WEBVTT - Will Supreme Court Expand Religious Rights? 0:00:00.560 --> 0:00:13.760 This is Bloomberg Law with June Grasso from Bloomberg Radio 0:00:14.000 --> 0:00:18.239 from the South. You won't hear choirs at church services 0:00:18.239 --> 0:00:21.400 in California this Sunday. In a six or three decision, 0:00:21.480 --> 0:00:25.840 the Supreme Court stopped California from enforcing COVID restrictions on 0:00:25.920 --> 0:00:30.640 indoor church services, but kept in place restrictions on singing, chanting, 0:00:30.680 --> 0:00:35.239 and capacity limitations. In its four splintered opinions, did the 0:00:35.280 --> 0:00:39.360 courts signal a doctrinal change in the future one expanding 0:00:39.360 --> 0:00:43.040 religious rights? Joining me as Rick Garnett, a professor at 0:00:43.040 --> 0:00:46.559 Notre Dame Law School. Rick described the decision of the 0:00:46.600 --> 0:00:50.400 majority here, Yeah, so at the tricky question right out 0:00:50.440 --> 0:00:52.920 of the gate, because of course these decisions didn't come 0:00:52.960 --> 0:00:55.840 in the context of a case that the Court has 0:00:55.880 --> 0:00:59.279 agreed to hear and has held oral arguments and all that. 0:00:59.320 --> 0:01:02.680 This is Sizurally. What's happening is that the church claimants 0:01:02.720 --> 0:01:06.440 are asking the Court to review a lower court decision 0:01:06.440 --> 0:01:09.479 which had upheld a bunch of these restrictions on gatherings 0:01:09.480 --> 0:01:11.160 and so on. And what the Court did was to 0:01:11.400 --> 0:01:15.440 basically enter and order for the time being. That left 0:01:15.480 --> 0:01:18.039 some of the California restrictions in place, but also lifted 0:01:18.080 --> 0:01:20.680 some of them while the case is playing out, so 0:01:20.840 --> 0:01:24.440 the situation is still very much fluid. This isn't you know, 0:01:24.480 --> 0:01:27.839 a Merit's decision like the kind you get in June 0:01:27.840 --> 0:01:30.160 at the end of the court's term. This is basically 0:01:30.200 --> 0:01:32.920 the Court trying to sort of freeze the status quo 0:01:33.480 --> 0:01:36.760 until they can decide whether or not to take the 0:01:36.800 --> 0:01:39.399 full case. And I think it's tricky because on the 0:01:39.440 --> 0:01:41.440 one hand, you know, they want to provide guidance to 0:01:41.480 --> 0:01:44.080 the lower courts, but on the other hand, these aren't 0:01:44.080 --> 0:01:46.560 full opinions. And so one way to think about what 0:01:46.600 --> 0:01:49.360 these different opinions are is the justices are trying to 0:01:49.400 --> 0:01:53.480 tell the lower courts what they're thinking right now. So 0:01:53.520 --> 0:01:56.240 the lower courts, when they get some more of these 0:01:56.360 --> 0:01:59.240 church closure cases, and they probably will, that they have 0:01:59.280 --> 0:02:01.240 a sense of what the Supreme Court wants them to do. 0:02:01.920 --> 0:02:04.400 Would you say that the way they came out is 0:02:04.440 --> 0:02:08.519 sort of a middle ground between the restrictions that California 0:02:08.639 --> 0:02:12.320 has and no restrictions all right, So the Court is 0:02:12.560 --> 0:02:16.000 leaving in place some of California's restrictions. They said, we 0:02:16.040 --> 0:02:19.120 don't have enough information to get rid of California's limits 0:02:19.200 --> 0:02:22.280 on indoor singing. For example, California had some of the 0:02:22.320 --> 0:02:25.440 strictest limits on in person religious gatherings the country, like 0:02:25.919 --> 0:02:29.239 essentially in some parts of the state, all religious gatherings, 0:02:29.520 --> 0:02:31.520 you know, forget about a hundred people where there are 0:02:31.560 --> 0:02:34.040 zero people, as Chief says, as Roberts pointed out, we're 0:02:34.040 --> 0:02:36.799 not permitted. And so I think it was that kind 0:02:36.800 --> 0:02:40.359 of outlier nature of that part of California's order that 0:02:40.520 --> 0:02:43.960 the Court said, you know, we're we're enjoining that that 0:02:44.040 --> 0:02:46.680 can't be enforced. That's too strict. But there's still plenty 0:02:46.720 --> 0:02:50.840 of time for more information to be gathered and presented. 0:02:51.280 --> 0:02:53.239 I'm sure the state will want to show why it's 0:02:53.320 --> 0:02:56.639 various restrictions limits on gathering, its limits on how many 0:02:56.680 --> 0:02:59.200 people can be in a place are necessary. And the 0:02:59.240 --> 0:03:01.320 Court made it pretty clear that it wants the state 0:03:01.720 --> 0:03:07.880 to demonstrate that it's treating religious gatherings fairly. That is, 0:03:07.919 --> 0:03:11.400 that it's not treating religious gatherings worse than other kinds 0:03:11.400 --> 0:03:14.000 of gathering. So you know, the court's concerned as well 0:03:14.040 --> 0:03:16.000 if you're you're allowing people to go to big box 0:03:16.080 --> 0:03:19.320 retail stores, but you're not even allowing you know, five 0:03:19.440 --> 0:03:22.720 people to worship in a cathedral. They worry about that 0:03:22.919 --> 0:03:26.320 disparate treatment, that perhaps discriminatory treatment. So that's going to 0:03:26.440 --> 0:03:28.760 be the real issue, I think going forward. And that 0:03:28.840 --> 0:03:31.679 was the concern that especially just as Gorset spelled out 0:03:31.720 --> 0:03:35.120 in his opinion that as he saw it, California was 0:03:35.480 --> 0:03:38.920 acting in too sweeping of a manner and it wasn't 0:03:39.160 --> 0:03:45.160 fairly comparing religious gatherings indoors to things like grocery shopping 0:03:45.280 --> 0:03:48.360 or what I do. So on one side of the 0:03:48.400 --> 0:03:53.720 spectrum of opinions, Justices Neil Gorst, Clarence Thomas, and Samuel 0:03:53.720 --> 0:03:57.400 Alito would have lifted all the restrictions on church services. 0:03:58.600 --> 0:04:01.960 Let's discuss the four separate opinion. So the most supportive 0:04:01.960 --> 0:04:05.560 of religion, the most to the right, perhaps would be 0:04:05.960 --> 0:04:09.960 the opinion by Justice score such joined by Clarence Thomas 0:04:10.200 --> 0:04:15.080 and Samuel Lecho. So what just highlight what that opinion 0:04:15.120 --> 0:04:18.120 was about. Yeah, it's interesting that in today's categories, I 0:04:18.120 --> 0:04:20.400 suppose we're calling those opinions the ones that are on 0:04:20.480 --> 0:04:23.239 the right. But the method of analysis that those justices 0:04:23.279 --> 0:04:25.320 are applying, it's one that we can trace to kind 0:04:25.360 --> 0:04:27.160 of the Court's liberals in the sixties, you know, and 0:04:27.480 --> 0:04:30.360 people like Justice William Brennan, where you know, Justice Brennan 0:04:30.400 --> 0:04:34.880 insisted that, um, when the government is regulating religious conduct, yeah, 0:04:34.960 --> 0:04:38.320 we're not just going to defer to regulator statements that 0:04:38.360 --> 0:04:40.560 these regulations are a good idea. We want evidence, We 0:04:40.640 --> 0:04:44.359 want actual demonstration that these regulations are nest to promote 0:04:44.400 --> 0:04:47.120 a compelling interest. And that was the case that Justice, 0:04:47.160 --> 0:04:50.080 course it's joined by some others, as you said, wanted 0:04:50.120 --> 0:04:52.359 to lay out. He concluded on the basis of the 0:04:52.360 --> 0:04:55.360 record that we have that California was asking for too 0:04:55.440 --> 0:04:57.960 much deference, that it was asking just for a rubber stamp, 0:04:58.080 --> 0:05:00.440 and that when you're talking about fundamental rights, romans have 0:05:00.560 --> 0:05:04.160 to provide more evidence. And his view, although obviously he's 0:05:04.200 --> 0:05:06.720 not an epidemiologist and he conceded as much, of course, 0:05:07.120 --> 0:05:10.880 his view was that California appears to be much more 0:05:11.080 --> 0:05:14.800 strict with gatherings of a religious nature and much less 0:05:14.839 --> 0:05:17.960 flexible with gatherings of a religious nature than it is 0:05:17.960 --> 0:05:20.440 with other times. So he points out, for example, look 0:05:20.480 --> 0:05:23.720 if what the experts are worried about is singing, which 0:05:23.760 --> 0:05:27.560 can spread the droplets and put people at risk for COVID. Well, 0:05:27.600 --> 0:05:29.440 you could have a restriction that said, well, okay, you 0:05:29.480 --> 0:05:31.720 can't have singing and indoor worship, but they didn't do that. 0:05:31.839 --> 0:05:35.200 They just prohibited all indoor worship. You could imagine, just 0:05:35.360 --> 0:05:37.240 as course it said a restriction that said, you know, 0:05:37.279 --> 0:05:39.840 no more than x number of people, or there has 0:05:39.880 --> 0:05:43.040 to be social distancing or masking or plexi glass shields 0:05:43.120 --> 0:05:46.000 or what have you. But what I think attracted Justice 0:05:46.160 --> 0:05:49.800 Course is just concerned was that the regulations on these 0:05:49.839 --> 0:05:54.360 indoor religious gatherings seemed so sweeping and absolute, and he 0:05:54.400 --> 0:05:57.719 says that that can't be justified on this record. This 0:05:57.880 --> 0:06:01.440 is just as any Coney Barrett's first separate opinions since 0:06:01.440 --> 0:06:04.400 she's been on the bench. So why did she write 0:06:04.400 --> 0:06:07.400 a separate opinion? Yeah, I've heard some of that. I 0:06:07.400 --> 0:06:11.200 guess I would just urge people to think critically about 0:06:11.240 --> 0:06:14.599 these labels and how they apply to cases involving fundamental rights. 0:06:14.640 --> 0:06:17.120 It's not obvious to me that it's conservative rather than 0:06:17.160 --> 0:06:20.040 liberal to want to protect religious exercise rights. And then 0:06:20.040 --> 0:06:22.400 the other point, we just be that the disagreement that 0:06:22.560 --> 0:06:26.080 Justice Sperrit and Justice Kavanaugh had with Justice Scores such 0:06:26.120 --> 0:06:28.600 as opinion is not a particularly big one. I mean, 0:06:28.839 --> 0:06:32.680 all nine justices, including Justice Kagan, they all agree that 0:06:32.720 --> 0:06:37.000 religious exercise is important, and they all agree that governments 0:06:37.200 --> 0:06:43.320 can't target religious activities for burdensome regulations. The disagreement really 0:06:43.400 --> 0:06:46.480 has to do with the amount of deference that courts 0:06:46.480 --> 0:06:49.640 should give to government officials when government officials claim that 0:06:49.680 --> 0:06:53.120 regulations are necessary, and the disagreement is just about which 0:06:53.160 --> 0:06:56.359 activities are really comparable to others. Is the church service 0:06:56.520 --> 0:06:58.599 more like a concert or is it more like going 0:06:58.600 --> 0:07:01.320 to home depot that kind of thing. These disagreements are, 0:07:01.640 --> 0:07:06.320 they're significant, but I don't believe they're dramatic ideological differences. 0:07:06.360 --> 0:07:09.279 They reflect more, I think, just the difference of opinion 0:07:09.320 --> 0:07:12.240 about how to interpret the factual record. You know. I 0:07:12.280 --> 0:07:14.440 think what I see in Justice Parrett's opinion is not 0:07:14.480 --> 0:07:16.640 an attack on what Justice Course such is saying. But 0:07:16.680 --> 0:07:20.320 it's just coming to a different conclusion, a different inference 0:07:20.800 --> 0:07:28.600 about some disputed facts. And now what about Justice Robert's opinion, Well, 0:07:28.640 --> 0:07:31.720 I take him to be pretty much on the same 0:07:31.760 --> 0:07:38.040 page as Justices Um, Barrett, and Kavanaugh. That is, some 0:07:38.160 --> 0:07:40.840 of these California He goes out of his way to 0:07:40.880 --> 0:07:44.760 say yes, of course, it's true the deference to public officials, 0:07:44.840 --> 0:07:48.240 especially when you're dealing with an emergency, is important. And 0:07:48.280 --> 0:07:51.680 of course it's true that you know, in in good 0:07:51.760 --> 0:07:55.120 judicial conservative style, that judges shouldn't be in the business 0:07:55.280 --> 0:07:59.160 of thinking that they can second guess all policy decisions. 0:07:59.200 --> 0:08:01.040 So he wants to he wants to make that very clear. 0:08:01.520 --> 0:08:03.280 But then he just he points to the kind of 0:08:03.360 --> 0:08:07.840 extreme outlier nature of California's restriction that that you know, 0:08:08.400 --> 0:08:12.480 even in the the huge Los Angeles Catholic Cathedral, which 0:08:12.520 --> 0:08:16.320 could set you know, thousands of people, you still can't 0:08:16.400 --> 0:08:18.920 have any in person worship. He just does he doesn't 0:08:19.000 --> 0:08:23.560 think that the record reflects that California is actually exercising 0:08:24.560 --> 0:08:29.840 epidemiological epidemiological judgment. That it's instead it's just kind of 0:08:29.920 --> 0:08:32.559 again doing a rubber stamp and taking the easy way 0:08:32.559 --> 0:08:37.040 out and imposing a blanket restriction. So that's why um uh, 0:08:37.600 --> 0:08:40.240 he does what he does. He he wants to make 0:08:40.280 --> 0:08:43.080 it very clear that he doesn't think judges can or 0:08:43.120 --> 0:08:49.480 should micromanage local government's responses to diseases. Um But again 0:08:49.480 --> 0:08:52.040 he's being down a marker that at some point judicial 0:08:52.080 --> 0:08:55.440 scrutiny is crucial when you have regulations that appear to 0:08:55.480 --> 0:09:01.319 be disregarding fundamental rights. Justice Elena Kagan wrote an opinion 0:09:01.679 --> 0:09:06.480 for the Liberals, and it was really impassioned and seemed 0:09:06.520 --> 0:09:11.880 to be critical of her colleagues are conservative colleagues in 0:09:11.920 --> 0:09:15.439 a way she doesn't usually do so. Justice Kagan is 0:09:15.600 --> 0:09:18.360 a great writer, has always and I do think there's 0:09:18.440 --> 0:09:22.040 a certain amount of passion and kind of urgency that 0:09:22.120 --> 0:09:24.280 comes through in her descent. But I don't think it 0:09:24.280 --> 0:09:27.360 crossed any lines in terms of not being respectful. I mean, 0:09:27.440 --> 0:09:29.480 I think she tends to always observe that line. But 0:09:29.640 --> 0:09:33.839 basically her disagreement is not on the importance of religious exercise. 0:09:34.120 --> 0:09:36.120 You know, she opens her opinion by saying, yeah, of course, 0:09:36.120 --> 0:09:38.600 you can't treat religious exercise worse than you treat comparable 0:09:38.600 --> 0:09:42.280 psycular activities. But her two main teams are, first, we 0:09:42.320 --> 0:09:46.960 should be more deferential to California state officials. And again, 0:09:47.000 --> 0:09:49.440 this is a disagreement with cors who's saying, look, yes, 0:09:49.480 --> 0:09:51.839 some difference is important, but we're talking about fundamental rights. 0:09:51.880 --> 0:09:54.080 We don't just defer to the cops when it comes to, 0:09:54.400 --> 0:09:56.640 you know, whether or not they have to respect Force 0:09:56.679 --> 0:09:58.520 fifth and six of moment rights, and so he wants 0:09:58.559 --> 0:10:01.400 to insist that we can't defer to the government when 0:10:01.400 --> 0:10:03.520 it says that these regulations are necessary. So the first 0:10:03.559 --> 0:10:05.599 disagreement is on the theme of deference. She thinks the 0:10:05.640 --> 0:10:08.440 course not being deferential enough, and she has several lines 0:10:08.480 --> 0:10:11.120 and paragraphs where she kind of challenges, she kind of 0:10:11.120 --> 0:10:13.640 pokes the justices that they're being activists. And the second 0:10:13.679 --> 0:10:18.160 disagreement have to do with these comparison points. She thinks 0:10:18.600 --> 0:10:23.880 church services, indoor religious gatherings are not comparable to things 0:10:24.000 --> 0:10:26.640 like going to the home depot, going shopping, going to 0:10:26.679 --> 0:10:28.960 a grocery store, and so on. So she thinks that 0:10:29.120 --> 0:10:34.280 religious gatherings are not being treated worse than comparable secular gatherings, 0:10:34.360 --> 0:10:38.000 whereas the justices who are in the majority did think 0:10:38.280 --> 0:10:41.440 that religious gatherings are being treated worse. In my own view, 0:10:41.440 --> 0:10:44.880 I don't think Justice Kagan took enough account of Justice 0:10:45.040 --> 0:10:49.240 Gorsuges point that California doesn't seem to have been very flexible. 0:10:49.400 --> 0:10:52.000 That again, if you're worried about singing indoors, and it 0:10:52.040 --> 0:10:53.839 seems to be that that is something to worry about, 0:10:53.920 --> 0:10:57.360 you can simply say no singing during religious gatherings, or 0:10:57.400 --> 0:10:59.959 if you're worried about people in close proximity, you can 0:11:00.080 --> 0:11:04.079 require distancing. Again, Justice Courses concern was California had kind 0:11:04.080 --> 0:11:06.839 of taken the easy way out, just the blanket no 0:11:07.040 --> 0:11:10.040 gatherings proposal, and he doesn't want to defer to that. 0:11:10.080 --> 0:11:13.720 The Justice Cagan does. The case seems to be following 0:11:13.760 --> 0:11:17.600 the New York case last November, after Justice Barrett joined 0:11:17.600 --> 0:11:21.240 the Court, in which the Court barred capacity limits on 0:11:21.360 --> 0:11:25.120 houses of worship, a change of direction from prior cases 0:11:25.160 --> 0:11:29.280 on that issue and more expansive of religious rights. So 0:11:29.320 --> 0:11:32.200 do you see this case as being a step further 0:11:32.640 --> 0:11:35.160 I don't think it's so much a step further from 0:11:35.160 --> 0:11:38.480 the Brooklyn case. But I do think that these COVID 0:11:38.520 --> 0:11:42.920 restriction cases as a general matter have been fascinating because 0:11:42.920 --> 0:11:47.760 they do suggest, I think that the Court's free exercise 0:11:48.160 --> 0:11:51.760 doctrine is moving from where it was, you know, thirty 0:11:51.800 --> 0:11:55.400 years ago in the famous Smith case. It does suggest, 0:11:55.440 --> 0:11:58.559 and this is relevant to the upcoming Philadelphia adoption case, 0:11:58.640 --> 0:12:01.120 the Fulting case, that then that you've been falling. It 0:12:01.160 --> 0:12:04.600 appears that you know, there's a majority of justices who 0:12:04.600 --> 0:12:09.440 are willing to apply more scrutiny to regulations, even well 0:12:09.480 --> 0:12:14.400 meaning regulations that burden religious exercise, and depending on where 0:12:14.440 --> 0:12:17.400 the justices land, depending on how much scrutiny they end 0:12:17.440 --> 0:12:20.800 up being willing to apply, we could see this year 0:12:21.240 --> 0:12:24.559 a doctrinal change in the tests that the Court uses 0:12:24.840 --> 0:12:28.280 in the free exercise of religion context. What kind of 0:12:28.400 --> 0:12:33.720 change exactly? A change expanding religious rights. So the change 0:12:33.760 --> 0:12:37.120 would be in the direction of providing more protection to 0:12:37.240 --> 0:12:41.680 religious exercise than the Court's Smith decision thirty years ago, 0:12:41.920 --> 0:12:46.920 provided with four different opinions, Does this case give any 0:12:46.960 --> 0:12:49.600 guidance to the lower courts about what to do in 0:12:49.640 --> 0:12:53.640 these cases? Or is it just too scattered? Yeah? So, 0:12:53.920 --> 0:12:55.760 as I think you pointed out, some critics have been 0:12:55.800 --> 0:12:58.200 frustrated that, you know, since it's well we have here 0:12:58.200 --> 0:13:01.319 are four opinions that are added to an order, we 0:13:01.360 --> 0:13:05.480 don't really have a full like merit decision. That lower 0:13:05.520 --> 0:13:09.320 courts and regulators are not totally sure what they're supposed 0:13:09.360 --> 0:13:10.840 to be doing, and this is true of the Brooklyn 0:13:10.840 --> 0:13:13.240 case too. Instead, they have to kind of read these 0:13:13.240 --> 0:13:18.280 separate opinions and infer what the justices views are. And 0:13:18.360 --> 0:13:20.960 I think there's something to that criticism I mean, on 0:13:21.000 --> 0:13:23.480 the one hand, the court have to decide these interim 0:13:23.520 --> 0:13:26.360 cases all the time, and they can't always right full 0:13:26.360 --> 0:13:30.120 opinions and have you know, full or arguments before them. 0:13:30.320 --> 0:13:33.400 I think what we're seeing in a sense is little 0:13:33.480 --> 0:13:37.680 previews of the opinions that will get in a few months. 0:13:38.280 --> 0:13:41.360 In the Philadelphia adoption case, thanks for being on the show, Rick, 0:13:41.679 --> 0:13:45.199 that's Rick Garnett, a professor nore Dame Law School. And 0:13:45.280 --> 0:13:49.560 in that Philadelphia case, a Catholic religious charity refused to 0:13:49.600 --> 0:13:53.760 place foster children with same sex couples, presenting a conflict 0:13:53.800 --> 0:13:59.320 between religious rights and gay rights. House prosecutors concluded their 0:13:59.360 --> 0:14:02.720 case for victing Donald Trump and he sent an impeachment trial, 0:14:03.160 --> 0:14:06.200 saying they've proven that the former president is guilty of 0:14:06.240 --> 0:14:09.920 inciting an insurrection when a mob of his supporters stormed 0:14:09.920 --> 0:14:13.600 the US capital on January six to stop the peaceful 0:14:13.640 --> 0:14:17.760 transfer of power. The House managers spent three days highlighting 0:14:17.800 --> 0:14:21.720 Trump's own tweets, speeches, and comments to argue that it 0:14:21.800 --> 0:14:24.840 was a month's long campaign to stoke anger about the 0:14:24.840 --> 0:14:29.040 November third election he lost to Democrat Joe Biden. Trump's 0:14:29.120 --> 0:14:32.240 lawyers are expected to present their defense tomorrow and may 0:14:32.320 --> 0:14:35.120 only need one day for their arguments, which will include 0:14:35.200 --> 0:14:39.280 video presentations after house managers played gripping footage of the 0:14:39.280 --> 0:14:43.080 assault on the capitol and violent attacks on police officers. 0:14:43.480 --> 0:14:46.200 Joining me is Jimmy Garoula, a professor at Notre Dame 0:14:46.280 --> 0:14:49.320 Law School. What is the big picture strategy of the 0:14:49.320 --> 0:14:53.400 house managers and how well are they carrying it out? Well? 0:14:53.400 --> 0:14:56.400 I think that the house managers, so the impecial managers, 0:14:56.400 --> 0:15:00.360 have done a very good job in a methodical way, 0:15:00.720 --> 0:15:04.520 presenting their theory of the case. And it's interesting to 0:15:04.560 --> 0:15:07.120 note that their theory of the case isn't limited to 0:15:07.760 --> 0:15:12.800 what occurred on January six. They've gone back several months 0:15:13.320 --> 0:15:17.640 making the case that this is something that President Trump 0:15:18.200 --> 0:15:22.560 had a plan that he had concocted that was initiated 0:15:22.640 --> 0:15:27.000 going back to before the actual election in November. He 0:15:27.040 --> 0:15:31.760 had stated prior to the election date that if he 0:15:32.000 --> 0:15:36.560 lost the only reason for him to lose would be 0:15:36.720 --> 0:15:40.680 that the election was stolen. So he planted the seed 0:15:41.280 --> 0:15:46.080 regarding the big lie well before the actual election and 0:15:46.160 --> 0:15:52.920 the election results themselves, and over several months again leading 0:15:53.000 --> 0:15:57.960 up to January six, he continued to repeat that false 0:15:58.040 --> 0:16:00.640 statement that the election was going to be stolen. The 0:16:00.640 --> 0:16:02.280 election was going to be stolen. The only way he 0:16:02.280 --> 0:16:04.440 could lose as if the election was stolen. And as 0:16:04.440 --> 0:16:08.040 a result, I mean, he convinced a significant number of 0:16:08.080 --> 0:16:13.200 his followers that that lie was true. And so when 0:16:13.320 --> 0:16:17.400 the election results were finally tallied in favor of President 0:16:17.440 --> 0:16:21.120 elect Joe Biden, then he was able to say, see, 0:16:21.160 --> 0:16:24.240 I told you so, it was stolen. I'm the victim 0:16:24.280 --> 0:16:28.040 of this terrible wrong and it needs to be redressed. 0:16:28.560 --> 0:16:30.520 And the only way it can be redressed as you've 0:16:30.560 --> 0:16:34.600 got to go to the capital on January six, the 0:16:34.680 --> 0:16:38.680 day that the election results were being certified and stop it. 0:16:38.760 --> 0:16:41.400 You know, you've got to stop the steal and take 0:16:41.440 --> 0:16:44.200 back the country. And so I thought that was very effective. 0:16:44.520 --> 0:16:49.880 This wasn't a spontaneous event that occurred on January six, 0:16:49.960 --> 0:16:53.040 but again there were several months and it was being 0:16:53.080 --> 0:16:56.760 directed and orchestrated. Events were being directed and orchestrated by 0:16:56.800 --> 0:17:00.000 the president behind the scenes for several months leading up 0:17:00.080 --> 0:17:04.520 to up to January six. Now, having said having said that, 0:17:04.560 --> 0:17:07.080 I would just add, you know, one one additional point 0:17:07.680 --> 0:17:11.560 isn't going to make a difference in terms of convincing 0:17:11.600 --> 0:17:17.560 Republicans to impeach President Trump. I don't think so. I 0:17:17.600 --> 0:17:24.880 think that Republicans had their mind made up before the 0:17:24.960 --> 0:17:30.680 impeachment hearing began, and I don't think that there's anything 0:17:30.920 --> 0:17:38.080 the impeachment managers could present to the Senate to cost 0:17:38.280 --> 0:17:42.760 seventeen members of the Republican Senate to vote in favor 0:17:43.400 --> 0:17:46.600 of impeachment. You know what you were talking about them 0:17:46.600 --> 0:17:51.720 bringing out this month long strategy, is that to try 0:17:51.760 --> 0:17:55.159 to get over the hurdle of what I would consider 0:17:55.200 --> 0:17:58.000 the biggest turtle. I don't know if you do showing 0:17:58.080 --> 0:18:02.359 that President Trump actually caused the insurrection, that the reason 0:18:02.440 --> 0:18:06.520 they went to the capital was because of President Oh yeah, yeah, 0:18:06.760 --> 0:18:12.280 exactly because it it certainly the President's involvement or or 0:18:12.520 --> 0:18:18.120 the causal relationship between President Trump's conduct and the violence 0:18:18.200 --> 0:18:22.200 that that that the world witnessed on January six wasn't 0:18:22.280 --> 0:18:27.800 limited to the President's participation in the rally on January six, 0:18:27.880 --> 0:18:31.760 the morning before the assault on the Capitol. That wasn't 0:18:31.760 --> 0:18:38.639 the summon substance of his involvement in the insurrection, The 0:18:38.760 --> 0:18:43.359 role that he played in causing his followers to march 0:18:43.560 --> 0:18:48.240 up to the Capitol and an assault and engage in 0:18:48.280 --> 0:18:52.800 this uh act of insurrection that resulted in violence and 0:18:52.840 --> 0:18:58.200 the death of five of five people. His his participation, 0:18:58.440 --> 0:19:04.760 his involvement, his role well exceeded and began well before 0:19:05.240 --> 0:19:11.200 January six, and there trying to to highlight his culpability 0:19:11.240 --> 0:19:14.480 and the extent of his culpability, the extent of his participation, 0:19:14.600 --> 0:19:19.360 the extent of his responsibility for the violence that occurred 0:19:19.560 --> 0:19:23.080 on January six. And it's not limited simply to the 0:19:23.240 --> 0:19:28.480 rally itself that morning and then his tweets that followed 0:19:28.560 --> 0:19:32.280 later in the afternoon. How effective were the use of 0:19:32.320 --> 0:19:36.120 the clips of the rioters themselves. So for at least 0:19:36.200 --> 0:19:40.560 two months, two months prior, the president had been repeating 0:19:40.600 --> 0:19:43.640 this light and it's been repeating it daily and repeatedly, 0:19:44.160 --> 0:19:48.440 you know, to his followers. In the process, again, there 0:19:48.520 --> 0:19:52.480 was this kind of rage that began to build within 0:19:52.560 --> 0:19:57.639 his followers again that erupted on January six. And you 0:19:57.760 --> 0:20:03.199 know that because the video recordings of the attack, you 0:20:03.440 --> 0:20:07.800 hear the demonstrators saying Trump has told us this, Trump 0:20:07.880 --> 0:20:10.720 said this. You know, we're doing this for Trump. You know, 0:20:10.800 --> 0:20:13.960 Trump's the boss, and we're you know, we're responding that 0:20:14.080 --> 0:20:18.879 they were following the directions of their leader, President Trump, 0:20:19.040 --> 0:20:21.320 and they admit it. Caught on video, you know, we 0:20:21.320 --> 0:20:25.640 can hear them saying it, and then even tweets by 0:20:25.680 --> 0:20:30.199 the President after the assault on the capital began. Those 0:20:30.240 --> 0:20:35.760 tweets are actually being communicated on on a bullhorn to 0:20:35.960 --> 0:20:40.240 the writers live, I mean, in real time, and they're 0:20:40.280 --> 0:20:43.000 responding to the President said that. The President said that 0:20:43.320 --> 0:20:45.520 the Mike Bence didn't have the courage and it's his 0:20:45.640 --> 0:20:47.800 fault and because he didn't stand up and do the 0:20:47.880 --> 0:20:50.920 right thing and overturn the election results. And so it's 0:20:51.000 --> 0:20:55.720 very clear that they're following his lead throughout and then 0:20:55.760 --> 0:20:59.919 that ultimately culminates when they decide to to leave the 0:21:00.080 --> 0:21:04.560 Capital buildings. Why, because we just heard this recorded statement 0:21:05.119 --> 0:21:08.199 by the President that he wants us to return in peace. 0:21:08.960 --> 0:21:13.240 So it's clear that they're reacting and responding to the 0:21:13.280 --> 0:21:16.400 President's directives, you know, from the beginning all the way 0:21:16.480 --> 0:21:19.880 through into the evening of January six one. Eventually they 0:21:19.920 --> 0:21:22.760 deciders why did they decide to return because Trump told 0:21:22.800 --> 0:21:25.040 him it was time for them to go home. After 0:21:25.280 --> 0:21:28.680 the first day's presentation, Senator Ted Cruz said it was 0:21:28.760 --> 0:21:32.680 powerful and emotional reliving a terrorist attack on our nation's capital, 0:21:33.000 --> 0:21:36.119 but very little was said about how specific conduct of 0:21:36.160 --> 0:21:40.080 the president satisfies the legal standard of convicting him of 0:21:40.160 --> 0:21:44.280 high crimes and misdemeanors. Is there a legal standard, I 0:21:44.280 --> 0:21:47.160 mean a criminal trial, you know, beyond a reasonable doubt 0:21:47.240 --> 0:21:50.080 and the civil triality, the conderance of the evidence. What 0:21:50.200 --> 0:21:53.080 is it? I think, I think it's an important distinction 0:21:53.160 --> 0:21:57.040 to make. Impeachment is a political process, it's not a 0:21:57.080 --> 0:22:04.679 criminal justice process. The Constitute should authorizes Congress authorize as 0:22:04.680 --> 0:22:08.680 a house to impeach for high crimes and misdemeanors. And 0:22:08.840 --> 0:22:11.440 that term is a term of art, and it's been 0:22:11.480 --> 0:22:15.680 interpreted to not necessarily mean or be restricted or limited 0:22:15.720 --> 0:22:20.119 to a specific federal statute, a specific federal crime. It 0:22:20.200 --> 0:22:23.640 hasn't been limited that way, but instead has been interpreted 0:22:23.680 --> 0:22:27.480 more broadly to mean abuse of power by the president. 0:22:27.800 --> 0:22:31.280 The president abused his power and in the process, you know, 0:22:31.440 --> 0:22:34.240 he's threatened our government. You know he's threatened the democracy 0:22:34.440 --> 0:22:38.360 as a result. And so it shouldn't be equated with 0:22:38.600 --> 0:22:43.000 you or the standards shouldn't be well, does the president's 0:22:43.200 --> 0:22:51.160 conduct on January six and before Constitute a crime under 0:22:51.240 --> 0:22:55.000 federal law and meet those elements, each and every one 0:22:55.040 --> 0:22:58.120 of the elements of the alleged offense beyond a reasonable doubt. 0:22:58.400 --> 0:23:02.200 That's a criminal legal standard, and that's a wrong standard 0:23:02.200 --> 0:23:06.639 to apply instead the standard here. This is a political process, 0:23:07.119 --> 0:23:11.920 not a not a criminal law process, and that distinction 0:23:12.640 --> 0:23:14.880 is an important distinction, and it shouldn't be blurred because 0:23:14.880 --> 0:23:17.720 they're not one and the same. And so Congress is 0:23:17.760 --> 0:23:22.200 free to determine whether or not the president is engaged 0:23:22.280 --> 0:23:26.280 in abuse of power that is so severe, so serious 0:23:26.320 --> 0:23:30.240 that it justifies is removal from office or his disqualification 0:23:30.320 --> 0:23:34.080 from holding office in the future. The indication is that 0:23:34.560 --> 0:23:38.000 the house managers are not going to call witnesses, but 0:23:38.400 --> 0:23:42.000 it seems as if on a few points you almost 0:23:42.040 --> 0:23:46.959 need witnesses, which is President Trump's reaction to the riot 0:23:47.600 --> 0:23:52.840 and his failure to move quicker to stop things. Well, 0:23:52.880 --> 0:23:56.080 I think that that the most important, the most critical 0:23:56.119 --> 0:24:00.119 witness in this case and the impeachment trial is the 0:24:00.160 --> 0:24:03.320 president himself. Now, now, could there be other witnesses that 0:24:03.359 --> 0:24:08.400 could be helpful to the UH and piecement managers. Certainly 0:24:08.560 --> 0:24:11.640 there are some, But I think that the most critical 0:24:11.640 --> 0:24:17.000 witnesses the President himself, and I think that the piece 0:24:17.040 --> 0:24:20.439 of managers have been a masterful job of using the 0:24:20.480 --> 0:24:24.280 president's on his own words on January six, and before 0:24:25.200 --> 0:24:28.959 and later that afternoon and evening on January six as 0:24:29.000 --> 0:24:33.199 well against the president. And not only that, it's not 0:24:33.280 --> 0:24:36.400 only what the president said and what the president did 0:24:36.480 --> 0:24:40.040 on January six, it's important, but also what he didn't do, 0:24:41.200 --> 0:24:46.120 and his inaction and his failure to to stop the insurrection, 0:24:46.680 --> 0:24:52.240 his failure to communicate to his followers that he condemned 0:24:52.240 --> 0:24:56.800 their conduct and he wanted them to stop. His statement 0:24:56.840 --> 0:24:59.920