've got to fight, you've
Speaker 1: got to fight hard, you've got to be strong, you
Speaker 1: can't be weak. These are all terms that are certainly
Speaker 1: inconsistent with a peaceful protest, and so I think the
Speaker 1: president's lawyers are going to do the best they can.
Speaker 1: Of course, they're gonna seize on that one term or
Speaker 1: that one sentence in the seventy minute speech. They're going
Speaker 1: to try to make a big deal out of it.
Speaker 1: But I think that the kind of reverence imploring his
Speaker 1: followers to act in this violent way really offsets this
Speaker 1: claim that his intent was was only for a peaceful demonstration.
Speaker 1: They're going to use clips of Democrats using words like
Speaker 1: fight and calling for protests of Trump's actions to argue
Speaker 1: that he's being held to a double standard for his rhetoric. Yeah,
Speaker 1: I think it's a false equivalency, and I think it's
Speaker 1: kind of a common defense tactic. You know, when when
Speaker 1: the facts are in your favor, when the law isn't
Speaker 1: in your favor, were then you try to direct the
Speaker 1: jury's attention away from the defendant's conduct, away from the
Speaker 1: defendant's actions to someone else. And so you'll see this,
Speaker 1: you know, the defense lawyers will blame the police. You know,
Speaker 1: wasn't my client that committed the crown look at what
Speaker 1: the police officers did, and look what they did or
Speaker 1: they didn't do. And so I think this falls along
Speaker 1: those lines. It's a diversion tactic. It's an attempt to
Speaker 1: divert the jury's attention away from the facts and the
Speaker 1: issue and where what really matters in this case, and
Speaker 1: for obvious reasons. I mean, the last thing they want
Speaker 1: the senators to do is to focus on what actually
Speaker 1: happened on January six and President Trump's role in causing
Speaker 1: that that insurrection. They really don't have to do anything
Speaker 1: because you know, it's baked in already. As you mentioned before,
Speaker 1: it doesn't seem like they're going to be in the
Speaker 1: seventeen Republican senators to vote for impeachment. Right. Well, I
Speaker 1: think what's happening here again is that Trump's lawyers are
Speaker 1: trying to give the Republican senators some reason to not convict,
Speaker 1: some reason to not hold him accountable. And they're they're
Speaker 1: throwing out there any number of legal reasons and justification
Speaker 1: for voting to acquit the president. There's arguments that, oh,
Speaker 1: what the president said was protected under the First Amendment.
Speaker 1: It's freedom of speech. So if you buy that argument, yeah,
Speaker 1: you can hang your head on that argument to acquit. Oh,
Speaker 1: the Senate can't try a former president. That's unconstitutional. Oh
Speaker 1: how about that argument. You know, if you don't like
Speaker 1: the First Amendment argument, here's another argument you can you
Speaker 1: can hang your head on that. Oh. And if if
Speaker 1: neither one of those arguments appeal to you, what about
Speaker 1: this argument of hypocrisy that the Democrats are being hypocritical
Speaker 1: because look what they said, look what they've done in
Speaker 1: the past, and therefore that maybe to give you a
Speaker 1: reason or justification to vote to equip and so so
Speaker 1: I think that they're trying to give the Republican senators
Speaker 1: some legal cover, some legal reason or some reason hope
Speaker 1: could be legal, some reason to justify their action so
Speaker 1: that they can say, well, yeah, this is all terrible
Speaker 1: what happened, and I condemn it, and I condemned the protesters.
Speaker 1: But the president is not responsible or the president shouldn't
Speaker 1: be convicted, shouldn't be impeached because of these reasons. That's
Speaker 1: Professor Jimmy Grule of Notre Dame Law School, And that's
Speaker 1: it for this edition of the Bloomberg Lawn Podcast, I'm
Speaker 1: June Grosso. Thanks so much for listening, and remember you
Speaker 1: can always get the latest legal news on our Bloomberg
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