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Speaker 1: This is Bloombird Law with June Brasso from Bloomberg Radio.

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Speaker 1: What's one of you? Use Jack Curry, Jack, you're under

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Speaker 1: arrest for the murder of Bobby Holland. Put your head

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Speaker 1: on top of your head. You got the right from silence,

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Speaker 1: thank you saying maybe use the guests you in the

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Speaker 1: court of law. Hands done. You have the right to

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Speaker 1: an attorney if you're not afford an attorney, when we'll

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Speaker 1: be provided for you at no cost. The Miranda warnings

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Speaker 1: have become embedded in our society thanks to shows like

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Speaker 1: Law and Order. It's clear that the landmark Miranda decision

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Speaker 1: bars coerced confessions from being used in court, But what's

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Speaker 1: not clear is whether a police officer who fails to

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Speaker 1: give Miranda warnings can be sued for damages for violating

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Speaker 1: a suspect's constitutional rights. This week, at the Supreme Court,

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Speaker 1: the joice is debated whether Miranda provides a constitutional right.

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Speaker 1: Chief Justice John Roberts Injustice Amy Coney Barrett pointed out

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Speaker 1: that in a case affirming Miranda, the late Chief Johnice

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Speaker 1: William Renquist stopped short of calling it a constitutional right.

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Speaker 1: Justice ran Quist he would have been very aware of

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Speaker 1: the debate we're having today. And when it came to Dickerson,

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Speaker 1: he was also somebody careful with his words. He didn't

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Speaker 1: say Miranda is in the constitution. He talked about constitutional underpinnings,

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Speaker 1: constitutional basis. So Dickerson didn't ever use the word constitutional right.

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Speaker 1: It seemed very carefully worded to say a constitutional rule

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Speaker 1: or constitutionally required joining me is Bloomberg Law reporter Jordan

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Speaker 1: Reuben Jordan explained the central question here. So the question

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Speaker 1: here is whether the failure to give Miranda warnings can

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Speaker 1: give rise to a federal civil rights lawsuit. Now, for

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Speaker 1: such a lawsuit to go forward, their needs to have

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Speaker 1: been a violation of a constitutional right. And so that's

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Speaker 1: what raised the question is whether this Miranda right is

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Speaker 1: a constitutional right or something else. And that's been a

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Speaker 1: long simmering question, and that was the focus of this argument.

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Speaker 1: As you said, Miranda was subject to a lot of

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Speaker 1: criticism in the eighties and nineties, and a decision by

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Speaker 1: Chief Justice ran Quist put that to rest. So tell

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Speaker 1: us about that decision, right, So that was really interesting

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Speaker 1: that Dickerson case in two thousand. As you mentioned, ran

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Speaker 1: Quists and other conservatives had long been critical of not

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Speaker 1: just Miranda, but it was really a part of a

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Speaker 1: series of these Warren Court era criminal procedure decisions, part

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Speaker 1: of this so called criminal procedure revolution, and so these

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Speaker 1: really became the opinions that were not liked on the

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Speaker 1: conservative side and really enemies to be taken down over time.

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Speaker 1: And so that didn't wind up happening exactly with Miranda.

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Speaker 1: And in a two thousand case, Dickerson rank Was actually

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Speaker 1: wrote an opinion, a seven to opinion effectively upholding Miranda

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Speaker 1: when he obviously could have disagreed with it. And so

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Speaker 1: really the question in this case now is what exactly

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Speaker 1: did Dickerson mean? And some subsequent cases as well, And

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Speaker 1: so it's not just the fact that Frankist didn't overturn

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Speaker 1: Miranda in that Dickerson case, but what exactly was he

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Speaker 1: doing there? And so that's really where a lot of

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Speaker 1: this case is going to be decided. The central question

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Speaker 1: you mentioned whether miranda warnings are a constitutional right, what

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Speaker 1: were the justice's concerns and the Renquist opinion, what did

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Speaker 1: they say it meant, and so really delving into the

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Speaker 1: specifics of that Dickerson opinion by Ranquist, it was pointed

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Speaker 1: out by some of the more conservative justices. That Ranklist

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Speaker 1: was careful with his words and didn't exactly refer to

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Speaker 1: Miranda as a constitutional right. He referred to it having

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Speaker 1: constitutional underpinning, sort of a constitutional essence to it, if

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Speaker 1: you will, but specifically not saying constitution all right, And

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Speaker 1: that distinction could wind up being very important in this case,

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Speaker 1: because remember, the question is is Miranda a constitutional right

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Speaker 1: that can give rise to such a federal civil rights

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Speaker 1: suit like the one that Mr Tico is trying to bring.

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Speaker 1: Here the chief Justice clerk for ren Quist, what did

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Speaker 1: he say about the opinion and rend quist intention. So

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Speaker 1: I found Roberts to be interesting at this argument because

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Speaker 1: he said a couple of things that I really think

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Speaker 1: went both ways. So on the one hand, he Roberts

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Speaker 1: pointed out that if it wasn't for the Constitution, you

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Speaker 1: wouldn't have this Miranda ruling, and you wouldn't be able

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Speaker 1: to keep unwarned confessions out of evidence. So he asked

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Speaker 1: Vegas lawyer, why isn't this a right that's secured by

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Speaker 1: the Constitution? And so that type of question could lead

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Speaker 1: one to think that, well, maybe Roberts is thinking along

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Speaker 1: the lines of the plaintiff wanting to be able to

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Speaker 1: sue here. But on the other hand, Roberts told the

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Speaker 1: lawyer for the plaintiff how Ranked Whist was someone who

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Speaker 1: was careful with his words, and so in the Dickerson case,

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Speaker 1: how Ranklist pointed out or at least didn't explicitly say

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Speaker 1: miranda is a constitutional right. He talked about constitutional underpinnings,

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Speaker 1: constitutional basis, and so Roberts, who cleared for Ranklist, said

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Speaker 1: things that could have gone both ways that the argument.

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Speaker 1: But if his words to Tico's lawyer are to be

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Speaker 1: representative of how he views the case, then he's someone

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Speaker 1: who maybe doesn't see miranda as this constitutional right which

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Speaker 1: can give rise to a federal civil rights suit. Did

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Speaker 1: you get a feel for how many of the justices

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Speaker 1: might decide that miranda does not provide a constitutional right.

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Speaker 1: So I think that it was fair to say that

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Speaker 1: some comments from Avanaugh and Barrett were also along the

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Speaker 1: lines of the Chief Justice. An interesting part of the

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Speaker 1: argument to me was an exchange between the deputy's lawyer

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Speaker 1: and Justice Thomas, because the deputy is pointing to a

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Speaker 1: case that came after Dicker's it called Chaves, where a

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Speaker 1: plurality of the court meaning less than a majority effectively

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Speaker 1: endorsed the view that Miranda isn't a constitutional right exactly,

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Speaker 1: and is more of what's called this prophylactic rule, a

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Speaker 1: preventative rule, not a constitutional right per se. And so

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Speaker 1: at the argument, the deputy's lawyer brings that up. And

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Speaker 1: so you might think Justice Thomas, who is actually the

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Speaker 1: one who wrote that plurality opinion in Javis, might be

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Speaker 1: wanting to go along with that. But it was interesting

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Speaker 1: to me that Thomas himself pointed out he couldn't get

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Speaker 1: a majority in that case. Let's listen to part of

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Speaker 1: that exchange, and the Chaves plurality I think addresses this

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Speaker 1: issue head on, and it says that because Miranda's judicially

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Speaker 1: created prophylactic rule, the violation of that rule doesn't violate

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Speaker 1: anyone's constitutional rights. And that's consistent, as I was saying earlier,

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Speaker 1: with what the Court had previously said in cases like

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Speaker 1: Pain and Elstad. Yeah, but I couldn't get a majority

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Speaker 1: in Shav, so the that I don't know how much

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Speaker 1: that does for you. Um. So that's not to say

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Speaker 1: that if Thomas can get more people on board this time,

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Speaker 1: that maybe now he can accomplish what he wasn't able

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Speaker 1: to accomplish in the Chavez case, and so he just

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Speaker 1: might given changes in the court between two thousand three

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Speaker 1: and now. And so whether that's exactly going to happen,

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Speaker 1: I think or means to be seen, but it's certainly

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Speaker 1: a possibility. That's what happens when you're on the court

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Speaker 1: this long you see changes. Has the court in the

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Speaker 1: past been cutting back on these kinds of suits against

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Speaker 1: police officers under this oh, I think that's certainly fair

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Speaker 1: to say, as a general matter, as Kavanaugh put it

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Speaker 1: at the argument, in some ways they're looking to not

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Speaker 1: extend precedents. And so whether someone sees that as even

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Speaker 1: cutting back on them, or at least not extending them,

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Speaker 1: is certainly fair to say that no precedents are going

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Speaker 1: to be extended at the court. But certainly in these

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Speaker 1: types of suits, I think it's fair to say that

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Speaker 1: the court certainly hasn't been in the business of expanding

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Speaker 1: them generally. I don't know if this case is necessarily

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Speaker 1: going to fall into that category. It's really going to

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Speaker 1: be interesting to see how it turns out. But you

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Speaker 1: have to think that anybody who's trying to bring a

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Speaker 1: claim like Tico in this case, or defending the type

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Speaker 1: of claim that Tico's bringing, because it was actually the

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Speaker 1: deputy who petitioned for certain here that they have a

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Speaker 1: tough road at this court. Not impossible, but certainly a

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Speaker 1: tough road. It'll be so interesting to see what happens here.

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Speaker 1: Thanks so much, Jordan's that's Bloomberg Law reporter Jordan Ruben,

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Speaker 1: that's great. Did you advocated the President Trump to impose

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Speaker 1: martial law as a way to remain in power? I

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Speaker 1: don't recall, yes, so you're not denying did it? You

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Speaker 1: just don't remember. I don't remember. That was Congresswoman Marjorie

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Speaker 1: Taylor Green's answer to question after question. She didn't remember

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Speaker 1: her own statements or social media posts, whether it was

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Speaker 1: advising former President Donald Trump to invoke martial law or

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Speaker 1: calling on supporters to flood the Capitol Building and the

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Speaker 1: Georgia congresswoman denied calling Speaker Nancy Pelosi a traitor to

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Speaker 1: her country until the plaintiff's lawyer showed a quotation from

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Speaker 1: her saying that do you think that Speaker Pelosi is

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Speaker 1: a trader to the country? Right, You're I'm not answering

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Speaker 1: that question. Of speculation. You've said that, having you in

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Speaker 1: this Green, that she's a trader to the country. No,

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Speaker 1: I haven't said that. Put up pens Exhibit five please,

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Speaker 1: oh no, wait hold on now, I believe by not

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Speaker 1: upholding the securing the border that that violates her oath

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Speaker 1: of office. Green is set to appear on the Republican

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Speaker 1: ballot for the States May primary and has been endorsed

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Speaker 1: by former President Donald Trump, but voters in her district

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Speaker 1: have said that Green helped facilitate the January six insurrection,

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Speaker 1: making her inelig wable for reelection under a rarely sided

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Speaker 1: section of the fourteenth Amendment dealing with insurrection or rebellion.

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Speaker 1: Green has repeatedly denied aiding or engaging in an insurrection,

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Speaker 1: and has filed a lawsuit alleging that the law of

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Speaker 1: voters are using to challenge her eligibility is itself unconstitutional.

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Speaker 1: Here's Ron Fayne, legal director of Free Speech for People,

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Speaker 1: which is representing Georgia voters, and James Bob Green's lawyer.

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Speaker 1: She urged and encourage and health facilitate violent resistance to

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Speaker 1: our own government, our democracy, and our constitution, and in

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Speaker 1: doing so she engaged in exactly the type of conduct

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Speaker 1: that triggers disqualification under Section three of the Fourteenth Amendment,

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Speaker 1: which is to say she engaged in insurrection. The challenges

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Speaker 1: will try to use the First Amendment protected political speech

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Speaker 1: of reference and brain as evidence of clothes. Engaging in

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Speaker 1: an insurrection are rebellion. That's unconstitutional and should not be allowed.

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Speaker 1: Joining me is Richard bald, a professor at Columbia Law School.

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Speaker 1: Rich tell us about this unusual use of the Fourteenth Amendment.

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Speaker 1: So there's a provision in the Constitution, in the fourteenth Amendment,

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Speaker 1: which was adopted by Congress and ratified by the people

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Speaker 1: right after the Civil War, that was designed to deny

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Speaker 1: people who had taken the oath of office of the

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Speaker 1: United States the senators or congressman, and then who had

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Speaker 1: joined up with the South and the Civil War and

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Speaker 1: basically went into rebellion. In the language the Constitution uses,

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Speaker 1: anybody who actually swore north of allegiance the United States

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Speaker 1: as a member of Congress and then engaged in insurrection

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Speaker 1: or rebellion against the United States would be denied the

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Speaker 1: ability to serve in Congress again unless Congress by two

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Speaker 1: thirds votes that they could. I mean, there's a little

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Speaker 1: bit more to it than that, but that's the essence

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Speaker 1: of it. If you took an oath of office the

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Speaker 1: member of Congress, then you engage in insurrection or rebellion,

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Speaker 1: you are not eligible to serve again in Congress. And

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Speaker 1: the argument that's been raised perspect to a number of

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Speaker 1: members of Congress who, like Marjorie Taylor Green, been brought

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Speaker 1: by by voters in their districts is that she and

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Speaker 1: Madison Carthon from North Carolina and a couple of congressmen

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Speaker 1: from Arizona were connected to the attack on Congress January

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Speaker 1: six in connection with the electoral College, that they were

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Speaker 1: either involved in the planning of or they knew about it,

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Speaker 1: or in some way or form gave aid and comfort

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Speaker 1: to the insurrection. So that's the argument, is that because

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Speaker 1: she gave an aid and comfort to the insurrection um

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Speaker 1: January six, she is not eligible to be placed on

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Speaker 1: the ballot. This argument has failed with respect to Madison

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Speaker 1: Cawthorne in North Carolina and was just last week's thrown

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Speaker 1: out with respected two congressmen, including goes Are in Arizona.

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Speaker 1: But the federal judge in Georgia said there was enough

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Speaker 1: there in the allegations that Marjorie Taylor Green would have

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Speaker 1: to go before in the minustrate of law judge, a

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Speaker 1: state judge in Georgia and basically be examined by the

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Speaker 1: groups that are arguing that she's just should be disqualified

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Speaker 1: about her role in the events of January six. She

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Speaker 1: said a lot of, you know, other inflammatory things about

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Speaker 1: the election, but I've denied being involved in planning or

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Speaker 1: supported that there would be violence. When was the last

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Speaker 1: time the fourteenth Amendment was used in this way. I'm

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Speaker 1: not sure that it's been used at all, but certainly

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Speaker 1: it's it's very little about it that has known. I mean,

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Speaker 1: you know, it may have been used in incidents in

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Speaker 1: the mediate post Civil War period. I'm not familiar with

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Speaker 1: there being any modern cases using it. So it's it's

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Speaker 1: it's elicited a lot of debate. There was a boot

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Speaker 1: these in the Times the other day saying that it's

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Speaker 1: not self enforcing, that Congress doesn't have to pass a law.

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Speaker 1: There's an argument that's been made by Marjorie Taylor Green's lawyer,

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Speaker 1: and I think was also for the same lawyer from

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Speaker 1: Madison Clothorne that Congress several years after this amendment was

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Speaker 1: passed passing the owners the Amnesty Act, freeing most people

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Speaker 1: of the um the restrictions of the fourteen Amendment except

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Speaker 1: for members of Congress who had served in Congress during

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Speaker 1: the opening years of the Civil War and people like that.

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Speaker 1: On the other hand, some people have arguable that doesn't

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Speaker 1: make any sense, that that that it's not clear that

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Speaker 1: they intended to not have this ever applying in in

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Speaker 1: the future. So there is an argument that that law,

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Speaker 1: the Amnesty Act of eighteen seventy two, which seems to

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Speaker 1: limited to people who had actually been in Congress in

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Speaker 1: the eighteen sixty three period, that would basically mean that

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Speaker 1: that this amendment could never be enforced. So there's a debate,

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Speaker 1: you know, as to whether or not this is self executing,

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Speaker 1: that is to say, whether the provision itself does the work,

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Speaker 1: or you need a law in Congress. Whether the law

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Speaker 1: Congress passed in the eighteen seventies basically allowing most people

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Speaker 1: who had lower level positions took the oath, like the

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Speaker 1: people in the army who took the oath and then

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Speaker 1: switched to the Confederate side, were free other than people

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Speaker 1: sat in Congress in that period. And then of course

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Speaker 1: there's a question as to whether or not what she

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Speaker 1: and these other members of Congress did counts as giving

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Speaker 1: eight and to the insurrection, whether it was an insurrection,

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Speaker 1: and whether she was involved in it, especially in the

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Speaker 1: absence of any formal indictments by the Justice Department of

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Speaker 1: anybody accusing them of having participated in an insurrection. So

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Speaker 1: it seems to me it's kind of a stretch, but

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Speaker 1: it's an interesting argument. The defense attorney objected to a

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Speaker 1: lot of the questions of Marjorie Tillagreen by saying it

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Speaker 1: violated her right of free speech. So where does free

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Speaker 1: speech end and insurrectionist talk begin. That's, of course one

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Speaker 1: of the big underlying question here, and involving not just

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Speaker 1: her but many of the people who are involved in

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Speaker 1: the events of January six, who argue that what they

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Speaker 1: were doing with speech Obviously a lot of them went

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Speaker 1: well beyond speech. In her case, you know, we don't know,

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Speaker 1: I mean, you know, we don't know enough about what

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Speaker 1: she was doing behind the scenes as to whether or

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Speaker 1: not she was actively supporting an attack on Congress or was,

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Speaker 1: as she says, only supporting a protest of what she

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Speaker 1: claimed she believes was a fraudulent vote, and it's just

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Speaker 1: very hard to know. I know that the January six

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Speaker 1: Committee in Congress is exploring some of this, but you

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Speaker 1: know that is one question is to how far in

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Speaker 1: terms of the kinds of statements and actions she took,

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Speaker 1: how far did she get beyond sort of permissible political

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Speaker 1: opposition and enter into insurrection. I mean, you can ask

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Speaker 1: that questions come up again with kind of members of

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Speaker 1: the Trump administration and maybe President Trump themselves. The judge

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Speaker 1: doesn't make the final call here explain what happens. So

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Speaker 1: this is whre an administrative law judge in Georgia. He

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Speaker 1: will then make a recommendation to the Secretary of State

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Speaker 1: of Georgia, Brad Rathnsburger, who is the ultimate decisions to

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Speaker 1: whether or not to take her off the ballot. And

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Speaker 1: I think that's got to be reasonably soon because they

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Speaker 1: have a primary coming up. So again, this is I

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Speaker 1: think the only one of the cases that have been

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Speaker 1: brought which has gotten this far. In other cases the

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Speaker 1: federal judges sort of dismissed them outright, but the federal

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Speaker 1: district court judge and Georgia said there's enough here at

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Speaker 1: least to support a hearing some people argue that this

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Speaker 1: is the wrong way to go about this, that if

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Speaker 1: they want to get rid of Marjorie Tella Green, they

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Speaker 1: should work to get her voted out of office. Yeah,

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Speaker 1: I mean, you could argue, I mean, I understand that point,

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Speaker 1: And certainly there's a concern that if you do it

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Speaker 1: this way, she just becomes a martyr. On the other hand,

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Speaker 1: if she lives in you know, she's in a solidly

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Speaker 1: one party district, it's hard to not to primary. And

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Speaker 1: if she is in fact engaged in you know, insurrectionary

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Speaker 1: treasonous activities, there's a there is grounds for removal, although

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Speaker 1: it could be that the better way to do it

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Speaker 1: would be for Congress to do it, and of course,

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Speaker 1: given the partisanship of Congress, that's unlikely to happen. So,

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Speaker 1: you know, it's it's attention here. It's both at the

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Speaker 1: level of speech versus rebellion, but also kind of the

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Speaker 1: level of politics and law, as this ultimately so political

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Speaker 1: that you know, it's for the voters or for Congress

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Speaker 1: as a whole. And do we are we comfortable with

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Speaker 1: judges making these kinds of decisions, But there is a

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Speaker 1: constitutional provision there that does say that people who have

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Speaker 1: you know, engaged in insurrection or aid and gave aid

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Speaker 1: and protein insurrection should not as having previously taken an

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Speaker 1: oath um of office to support the constitution and specifically

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Speaker 1: including members of Congress, that breaking that oath in this

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Speaker 1: way disqualifies them. So there is that provision there which

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Speaker 1: can you talk a little bit about what's happening in

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Speaker 1: New York with the maps? Yeah, yeah, it's a little complicated.

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Speaker 1: So in New York State amended its constitution. The voters

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Speaker 1: approved it to move New York towards an independent redistriant

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Speaker 1: commission type process. And commission was created with a point

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Speaker 1: Republican and Democratic appointees and they were charged with developing

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Speaker 1: maps for the two state chambers of the state legislature

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Speaker 1: and the congressional districts um and they were told there

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Speaker 1: was a process that laid out in the constitution for

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Speaker 1: them to do that, and they of course needed to

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Speaker 1: have a super majority of their commission that so there

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Speaker 1: will be at least some people from both parties supporting

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Speaker 1: their recommendation. Well, they couldn't do that. The commission was divided,

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Speaker 1: and so there was not a recommended and in fact

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Speaker 1: they submitted two maps, two sets of maps, I should

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Speaker 1: say that kind of let's holding the Democratic maps and

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Speaker 1: the Republican maps, each each of which got a vote

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Speaker 1: of half the commission, but not a majority. Uh something

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Speaker 1: not the supermajority of the constitution required. The state Constitution

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Speaker 1: then said that the legislature is supposed to either accept

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Speaker 1: those maps of the map or rejected, but they can't

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Speaker 1: amend it. And if they rejected, the commission was to

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Speaker 1: send a second set of maps. Well, what happened this

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Speaker 1: time is the legislatures said, well, here we got these

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Speaker 1: commission is divided, forget it. We're just going to write

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Speaker 1: our own uh, and so the commission. So they rejected

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Speaker 1: the commission's maps, didn't wait around for a second set

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Speaker 1: of maps to come from the Commission, but just did

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Speaker 1: their own. And those maps the legislature right now, with

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Speaker 1: Democratic majorities in both chambers, Democratic governor, they passed maps

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Speaker 1: which UM, many people believe favorite Democrats. Uh. Those maps

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Speaker 1: have been challenged um and the trial court basically, Uh,

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Speaker 1: it's interesting the Republicans brought the challenges. They challenged only

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Speaker 1: the congressional maps and the maps for the state Senate,

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Speaker 1: not the map for the state lower house. The trial

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Speaker 1: court uh concluded that the maps were an effect doubly unconstitutional.

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Speaker 1: One was that they were um um that they violated

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Speaker 1: the constitutional procedure of because there was never a second

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Speaker 1: recommendation from the independent re District Commission. And also and

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Speaker 1: so that leeds to throwing out even the map for

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Speaker 1: the lower House, which Reroblicans had and challenged. And then

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Speaker 1: he also said that the maps, I think at least

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Speaker 1: a map, the congressional map was was a partisan gerry

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Speaker 1: manager in violation of another new provision of the state constitution,

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Speaker 1: which that basically no partisan jerry manders. Um the that

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Speaker 1: the Intermediate Court of Appeals issued a decision on that

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Speaker 1: I think last week, basically disagreeing with the point about

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Speaker 1: the process and basically said that in effect that given

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Speaker 1: the deadlock and the commission, it was okay for the

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Speaker 1: legislature to begin the process of passing its own maps,

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Speaker 1: which restored the assembly map, but basically agreed that there

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Speaker 1: was a partisan gerrymanager for the congressional map, and there

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Speaker 1: I think they divided on that three to two. So

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Speaker 1: that's going to go to the Court of a Pilsne

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Speaker 1: or state's highest Court, So I think conceivably they could

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Speaker 1: take up the question again about whether or not the

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Speaker 1: process was unconstitutional, in which case all the maps are invalid,

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Speaker 1: or they could just agree with the lower court that

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Speaker 1: the process was okay given the deadlock in the commission,

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Speaker 1: and then just focus on whether or not there was

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Speaker 1: a Jerrymander. Thanks for being on the show, rich that's

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Speaker 1: Professor Richard Rafault of Columbia Law School. Two formally married

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Speaker 1: Hollywood stars suing each other for defamation. Johnny Depp is

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Speaker 1: suing his ex wife Amber Heard for fifty million dollars

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Speaker 1: over op ed piece she wrote in The Washington Post

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Speaker 1: referring to herself as a quote public figure representing domestic abuse.

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Speaker 1: Heard has counterclaim with a information suit of her own

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Speaker 1: for one million dollars. While the lawsuit centers on whether

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Speaker 1: Depp was defamed in the op ed. In four days

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Speaker 1: on the Stand, Depth testified about everything from childhood abuse

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Speaker 1: to a near mental breakdown. Never did I myself reached

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Speaker 1: the point of h striking Misheard in any way, nor

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Speaker 1: have I ever struck any woman in my life. My

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Speaker 1: guest is defamation lawyer Jeff Lewis of Jeff Lewis law.

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Speaker 1: Johnny Depp lost a British case in the actors sued

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Speaker 1: the Sun newspaper for printing a headline that called him

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Speaker 1: a quote wife beater. A judge found that there was

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Speaker 1: overwhelming evidence that Depp had assaulted her repeatedly during their

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Speaker 1: marriage and that he had put her in fear of

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Speaker 1: her life. Did Depp testify in that case? He did testify,

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Speaker 1: although in this present case he is testifying extensively. His

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Speaker 1: answers are longer, he's emoting more. Everyone thinks he's suing

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Speaker 1: to revive his career because he doesn't want the outcome

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Speaker 1: of the British court to be the last word on

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Speaker 1: these allegations. So even if he doesn't win this case,

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Speaker 1: he wants all the testimony that's being videotaped and put

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Speaker 1: on Twitter that to be the final word on these allegations.

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Speaker 1: That's really why sue to restore his career and explain

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Speaker 1: the defamation claims. Yeah. Look, Pard wrote this op ed

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Speaker 1: piece in the Washington Post that says she was a

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Speaker 1: victim of domestic abuse. She didn't name Johnny Depp by name.

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Speaker 1: That Johnny has testified in court, and I'm sure he'll

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Speaker 1: have others testified that everybody understood who she was talking about.

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Speaker 1: And by the way, she countersued for defamation, So it's

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Speaker 1: not just his claims against her, but she's counter suit

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Speaker 1: for defamation. Her counter suit is based on things that

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Speaker 1: his former lawyer said. Yeah, very very unusual theory there.

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Speaker 1: The theory is that Johnny Depp and his prior lawyer

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Speaker 1: conspired to make these harmful statements about Amber heard. One

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Speaker 1: of the interesting things is when you're dealing with a

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Speaker 1: public figure plaintiff or cross complaint, you have to prove

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Speaker 1: things like malice, that the person who spoke said things

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Speaker 1: without a belief they were true or reckless disregarded. Here,

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Speaker 1: it's an odd situation where Johnny Depp is being sued

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Speaker 1: for statements made by his lawyer. Whose state of mind

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Speaker 1: is that issue? Is that his lawyer state of mind

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Speaker 1: or Johnny state of mind in terms of malice, who

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Speaker 1: knew what was said was false? How can he be

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Speaker 1: held responsible for something that his former lawyer said and

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Speaker 1: the lawyers not being sued. Yes, it's very unusual theory there. Uh.

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Speaker 1: The theory is under conspiracy liability, you could be liable

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Speaker 1: for making an agreement with someone to do something that

432
00:24:59,720 --> 00:25:01,679
Speaker 1: by lead to the law. You and I agreed on

433
00:25:01,720 --> 00:25:06,080
Speaker 1: this podcast today to say false things about somebody you

434
00:25:06,160 --> 00:25:08,600
Speaker 1: could be liable for things that I say. What does

435
00:25:08,640 --> 00:25:13,000
Speaker 1: he have to prove in his case, Well, he's got

436
00:25:13,000 --> 00:25:16,560
Speaker 1: to prove that he didn't abuse her. He's got a

437
00:25:16,600 --> 00:25:20,560
Speaker 1: refute the allegation in the opening statement, the new allegation

438
00:25:20,600 --> 00:25:22,919
Speaker 1: in this trial that there was sexual assault. That's not

439
00:25:23,000 --> 00:25:25,400
Speaker 1: something that came up in the prior trial in England.

440
00:25:25,960 --> 00:25:28,720
Speaker 1: And the hardest thing he's got to prove is that

441
00:25:29,119 --> 00:25:32,040
Speaker 1: when ever heard wrote this off ed, she knew what

442
00:25:32,160 --> 00:25:35,280
Speaker 1: she said was false or had reckless disregard to whether

443
00:25:35,320 --> 00:25:37,879
Speaker 1: it was false. How well did he do during his

444
00:25:38,000 --> 00:25:42,040
Speaker 1: testimony on direct I think he's done very well. On Direct.

445
00:25:42,080 --> 00:25:44,400
Speaker 1: He's brought up some things that the public has heard

446
00:25:44,600 --> 00:25:48,280
Speaker 1: about for the first time, for example, his abuse by

447
00:25:48,359 --> 00:25:52,280
Speaker 1: his mother as a child, physical abuse. He's been very

448
00:25:52,320 --> 00:25:56,040
Speaker 1: forthright about his substance abuse. And keep in mind, this

449
00:25:56,080 --> 00:25:58,480
Speaker 1: case is not really about substance abuse or whether or

450
00:25:58,560 --> 00:26:02,000
Speaker 1: not she accused him of usince apiece. It's goot domestic violence,

451
00:26:02,560 --> 00:26:06,399
Speaker 1: and he's testified how his life was destroyed by these allegations.

452
00:26:06,640 --> 00:26:09,199
Speaker 1: Book in terms of losing his career and on the

453
00:26:09,280 --> 00:26:13,119
Speaker 1: personal front, and it's been pretty pretty impactful. One of

454
00:26:13,160 --> 00:26:17,240
Speaker 1: the things that stood out as far as was her

455
00:26:17,320 --> 00:26:21,240
Speaker 1: throwing a bottle at him and severing his finger. Yeah,

456
00:26:21,280 --> 00:26:25,880
Speaker 1: that that incident is a real headliner for a lot

457
00:26:25,880 --> 00:26:29,320
Speaker 1: of reasons. First of all, there's testimony by him that

458
00:26:29,440 --> 00:26:32,600
Speaker 1: he used the tip of his finger to write messages

459
00:26:32,720 --> 00:26:35,800
Speaker 1: in blood on the walls after that injury, and he

460
00:26:35,840 --> 00:26:40,280
Speaker 1: says that she's responsible for that injury. Amber Heard has,

461
00:26:40,640 --> 00:26:44,560
Speaker 1: through lawyers, cast out on that story, suggesting that he

462
00:26:44,640 --> 00:26:48,440
Speaker 1: injured himself and that she was not responsible. What problems

463
00:26:48,480 --> 00:26:52,879
Speaker 1: do you see with his cross examination? Well, in cross examination,

464
00:26:53,040 --> 00:26:58,119
Speaker 1: he has come out as somebody who is explosive, who

465
00:26:58,240 --> 00:27:03,320
Speaker 1: has temper issues, who abuses drugs. There's been crumful photographs

466
00:27:03,359 --> 00:27:06,240
Speaker 1: of him falling asleep in a chair with ice cream

467
00:27:06,280 --> 00:27:10,080
Speaker 1: melting into a pool at his feet. But some observers

468
00:27:10,080 --> 00:27:13,160
Speaker 1: think that some of that testimony or is backfired insofar

469
00:27:13,240 --> 00:27:16,680
Speaker 1: as it makes him sympathetic that amber Heard is taking

470
00:27:16,840 --> 00:27:19,560
Speaker 1: pictures of him at his lowest moments, that he was

471
00:27:19,640 --> 00:27:22,440
Speaker 1: driven to the point of self harming he's testified to

472
00:27:22,960 --> 00:27:25,960
Speaker 1: and that he was using substances as a response to

473
00:27:26,040 --> 00:27:29,040
Speaker 1: the abuse he was suffering at her hands. So I

474
00:27:29,080 --> 00:27:31,720
Speaker 1: think on balance, he's done everything he's needed to do

475
00:27:31,800 --> 00:27:34,919
Speaker 1: in terms of testifying and getting sympathy from a jury

476
00:27:35,240 --> 00:27:37,000
Speaker 1: in this whole case is really going to turn on

477
00:27:37,080 --> 00:27:40,520
Speaker 1: her credibility, and especially these new allegations about sexual assault

478
00:27:40,680 --> 00:27:44,040
Speaker 1: and whether a jury believes that that sexual assault occurred.

479
00:27:44,800 --> 00:27:49,320
Speaker 1: What was the most damaging part of the cross examination? Well,

480
00:27:49,359 --> 00:27:52,080
Speaker 1: I think the most harmful testimony was a sound bite

481
00:27:52,080 --> 00:27:55,680
Speaker 1: that was played. Johnny Depp is heard saying to her

482
00:27:55,760 --> 00:27:58,840
Speaker 1: that a blood bath is going to occur if they

483
00:27:58,840 --> 00:28:03,480
Speaker 1: don't go their separate days. That's pretty harmful. The violence

484
00:28:03,520 --> 00:28:08,240
Speaker 1: that he shows in terms of damaging hotel rooms and

485
00:28:08,960 --> 00:28:12,760
Speaker 1: his kitchen, and the text messages that he sends two

486
00:28:12,840 --> 00:28:17,399
Speaker 1: friends describing Amber heard are not flattering. Does he have

487
00:28:17,680 --> 00:28:21,520
Speaker 1: anything besides his word to back this up? For example,

488
00:28:22,119 --> 00:28:25,800
Speaker 1: with his finger, he didn't tell the doctors in the

489
00:28:25,840 --> 00:28:30,040
Speaker 1: emergency room what had really happened. So does he have

490
00:28:30,080 --> 00:28:34,199
Speaker 1: a problem with backing up these allegations that she was

491
00:28:34,359 --> 00:28:37,520
Speaker 1: the violent one. Yeah, that's the That's the real crux

492
00:28:37,560 --> 00:28:40,840
Speaker 1: of this case. In these private moments when these things

493
00:28:40,880 --> 00:28:42,720
Speaker 1: happen with just she and he are there in the

494
00:28:42,800 --> 00:28:46,240
Speaker 1: room alone. There is not a whole lot of corroborating testimony.

495
00:28:46,280 --> 00:28:48,720
Speaker 1: And he told the jury that he lied to the

496
00:28:48,800 --> 00:28:52,000
Speaker 1: e R doctors to protect basically to protect the Amber

497
00:28:52,040 --> 00:28:55,600
Speaker 1: Heard and not put his personal business out there. The

498
00:28:55,720 --> 00:28:58,560
Speaker 1: question is, you know, will a jury believe that in

499
00:28:58,640 --> 00:29:01,040
Speaker 1: the moment at the R he was covering for her

500
00:29:01,480 --> 00:29:04,720
Speaker 1: or that he was being truthful. He claims that it

501
00:29:04,800 --> 00:29:09,440
Speaker 1: cost him acting jobs, but Heard's lawyer is going to

502
00:29:09,480 --> 00:29:12,240
Speaker 1: claim or has claimed that the damage was already done

503
00:29:12,280 --> 00:29:15,440
Speaker 1: to his career, that his career was already on a

504
00:29:15,520 --> 00:29:19,960
Speaker 1: downward trajectory. That's right. You know, in every case it

505
00:29:20,080 --> 00:29:23,880
Speaker 1: has to prove causation. That's something that offendant did caused

506
00:29:23,920 --> 00:29:27,160
Speaker 1: harm to the plane off and Amber Heard lawyers have

507
00:29:27,200 --> 00:29:30,320
Speaker 1: done an effective job of showing, for example, that Disney

508
00:29:30,320 --> 00:29:33,200
Speaker 1: had already decided to cut Johnny Depp out of the

509
00:29:33,280 --> 00:29:38,400
Speaker 1: Pirates franchise before that offense ever was published. But keep

510
00:29:38,440 --> 00:29:41,280
Speaker 1: in mind, to win this case, because we're talking about

511
00:29:41,320 --> 00:29:44,520
Speaker 1: defamation per se, because we're Johnny Depp has been accused

512
00:29:44,520 --> 00:29:48,760
Speaker 1: of criminal conduct domestic violence, he doesn't have to tie

513
00:29:49,480 --> 00:29:53,920
Speaker 1: any of her false statement to any specific damages to win,

514
00:29:54,560 --> 00:29:57,760
Speaker 1: he only has to prove causation to win a huge

515
00:29:57,920 --> 00:30:00,600
Speaker 1: monetary verdict. But if all he wants the verdict from

516
00:30:00,600 --> 00:30:03,520
Speaker 1: the jury saying Johnny Depp was right and Amber Heard lied,

517
00:30:03,880 --> 00:30:06,360
Speaker 1: he might get that. But without proving causation, he's not

518
00:30:06,360 --> 00:30:08,080
Speaker 1: going to get much in the way of money. How

519
00:30:08,120 --> 00:30:11,320
Speaker 1: will he have to prove damages? He'd have to prove,

520
00:30:11,440 --> 00:30:15,000
Speaker 1: for example, that the Disney executives or maybe more apt,

521
00:30:15,200 --> 00:30:18,960
Speaker 1: the Warner Brothers executives that made decisions about the Harry

522
00:30:19,000 --> 00:30:22,520
Speaker 1: Potter franchise, that they made decisions on whether to cast

523
00:30:22,600 --> 00:30:25,320
Speaker 1: him or not cast him a pull production based on

524
00:30:25,400 --> 00:30:28,040
Speaker 1: the op ed and not any of the other rumors

525
00:30:28,120 --> 00:30:31,640
Speaker 1: swirling him around. Johnny Depp, was there testimony that backed

526
00:30:31,760 --> 00:30:36,080
Speaker 1: up his claims were in his case now? Still, it

527
00:30:36,360 --> 00:30:39,720
Speaker 1: was a couple of interesting points there. One, there's lots

528
00:30:39,760 --> 00:30:43,800
Speaker 1: of photographs of amber Heard walking the runway at times

529
00:30:43,800 --> 00:30:46,440
Speaker 1: where she claims she was abused and had bruises all

530
00:30:46,480 --> 00:30:48,920
Speaker 1: over her body, and you don't see those in the

531
00:30:48,960 --> 00:30:52,240
Speaker 1: red carpet photos. The other interesting kind of side issue

532
00:30:52,280 --> 00:30:54,920
Speaker 1: that's come up was an issue via a makeup company

533
00:30:55,200 --> 00:30:58,440
Speaker 1: during opening statements, Amber Heard's lawyers stood up to the jury,

534
00:30:58,640 --> 00:31:01,400
Speaker 1: it held up a makeup case, said Amber Heard used

535
00:31:01,400 --> 00:31:04,240
Speaker 1: this makeup case to cover up her bruising caused by

536
00:31:04,320 --> 00:31:07,880
Speaker 1: Johnny Depp. But it turns out, according this makeup company,

537
00:31:08,320 --> 00:31:14,680
Speaker 1: that particular brand and makeup didn't exist when the abuse

538
00:31:14,760 --> 00:31:18,240
Speaker 1: allegedly occurred, and so that may come back to haunt

539
00:31:18,240 --> 00:31:23,120
Speaker 1: Amber Heard as lacking credibility in terms of abuse. A

540
00:31:23,240 --> 00:31:26,800
Speaker 1: therapist they went to said that they were mutual abusers.

541
00:31:27,320 --> 00:31:31,000
Speaker 1: If that's the case, does Amber Heard win? In other words,

542
00:31:31,080 --> 00:31:35,280
Speaker 1: if it's proven that they both abused each other, You know,

543
00:31:35,360 --> 00:31:37,160
Speaker 1: that's a great question. I don't know why they called

544
00:31:37,160 --> 00:31:40,840
Speaker 1: this witness because the therapist did use the term mutual abuse,

545
00:31:40,880 --> 00:31:43,720
Speaker 1: and if the jury walks away from that speaking mutual

546
00:31:44,000 --> 00:31:47,920
Speaker 1: emotional abuse, well then maybe Johnny Depp can still win.

547
00:31:48,400 --> 00:31:51,800
Speaker 1: But if the jury takes that testimony of that therapist

548
00:31:51,840 --> 00:31:55,400
Speaker 1: to be mutual physical abuse, then this case is over.

549
00:31:55,800 --> 00:31:59,200
Speaker 1: If you were the lawyer for Amber Heard, what would

550
00:31:59,200 --> 00:32:04,280
Speaker 1: you vise her about her testimony coming up? She's got

551
00:32:04,280 --> 00:32:07,480
Speaker 1: to be well prepared for cross examination because the whole

552
00:32:07,520 --> 00:32:10,640
Speaker 1: case comes down to her. I think if you think

553
00:32:10,680 --> 00:32:13,360
Speaker 1: that social media is an accurate read of how maybe

554
00:32:13,360 --> 00:32:16,880
Speaker 1: the jury might be taking Johnny Depp's testimony. Social media

555
00:32:16,960 --> 00:32:19,480
Speaker 1: is very favorable as to Johnny Depp, and so what

556
00:32:19,520 --> 00:32:22,200
Speaker 1: I ever heard has to do is to prove up

557
00:32:22,840 --> 00:32:26,560
Speaker 1: what was promised during opening statements, meaning the sexual assault

558
00:32:26,600 --> 00:32:29,800
Speaker 1: allegation that's brand new. Why didn't this come up during

559
00:32:29,840 --> 00:32:33,000
Speaker 1: the proceedings in England? Why is this coming up for

560
00:32:33,040 --> 00:32:35,400
Speaker 1: the first time in this trial. She's got to be

561
00:32:35,440 --> 00:32:39,600
Speaker 1: prepared to answer that question, and she has to come

562
00:32:39,640 --> 00:32:42,600
Speaker 1: off as credible and not endictive. And she's got to

563
00:32:42,640 --> 00:32:46,520
Speaker 1: explain why, in terms of all the bruising that she

564
00:32:46,600 --> 00:32:50,280
Speaker 1: claims occurred, why there's no photographic evidence of that when

565
00:32:50,280 --> 00:32:53,360
Speaker 1: she walked the red carpet at certain premieres. Her lawyer

566
00:32:53,400 --> 00:32:57,800
Speaker 1: has released a potential witness list which includes Elon Musk

567
00:32:57,880 --> 00:33:01,720
Speaker 1: and James Franco. Are though good witnesses or do they

568
00:33:01,760 --> 00:33:04,920
Speaker 1: bring a lot of baggage with them? Yes, and yes

569
00:33:04,960 --> 00:33:08,560
Speaker 1: and yes. So witnesses like this. You know, jurors can't

570
00:33:08,560 --> 00:33:11,920
Speaker 1: get star struck just like anybody else. But at the

571
00:33:12,000 --> 00:33:14,840
Speaker 1: end of the day, it's what these witnesses might say

572
00:33:14,960 --> 00:33:17,680
Speaker 1: in our three or four or five of their testimony

573
00:33:17,800 --> 00:33:21,160
Speaker 1: after the shock of seeing a celebrity on the stand

574
00:33:21,160 --> 00:33:24,000
Speaker 1: wears off that's really going to count. But also would

575
00:33:24,080 --> 00:33:26,480
Speaker 1: keep in mind I'm a trial lawyer, and trial lawyers

576
00:33:26,520 --> 00:33:29,720
Speaker 1: often pack the witness list at trial with all sorts

577
00:33:29,720 --> 00:33:32,520
Speaker 1: of witnesses that they might call. Maybe, but just because

578
00:33:32,520 --> 00:33:34,800
Speaker 1: somebody's on a witness list doesn't mean they're gonna show up.

579
00:33:34,800 --> 00:33:37,160
Speaker 1: And most of the time, the witnesses on a witness

580
00:33:37,160 --> 00:33:39,840
Speaker 1: list don't show up. So I would have been on

581
00:33:39,880 --> 00:33:43,280
Speaker 1: Elon Musk taken by the way, Elon Musk's deposition was

582
00:33:43,320 --> 00:33:45,480
Speaker 1: never taken. As a trial lawyer, you never want to

583
00:33:45,600 --> 00:33:47,880
Speaker 1: put somebody on the stand if you don't know really

584
00:33:47,920 --> 00:33:50,840
Speaker 1: what they're gonna say. And that rule applies doubly to

585
00:33:50,920 --> 00:33:52,840
Speaker 1: Elon Musk is a little bit of a wild card.

586
00:33:52,920 --> 00:33:56,000
Speaker 1: So I would be really surprised if the Musk testifies

587
00:33:56,040 --> 00:33:59,640
Speaker 1: a trial. What other interesting issue is Johnny Depth's longtime

588
00:33:59,640 --> 00:34:02,280
Speaker 1: friends with Robert Downey Jr. And I don't know if

589
00:34:02,280 --> 00:34:05,240
Speaker 1: you were called rock. Downey Jr. Had some serious problems

590
00:34:05,240 --> 00:34:07,840
Speaker 1: out here in California in terms of drug use, breaking

591
00:34:07,880 --> 00:34:10,160
Speaker 1: to someone's house, and he even serves the time, and

592
00:34:10,239 --> 00:34:12,239
Speaker 1: yet he's able to overcome all that and become a

593
00:34:12,360 --> 00:34:17,480
Speaker 1: huge Hollywood star notwithstanding those issues. And I suspect Johnny

594
00:34:17,560 --> 00:34:20,320
Speaker 1: Depp with this case, he's trying to follow the playbook

595
00:34:20,400 --> 00:34:23,799
Speaker 1: that Robert County Jr. Dated in terms of getting the

596
00:34:23,840 --> 00:34:28,279
Speaker 1: truth out there and rehabilitating his career. Thanks Jeff. That's

597
00:34:28,320 --> 00:34:32,279
Speaker 1: defamation lawyer Jeff Lewis of Jeff Lewis Law. And that's

598
00:34:32,320 --> 00:34:34,920
Speaker 1: it for this edition of The Bloomberg Law Show. Remember

599
00:34:34,960 --> 00:34:37,520
Speaker 1: you can always get the latest legal news, honor Bloomberg

600
00:34:37,640 --> 00:34:41,200
Speaker 1: Law Podcast. You can find them on Apple Podcasts, Spotify,

601
00:34:41,400 --> 00:34:46,439
Speaker 1: and at www dot Bloomberg dot com, slash podcast, Slash Law,

602
00:34:46,840 --> 00:34:49,480
Speaker 1: and remember to tune to The Bloomberg Law Show every

603
00:34:49,480 --> 00:34:52,600
Speaker 1: week night at ten b m. Wall Street Time. I'm

604
00:34:52,680 --> 00:35:01,240
Speaker 1: June Grosso and you're listening to Bloomberg three