WEBVTT - James Indicted, Conversion Therapy & Right to Counsel 0:00:02.880 --> 0:00:07.120 This is Bloomberg Law with June Grosseo from Bloomberg Radio. 0:00:08.880 --> 0:00:14.040 Colorado Solicitor General Shannon Stevenson defended the state's ban on 0:00:14.200 --> 0:00:18.320 conversion therapy for minors at the Supreme Court. She argued 0:00:18.320 --> 0:00:22.680 that the Constitution allows states to protect patients from harmful, 0:00:22.840 --> 0:00:28.160 discredited treatments even if a regulation incidentally affects speech. 0:00:28.680 --> 0:00:31.520 A healthcare provider cannot be free to violate the standard 0:00:31.520 --> 0:00:34.960 of care just because they are using words, and a 0:00:35.000 --> 0:00:37.960 state cannot be required to let its vulnerable young people 0:00:38.280 --> 0:00:41.760 waste their time and money on an ineffective, harmful treatment 0:00:42.360 --> 0:00:44.640 just because that treatment is delivered through words. 0:00:45.040 --> 0:00:49.800 An evangelical Christian therapist is challenging the law, saying it 0:00:49.920 --> 0:00:54.480 violates her free speech rights, and the court's conservative justices 0:00:54.760 --> 0:00:59.080 appeared to agree with her, questioning the constitutionality of the law, 0:01:00.080 --> 0:01:03.520 Chief Justice John Roberts and Justice Samuel Alito. 0:01:04.000 --> 0:01:08.880 In other words, just because they're engaged in conduct doesn't 0:01:08.920 --> 0:01:13.440 mean that their words aren't protected looks like blatant viewpoint discrimination. 0:01:13.760 --> 0:01:18.440 Liberal Justices Sonya Soto Mayor and Katanji Brown Jackson were 0:01:18.480 --> 0:01:22.480 the only justices who addressed the harms of conversion therapy 0:01:22.959 --> 0:01:26.720 that every major medical association warns about. 0:01:26.959 --> 0:01:31.440 There are studies that say that this advice does harm 0:01:31.560 --> 0:01:35.480 the people emotionally and physically. 0:01:35.959 --> 0:01:40.000 And Justice Jackson questioned why the Colorado law should be 0:01:40.040 --> 0:01:43.600 struck down when in June the court upheld a different 0:01:43.640 --> 0:01:49.160 measure from Tennessee that bans transition related treatments for transgender kids. 0:01:49.800 --> 0:01:53.080 The regulations work in basically the same way, and the 0:01:53.200 --> 0:01:57.640 question of scrutiny applies in both contexts, So it just 0:01:57.640 --> 0:01:59.600 seems odd to me that we might have a different 0:01:59.600 --> 0:02:00.400 result here. 0:02:00.840 --> 0:02:04.320 My guest is First Amendment expert Caroline Mala Corbin, a 0:02:04.400 --> 0:02:08.400 professor at the University of Miami Law School. Caroline, will 0:02:08.440 --> 0:02:12.480 you explain conversion therapy and Colorado's law banning it? 0:02:13.000 --> 0:02:16.560 As about half the states in the country have done. 0:02:17.280 --> 0:02:22.800 Colorado banned something that has been called gay conversion therapy, 0:02:23.480 --> 0:02:27.000 and it's the idea of trying to convince someone who 0:02:27.080 --> 0:02:30.200 is gay that they're not actually gay, or trying to 0:02:30.240 --> 0:02:33.400 convince someone who is trans that they're not actually trans. 0:02:33.680 --> 0:02:37.960 And this approach to gay and trans people has been 0:02:38.400 --> 0:02:42.880 proven to be very deleatorious for their mental well being, 0:02:43.600 --> 0:02:47.800 and so states have forbidden it. They have made it 0:02:47.840 --> 0:02:54.280 illegal for licensed medical professionals to provide this as part 0:02:54.480 --> 0:02:58.360 of their practice of medicine. So, to be very clear, 0:02:58.639 --> 0:03:02.880 it doesn't ban y from talking to people about sexual 0:03:02.880 --> 0:03:06.679 orientation or gender identity, and it doesn't even ban the 0:03:06.680 --> 0:03:09.919 therapists from talking about it in their own free time. 0:03:10.480 --> 0:03:14.520 But if they are in the process of providing health 0:03:14.600 --> 0:03:19.520 care services that they have been licensed to provide, they're 0:03:19.600 --> 0:03:22.920 not allowed to try and convince gay people that they're 0:03:23.040 --> 0:03:27.080 not gay, or trans people that they're not trans. That's 0:03:27.120 --> 0:03:28.040 the law, and. 0:03:28.000 --> 0:03:30.239 What's the fundamental issue in the case. 0:03:30.800 --> 0:03:34.320 So you have this law. It says, if you're licensed 0:03:34.320 --> 0:03:36.800 by the state, the state does not allow you to 0:03:36.840 --> 0:03:40.240 do things that are contrary to the standard of care, 0:03:40.520 --> 0:03:44.680 and so you cannot provide conversion therapy. And we have 0:03:44.840 --> 0:03:50.480 this white Christian woman who argues that the ban forbids 0:03:50.480 --> 0:03:54.120 her from providing the type of therapy that she wants 0:03:54.320 --> 0:03:58.640 to practice. She gets help from Alliance to Friending Freedom. 0:03:58.960 --> 0:04:01.840 And so the question for the court is does this 0:04:02.000 --> 0:04:08.840 ban on this medical therapy violate the licensed practitioners free 0:04:08.840 --> 0:04:12.080 speech rights? And so the question before the court is 0:04:12.280 --> 0:04:18.280 does this ban on this medical therapy violate the licensed 0:04:18.440 --> 0:04:24.799 practitioners free speech rights. And the legal question that makes 0:04:24.880 --> 0:04:30.919 all the difference is whether providing conversion therapy is speech 0:04:31.600 --> 0:04:36.200 or whether it's conduct. Because if it's speech, then it 0:04:36.320 --> 0:04:42.240 implicates the free speech clause. In fact, it becomes presumptively unconstitutional. If, 0:04:42.240 --> 0:04:46.880 on the other hand, it's considered conduct, then it doesn't 0:04:46.920 --> 0:04:50.080 trigger the free speech clause and the government is likely 0:04:50.160 --> 0:04:53.040 to be allowed to regulate it. So the million dollar 0:04:53.640 --> 0:05:00.000 constitutional question is how should this practice of conversion therapy 0:05:00.080 --> 0:05:04.720 be characterized? Is it speech or is it conduct? Now, 0:05:04.760 --> 0:05:08.080 I just want to point out that the speech in 0:05:08.120 --> 0:05:13.039 the colloquial sense doesn't always match speech in the constitutional sense. 0:05:13.720 --> 0:05:15.920 So let me give you a couple of examples when 0:05:16.200 --> 0:05:21.919 speech is not actually speech, which seems counterintuitive. And yet 0:05:22.279 --> 0:05:28.120 if for example, you told national security secrets to a 0:05:28.200 --> 0:05:32.279 foreign enemy, that's speech, but that it wouldn't be treated 0:05:32.320 --> 0:05:36.240 as speech. It would be treated as the conduct of treason. 0:05:36.400 --> 0:05:40.040 It's not protected by the free speech clause. Or for example, 0:05:40.560 --> 0:05:43.440 a sign on a restaurant that said, we do not 0:05:43.800 --> 0:05:46.719 hire fill in the blank, we do not hire black people, 0:05:46.800 --> 0:05:50.960 or Latino people or Asian people. That's words, but that 0:05:51.000 --> 0:05:55.400 would be considered speech, it would be considered the act 0:05:55.440 --> 0:05:59.960 of discrimination. And so while it may seem really obvious 0:06:00.120 --> 0:06:03.279 on its face, so well, this is words and therefore 0:06:03.279 --> 0:06:07.480 it's speech, it's not quite as clear cut as the 0:06:07.520 --> 0:06:10.800 Supreme Court is going to probably conclude. 0:06:11.640 --> 0:06:15.760 It seems like there is almost universal agreement among those 0:06:15.800 --> 0:06:19.680 who listen to the oral arguments that the Christian counselor 0:06:20.040 --> 0:06:21.000 is going to win here. 0:06:21.720 --> 0:06:27.480 I mean, clearly, whenever you have a white conservative Christian 0:06:28.279 --> 0:06:31.720 arguing before the Supreme Court, they're going to win, especially 0:06:31.760 --> 0:06:34.240 if the only thing that's stake, and I say only 0:06:34.720 --> 0:06:39.640 from the Court's perspective is LGBTQ rights. They just don't care, right, So, 0:06:39.839 --> 0:06:43.440 I think it was a foregone conclusion, apart from any 0:06:43.440 --> 0:06:47.400 of the legal principles, that the white Christian woman was 0:06:47.440 --> 0:06:49.719 going to win. You know, I never used to predict 0:06:49.760 --> 0:06:53.000 the outcome of Supreme Court cases, but it seems the 0:06:53.080 --> 0:06:56.760 pattern is so clear these days that I think one 0:06:56.800 --> 0:06:59.360 could say with a certain degree of confidence that she's 0:06:59.360 --> 0:07:03.120 going to win. And they're basically going to say this 0:07:03.160 --> 0:07:08.719 is speech, and therefore it is presumptively unconstitutional, and only 0:07:08.720 --> 0:07:13.240 if the government has a super compelling justification for its law, 0:07:13.840 --> 0:07:18.560 and the law was the only way to accomplish its goals. 0:07:18.640 --> 0:07:20.880 It's not going to win. In other words, it's going 0:07:20.960 --> 0:07:23.080 to have to pass what is known as strict scrutiny, 0:07:23.400 --> 0:07:25.920 and that is very hard to do. In the speech context. 0:07:26.480 --> 0:07:29.160 It seemed like most of the discussion was about what 0:07:29.400 --> 0:07:31.080 standard should be applied here. 0:07:31.720 --> 0:07:36.960 Well, that's because if it is considered speech, then the 0:07:37.040 --> 0:07:39.880 standard is going to be strict scrutiny. And if it 0:07:39.960 --> 0:07:43.120 is not speech, then it's only going to be rational 0:07:43.160 --> 0:07:47.520 basis scrutiny. So what level of scrutiny a court must 0:07:47.600 --> 0:07:51.520 give to this law, how hard it looks at it, 0:07:51.640 --> 0:07:56.440 questions it. The level of evidence the government needs to 0:07:56.480 --> 0:08:00.720 provide will depend on whether it is speech or conduct, 0:08:00.840 --> 0:08:05.000 because again, if it is speech, then it implicates the 0:08:05.040 --> 0:08:06.000 free speech clause. 0:08:06.760 --> 0:08:09.920 Is this a novel issue coming to the court? Have 0:08:10.000 --> 0:08:12.320 they decided any similar cases? 0:08:12.680 --> 0:08:17.440 The Supreme Court is not deciding this against a blank slate. 0:08:17.920 --> 0:08:22.840 They have already considered the question of medical treatment and 0:08:22.960 --> 0:08:26.800 speech conduct. But in the abortion context. So I want 0:08:26.840 --> 0:08:31.040 to highlight that many states who are hostile to abortion, 0:08:31.360 --> 0:08:34.640 one of the things that they require their abortion providers 0:08:34.679 --> 0:08:39.760 to do is to give women certain information about abortion. 0:08:40.320 --> 0:08:44.240 So for example, you have to let women know that 0:08:44.400 --> 0:08:47.559 adoption is an option, or that fathers have to pay 0:08:47.840 --> 0:08:51.319 child support. Other states have held that women have to 0:08:51.360 --> 0:08:54.199 be told all the harms that may result from abortion, 0:08:54.400 --> 0:08:56.920 some of which are not even medically accurate. But the 0:08:57.000 --> 0:09:00.520 point I want to make here is that doctors challenge 0:09:00.600 --> 0:09:05.120 this regulation on speech grounds and argued, the government is 0:09:05.280 --> 0:09:09.360 forcing us to say things that are contrary to what 0:09:09.400 --> 0:09:14.640 we believe is appropriate and correct. And you might think, well, 0:09:14.720 --> 0:09:18.520 these are words and they're being forced to articulate a 0:09:18.559 --> 0:09:22.920 particular viewpoint on things, for example, don't have an abortion, 0:09:23.320 --> 0:09:26.640 you know, adopt your child out instead. That it too, 0:09:26.760 --> 0:09:30.600 should be considered a regulation of speech that sort of 0:09:30.640 --> 0:09:35.040 compels a viewpoint. It's a viewpoint based restriction and therefore 0:09:35.080 --> 0:09:39.760 should trigger strict scrutiny and be presumptively unconstitutional. But that 0:09:40.000 --> 0:09:43.160 is not what the Supreme Court did. What the Supreme 0:09:43.280 --> 0:09:47.640 Court said is that these laws that compel doctors to 0:09:47.720 --> 0:09:50.640 speak against their will and say things that they don't 0:09:50.679 --> 0:09:54.000 want to say. The Supreme Court held that is not 0:09:54.080 --> 0:09:58.760 a regulation of speech, that is actually a regulation of 0:09:58.840 --> 0:10:04.280 the medical profect ess that only incidentally affects speech. So 0:10:04.320 --> 0:10:09.720 they're decigning this case against a backdrop of the Supreme 0:10:09.800 --> 0:10:15.680 Court already having held in a different context that speech 0:10:15.760 --> 0:10:19.720 that is connected the provision of medical treatment is not 0:10:20.040 --> 0:10:25.160 necessarily going to be treated like speech. And so you know, oh, 0:10:25.280 --> 0:10:28.920 it just so happens. Right, then, if you're challenging something 0:10:28.960 --> 0:10:33.559 that's anti abortion, it's not speech, But if you're challenging 0:10:33.600 --> 0:10:36.920 something that's pro LGBT, it is speech. 0:10:37.679 --> 0:10:41.400 The Supreme Court has been steadily rolling back protections for 0:10:41.520 --> 0:10:45.120 gay and transgender people in recent terms. The last time 0:10:45.240 --> 0:10:50.160 I can think of that LGBTQ writs one at the 0:10:50.200 --> 0:10:53.880 Supreme Court was the boss Stock case in twenty twenty. 0:10:54.040 --> 0:10:55.359 Is that the last time. 0:10:55.480 --> 0:10:59.640 I think so, and I think they have really undermined 0:10:59.679 --> 0:11:08.760 their their own credibility by so aggressively promoting a particular ideology, 0:11:09.559 --> 0:11:13.480 and to do so at the expense of a marginalized 0:11:13.520 --> 0:11:17.960 community is not to their honor. And let's be clear, 0:11:18.360 --> 0:11:21.640 they get to pick and choose their cases. There was 0:11:21.760 --> 0:11:26.760 nothing that require them to decide this case. I think 0:11:26.800 --> 0:11:32.720 in addition to its long standing attack on the LGBT community, 0:11:33.200 --> 0:11:38.320 I think we also are seeing here a real disparagement 0:11:38.760 --> 0:11:44.200 of expertise, which we also saw in Screbetti, because to 0:11:44.240 --> 0:11:48.719 be clear, there is a consensus in the medical community 0:11:49.160 --> 0:11:53.280 that this therapy is really harmful, and yet they did 0:11:53.320 --> 0:11:58.199 not seem to accept that. Instead, they kept pushing back 0:11:58.520 --> 0:12:02.480 against this idea that the experts knew what they were 0:12:02.520 --> 0:12:07.199 talking about, and certainly Alliance Defending Freedom is helping them 0:12:07.320 --> 0:12:13.800 by producing all kinds of questionable claims about the reliability 0:12:14.120 --> 0:12:19.360 of the science underlying the medical consensus. And to be sure, 0:12:19.720 --> 0:12:23.040 the medical community has made errors in the past, but 0:12:23.200 --> 0:12:27.199 if we have to rely on something, you know better 0:12:27.280 --> 0:12:31.640 to rely on medical experts and the weight of the 0:12:31.679 --> 0:12:36.880 medical community than a right wing political group. 0:12:37.080 --> 0:12:41.160 And the decision here will implicate similar bands on conversion 0:12:41.320 --> 0:12:45.679 therapy in twenty six other states. Thanks so much, Caroline. 0:12:45.880 --> 0:12:50.160 That's Professor Caroline Malacorbin of the University of Miami Law School. 0:12:50.520 --> 0:12:53.839 This is nothing more than a continuation of the president's 0:12:53.880 --> 0:12:56.680 desperate weaponization of our justice system. 0:12:56.880 --> 0:13:00.400 New York Attorney General Letitia James was inded in a 0:13:00.440 --> 0:13:04.280 mortgage fraud case on Thursday, making her the second of 0:13:04.360 --> 0:13:08.560 President Trump's perceived political enemies to be criminally charged. In 0:13:08.640 --> 0:13:13.360 the Eastern District of Virginia. In two weeks, James infuriated 0:13:13.440 --> 0:13:16.920 Trump by suing him and winning in a case alleging 0:13:16.960 --> 0:13:20.800 that he built his business empire on lies about his wealth, 0:13:21.080 --> 0:13:24.600 and the President had called for legal action against James, 0:13:24.920 --> 0:13:29.439 former FBI Director James Comy, and Senator Adam Schiff. In 0:13:29.520 --> 0:13:33.280 a message to Attorney General Pam Bondy on social media 0:13:33.360 --> 0:13:38.120 last month, James called the charges baseless and a blatant 0:13:38.120 --> 0:13:40.840 perversion of the justice system. 0:13:40.440 --> 0:13:44.200 And the president's own public statements make clear that his 0:13:44.280 --> 0:13:47.800 only goal is political retribution at any cost. 0:13:48.320 --> 0:13:51.920 Joining me is Bloomberg Legal reporter Chris Strom. Chris, We've 0:13:51.960 --> 0:13:55.680 been hearing about this investigation into James for months. What 0:13:55.760 --> 0:13:58.480 are the two felonies they finally charged her with. 0:13:59.000 --> 0:14:03.920 So government alleging that James lied on one of her 0:14:04.120 --> 0:14:08.000 mortgage applications in which she said that one of her 0:14:08.040 --> 0:14:11.280 homes in Norfolk, Virginia would be used as a secondary residence, 0:14:11.400 --> 0:14:14.199 but she was really running it out, that's the allegation. 0:14:14.480 --> 0:14:18.160 And so they brought forward two charges, one for bank 0:14:18.240 --> 0:14:22.920 fraud and another for lying to a bank. So James 0:14:22.960 --> 0:14:25.840 says that these charges are baseless and she's going to 0:14:25.920 --> 0:14:29.120 contest them. The wild card here is that this was 0:14:29.160 --> 0:14:33.640 not the property that was under scrutiny for so long. 0:14:33.960 --> 0:14:38.040 This is another property and James and her lawyer haven't 0:14:38.080 --> 0:14:40.360 really said what happened with this property. 0:14:41.120 --> 0:14:44.960 Is a criminal case based on charges like these pretty rare. 0:14:45.880 --> 0:14:50.240 Mortgage fraud is a legitimate federal charge. It's usually charged 0:14:50.320 --> 0:14:54.320 as part of a larger criminal enterprise. What makes the 0:14:54.400 --> 0:14:59.040 situation with James unique is that the amount of money 0:14:59.120 --> 0:15:01.960 that is a leg edged to have been involved in 0:15:02.000 --> 0:15:07.200 the fraud is so minor, and current and former prosecutors 0:15:07.360 --> 0:15:10.760 say that the amount of money that's that issue here 0:15:10.960 --> 0:15:14.680 is so small that it wouldn't ever be brought as 0:15:14.720 --> 0:15:18.040 a standalone case. And so that's what makes the James 0:15:18.120 --> 0:15:21.720 indictment so unique is that she is alleged to have 0:15:22.080 --> 0:15:27.240 saved about nineteen thousand dollars by listing her property as 0:15:27.240 --> 0:15:30.680 a secondary residence rather than a rental property. And the 0:15:30.760 --> 0:15:35.479 dollar amount of nineteen thousand dollars in fraud is so small. 0:15:36.080 --> 0:15:40.160 Let's talk about the backstory here, because the only signature 0:15:40.280 --> 0:15:44.280 on the indictment is that of the newly installed interim 0:15:44.440 --> 0:15:48.640 US Attorney for the Eastern District of Virginia. Lindsay Halligan, 0:15:48.720 --> 0:15:51.120 a former Trump aid who was put into the role 0:15:51.160 --> 0:15:55.000 a few weeks ago after Trump forced out her predecessor, 0:15:55.400 --> 0:15:59.280 and in an unusual move, she personally presented the cases 0:15:59.320 --> 0:16:02.320 against Ja James and call me to the grand jury. 0:16:02.960 --> 0:16:07.160 That's something that US attorneys don't usually do. 0:16:07.760 --> 0:16:07.960 Yeah. 0:16:08.000 --> 0:16:10.360 The other thing that's really unique about this case is 0:16:10.400 --> 0:16:14.440 that there was a US attorney who said that this 0:16:14.600 --> 0:16:17.600 case should never have been brought forward, and he was 0:16:17.600 --> 0:16:22.320 facing pressure to indict Letitia James as well as James Comy, 0:16:22.360 --> 0:16:26.080 and he resigned. He had made it clear that after 0:16:26.160 --> 0:16:29.560 looking over all of the documentation, that there wasn't sufficient 0:16:29.560 --> 0:16:33.000 evidence to bring a case against Letitia James or James Comy, 0:16:33.440 --> 0:16:36.360 but he was facing pressure from the White House and 0:16:36.520 --> 0:16:40.560 from Trump officials inside the Justice Department, and he made 0:16:40.600 --> 0:16:44.400 the decision to resign. And then Trump appointed one of 0:16:44.440 --> 0:16:48.200 his top White House aides as the interim US attorney. 0:16:48.480 --> 0:16:51.760 And so she just came into the position two weeks 0:16:51.800 --> 0:16:55.680 ago and has already brought two indictments against two people 0:16:55.880 --> 0:17:00.560 who Trump demanded be prosecuted. And she brought the indictment 0:17:00.760 --> 0:17:04.679 over the objections of the career people who work for 0:17:05.000 --> 0:17:09.280 the Eastern District of Virginia. And what's really interesting is 0:17:09.320 --> 0:17:12.919 that none of the career prosecutors who work for the 0:17:12.920 --> 0:17:15.679 Eastern District of Virginia signed on to either of the 0:17:15.720 --> 0:17:18.960 indictments against James or Comy, and it was only Halligan 0:17:19.200 --> 0:17:22.879 who presented these cases to the grand jury and signed 0:17:22.880 --> 0:17:23.760 the documentation. 0:17:24.400 --> 0:17:26.840 And there are a lot of other similarities between the 0:17:26.920 --> 0:17:30.040 case against James and the case against Comy, and it 0:17:30.080 --> 0:17:34.320 appears that there'll be some similar defense motions to dismiss 0:17:34.359 --> 0:17:38.280 in both cases. Comy pleaded not guilty on Wednesday to 0:17:38.480 --> 0:17:43.440 charges that he lied to lawmakers and obstructed a congressional proceeding. 0:17:43.840 --> 0:17:46.760 You were in the courtroom for that arraignment, and Comy's 0:17:46.800 --> 0:17:50.080 defense attorney outlined some of the grounds they would use 0:17:50.200 --> 0:17:52.480 to try to get the charges dismissed. 0:17:52.840 --> 0:17:56.480 His attorney is Patrick Fitzgerald, who is a very well known, 0:17:56.720 --> 0:18:02.120 very respected lawyer, former US Attorney for Chicago, and he 0:18:02.680 --> 0:18:07.360 made three main points that they are going to challenge. 0:18:07.680 --> 0:18:12.919 That the case against Komi represents a vindictive prosecution and 0:18:13.040 --> 0:18:18.760 a selective prosecution, and that the appointment of the interim 0:18:18.880 --> 0:18:22.639 US attorney who brought the charge was unlawful. And so 0:18:23.160 --> 0:18:27.040 they are going to move through those phases of challenges 0:18:27.840 --> 0:18:31.520 and if they all fail, then they will go to 0:18:31.640 --> 0:18:32.679 a speedy trial. 0:18:33.400 --> 0:18:38.560 We've talked about how unusual Halligan's appointment was, but what 0:18:38.760 --> 0:18:41.640 does Fitzgerald say it was unlawful? 0:18:42.240 --> 0:18:46.000 The objection is that she was not a Justice Department 0:18:46.040 --> 0:18:50.160 official before she was appointed. There are certain rules that 0:18:50.359 --> 0:18:54.080 have to be followed when you are appointing a temporary 0:18:54.320 --> 0:18:58.480 position within the Justice Department, and US attorneys need to 0:18:58.520 --> 0:19:02.040 be Senate confirmed or they need to be given the 0:19:02.040 --> 0:19:07.959 appointment by federal judges. It's allowed to have a temporary appointment, 0:19:08.080 --> 0:19:11.639 but the temporary appointment must be somebody who comes from 0:19:11.680 --> 0:19:15.000 within the Justice Department, which Lindsay Halligan does not. 0:19:15.560 --> 0:19:19.000 So that's interesting because if the judge threw out the 0:19:19.040 --> 0:19:24.199 indictment because she was not a legal appointee, I mean 0:19:24.240 --> 0:19:26.600 the statute of limitations has run, they wouldn't be able 0:19:26.640 --> 0:19:28.240 to bring the charges against him again. 0:19:28.520 --> 0:19:30.560 Correct, The case would be completely dropped and there'd be 0:19:30.640 --> 0:19:31.960 no ability to bring it back. 0:19:32.240 --> 0:19:32.439 You know. 0:19:32.520 --> 0:19:35.639 The only caveat is these are hard motions to win. Generally, 0:19:35.760 --> 0:19:38.560 judges are hesitant to throw out cases that grand jury's 0:19:38.600 --> 0:19:42.600 have returned. So the defense does face some obstacles to 0:19:42.680 --> 0:19:45.960 being able to do it, but the rules of how 0:19:46.400 --> 0:19:49.080 US attorneys are appointed in what they can actually do 0:19:49.760 --> 0:19:53.600 raise legitimate questions for the defense to challenge the appointment 0:19:53.760 --> 0:19:54.840 of Halligan. 0:19:54.800 --> 0:19:58.160 And Letitia James could also use that argument, although since 0:19:58.200 --> 0:20:03.200 there's no statute of Limitationan's problem in her case, prosecutors 0:20:03.200 --> 0:20:06.640 could just refile the charges against her, and it does 0:20:06.680 --> 0:20:09.879 seem like they would have similar grounds to dismiss on 0:20:10.359 --> 0:20:12.560 vindictive or selective prosecution. 0:20:13.280 --> 0:20:16.359 Yes, James has already said she's going to allege that 0:20:16.440 --> 0:20:20.120 this is a selective and vindictive prosecution. She's going to 0:20:20.320 --> 0:20:25.159 rely on many statements that Trump has made calling for 0:20:25.240 --> 0:20:28.960 her to be indicted, including social media posts that Trump 0:20:29.080 --> 0:20:34.240 made last month where he basically directed Attorney General Pam 0:20:34.280 --> 0:20:38.359 Bondi to indict James, Tomy and Adam Schiff. And so 0:20:38.560 --> 0:20:41.600 that will be one of the primary pieces of evidence 0:20:41.920 --> 0:20:44.359 that her defense will use to say this was a 0:20:44.440 --> 0:20:46.280 vindictive and selective prosecution. 0:20:46.920 --> 0:20:49.639 James is going to be arraigned on October twenty fourth, 0:20:49.760 --> 0:20:53.159 so we might learn more about her case at that time, 0:20:53.560 --> 0:20:56.480 and you did learn at Comey's arraignment that they haven't 0:20:56.520 --> 0:20:59.880 been given any additional details about the charges. 0:21:00.000 --> 0:21:04.520 Secifically, the defense wants to know who Komy authorized to 0:21:05.080 --> 0:21:10.640 provide information, and what information that person provided and who 0:21:10.680 --> 0:21:13.719 it related to. In the indictment, it says that Komy 0:21:13.920 --> 0:21:18.320 authorized person three to provide information about person one. It's 0:21:18.320 --> 0:21:21.000 pretty clear from everything we know that person one is 0:21:21.000 --> 0:21:23.760 actually Hillary Clinton. But what's not clear is who is 0:21:23.840 --> 0:21:29.240 person three that actually provided the information. And Komi's defense 0:21:29.440 --> 0:21:31.560 is saying that to this date they still have not 0:21:31.680 --> 0:21:36.000 been told specifically the details of the indictment, which they 0:21:36.080 --> 0:21:38.600 need to know in order to mount their defense. 0:21:39.040 --> 0:21:41.320 The judge said, this doesn't appear to be an overly 0:21:41.440 --> 0:21:44.879 complicated case. I mean, they can certainly give Komy the 0:21:45.000 --> 0:21:47.720 name of the people in the indictment. I mean that 0:21:47.800 --> 0:21:49.240 seems bare minimum. 0:21:49.520 --> 0:21:52.960 Yeah, it was surprising that the government had not already 0:21:53.160 --> 0:21:57.320 provided Komi and his lawyers with just the basic information 0:21:57.680 --> 0:22:02.320 of who they allege Ko Me authorized to leak information. 0:22:02.640 --> 0:22:07.119 And it really speaks to how unusual this case, you know, 0:22:07.280 --> 0:22:10.800 has been from the start, and how there might be 0:22:11.280 --> 0:22:16.320 a problem with the ability of the new US attorney 0:22:16.480 --> 0:22:18.679 to manage this prosecution. 0:22:19.119 --> 0:22:22.159 And speaking to that, the two prosecutors who have signed 0:22:22.200 --> 0:22:25.560 on to handle the case are both based in North Carolina, 0:22:25.920 --> 0:22:28.800 as opposed to the Eastern District of Virginia where the 0:22:28.840 --> 0:22:30.280 case is taking place. 0:22:30.600 --> 0:22:34.280 Yep, it's our understanding that most of the career officials 0:22:34.480 --> 0:22:36.879 in the US Attorney's Office for the Eastern District of 0:22:36.960 --> 0:22:40.720 Virginia looked at the case and determined that there wasn't 0:22:40.720 --> 0:22:43.800 sufficient evidence to bring a case or go to the 0:22:43.800 --> 0:22:47.000 grand jury and get an indictment, and so none of 0:22:47.040 --> 0:22:51.000 them are willing to sign on to this case. And 0:22:51.680 --> 0:22:55.960 the new US attorney, who has never prosecuted the case before, 0:22:56.280 --> 0:22:59.480 then had to bring in, you know, assistant US attorneys 0:22:59.520 --> 0:23:02.440 from another office in order to appear in court. 0:23:02.800 --> 0:23:04.240 I don't know if I've ever heard of anything like 0:23:04.280 --> 0:23:05.360 that happening before. 0:23:05.520 --> 0:23:06.040 I haven't. 0:23:06.320 --> 0:23:10.960 And another surprise for the defense, there's classified information involved 0:23:10.960 --> 0:23:11.560 in the case. 0:23:12.119 --> 0:23:16.359 So the new wrinkle was that the prosecution said that 0:23:16.760 --> 0:23:19.840 there's a large amount of discovery material that they have 0:23:19.920 --> 0:23:24.080 to sort through, which includes classified information. Up until now, 0:23:24.440 --> 0:23:27.280 we had never heard them say that there is a 0:23:27.760 --> 0:23:33.400 trove of classified information, and that could complicate the ability 0:23:33.800 --> 0:23:37.760 of the case to move forward and also comy to 0:23:37.840 --> 0:23:42.560 mount his defense because the government needs to work out 0:23:42.600 --> 0:23:46.480 a process by which classified information can be shared with 0:23:46.560 --> 0:23:51.240 Comy's defense team or provided to the judge under seal. 0:23:51.560 --> 0:23:56.000 And I think everybody was surprised when the prosecution said 0:23:56.000 --> 0:23:59.399 that they have classified information that they need to sort through, 0:23:59.480 --> 0:24:03.280 and the judge quickly said he does not intend to 0:24:03.760 --> 0:24:07.360 have a long delay, if any delay as a result 0:24:07.680 --> 0:24:12.679 of needing to deal with classified information. The judges basically 0:24:12.840 --> 0:24:16.560 ordered the prosecution team to get their act together well. 0:24:16.600 --> 0:24:20.200 The judge said the trial date for January fifth, We'll 0:24:20.200 --> 0:24:23.400 see if he can keep things moving. Thanks Chris. That's 0:24:23.440 --> 0:24:29.040 Bloomberg Legal reporter Chris Strom. It's the most difficult decision 0:24:29.240 --> 0:24:32.600 a criminal defendant has to make a trial, whether or 0:24:32.680 --> 0:24:36.080 not to take the stand. And when a defendant decides 0:24:36.119 --> 0:24:39.479 to take the risk of testifying, what role does his 0:24:39.520 --> 0:24:43.840 attorney play. David Villarreale took the stand during his trial 0:24:43.880 --> 0:24:47.800 in twenty eighteen for murdering his boyfriend, but when there 0:24:47.840 --> 0:24:51.600 was an overnight break in his testimony, the judge barred 0:24:51.680 --> 0:24:55.960 villa rial's attorney from discussing his testimony with him. He 0:24:56.080 --> 0:24:59.119 was convicted, and in his appeal to the Supreme Court 0:24:59.400 --> 0:25:04.320 Villarriale argues that the judge's order denied him effective assistance 0:25:04.320 --> 0:25:07.919 of counsel in violation of the sixth Amendment. During the 0:25:08.040 --> 0:25:11.879 oral arguments, the justices question just what a trial lawyer 0:25:11.920 --> 0:25:15.119 could talk to his client about during an overnight break 0:25:15.119 --> 0:25:20.080 in his testimony without crossing over into coaching the client's testimony. 0:25:20.600 --> 0:25:24.320 Chief Justice John Roberts posed a hypothetical to the lawyer 0:25:24.359 --> 0:25:28.320 for Texas about a defendant asking his attorney whether he 0:25:28.359 --> 0:25:32.080 should stop testifying about Fred when he got back on 0:25:32.119 --> 0:25:32.640 the stand. 0:25:33.680 --> 0:25:36.159 And I notice every time I do that, you know, 0:25:36.240 --> 0:25:38.880 Juring number eight gets a big frown and shakes his head. 0:25:39.119 --> 0:25:41.119 He doesn't look to me like he likes the idea 0:25:41.160 --> 0:25:44.360 of talking about Fred at all. So I think that's 0:25:44.359 --> 0:25:47.719 a bad idea. Now, talking about Fred was your idea? 0:25:47.920 --> 0:25:50.639 Do you still think it's a good idea. Can the 0:25:50.720 --> 0:25:52.359 lawyer respond to that question? 0:25:54.040 --> 0:25:56.520 No, they you would have to tell them, I'm omner 0:25:56.520 --> 0:25:58.320 a core order not to out to answer. 0:25:58.359 --> 0:26:00.399 So at that point he tells the defendant who's facing 0:26:00.440 --> 0:26:02.359 the capital sentence, I'm not going to tell you. 0:26:02.720 --> 0:26:05.879 And Justice Elaina Kagan wanted to know about a lawyer 0:26:06.000 --> 0:26:09.720 giving his client some tips on his performance on the stand. 0:26:10.200 --> 0:26:14.480 Do you think that council can say, listen, I've been 0:26:14.520 --> 0:26:19.320