1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,519 --> 00:00:09,760 Speaker 1: The House is poised to impeach President Trump and quickly 3 00:00:10,039 --> 00:00:13,360 Speaker 1: warning he is a threat to democracy. Trump faces a 4 00:00:13,400 --> 00:00:17,160 Speaker 1: single charge incitement of insurrection, and the House will begin 5 00:00:17,239 --> 00:00:20,799 Speaker 1: debating Wednesday. Joining me as an expert in impeachment law, 6 00:00:21,160 --> 00:00:24,360 Speaker 1: Frank Bowman, a professor at the University of Missouri Law School. 7 00:00:24,880 --> 00:00:28,000 Speaker 1: So this would be the second time in about a 8 00:00:28,120 --> 00:00:32,960 Speaker 1: year that President Trump is impeached. Is there any impediment 9 00:00:33,080 --> 00:00:38,680 Speaker 1: to impeaching a president for a second time? Any difference? No. Constitutionally, 10 00:00:38,680 --> 00:00:41,159 Speaker 1: you could impeach a president every day of the week 11 00:00:41,200 --> 00:00:44,240 Speaker 1: and twice on Sunday, So it's entirely within the purview 12 00:00:44,280 --> 00:00:47,360 Speaker 1: of the House to do that. What about impeaching him 13 00:00:47,400 --> 00:00:51,040 Speaker 1: at this particular time where he has so few days 14 00:00:51,400 --> 00:00:55,160 Speaker 1: left in office. Well, there's a couple of questions that 15 00:00:55,200 --> 00:00:58,720 Speaker 1: you can ask about that. One. Is it possible to 16 00:00:58,840 --> 00:01:02,760 Speaker 1: do this in this sense? Plainly, what's going to happen 17 00:01:02,840 --> 00:01:05,240 Speaker 1: right now is that there is going to be an 18 00:01:05,240 --> 00:01:08,640 Speaker 1: impeachment that has argument, an impeachment resolution introduced. It will 19 00:01:08,680 --> 00:01:12,080 Speaker 1: be voted on, I expect before a couple of days 20 00:01:12,080 --> 00:01:14,960 Speaker 1: are out. And then, of course, the question is when 21 00:01:15,360 --> 00:01:20,440 Speaker 1: a Senate trial might occur. Now we know that it 22 00:01:20,640 --> 00:01:23,920 Speaker 1: is not going to occur potentially prior to the inauguration 23 00:01:24,000 --> 00:01:30,200 Speaker 1: of President Biden, because, among other reasons, Senator McConnell essentially 24 00:01:30,319 --> 00:01:32,959 Speaker 1: said as much, put out a memo on the potential 25 00:01:32,959 --> 00:01:35,640 Speaker 1: climbing of the Senate trial, which essentially says, you know, 26 00:01:35,640 --> 00:01:38,440 Speaker 1: at least in effect, he says, while I'm a Senate 27 00:01:38,480 --> 00:01:43,280 Speaker 1: majority leader, we didn't having any any impeachment trials over here, 28 00:01:43,959 --> 00:01:46,440 Speaker 1: which means that any trial would have to occur after 29 00:01:46,520 --> 00:01:50,760 Speaker 1: they And so the question might arise in people's minds, 30 00:01:50,760 --> 00:01:55,760 Speaker 1: will can you constitutionally try a person president or any 31 00:01:55,800 --> 00:01:58,440 Speaker 1: other civil officer whose subject to impeachment? Can you can 32 00:01:58,440 --> 00:02:00,400 Speaker 1: you try and after they're out of office? It's an 33 00:02:00,400 --> 00:02:04,120 Speaker 1: interesting question, but there are sound reasons to believe the 34 00:02:04,160 --> 00:02:08,440 Speaker 1: best perfectly appropriate as it happens. I and pressed Bryant 35 00:02:08,480 --> 00:02:11,000 Speaker 1: call to have a piece in the Washington Post coming 36 00:02:11,040 --> 00:02:15,679 Speaker 1: out shortly discussing that point. But the long and the 37 00:02:15,760 --> 00:02:19,560 Speaker 1: short of it is that there's no obvious constitutional impediment 38 00:02:19,680 --> 00:02:22,800 Speaker 1: having a trial after someone's left office. Not only are 39 00:02:22,919 --> 00:02:27,040 Speaker 1: there some precedence for that, but there's a very sound 40 00:02:27,120 --> 00:02:31,760 Speaker 1: sort of constitutional, structural, original kind of argument for that point, 41 00:02:31,840 --> 00:02:36,680 Speaker 1: and that argument ends from the available penalties for impeachment, 42 00:02:36,880 --> 00:02:40,680 Speaker 1: which are two of the Constitution, removal from office, which 43 00:02:40,720 --> 00:02:45,320 Speaker 1: is automatic on conviction, and second, if someone is teached 44 00:02:45,639 --> 00:02:49,840 Speaker 1: and convicted, then on a second vote, the Senate can 45 00:02:50,160 --> 00:02:54,600 Speaker 1: decide to impose the remedy the penalty of disqualification from 46 00:02:54,639 --> 00:02:57,440 Speaker 1: ever again holding an offs of honor profit under the 47 00:02:57,760 --> 00:03:01,240 Speaker 1: United States, meaning practice. Speaking as President Trump couldn't run 48 00:03:01,240 --> 00:03:04,320 Speaker 1: again for office in four as he's indicated, you would 49 00:03:04,400 --> 00:03:07,679 Speaker 1: like to do, so there is a practical reason for 50 00:03:08,360 --> 00:03:12,320 Speaker 1: going forward. And I think it's pretty clear that the 51 00:03:12,440 --> 00:03:16,160 Speaker 1: reason that Framers put this remedy in it's not merely 52 00:03:16,200 --> 00:03:18,920 Speaker 1: as a deterrent to bad behavior while people are in office, 53 00:03:19,000 --> 00:03:22,760 Speaker 1: but also it was a recognition that certain people may 54 00:03:22,919 --> 00:03:26,440 Speaker 1: prove themselves by their conduct to represent a continuing danger 55 00:03:26,800 --> 00:03:29,560 Speaker 1: to the republic such that they really need to be 56 00:03:29,919 --> 00:03:32,160 Speaker 1: banned from a public life, at least in the sense 57 00:03:32,240 --> 00:03:36,200 Speaker 1: of participation in national government. And if anybody ever qualified 58 00:03:36,240 --> 00:03:38,240 Speaker 1: to that remedy, I think it would be Donald Trump. 59 00:03:38,520 --> 00:03:42,720 Speaker 1: So there are presidential reasons for thinking that is perfectly 60 00:03:42,720 --> 00:03:45,400 Speaker 1: appropriate to go ahead with a trial after he's out 61 00:03:45,440 --> 00:03:47,760 Speaker 1: of office, and there I think are pretty darn good 62 00:03:48,160 --> 00:03:51,120 Speaker 1: reasons to go ahead and do that in order to 63 00:03:51,400 --> 00:03:54,520 Speaker 1: remove him from the possibility of ever returning to the 64 00:03:54,640 --> 00:03:58,480 Speaker 1: light US. If he is impeached, does he lose the 65 00:03:58,840 --> 00:04:01,600 Speaker 1: bells and whistles that go with being a former president, 66 00:04:01,680 --> 00:04:05,360 Speaker 1: like Secret Service protection? I don't really answer that question. 67 00:04:06,080 --> 00:04:09,120 Speaker 1: I've been asked that several times today, and there are 68 00:04:09,240 --> 00:04:13,560 Speaker 1: some uh statutes of regulations that seemed to cover it that, 69 00:04:13,840 --> 00:04:15,760 Speaker 1: but I don't know what in them, and so I'm 70 00:04:15,760 --> 00:04:17,920 Speaker 1: not going to presume to tell you because I don't know. 71 00:04:18,360 --> 00:04:21,760 Speaker 1: One of the reasons given for not starting an impeachment 72 00:04:22,160 --> 00:04:26,599 Speaker 1: is that this would really sort of bog down president 73 00:04:26,720 --> 00:04:30,480 Speaker 1: like Biden's first days in office and stop him from 74 00:04:30,560 --> 00:04:32,840 Speaker 1: perhaps doing some of the things that he wants to do. 75 00:04:33,440 --> 00:04:36,680 Speaker 1: Is that a good reason for not impeaching Trump? I 76 00:04:36,839 --> 00:04:40,160 Speaker 1: have really wrestled with this question. In fact counts a 77 00:04:40,200 --> 00:04:42,800 Speaker 1: thousand years ago. It was only four hours ago I 78 00:04:42,880 --> 00:04:47,360 Speaker 1: put something up on Twitter laying out essentially an argument 79 00:04:47,440 --> 00:04:52,080 Speaker 1: for that very proposition, the notion that there is some 80 00:04:52,360 --> 00:04:56,080 Speaker 1: risk that this process really would come up to work 81 00:04:56,360 --> 00:05:00,400 Speaker 1: and prevent not only President Biden, but Congress from pursuing 82 00:05:00,520 --> 00:05:03,880 Speaker 1: the urgent priorities that that face us, you know, an 83 00:05:03,960 --> 00:05:08,200 Speaker 1: ongoing plague. And Frankly, the project is I'm doing the 84 00:05:08,279 --> 00:05:10,560 Speaker 1: dam is that Mr Trump and his minions had done 85 00:05:10,600 --> 00:05:12,440 Speaker 1: to this country over the last four years. It's a 86 00:05:12,520 --> 00:05:14,680 Speaker 1: huge amount of work to be done at a certain extent. 87 00:05:14,839 --> 00:05:18,559 Speaker 1: I mean, we don't want to be consumed with dealing 88 00:05:18,600 --> 00:05:21,160 Speaker 1: with this guy a moment longer than we have to be, 89 00:05:21,320 --> 00:05:23,840 Speaker 1: and I get that. But in the end, I guess 90 00:05:23,920 --> 00:05:27,520 Speaker 1: I've come down on the side of thinking that what 91 00:05:27,640 --> 00:05:30,360 Speaker 1: he's done is so serious because he goes far beyond 92 00:05:30,440 --> 00:05:34,080 Speaker 1: the events of November the six tragic, horrifying, and unprecedented 93 00:05:34,120 --> 00:05:36,400 Speaker 1: that they were. Remember the six was the culmination of 94 00:05:36,440 --> 00:05:38,880 Speaker 1: a two month long attempt to steal an American election 95 00:05:38,960 --> 00:05:45,440 Speaker 1: to essentially through force, fraud, propaganda pressure, in the end, 96 00:05:45,600 --> 00:05:50,560 Speaker 1: mob violence, overturn a legitimate election and maintained Donald Trump 97 00:05:50,640 --> 00:05:54,880 Speaker 1: as literally an unelected autograph. I think that requires a 98 00:05:55,000 --> 00:06:00,680 Speaker 1: response from Congress. Frank Congressman Jim Clyburn has suggested impeaching 99 00:06:00,800 --> 00:06:04,640 Speaker 1: President Trump and then waiting a few months to refer 100 00:06:04,800 --> 00:06:08,080 Speaker 1: the impeachment to the Senate. For trial. I'd say two things. 101 00:06:08,160 --> 00:06:11,120 Speaker 1: First of all, if the Senate wanted to, they could 102 00:06:11,200 --> 00:06:15,800 Speaker 1: move an impeachment through to trial very very quickly. Now, 103 00:06:15,920 --> 00:06:20,599 Speaker 1: that would require the will of supermajority to essentially change 104 00:06:20,600 --> 00:06:23,840 Speaker 1: your waves and timing rules and and move forward at 105 00:06:24,320 --> 00:06:26,920 Speaker 1: warp speed. But the truth of the matter is that 106 00:06:27,040 --> 00:06:28,880 Speaker 1: both houses can do that kind of thing when they 107 00:06:28,920 --> 00:06:32,040 Speaker 1: want to, right, I mean they can. They can do 108 00:06:32,200 --> 00:06:35,480 Speaker 1: things in hours if they want to do that somehow 109 00:06:35,560 --> 00:06:39,000 Speaker 1: or other otherwise take months. So I'm not as concerned 110 00:06:39,000 --> 00:06:42,120 Speaker 1: about that as I might be now. The idea of 111 00:06:42,720 --> 00:06:47,000 Speaker 1: that Garnersman Clyburne, I have the utmost respectful and put 112 00:06:47,080 --> 00:06:51,400 Speaker 1: forward of pushing this back until after five days. I 113 00:06:51,480 --> 00:06:55,040 Speaker 1: have to sound a little less enthusiastic about that, if 114 00:06:55,080 --> 00:06:58,599 Speaker 1: only because if there's any chance to actually convict Donald 115 00:06:58,640 --> 00:07:00,680 Speaker 1: Trump and to really complete you get him out of 116 00:07:00,720 --> 00:07:05,240 Speaker 1: our hair forever, I think that chance exists now. Um, 117 00:07:05,600 --> 00:07:09,800 Speaker 1: while the memory of the horrors of January the six 118 00:07:09,920 --> 00:07:14,720 Speaker 1: are fresh in the minds of particularly Republican senators, the 119 00:07:14,880 --> 00:07:17,640 Speaker 1: fear they felt, the sense of betrayal that I hope 120 00:07:17,680 --> 00:07:19,840 Speaker 1: they felt, and I kind of fear that if we 121 00:07:20,360 --> 00:07:23,560 Speaker 1: wait too long for a trial, and Congress gets back 122 00:07:23,600 --> 00:07:26,280 Speaker 1: into you know, as inevitably it will the normal rhythms 123 00:07:26,360 --> 00:07:30,679 Speaker 1: of pars and competition, and everybody's signing up on different teams, 124 00:07:30,720 --> 00:07:34,040 Speaker 1: and so what's on the three months from now? Trying 125 00:07:34,080 --> 00:07:38,240 Speaker 1: to recapture the very proper momentum for acting and acting 126 00:07:38,360 --> 00:07:42,119 Speaker 1: quickly it is likely to be lost. But nobody listens 127 00:07:42,160 --> 00:07:44,360 Speaker 1: to me on Kathite bills. They're gonna do what they want. 128 00:07:44,720 --> 00:07:48,240 Speaker 1: So let's discuss the resolution proposing an article of impeachment. 129 00:07:48,280 --> 00:07:52,000 Speaker 1: It would be a single charge of incitement of insurrection. 130 00:07:52,480 --> 00:07:56,120 Speaker 1: How do you view having a single charge? There's nothing 131 00:07:56,160 --> 00:07:59,280 Speaker 1: wrong with a single charge. I think the allegations that 132 00:07:59,400 --> 00:08:02,920 Speaker 1: it makes are certainly factually correct. They certainly state a 133 00:08:03,040 --> 00:08:06,920 Speaker 1: case for impeachment under the Constitution. But the allegations are 134 00:08:06,960 --> 00:08:09,160 Speaker 1: plainly of high crimes and the seniors. There's not a 135 00:08:09,240 --> 00:08:11,800 Speaker 1: doubt of that in the world. I have argued that 136 00:08:12,160 --> 00:08:17,840 Speaker 1: a narrow focus on and in particular the claim that 137 00:08:17,920 --> 00:08:21,560 Speaker 1: Trump should be compeached because he incited something called an 138 00:08:21,600 --> 00:08:25,760 Speaker 1: insurrection may not be either wise this or most prudent approach, 139 00:08:25,880 --> 00:08:30,480 Speaker 1: because both of those terms incitements and insurrection have technical 140 00:08:30,560 --> 00:08:35,560 Speaker 1: meanings incitements certainly at least implied some kind of mental state, 141 00:08:35,679 --> 00:08:39,319 Speaker 1: some kind of desire on the part of the inciter 142 00:08:40,240 --> 00:08:43,000 Speaker 1: to cause something called an insurrection, or like to cause 143 00:08:43,240 --> 00:08:46,400 Speaker 1: even less than that, to cause violence. Now, while I 144 00:08:46,559 --> 00:08:49,600 Speaker 1: think you know what Mr Trump did not only January 145 00:08:49,679 --> 00:08:52,320 Speaker 1: six foot, in the weeks and months before that, certainly 146 00:08:52,440 --> 00:09:00,040 Speaker 1: any reasonable mind was foreseeably likely to produced violence and 147 00:09:00,600 --> 00:09:05,280 Speaker 1: hired to prove that he wanted violence. That he sought violence, 148 00:09:05,640 --> 00:09:08,280 Speaker 1: that he sought to pressure the Congress of the United 149 00:09:08,280 --> 00:09:13,280 Speaker 1: States not to perform its constitutional duty is undeniable, and 150 00:09:13,400 --> 00:09:16,679 Speaker 1: that's pointly an impeachable offense. But I fear that the 151 00:09:16,760 --> 00:09:19,120 Speaker 1: House is set up for itself, a more importantly for 152 00:09:19,200 --> 00:09:21,920 Speaker 1: its managers when they go over the Senate, a much 153 00:09:22,080 --> 00:09:26,080 Speaker 1: rougher task than they needed to. So I'm concerned about 154 00:09:26,280 --> 00:09:29,520 Speaker 1: the particular form that this that this article will take, 155 00:09:29,600 --> 00:09:32,679 Speaker 1: even though it's entirely justifiable on the facts and on 156 00:09:32,760 --> 00:09:35,520 Speaker 1: the Constitution, and I will certainly urge that anyone who 157 00:09:35,520 --> 00:09:38,880 Speaker 1: will listen to vote in favor of it, I just 158 00:09:39,040 --> 00:09:41,800 Speaker 1: think that the House may have made it harder than 159 00:09:41,840 --> 00:09:45,240 Speaker 1: it off them. So what would you suggest for articles 160 00:09:45,280 --> 00:09:50,679 Speaker 1: of impeachment in this instance, Well, I've laid out very 161 00:09:50,760 --> 00:09:54,160 Speaker 1: recently in a long article in the in the online 162 00:09:54,200 --> 00:09:58,360 Speaker 1: magazine Just Security, the case the constitutional case corompeachment of 163 00:09:58,600 --> 00:10:05,319 Speaker 1: Donald Trump, and essentially the argument is that over the 164 00:10:05,440 --> 00:10:09,080 Speaker 1: last two months, Donald Trump has engaged in a concerted 165 00:10:09,120 --> 00:10:13,160 Speaker 1: scheme to overturnal the lawful election. Um, in a whole 166 00:10:13,200 --> 00:10:16,640 Speaker 1: variety of different ways um. Noted in including for example, 167 00:10:16,760 --> 00:10:18,920 Speaker 1: the recorded phone call to the Secretary of State in 168 00:10:18,920 --> 00:10:22,880 Speaker 1: Georgia which he is plainly trying to to to induce 169 00:10:23,000 --> 00:10:27,280 Speaker 1: that official to change the lawful election results. He promoted 170 00:10:27,840 --> 00:10:32,480 Speaker 1: all sorts of utterly unfounded conspiracy theories. Um. He sought 171 00:10:32,600 --> 00:10:37,760 Speaker 1: to Yeah, he all but ordered Vice President's tense not 172 00:10:37,880 --> 00:10:40,520 Speaker 1: to refuse to perform his constitutional duty and to assume 173 00:10:41,600 --> 00:10:44,920 Speaker 1: powers that he plainly does not have. Is essentially to 174 00:10:45,040 --> 00:10:49,160 Speaker 1: declare Trump the winner. Um. And then the end of course, 175 00:10:49,640 --> 00:10:53,240 Speaker 1: he he called for uh, you know, people to gather 176 00:10:53,480 --> 00:10:57,439 Speaker 1: to place pressure on Congress to overturned the results of 177 00:10:57,440 --> 00:11:04,320 Speaker 1: the election. Now, all of that is collectively is an 178 00:11:04,400 --> 00:11:08,400 Speaker 1: undeniable result on the core of American democracy, which is 179 00:11:08,520 --> 00:11:12,000 Speaker 1: to say, you know, the sanctity of elections and the 180 00:11:12,040 --> 00:11:15,680 Speaker 1: will of the people. Um. What happened on January six 181 00:11:16,320 --> 00:11:18,839 Speaker 1: was horrific in and of itself, and frankly in and 182 00:11:18,880 --> 00:11:23,000 Speaker 1: of itself, perhaps in the Europe's impeachment, but I think 183 00:11:23,040 --> 00:11:27,040 Speaker 1: it was only the culmination of a much larger sea 184 00:11:27,120 --> 00:11:30,559 Speaker 1: of events, which and to prove that you don't have 185 00:11:30,720 --> 00:11:35,199 Speaker 1: to rely on, you know, pettifogging quibbles about Demand's mental 186 00:11:35,320 --> 00:11:37,920 Speaker 1: state at a particular moment, standing on a particular podium. 187 00:11:38,480 --> 00:11:41,160 Speaker 1: And therefore I think the one or more articles of 188 00:11:41,280 --> 00:11:47,320 Speaker 1: impeachment ought to be introduced that layout the broader effort 189 00:11:47,480 --> 00:11:51,599 Speaker 1: to attack electoral blocracy. And and I've diverged people on 190 00:11:51,600 --> 00:11:54,120 Speaker 1: the hill to do that. Um, I think the the 191 00:11:54,880 --> 00:11:59,280 Speaker 1: imperatives of time to understandably have moved them away from that. 192 00:11:59,800 --> 00:12:02,240 Speaker 1: And I've done what they've done. I would have preferred 193 00:12:02,280 --> 00:12:06,280 Speaker 1: that they do otherwise, but I got no votes, and 194 00:12:06,400 --> 00:12:10,720 Speaker 1: I certainly support the resolution as it stands, and urge 195 00:12:10,760 --> 00:12:14,120 Speaker 1: anyone you know in Congress, House, your Senate to vote 196 00:12:14,120 --> 00:12:17,920 Speaker 1: for it. In this resolution, it cites the fourteenth Amendment 197 00:12:18,559 --> 00:12:21,679 Speaker 1: that anyone who has engaged in insurrection or rebellion against 198 00:12:21,720 --> 00:12:24,920 Speaker 1: the United States can hold office in the future. What's 199 00:12:24,960 --> 00:12:28,280 Speaker 1: the point of citing the fourteenth Amendment. There how to 200 00:12:28,360 --> 00:12:32,199 Speaker 1: how to praise this you president nicely or nice praise 201 00:12:32,320 --> 00:12:37,640 Speaker 1: this politely. I think it is an error because it's forced. 202 00:12:37,679 --> 00:12:41,200 Speaker 1: It's gonna it's gonna drive this conversation and debates about 203 00:12:41,280 --> 00:12:44,360 Speaker 1: the history, history of the Fortune's Amendment and the Civil War, 204 00:12:44,640 --> 00:12:49,040 Speaker 1: and whether what happened on on January the six is 205 00:12:49,120 --> 00:12:53,839 Speaker 1: the equivalence of the South rising against the Union, because 206 00:12:53,920 --> 00:12:55,959 Speaker 1: that's plently of the context in which you know the 207 00:12:56,040 --> 00:13:00,640 Speaker 1: portein amendber has passed, including Session three. I it is 208 00:13:00,679 --> 00:13:03,760 Speaker 1: a wholly unnecessary diversion, and I wish to god they 209 00:13:03,760 --> 00:13:08,280 Speaker 1: had not put again. But you know, I don't think nonetheless, 210 00:13:09,360 --> 00:13:11,760 Speaker 1: I don't think that one has to you read the 211 00:13:11,800 --> 00:13:14,000 Speaker 1: rest of the resolution. I don't think one has to 212 00:13:14,120 --> 00:13:17,040 Speaker 1: conclude that what happened on the six with the equivalence 213 00:13:17,040 --> 00:13:21,400 Speaker 1: of awards to convict him. But I think it was 214 00:13:21,440 --> 00:13:24,800 Speaker 1: a major tactical Let's say this, they passed this to 215 00:13:24,880 --> 00:13:27,640 Speaker 1: the Senate, and then as soon as Chuck Schumer becomes 216 00:13:27,800 --> 00:13:32,400 Speaker 1: a majority leader, they start the impeachment trial. Won't that 217 00:13:32,640 --> 00:13:37,920 Speaker 1: allow Trump and his attorneys to who knows what antics 218 00:13:38,200 --> 00:13:41,040 Speaker 1: they'll try to capture the attention of the public again 219 00:13:41,080 --> 00:13:44,480 Speaker 1: and to push that message that might be harmful to 220 00:13:44,720 --> 00:13:48,000 Speaker 1: the country moving on, and it will just sort of 221 00:13:48,320 --> 00:13:52,599 Speaker 1: resurrect everything that could be buried at this point. I 222 00:13:52,679 --> 00:13:56,080 Speaker 1: think that's a fair concern. But I guess I'd respond 223 00:13:56,160 --> 00:13:58,559 Speaker 1: in more or less the same way as I did 224 00:13:58,640 --> 00:14:03,640 Speaker 1: before this stuff happened. I mean, reflected on this a moment. 225 00:14:03,760 --> 00:14:06,679 Speaker 1: For two months. The president of the United States actively 226 00:14:06,720 --> 00:14:11,640 Speaker 1: attacked American democracy. Think about that. He lied, he induced 227 00:14:11,760 --> 00:14:15,280 Speaker 1: others to lie, He attempted to pressure public officials, He 228 00:14:15,360 --> 00:14:20,080 Speaker 1: attempted to attack American democracy. And then he incited a mob. 229 00:14:20,680 --> 00:14:24,400 Speaker 1: And and here's the key thing about that mob is 230 00:14:24,520 --> 00:14:29,880 Speaker 1: that those people, although I not for one moment sympathized 231 00:14:29,920 --> 00:14:33,800 Speaker 1: with what they did, I at least understand to the 232 00:14:33,880 --> 00:14:36,720 Speaker 1: extent that I think the vast majority probably all is 233 00:14:36,760 --> 00:14:41,640 Speaker 1: and genuinely believed the lies that Trump and those who 234 00:14:41,720 --> 00:14:44,600 Speaker 1: abetted him were telling about the elections. They were there 235 00:14:44,680 --> 00:14:48,680 Speaker 1: because they believed, they believed that American democracy had been 236 00:14:48,680 --> 00:14:52,440 Speaker 1: stole in any different kind of way, that vast shadowy 237 00:14:52,560 --> 00:14:57,320 Speaker 1: forces had somehow or other stolen Trump's election, without of 238 00:14:57,360 --> 00:15:00,880 Speaker 1: course leaving any evidence they actually had. But they believed 239 00:15:00,960 --> 00:15:05,800 Speaker 1: that and the fact that they believe that is Trump's responsibility, 240 00:15:05,840 --> 00:15:08,600 Speaker 1: as well as those who supported him and abetted all 241 00:15:08,640 --> 00:15:13,240 Speaker 1: this foolishness. I don't think that we can simply say, oh, well, 242 00:15:13,320 --> 00:15:17,560 Speaker 1: that's that's so last week. Let's just pretend it didn't 243 00:15:17,640 --> 00:15:22,000 Speaker 1: happen and move on. Let's not put this um at 244 00:15:22,040 --> 00:15:24,920 Speaker 1: the center of our discussion. God knows we need do 245 00:15:25,040 --> 00:15:27,080 Speaker 1: need to move on. God knows we need to deal 246 00:15:27,160 --> 00:15:30,400 Speaker 1: with so many other things. But we almost lost America. 247 00:15:30,920 --> 00:15:33,560 Speaker 1: If it had not been granted for the moral courage 248 00:15:33,680 --> 00:15:39,560 Speaker 1: of I'm mere handful of largely Republican state officials, we 249 00:15:39,720 --> 00:15:42,880 Speaker 1: might have lost him. Because it's certainly cleared that for 250 00:15:42,960 --> 00:15:46,120 Speaker 1: a while there are elements in the congressional Republican Party 251 00:15:46,160 --> 00:15:49,360 Speaker 1: who were prepared to go along with this. Remember that 252 00:15:49,520 --> 00:15:53,960 Speaker 1: after after the heart of democracy was physically breached and 253 00:15:54,040 --> 00:15:58,040 Speaker 1: they were in themselves threatened with death, two thirds of 254 00:15:58,240 --> 00:16:02,680 Speaker 1: the Republican caucus none the has came back and voted 255 00:16:03,080 --> 00:16:08,000 Speaker 1: to sustain the objections to the electoral camp. Consider that 256 00:16:08,600 --> 00:16:12,600 Speaker 1: two thirds of the elected members of the Republican portion 257 00:16:12,680 --> 00:16:18,400 Speaker 1: of the House representatives, after nearly being killed by violent insurrectionists, 258 00:16:18,400 --> 00:16:23,000 Speaker 1: were repaired. Nonetheless, to go back and sustain an entirely 259 00:16:23,120 --> 00:16:26,600 Speaker 1: false theory about what has happened over the last two months. 260 00:16:27,480 --> 00:16:29,920 Speaker 1: That is a matter that cannot be forgotten and must 261 00:16:29,960 --> 00:16:35,160 Speaker 1: be examined. We have to deal with this as a people. 262 00:16:36,240 --> 00:16:38,960 Speaker 1: If we just forget about it, if we just put 263 00:16:39,000 --> 00:16:42,000 Speaker 1: it in the rear view mirror and sort of pretend 264 00:16:42,240 --> 00:16:45,920 Speaker 1: that you know that this cancer is not there, it 265 00:16:46,080 --> 00:16:48,000 Speaker 1: will kill us. And I think part of the thing 266 00:16:48,080 --> 00:16:50,000 Speaker 1: that you have to do in order to avoid, you know, 267 00:16:50,120 --> 00:16:53,040 Speaker 1: this cancer killing us, is to confront it, to cut 268 00:16:53,120 --> 00:16:55,560 Speaker 1: it out. Part of that job is to deal with 269 00:16:55,640 --> 00:16:58,560 Speaker 1: it in the light of day. Thanks Frank. That's Professor 270 00:16:58,640 --> 00:17:03,000 Speaker 1: Frank Bowman of the Universe Sea, Missouri Law School. The 271 00:17:03,120 --> 00:17:06,040 Speaker 1: mayor of d C. Muriel Bowser is asking the federal 272 00:17:06,119 --> 00:17:09,760 Speaker 1: government for help in securing the nation's capital on Inauguration 273 00:17:09,920 --> 00:17:12,639 Speaker 1: Day in order to prevent a repeat of last week's 274 00:17:12,640 --> 00:17:15,879 Speaker 1: attack on the US capital. Bowser said she's asked the 275 00:17:15,920 --> 00:17:18,440 Speaker 1: President to use the same tool the FEDS used to 276 00:17:18,520 --> 00:17:22,920 Speaker 1: secure President Barack Obama's inauguration in two thousand nine. This 277 00:17:23,200 --> 00:17:28,560 Speaker 1: is necessary because the inauguration poses several unprecedented challenges that 278 00:17:28,760 --> 00:17:33,760 Speaker 1: exceed the scope of our traditional planning processes. Federal and 279 00:17:33,840 --> 00:17:36,800 Speaker 1: local authorities have arrested almost one hundred people who they 280 00:17:36,840 --> 00:17:40,280 Speaker 1: said were involved in the attack, as more graphic details 281 00:17:40,320 --> 00:17:43,920 Speaker 1: of the violence and brutality continue to emerge. Joining me 282 00:17:43,960 --> 00:17:47,679 Speaker 1: as former federal prosecutor Robert Mints a partner, McCarter and English. 283 00:17:48,160 --> 00:17:51,320 Speaker 1: While we're hearing about more and more arrests, including arrests 284 00:17:51,520 --> 00:17:54,439 Speaker 1: of two of the men who were seen carrying zip ties. 285 00:17:55,000 --> 00:17:59,639 Speaker 1: They're facing charges of knowingly entering a restricted building, violent 286 00:17:59,760 --> 00:18:03,439 Speaker 1: and tree and disorderly conduct on capital grounds. Why aren't 287 00:18:03,480 --> 00:18:08,199 Speaker 1: these people being charged with sedition conspiracy, Well, it certainly 288 00:18:08,359 --> 00:18:13,400 Speaker 1: seems like the elements of sudicious conspiracy could be made 289 00:18:13,440 --> 00:18:15,879 Speaker 1: out based upon the evidence that we know about the 290 00:18:15,960 --> 00:18:18,920 Speaker 1: number of the individuals to storm the Capital building. In 291 00:18:19,080 --> 00:18:21,800 Speaker 1: order to prove a crime of sudicious conspiracy, all you 292 00:18:21,880 --> 00:18:24,359 Speaker 1: have to show is that two more people agree to 293 00:18:24,440 --> 00:18:27,680 Speaker 1: try to interfere with the central functions of our government. 294 00:18:28,080 --> 00:18:31,119 Speaker 1: And it's specifically contemplates in that statute that it's a 295 00:18:31,240 --> 00:18:34,679 Speaker 1: crime to delay or hinder the enforcement of the laws. 296 00:18:34,960 --> 00:18:38,160 Speaker 1: In this case, it was clear that the individuals were 297 00:18:38,240 --> 00:18:42,200 Speaker 1: storming the Capitol Building in order to prevent Congress from 298 00:18:42,280 --> 00:18:46,640 Speaker 1: carrying out its constitutional duty to formalize President elect Joe 299 00:18:46,720 --> 00:18:50,480 Speaker 1: Biden's election victory. So it seems that the elements of 300 00:18:50,600 --> 00:18:53,920 Speaker 1: seditious conspiracy have been made out, but at this point 301 00:18:54,080 --> 00:18:58,000 Speaker 1: those individuals have been charged with just routine breaking and 302 00:18:58,200 --> 00:19:02,920 Speaker 1: entering restricted building, violent entry, and disorderly conduct type offenses. 303 00:19:03,119 --> 00:19:05,959 Speaker 1: Will have to see when their federal prosecutors add more 304 00:19:06,040 --> 00:19:10,080 Speaker 1: serious charges at some point in the future. What possible 305 00:19:10,320 --> 00:19:15,719 Speaker 1: charges could President Trump face for his part in inciting 306 00:19:15,800 --> 00:19:20,480 Speaker 1: his supporters to march on the Capitol It seems unlikely 307 00:19:20,720 --> 00:19:24,760 Speaker 1: that President Trump is going to be charged with inciting 308 00:19:24,840 --> 00:19:27,480 Speaker 1: a riot based upon the speeches that led up to 309 00:19:28,119 --> 00:19:32,160 Speaker 1: the individuals storming the Capitol buildings, but they're certainly could 310 00:19:32,200 --> 00:19:34,960 Speaker 1: be evidence to charge him based upon what we know. 311 00:19:35,600 --> 00:19:39,119 Speaker 1: The president's comments in terms of timing, came shortly before 312 00:19:39,680 --> 00:19:43,240 Speaker 1: a pro Trump mob bashed through the barricades and windows 313 00:19:43,359 --> 00:19:47,399 Speaker 1: of the Capitol Building, injuring police officers and temporarily occupying 314 00:19:47,440 --> 00:19:50,359 Speaker 1: the Capitol building. And if you incite someone to commit 315 00:19:50,440 --> 00:19:53,080 Speaker 1: a crime, if that is your intent, which would be 316 00:19:53,200 --> 00:19:56,040 Speaker 1: the central issue in picture charge, then you can be 317 00:19:56,119 --> 00:19:59,600 Speaker 1: held responsible for that conduct. Some of the statements that 318 00:19:59,640 --> 00:20:02,560 Speaker 1: were made us that rally, particularly for example, the statements 319 00:20:02,600 --> 00:20:06,680 Speaker 1: made by Trump's attorney Rudy Giuliani, where he called for 320 00:20:07,160 --> 00:20:12,000 Speaker 1: trial by combat, really comes very close and probably crosses 321 00:20:12,040 --> 00:20:15,560 Speaker 1: the line in terms of egregious conduct that is inciting 322 00:20:15,640 --> 00:20:19,240 Speaker 1: individuals to riot. So the real question here is whether 323 00:20:19,359 --> 00:20:23,280 Speaker 1: or not there was intent by President Trump, by Rudy Giuliani, 324 00:20:23,320 --> 00:20:26,520 Speaker 1: and by some of the other speakers to incite a riot, 325 00:20:26,640 --> 00:20:29,439 Speaker 1: whether they knew that the comments that they were making 326 00:20:29,560 --> 00:20:32,680 Speaker 1: would lead others to commit violent acts. Let's turn to 327 00:20:32,800 --> 00:20:37,280 Speaker 1: pardons for a moment, because according to Bloomberg sources, President 328 00:20:37,359 --> 00:20:43,480 Speaker 1: Trump is considering pardoning his family members and Rudy Giuliani. 329 00:20:44,000 --> 00:20:48,760 Speaker 1: Would that pardon wipe out any charges in connection with 330 00:20:49,040 --> 00:20:53,120 Speaker 1: the riot. The president has the power to pardon any 331 00:20:53,200 --> 00:20:58,600 Speaker 1: individual for federal criminal violations that in this case, these 332 00:20:58,680 --> 00:21:02,400 Speaker 1: would be federal viola because they occurred on federal property. 333 00:21:02,920 --> 00:21:05,560 Speaker 1: So there would be the opportunity for the presidents to 334 00:21:05,640 --> 00:21:08,720 Speaker 1: potentially pardon those who made statements that led to this 335 00:21:08,920 --> 00:21:13,120 Speaker 1: mob violence. These would be preemptive pardons because they haven't 336 00:21:13,160 --> 00:21:16,520 Speaker 1: been charged yet. They've been preemptive pardons in the past. 337 00:21:16,600 --> 00:21:22,520 Speaker 1: For example, Gerald Ford pardoned Richard Nixon pre emptively. That's 338 00:21:22,600 --> 00:21:28,159 Speaker 1: never been challenged. But is it possible to challenge that? Oh? Absolutely, 339 00:21:28,240 --> 00:21:33,000 Speaker 1: prosecutors could challenge these preemptive pardons. But the president does 340 00:21:33,119 --> 00:21:36,960 Speaker 1: have enormous pardon power, and I think that even pre 341 00:21:37,080 --> 00:21:42,520 Speaker 1: emptive pardons for individuals, not including the president himself, are 342 00:21:42,760 --> 00:21:46,320 Speaker 1: likely to stand up in court. A preemptive pardon, what 343 00:21:46,400 --> 00:21:50,040 Speaker 1: would it look like, Let's say against Ivanka Trump. So 344 00:21:50,240 --> 00:21:52,800 Speaker 1: what would it look like I pardon her for anything 345 00:21:52,920 --> 00:21:55,520 Speaker 1: that she's done in the past four years? How would 346 00:21:55,640 --> 00:21:58,840 Speaker 1: how would you frame that? Well, it would be a 347 00:21:58,880 --> 00:22:03,040 Speaker 1: real challenge, And and we have seen preemptive challenges in 348 00:22:03,119 --> 00:22:07,280 Speaker 1: the past, it's been much more specific and generally, remember 349 00:22:07,359 --> 00:22:10,960 Speaker 1: they're not pre emptive parties. These are pardons for crimes 350 00:22:11,040 --> 00:22:14,120 Speaker 1: that have been charged and individuals usually have already spent 351 00:22:14,240 --> 00:22:17,200 Speaker 1: time in prison, and the partner occurs after that. But 352 00:22:17,359 --> 00:22:21,879 Speaker 1: to pre emptively pardon somebody for a vague crime that 353 00:22:22,040 --> 00:22:25,000 Speaker 1: they that has not yet been committed put the individual 354 00:22:25,040 --> 00:22:27,400 Speaker 1: in a bit of an awkward situation because it suggests 355 00:22:27,440 --> 00:22:29,840 Speaker 1: that they committed some kind of crime. So I think 356 00:22:29,880 --> 00:22:32,280 Speaker 1: it's going to be a real challenge if the president 357 00:22:32,440 --> 00:22:37,800 Speaker 1: tries to preemptively pardon family members for vague, unspecified crimes 358 00:22:38,080 --> 00:22:42,440 Speaker 1: that have not been charged by any prostitutor. There's also speculation, 359 00:22:42,600 --> 00:22:46,760 Speaker 1: in fact, Nancy Pelosi speculated this on on Sixty Minutes 360 00:22:47,240 --> 00:22:51,960 Speaker 1: that the president might try to pardon everyone involved in 361 00:22:52,240 --> 00:22:55,399 Speaker 1: storming of the capital. Can that be done? That's a 362 00:22:55,440 --> 00:22:58,639 Speaker 1: good question. That would certainly be unprecedented. I think there'd 363 00:22:58,640 --> 00:23:04,879 Speaker 1: be enormous political backlash certainly from that. But again it's possible. 364 00:23:05,080 --> 00:23:09,440 Speaker 1: These are specified criminal charges that have already been brought, 365 00:23:09,640 --> 00:23:13,680 Speaker 1: and the presidents certainly could pardon those individuals that have 366 00:23:13,720 --> 00:23:17,840 Speaker 1: already been charged for these violations. Bloomberg sources say that 367 00:23:18,080 --> 00:23:23,120 Speaker 1: President Trump is considering pardoning himself. First of all, where 368 00:23:23,160 --> 00:23:26,840 Speaker 1: does the legal weight of authority land As far as 369 00:23:27,040 --> 00:23:31,680 Speaker 1: a president pardoning himself, Well, there is no clear answer 370 00:23:31,840 --> 00:23:35,119 Speaker 1: on whether or not a president can pardon himself because 371 00:23:35,240 --> 00:23:38,880 Speaker 1: it's been it's never been done before. The closest we've 372 00:23:38,960 --> 00:23:41,560 Speaker 1: come to that, of course, is when Gerald Ford became 373 00:23:41,680 --> 00:23:45,480 Speaker 1: president of the United States upon Richard Nixon's resignation and 374 00:23:45,560 --> 00:23:50,360 Speaker 1: then immediately pardoned Nixon after he became president. But that's 375 00:23:50,400 --> 00:23:53,200 Speaker 1: the case where you have a president partnering another individual, 376 00:23:53,560 --> 00:23:57,200 Speaker 1: and that's something that would likely be on solid legal ground. 377 00:23:57,520 --> 00:24:00,439 Speaker 1: But a self pardon here is something that's never been 378 00:24:00,520 --> 00:24:03,720 Speaker 1: tested before and it's very unclear as to whether or 379 00:24:03,720 --> 00:24:06,440 Speaker 1: not now, but ultimately hold up. There are many legal 380 00:24:06,480 --> 00:24:11,159 Speaker 1: exports to say that a self pardon is really inimicable 381 00:24:11,280 --> 00:24:14,000 Speaker 1: to our system of justice because it would allow a 382 00:24:14,119 --> 00:24:19,280 Speaker 1: president to essentially escape all liability for his or her 383 00:24:19,400 --> 00:24:23,040 Speaker 1: conduct first by being unable to be indicted while they 384 00:24:23,080 --> 00:24:26,119 Speaker 1: are in office, which is something that has been uh 385 00:24:26,560 --> 00:24:29,080 Speaker 1: which is something that has been stated in the Department 386 00:24:29,119 --> 00:24:32,440 Speaker 1: of Justice memorandum. It's not something that is within the constitution, 387 00:24:32,720 --> 00:24:35,000 Speaker 1: but the Department of Justice has long taken a position 388 00:24:35,040 --> 00:24:38,200 Speaker 1: that is sitting president cannot be indicted. If you were 389 00:24:38,240 --> 00:24:41,040 Speaker 1: to add to that the possibility that the president could 390 00:24:41,160 --> 00:24:45,639 Speaker 1: pardon him or herself to prevent prosecution for any violations 391 00:24:45,720 --> 00:24:48,800 Speaker 1: after they left office, that would leave a situation in 392 00:24:48,920 --> 00:24:52,760 Speaker 1: which the president was basically above the law. They could 393 00:24:52,800 --> 00:24:54,879 Speaker 1: not be charged with a crime either while they were 394 00:24:54,920 --> 00:24:57,440 Speaker 1: in office or after they left. And there are many 395 00:24:57,560 --> 00:25:00,639 Speaker 1: legal scholars who believe that that is simply not what 396 00:25:00,760 --> 00:25:04,160 Speaker 1: the founding fathers and intended, and that ultimately Supreme Court 397 00:25:04,320 --> 00:25:08,040 Speaker 1: would strike down a self pardon. I'm curious about one thing. 398 00:25:08,440 --> 00:25:13,000 Speaker 1: Everyone cites an Office of Legal Counsel opinion when saying 399 00:25:13,119 --> 00:25:17,359 Speaker 1: that a president can't be indicted while in office. But 400 00:25:17,480 --> 00:25:20,200 Speaker 1: there's also an Office of Legal Council opinion that says 401 00:25:20,320 --> 00:25:23,800 Speaker 1: a president can't pardon himself, isn't there? So why isn't 402 00:25:23,880 --> 00:25:27,840 Speaker 1: that being touted as the rule? Well, no, that's exactly right. 403 00:25:27,920 --> 00:25:31,560 Speaker 1: There was a nineteen seventy four memo deciding the fundamental 404 00:25:31,680 --> 00:25:34,760 Speaker 1: rule that no one may be judged in his own case, 405 00:25:34,880 --> 00:25:38,560 Speaker 1: and that memo concluded that the president cannot pardon himself. 406 00:25:38,680 --> 00:25:42,920 Speaker 1: So in that case, the Departmative Justice internal memoranda is 407 00:25:43,200 --> 00:25:47,119 Speaker 1: contrary to the position they took about charging a sitting 408 00:25:47,200 --> 00:25:50,399 Speaker 1: president with a crime. In that case, the Department Justice 409 00:25:50,400 --> 00:25:54,240 Speaker 1: concluded that a sitting president cannot be charged with a crime. 410 00:25:54,320 --> 00:25:57,840 Speaker 1: But they likewise concluded that once a president left office, 411 00:25:58,040 --> 00:26:02,800 Speaker 1: the president cannot pardon himself to avoid any future criminal prosecution. 412 00:26:03,240 --> 00:26:06,320 Speaker 1: So the this this would be a test case in 413 00:26:06,440 --> 00:26:09,440 Speaker 1: which the courts would have to decide the internal do 414 00:26:09,560 --> 00:26:12,960 Speaker 1: o J memoranda are not finding legal president. They're not 415 00:26:13,080 --> 00:26:16,480 Speaker 1: something that the courts have to consider. So we certainly 416 00:26:16,520 --> 00:26:20,280 Speaker 1: expect any challenge to the president's self pardon power to 417 00:26:20,520 --> 00:26:23,760 Speaker 1: ultimately be decided by the Supreme Court, and in this case, 418 00:26:24,000 --> 00:26:27,160 Speaker 1: the Supreme Court would be making new law deciding whether 419 00:26:27,200 --> 00:26:30,520 Speaker 1: the president truly was above the law and could pardon 420 00:26:30,640 --> 00:26:34,119 Speaker 1: himself for any and all crimes that occurred before he 421 00:26:34,240 --> 00:26:37,760 Speaker 1: left office. The best way to challenge a president's self 422 00:26:37,880 --> 00:26:42,280 Speaker 1: pardon is by charging him with something and then fighting 423 00:26:42,320 --> 00:26:44,680 Speaker 1: the self pardon and having to go through the courts 424 00:26:44,760 --> 00:26:48,920 Speaker 1: would encourage prosecutes to charge him if he issues a 425 00:26:49,040 --> 00:26:53,280 Speaker 1: self pardon. A self pardon does raise the very interesting 426 00:26:53,440 --> 00:26:56,159 Speaker 1: question as to whether or not we would ultimately be 427 00:26:56,320 --> 00:26:59,639 Speaker 1: self defeating in the sense that a move by President 428 00:26:59,720 --> 00:27:03,200 Speaker 1: Trump to pardon himself would in some ways create the 429 00:27:03,359 --> 00:27:07,040 Speaker 1: invitation to test in court the limits of the president's 430 00:27:07,080 --> 00:27:10,280 Speaker 1: power to issue pardons. While there are some legal observers 431 00:27:10,320 --> 00:27:13,520 Speaker 1: who believe that the president could part himself and there's 432 00:27:13,560 --> 00:27:15,879 Speaker 1: no downside to that, it would ultimately be tested in 433 00:27:15,920 --> 00:27:19,360 Speaker 1: the court and would certainly drag out any potential prosecution 434 00:27:19,440 --> 00:27:22,120 Speaker 1: of him after he left office, there are others who 435 00:27:22,200 --> 00:27:24,399 Speaker 1: look at that and say that it's estanctually putting a 436 00:27:24,520 --> 00:27:29,480 Speaker 1: bulls eye on the president by inviting prosecutors to test 437 00:27:29,560 --> 00:27:33,560 Speaker 1: those legal limits and really creating a situation in which 438 00:27:33,640 --> 00:27:36,320 Speaker 1: prosecutors would have to go out of their way to 439 00:27:36,480 --> 00:27:39,760 Speaker 1: try to bring those charges in order to see whether 440 00:27:39,880 --> 00:27:43,160 Speaker 1: or not as president's self partament ultimately stand up in court. 441 00:27:43,800 --> 00:27:47,760 Speaker 1: There are reports that President elect Joe Biden doesn't want 442 00:27:47,840 --> 00:27:51,560 Speaker 1: to pursue prosecution of Trump for several reasons, that it 443 00:27:51,640 --> 00:27:56,360 Speaker 1: would take away from his starting his administration and put 444 00:27:56,680 --> 00:28:00,280 Speaker 1: the focus on the old administration, but also that it 445 00:28:00,320 --> 00:28:05,480 Speaker 1: would set a precedent of prosecuting political opponents. Do you 446 00:28:05,560 --> 00:28:09,200 Speaker 1: think it would set a precedent. The incoming Biden administration 447 00:28:09,800 --> 00:28:12,560 Speaker 1: is seeming to take the position that they would like 448 00:28:12,680 --> 00:28:16,240 Speaker 1: to be forward looking and are not eager to prosecute 449 00:28:16,320 --> 00:28:20,440 Speaker 1: President Trump for any federal criminal violations. The concern there 450 00:28:20,720 --> 00:28:23,440 Speaker 1: is that it would hear the country further apart. It 451 00:28:23,440 --> 00:28:26,960 Speaker 1: would create a precedence that could be dangerous in the 452 00:28:27,119 --> 00:28:30,600 Speaker 1: sense that you have an incoming administration turning around and 453 00:28:30,680 --> 00:28:34,920 Speaker 1: immediately prosecuting the outgoing administration, something we've never seen this 454 00:28:35,040 --> 00:28:38,600 Speaker 1: country before. So I think we will see the Department 455 00:28:38,640 --> 00:28:42,240 Speaker 1: of Justice that comes in during the Biden administration be 456 00:28:42,480 --> 00:28:47,440 Speaker 1: somewhat reluctant to pursue federal criminal charges against President Trump 457 00:28:47,840 --> 00:28:50,880 Speaker 1: and some of his allies. On the other hand, you 458 00:28:51,000 --> 00:28:54,000 Speaker 1: do have state criminal charges that still loom out there 459 00:28:54,280 --> 00:28:57,160 Speaker 1: for President Trump and certain of his family members, something 460 00:28:57,240 --> 00:29:00,360 Speaker 1: that's the Department of Justice and President elect Biden cannot 461 00:29:00,440 --> 00:29:04,280 Speaker 1: control their ongoing investigations by the Manhattan District Attorney's office 462 00:29:04,320 --> 00:29:07,480 Speaker 1: them by the New York Attorney General's office. Those decisions 463 00:29:07,720 --> 00:29:10,680 Speaker 1: about prosecutions will be decided by the Attorney General and 464 00:29:10,760 --> 00:29:14,080 Speaker 1: the District Attorney in Manhattan, something that the White House 465 00:29:14,240 --> 00:29:16,400 Speaker 1: can control, and we'll just have to see how those 466 00:29:16,480 --> 00:29:20,280 Speaker 1: play out. And Bob elaborate a little bit on the 467 00:29:20,440 --> 00:29:26,240 Speaker 1: question of inciting mob violence versus free speech. The question 468 00:29:26,320 --> 00:29:30,080 Speaker 1: of inciting mob violence versus free speech is an interesting 469 00:29:30,200 --> 00:29:33,360 Speaker 1: issue here, and there are many who have pointed out 470 00:29:33,680 --> 00:29:38,240 Speaker 1: that the President certainly did not explicitly ask individuals to 471 00:29:38,400 --> 00:29:41,520 Speaker 1: commit violent acts. But in this case, in order to 472 00:29:41,680 --> 00:29:46,320 Speaker 1: prove incitement of mob violence, prosecutors don't necessarily have to 473 00:29:46,480 --> 00:29:49,680 Speaker 1: prove that the accused person made a specific call for 474 00:29:49,800 --> 00:29:53,200 Speaker 1: criminal activity, only that the person had the intense to 475 00:29:53,320 --> 00:29:57,360 Speaker 1: spark such criminal conducts. So in this case, it's not 476 00:29:57,560 --> 00:30:01,400 Speaker 1: necessary the prosecutors, if they were decided to pursue criminal 477 00:30:01,600 --> 00:30:05,120 Speaker 1: charges based upon incitement, they don't have to show that 478 00:30:05,200 --> 00:30:09,040 Speaker 1: there is a specific request that violent act takes place. 479 00:30:09,520 --> 00:30:13,360 Speaker 1: A jury could possibly make a decision and find an 480 00:30:13,400 --> 00:30:17,360 Speaker 1: individual guilty for criminal incitement if a reasonable person would 481 00:30:17,400 --> 00:30:20,600 Speaker 1: have known that their comments would lead to those violent acts. 482 00:30:20,840 --> 00:30:23,880 Speaker 1: It really here is a question of context, and it's 483 00:30:23,920 --> 00:30:27,360 Speaker 1: a question of criminal intent. The real question here is 484 00:30:27,560 --> 00:30:31,080 Speaker 1: what was the intent of the individuals speaking President Trump, 485 00:30:31,160 --> 00:30:35,280 Speaker 1: Rudy Giuliani, and others. Were those words spoken in a 486 00:30:35,440 --> 00:30:38,560 Speaker 1: context in which it can be inferred that it was 487 00:30:38,680 --> 00:30:42,960 Speaker 1: their intent to incite violent action. That's ultimately the question 488 00:30:43,040 --> 00:30:45,360 Speaker 1: that a jury would have to ask if criminal charges 489 00:30:45,600 --> 00:30:49,760 Speaker 1: were to be brought for inciting mob violence. Thanks Bob. 490 00:30:49,880 --> 00:30:53,200 Speaker 1: That's former federal prosecutor Robert mens A partner McCarter and 491 00:30:53,240 --> 00:30:57,680 Speaker 1: English coming up next on Bloomberg Law. President Trump's second 492 00:30:57,720 --> 00:31:01,720 Speaker 1: impeachment seems imminent. I'm Grosso and you're listening to Bloomberg