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

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Speaker 1: Justice Clarence Thomas is facing calls to recuse himself from

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Speaker 1: any cases involving the election or the January sixth insurrection.

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Speaker 1: This after revelations that his wife, Jenny Thomas, repeatedly pushed

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Speaker 1: to overturn the presidential election in a series of checks

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Speaker 1: with Trump White House chief of staff Mark Meadows. Thomas

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Speaker 1: did not recuse himself from a case involving the release

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Speaker 1: of former President Donald Trump's White House records to the

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Speaker 1: January sixth Committee, and he was the only justice to

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Speaker 1: vote against turning the records over. Democrats like Senator Dick

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Speaker 1: Durbin are calling for Thomas to recuse himself in these cases,

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Speaker 1: while Republicans like Senator Josh Holley say it's not necessary

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Speaker 1: to think that he would consider a case where his

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Speaker 1: wife is frequently contacting the chief of staff of the

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Speaker 1: president and giving advice on matters that are going to

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Speaker 1: be ultimately litigated by the court. That is the ultimate

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Speaker 1: conflict of interest. She's an independent person, you know, and

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Speaker 1: she's got her own political views. She's she's been doing

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Speaker 1: this a long time. And if you want to take

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Speaker 1: issue with her, that's fine, but she's not on the bench.

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Speaker 1: She's on the bench. Joining me is ethics expert Rebecca Roythy,

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Speaker 1: a professor at New York Law School. Rebecca, what are

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Speaker 1: the rules for accusal that Supreme Court justices follow? There

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Speaker 1: are rules that are drafted for all judges, and those

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Speaker 1: rules require a judge to disqualify himself or herself whenever

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Speaker 1: that judges impartiality might reasonably be questioned. But that's a

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Speaker 1: really broad rule, and in general, there are some more

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Speaker 1: specifics about when judges normally recuse themselves, and the general

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Speaker 1: proposition is interpreted in light of those more specific rules.

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Speaker 1: And one thing that's kind of important also is that

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Speaker 1: Supreme Court justices are a little bit different than other

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Speaker 1: judges in that there is no one to take their

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Speaker 1: least when they recoose themselves, and so for that reason,

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Speaker 1: it's generally a good idea for judges to be a

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Speaker 1: little bit more conservative about exercising their discretion to recuse themselves.

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Speaker 1: In particular cases, if a party thinks that a Supreme

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Speaker 1: Court justice would be biased, there's no mechanism for trying

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Speaker 1: to force a recusal. Is there No party can and

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Speaker 1: many times has requested recusal, but it's really at this

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Speaker 1: point up to the discretion of that individual justice whether

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Speaker 1: or not to do so. Part of that is because

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Speaker 1: of the separation of powers, you can't really have let's say,

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Speaker 1: congressional rule because that might be unconstitutional. But you could

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Speaker 1: imagine a situation in which the Supreme Court as a

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Speaker 1: whole were to decide whether a particular justice were to

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Speaker 1: recuse him or herself. But for the most part, the

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Speaker 1: Supreme Court has shied away from doing that, in part

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Speaker 1: out of a kind of collegiality and the idea that

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Speaker 1: once you've reached the point where your Supreme Court justice,

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Speaker 1: you should be trust to make that decision on your own.

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Speaker 1: And the law also says that judges should not participate

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Speaker 1: in proceedings in which their spouse has an interest that

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Speaker 1: could be substantially affected by the outcome of the proceeding. Right,

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Speaker 1: So that's one of those more specific rules that I

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Speaker 1: mentioned earlier that goes to defining this question of when

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Speaker 1: a justice's impartiality could be reasonably questioned, because that's such

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Speaker 1: a broad proposition that the more specific ones have more bite,

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Speaker 1: so to speak, because essentially they're getting at the problem

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Speaker 1: of impartiality, but in a very specific kind of way

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Speaker 1: that's been tried in the past. So, according to the

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Speaker 1: texts that have been revealed, Jenny Thomas weighed in on

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Speaker 1: Trump's legal team legal strategy. She was actively involved in

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Speaker 1: trying to get the election overturned. Justice Thomas participated in

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Speaker 1: two cases related to election. He was the only justice

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Speaker 1: who dissented when the Preme Court allowed the release of

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Speaker 1: records from the Trump White House to the committee. Should

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Speaker 1: he have recused himself from those cases? My view in

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Speaker 1: this matter is that for the case having to do

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Speaker 1: with the emails, specifically, Justice Thomas, if he knew that

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Speaker 1: his wife had emails that were at issue in that case,

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Speaker 1: should have recused because in that case then she might

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Speaker 1: have had an actual interest, so more than just sort

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Speaker 1: of her own ideological agenda. She might have had a

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Speaker 1: personal interest either criminal liability, civil liability, or at least,

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Speaker 1: you know, personal embarrassment at issue in that case. And

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Speaker 1: so it seems to me that he, if he knew,

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Speaker 1: really should have recused the other cases. For me or

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Speaker 1: a harder call because what it is that is her

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Speaker 1: interest is less concrete, and that makes it more difficult

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Speaker 1: and not clear cut, because Supreme Court justices in the past,

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Speaker 1: it's very clear that there's a record for recusing themselves

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Speaker 1: in cases in which, let's say they have a financial

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Speaker 1: and trust, or a spouse has a financial interest, or

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Speaker 1: they're connected to a party in the litigation. All of

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Speaker 1: those are cases in which you see most Supreme Court

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Speaker 1: justices recusing themselves in most cases. But the connection here

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Speaker 1: is a little bit more intenuated. And so I think

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Speaker 1: therefore you have to look at the particular case and

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Speaker 1: see whether or not there's a concrete interest rather than

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Speaker 1: just a sort of broad ideological interest, because that's the

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Speaker 1: kind of case that you really can't have Supreme Court

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Speaker 1: justices recusing all the time. I mean, if you remember,

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Speaker 1: President Trump calls for Justices Soda, my Or and at

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Speaker 1: Ginsburgh to recuse themselves in old Trump related cases because

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Speaker 1: they had said some things, you know, indicating their bias

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Speaker 1: against him. And that's not the way this system works.

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Speaker 1: So we have to find a line between those two

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Speaker 1: where it's not just like there's a strong ideological interest,

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Speaker 1: there's actually has to be some kind of concrete interest

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Speaker 1: at stake. Jenny Thomas has said that her work doesn't

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Speaker 1: present a conflict with her husband's work on the Supreme Court.

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Speaker 1: Justice Thomas has written that they were one being an

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Speaker 1: amalgam and called her his best friend, and in one

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Speaker 1: of the texts Jenny Thomas, such a Mark Meadows, thank

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Speaker 1: you needed that. This plus a conversation with my best

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Speaker 1: friend just now, I will try to keep holding on

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Speaker 1: America is worth it. Also, she reportedly mentions her husband's

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Speaker 1: name in speeches and communications with other activists. So does

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Speaker 1: that drag the Justice into it? Yeah, again, it's a

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Speaker 1: tough issue. I think it looks bad in many many ways.

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Speaker 1: But I also think we have an interest in not

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Speaker 1: thinking of spouses as one and the same. I mean,

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Speaker 1: you can think of situations now we have like two

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Speaker 1: professional people and one of them is a judge, and

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Speaker 1: one of them is let's say, very active and involved

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Speaker 1: in the local chapter of the a c l U.

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Speaker 1: Now that doesn't mean that the judge, I think, would

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Speaker 1: have to recuse himself in every case involving the a

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Speaker 1: c l U. More broadly, and there's this underlying question

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Speaker 1: of how to interpret the spousal relationship, and so in

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Speaker 1: the modern day, I don't think we want to impute

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Speaker 1: all of the statements, all of the activity, all of

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Speaker 1: the ideological leanings of one spouse to another spouse. But again,

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Speaker 1: at a certain point it crosses over to being something inappropriate.

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Speaker 1: And I think that is the point at which interest

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Speaker 1: plays a role. So you can't say, you know, just

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Speaker 1: because Jenny Thomas has said things that you know, if

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Speaker 1: she were justice in the Supreme Court would make it

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Speaker 1: clear that she's already decided how she would rule in

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Speaker 1: a case. That doesn't mean that I think that Justice

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Speaker 1: Thomas would have to recuse. He hasn't made similar remarks.

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Speaker 1: But at a certain point, if she's so involved that

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Speaker 1: her emails are an issue, and there's a case that

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Speaker 1: concerns those emails, well that's an interest And to me,

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Speaker 1: that's the point of which he asked to accuse. Explain

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Speaker 1: why what the importance of having a judge or a

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Speaker 1: justice recuse from a case where they may be interested.

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Speaker 1: Explain what the reasoning is. Sure, So you know, we

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Speaker 1: have Justices of the Supreme Court and judges throughout the system,

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Speaker 1: and they are all presumed to be impartial, which means

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Speaker 1: that they apply to law, to the facts, and determine

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Speaker 1: the outcome without regard to who the particular parties are

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Speaker 1: or or really what's at stake. And so you know,

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Speaker 1: we all know that in some way people's ideology, their background,

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Speaker 1: their experience informs the way they think of the law.

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Speaker 1: But that's different from somebody who's impartiality has really been

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Speaker 1: seriously questioned or undermined compromised in some significant way. So, um,

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Speaker 1: because we have this interest in judges not only being

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Speaker 1: impartial but also seeming impartial, it is really important that

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Speaker 1: we preserve this institution, and one of the ways that

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Speaker 1: we preserve this institution is through these rules. But you know,

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Speaker 1: again that said, the appearance of impartiality does not mean

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Speaker 1: that the judge or or justice doesn't have some relation

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Speaker 1: and to the underlying issues, because otherwise we would have

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Speaker 1: judges who would like basically lived under rocks their whole lives.

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Speaker 1: So you know, there, it's that difficult line that we're

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Speaker 1: trying to draw here now. Last month, dozens of judicial

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Speaker 1: ethics experts sent Chief Justice John Roberts a letter again

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Speaker 1: asking for a code of conduct particular to the Supreme Court.

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Speaker 1: Should Chief Justice Roberts do that, well, I think he

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Speaker 1: should certainly consider the question. Um, I you know, I

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Speaker 1: think he has a point when he talks about the

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Speaker 1: collegiality of the court and that you know that that

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Speaker 1: each individual justice is a professional and makes these professional

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Speaker 1: determinations in a serious way, and that you know, having

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Speaker 1: a kind of situation in which they're all sitting in

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Speaker 1: judgment of each other on these particular kinds of cases

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Speaker 1: may not really um end up being you know, promoting

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Speaker 1: the ultimate interest in the ethical conduct of justices on

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Speaker 1: the Supreme Court. So, you know, I in a way

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Speaker 1: I shy away from suggesting how he ought to determine

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Speaker 1: that because this is an institution that he's been a

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Speaker 1: part of and I have not, But you know, I

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Speaker 1: do think it's a good idea to think about these things.

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Speaker 1: I also think transparency is in incredibly important because you know,

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Speaker 1: part of the issue is that the question of interest

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Speaker 1: is a little has become harder to determine in the

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Speaker 1: modern day because there's so much money and um kind

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Speaker 1: of running around in politics and among litigation that sometimes

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Speaker 1: it's hard to determine who actually has an interest. So

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Speaker 1: I think transparency is really good, and I think it

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Speaker 1: would be a good idea for the Supreme Court to

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Speaker 1: promote more transparency and their disclosures. But in terms of

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Speaker 1: you know, strict rules, you know, I'm not sure how

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Speaker 1: I feel about that one, and I defer to the

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Speaker 1: Chief Justice to figure it out. Now, could Congress, if

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Speaker 1: Congress you know, had the votes, could Congress step in

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Speaker 1: and put in our accusal system for the justices. I

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Speaker 1: think that would be really a problem ad from a

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Speaker 1: separation of powers perspective, because we have these three co

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Speaker 1: equal branches, and the Supreme Court sits at the top

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Speaker 1: of the judiciary. So I think if Congress were to

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Speaker 1: come in and set refusal rules, it might be overstepping

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Speaker 1: its bounds in terms of separations of powers. That I

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Speaker 1: do think that would be problematic. We don't want a

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Speaker 1: political branch to be making these kinds of determinations, even

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Speaker 1: in a broadway. When it comes to the judiciary. The

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Speaker 1: January six Committee is going to ask Jenny Thomas to

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Speaker 1: appear before them. Suppose they decided to subpoena her. Does

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Speaker 1: that cross any boundary lines? I don't think unless they

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Speaker 1: are asking for, you know, questions about Justice Thomas's celebration

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Speaker 1: or how he's going to rule in particular cases, that

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Speaker 1: actually having her appear before them is a problem at all,

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Speaker 1: because for the same reason that I suggested before, where

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Speaker 1: we really don't think of spouses in the modern day

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Speaker 1: as one merged whole. She is her own person, with

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Speaker 1: her own involvement in this incident. And in so far

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Speaker 1: as they are legitimately investigating this incident and she has

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Speaker 1: valid she has relevant testimony that goes to their underlying question,

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Speaker 1: well then there's no absolutely no reason that they shouldn't

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Speaker 1: call her in front of them. Let's say a federal

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Speaker 1: court or even a state court and a party asked

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Speaker 1: the judge to recuse himself or herself because of a conflict.

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Speaker 1: If the judge doesn't recuse, is there a mechanism to

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Speaker 1: appeal that, Yes, because there's an appellate system, so you

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Speaker 1: can appeal or accusal order, just like you can appeal,

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Speaker 1: you know, many other decisions that judges make, you know,

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Speaker 1: all the way up let's say in the state system,

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Speaker 1: you could appeal all the way up to the supreme

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Speaker 1: court of that state system. And you know, in some cases,

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Speaker 1: if it's a constitutional issue or a federal issue, you

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Speaker 1: would have a further reppellate um process into the federal system.

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Speaker 1: And same um with regard to federal judges. But the

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Speaker 1: problem here, of course, is that the Supreme Court is

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Speaker 1: um at the top of that order, and so there

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Speaker 1: is nowhere to appeal a of the Supreme Court. And

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Speaker 1: so this is what creates the problem that people have recognized.

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Speaker 1: And the question is what is the solution. As you suggested,

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Speaker 1: I think Congress is a faulty solution. Adopting a set

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Speaker 1: of rules at the Supreme Court is a much less

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Speaker 1: problematic solution because it's essentially the Supreme Court governing itself,

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Speaker 1: which would not run into those same separation of powers problems.

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Speaker 1: But we can't have an appellate system because they're, you know,

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Speaker 1: by constitutional order, the Supreme Court is uh is at

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Speaker 1: the top of the federal judiciary. Because as you mentioned transparency,

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Speaker 1: often when a Supreme Court justice recuses himself or herself,

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Speaker 1: we're less trying to guess why so, oh, maybe Justice

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Speaker 1: the leader, you know, he has investments in this, or

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Speaker 1: oh wait, Justice Kagan took part this when she was

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Speaker 1: a solicitor general. And it seems like we shouldn't be

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Speaker 1: guessing about those things. There should at least be a

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Speaker 1: statement that says, I'm accusing my itself because of this right,

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Speaker 1: and I think, you know, sometimes sometimes we have those

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Speaker 1: sorts of statements and other times we don't. And I

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Speaker 1: think you're absolutely right in terms of consistency and again

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Speaker 1: in terms of transparency so the public can see, um.

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Speaker 1: It is important. And you know, I think that the

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Speaker 1: the overall question is the legitimacy of the judiciary, and

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Speaker 1: particularly the legitimacy of the Supreme Court, because I think

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Speaker 1: in recent years, as we've become a more politically polarized nation,

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Speaker 1: the Supreme Court is losing some of that legitimacy. So

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Speaker 1: how best to restore it is a very complicated question

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Speaker 1: because requiring more recusals in some ways doesn't even though

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Speaker 1: it seems at first like that might further the goal

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Speaker 1: of the legitimacy of the Supreme Court, it might not,

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Speaker 1: because part of our assumption is that judges are capable

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Speaker 1: of putting out of their head these sorts of counter argument,

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Speaker 1: you know, I mean, we don't think just because it's

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Speaker 1: a Trump judge, that Trump judge cannot sit in judgment

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Speaker 1: of a case that you know, Trump has an interest in,

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Speaker 1: or Trump has expressed a strong belief in. And we

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Speaker 1: saw the judiciary working very well and which you know,

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Speaker 1: there were judges appointed by politicians on both sides of

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Speaker 1: the divide, including the former President Trump who ruled against

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Speaker 1: Trump's interest. And that is because judges don't judge do politics,

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Speaker 1: and so we need rules that further that, um, you know,

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Speaker 1: essential promise of our system. And while it seems like

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Speaker 1: more recusal might it actually might backfire because it's essentially saying, oh,

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Speaker 1: this judge can't be impartial because that judge has, you know,

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Speaker 1: strong ideological beliefs. We don't want to rule like that.

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Speaker 1: We want to rule that says, if you've got actual

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Speaker 1: interest in this case, something that would really hurt you

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Speaker 1: in some concrete way, then get off the case. And

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Speaker 1: that seems to make a lot of sense. But a

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Speaker 1: Brigger rule that was like, well it might when it

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Speaker 1: might you know, benefit your strong ideological beliefs, or even

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Speaker 1: further your wife of a strong ideological belief I think

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Speaker 1: that that's not necessarily going to further our interest in

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Speaker 1: preserving the legitimacy of the courts. Thanks for being on

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Speaker 1: the show, Rebecca. That's professor Rebecca roy Fee of New

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Speaker 1: York Law School. Prosecutors rested their case against the four

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Speaker 1: men charged with planning to kidnap Michigan Governor Gretchen Whitmer

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Speaker 1: before the national election. The men were arrested in October,

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Speaker 1: as prosecutors say they moved closer to obtaining an explosive

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Speaker 1: that could blow up a bridge and hold back police

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Speaker 1: from responding to a kidnapping at Whitmer's vacation home. Shortly

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Speaker 1: after the arrest, Governor Whitmer called it domestic terrorism. On

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Speaker 1: the view, this has been a tough year, there's no question,

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Speaker 1: but I do think that a lot of the rhetoric

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Speaker 1: that UM is more frequently available and being um stoked

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Speaker 1: on on many platforms is downright dangerous, and I think

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Speaker 1: we saw one example of how that has become a reality.

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Speaker 1: My family and I are safe. We've never feared for

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Speaker 1: our safety because we have the phenomenal Michigan State Police. However,

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Speaker 1: none of us can stand for these kind of actions

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Speaker 1: in this country, and it needs to be a bipartisan

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Speaker 1: call to action to bring the heat down to get

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Speaker 1: to a place where we'll call out domestic terror for

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Speaker 1: what it is. So Americans who are seeking to hurt

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Speaker 1: or intimidate other Americans and it will not stand, and

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Speaker 1: none of us can can stand for it. Key evidence

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Speaker 1: in the prosecution's case came from to undercover FBI agents

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Speaker 1: and an informant who was among the extremeists for months

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Speaker 1: and made hours of secret recordings. Particularly important was the

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Speaker 1: testimony of two men involved in the plot who made

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Speaker 1: a deal with the government and pleaded guilty. Joining me

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Speaker 1: is Matthew Schneider, former United States Attorney for the Eastern

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Speaker 1: District of Michigan and a partner at Huntinggman. Online threats

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Speaker 1: were made to the judge and two of the defense

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Speaker 1: attorn niece. The FBI conducted a raid in suburban Detroit,

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Speaker 1: but no one was arrested. How unusual are these kinds

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Speaker 1: of threats in the middle of a trial. Well, unfortunately,

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Speaker 1: it's not all that unusual. In the middle of any

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Speaker 1: type of criminal trial that's high profile. You'll have threats

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Speaker 1: to the parties involved. And here's the judge and the

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Speaker 1: defense attorneys. And the key I think is whether or

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Speaker 1: not the jury finds out about this. And it's not

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Speaker 1: really relevant to the trial, to the case at hand,

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Speaker 1: So most likely the jury will never know that in

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Speaker 1: the middle of the trial there were threats made. But

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Speaker 1: you know, in our day and age, more and more

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Speaker 1: is happening that that defendants and prosecutors and judges are

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Speaker 1: indeed being threatened. It's kind of a sad commentary on

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Speaker 1: our society. Oftentimes you hear about prosecutors being threatened rather

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Speaker 1: than defense attorneys. Do prosecutors have protection a certain amount?

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Speaker 1: When I was a prosecutor, I carried a gun and

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Speaker 1: I was a deputy U S. Marshal at the same time,

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Speaker 1: I was apputized because of threats, And that happens because

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Speaker 1: so many people just take managers into their own hands.

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Speaker 1: But both prosecutors and defense attorneys are always targets, and

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Speaker 1: sometimes for different reasons. The prosecution might be targeted because

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Speaker 1: the defendants or whoever else does look like what they're doing.

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Speaker 1: But then the defense attorneys themselves can be targets because

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Speaker 1: people might not like the way they're approaching the case

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Speaker 1: or they think they're not doing a good enough job.

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Speaker 1: So either way there can be threats. And the judge

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Speaker 1: in this case has been careful about security. He's keeping

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Speaker 1: the jurors name secrets. So do you think that's because

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Speaker 1: of the nature of the case. Yes, And you often

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Speaker 1: see that in very high profile mafia cases or mob

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Speaker 1: cases or cases with a lot of violence to keep

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Speaker 1: the jurors out of it, so that that protects the

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Speaker 1: jurors and it makes them feel better and more comfortable

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Speaker 1: in actually doing the deliberation. Let's talk about how the

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Speaker 1: prosecutions case has gone in there is in testimony from

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Speaker 1: a variety of different people, FBI agents, FBI informants, former defendants,

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Speaker 1: who prosecutors flipped. What do you think about the way

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Speaker 1: it's been presented in the witnesses that have been so

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Speaker 1: both sides have scored some points, so to speak, in

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Speaker 1: this trial, and it is because of the witnesses and

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Speaker 1: what the government has done is it's put up both

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Speaker 1: FBI and FBI agent who infiltrated the organization and then

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Speaker 1: FBI undercover agents who describe exactly what was going on,

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Speaker 1: what the defendants were saying. And then secondly, we heard

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Speaker 1: the actual words of the defendants, because these recordings took

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Speaker 1: place and the words of the defendants were played in court,

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Speaker 1: and those were quite powerful because they were talking about

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Speaker 1: killing the governor or taking her out or doing something

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Speaker 1: else to kidnap her. And then we heard the actual

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Speaker 1: cooperators themselves, two of the defendants who were charged in

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Speaker 1: this case, decided that they were going to plead guilty

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Speaker 1: and cooperate, and they took the stand and they explained

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Speaker 1: in very serious tones what they were trying to do

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Speaker 1: and the plot to kidnap Governor Wimmer. And it varies

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Speaker 1: as to whether or not they were going to kidnap

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Speaker 1: her or kill her, but either way, there's a kidnapping

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Speaker 1: involved as charged by this case, and those cooperators talked

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Speaker 1: exactly about it. But did the defense make any headway

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Speaker 1: during the prosecution's case in its cross examinations of prosecution witnesses, Yes,

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Speaker 1: they really did. And if you think about it from

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Speaker 1: the defense perspective, they have two arguments. One is either

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Speaker 1: that this was really a half baked plan. It wasn't

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Speaker 1: really thought out well, and the defense were kind of

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Speaker 1: scatter brained, and they were smoking a lot of marijuana

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Speaker 1: and they were drunk. They in the opening statements, one

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Speaker 1: of the defense attorneys even called it the stoned crazy

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Speaker 1: defense because the things that they were talking about were

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Speaker 1: so ridiculous. Sure, they were talking about kidnapping the governor,

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Speaker 1: but they were also talking about going to the governor's

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Speaker 1: house and hiding in the woods and make animal sounds

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Speaker 1: that she would come out because she likes animals. Where

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Speaker 1: they talked about cutting down all the trees between Michigan

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Speaker 1: and Indiana because that would cause a civil disturbance, none

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Speaker 1: of that makes any sense. And so the theory is,

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Speaker 1: if these things didn't make any sense, then the plot

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Speaker 1: to kidnap the governor also didn't make any sense. So

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Speaker 1: they scored some points there, and the defense also some

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Speaker 1: scored some points with the tapes because in some of

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Speaker 1: these tape recordings where they talk about grabbing the governor,

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Speaker 1: tying her up, putting her up on a table to

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Speaker 1: display his evidence, people were laughing. Alright, So tone matters.

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Speaker 1: If you're going to play a tape, you better make

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Speaker 1: sure that it is an accurate tape. And also there's

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Speaker 1: a serious tone to it. And if people are laughing,

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Speaker 1: then the defense that plays right into their hands that

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Speaker 1: that they weren't actually serious. However, prosecution certainly scored a

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Speaker 1: lot of points when there were a lot of other

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Speaker 1: tapes played where no one was laughing, and it was

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Speaker 1: quite chilling, and it was quite sinister and very serious.

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Speaker 1: A key defense witness, FBI informant Stephen Robeson, has asked

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Speaker 1: the judge to keep him off the stand, saying he'll

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Speaker 1: invoke the fifth Can you explain the situation with him?

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Speaker 1: The fetes have said he could face criminal charges. Yes,

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Speaker 1: Robeson was originally involved in this case as trying to

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Speaker 1: find out on behalf the government what was going on,

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Speaker 1: but then he tipped off the defense and gave them

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Speaker 1: information and let them know that they were being looked at.

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Speaker 1: So his plan is, according to the reports, that he's

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Speaker 1: going to take the Fifth Amendment and he's not going

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Speaker 1: to testify. And the government's argument is, if he's just

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Speaker 1: going to take the Fifth Amendment, there is no reason

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Speaker 1: to even have him up on the witness stand. For

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Speaker 1: him to come up and say nothing. Don't even put

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Speaker 1: them up because you're exposing the jury to the fact

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Speaker 1: that there's another person involved in this case who will

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Speaker 1: not ultimately testify. That's kind of a waste of time.

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Speaker 1: And the judge has ruled already that two other mens

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Speaker 1: of unit for the defense won't have to take the

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Speaker 1: witness stand. Was it the same basic thing that they're

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Speaker 1: going to take the fifth that's right. Normally, when somebody

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Speaker 1: when you know that somebody is going to take take

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Speaker 1: the Fifth Amendment, there is really no point in putting

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Speaker 1: them up on the witness stand to say just that

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Speaker 1: it's a distraction to the jury and it doesn't provide

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Speaker 1: any evidence because they're not testifying. Does that then become

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Speaker 1: a point for appeal if they're convicted, Not necessarily, because

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Speaker 1: the government can put up any witness at wants and

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Speaker 1: the defense can as well. And in this case, the

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Speaker 1: government is saying I don't want this person to testify,

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Speaker 1: and then they ultimately don't, and it shouldn't be an

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Speaker 1: a pilot point. So we've talked before, and you just

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Speaker 1: mentioned there are a couple of different defenses going on here.

433
00:24:48,119 --> 00:24:51,880
Speaker 1: Is entrapment still the most effective one to your way

434
00:24:51,880 --> 00:24:55,760
Speaker 1: of thinking, Well, there's certainly are only two defenses that

435
00:24:55,800 --> 00:24:57,560
Speaker 1: have been laid out. One is the one that I

436
00:24:57,640 --> 00:25:00,679
Speaker 1: just explained, which were that the defendan and had a

437
00:25:00,680 --> 00:25:03,600
Speaker 1: half bag plan and they were crazy and they were stone.

438
00:25:04,000 --> 00:25:07,159
Speaker 1: The second one is entrapment, that the government set them up,

439
00:25:07,520 --> 00:25:10,919
Speaker 1: and the prosecution has been completely prepared for this because

440
00:25:10,960 --> 00:25:13,879
Speaker 1: they've asked the witnesses, did anyone make you do this?

441
00:25:14,119 --> 00:25:15,720
Speaker 1: Or were you set up to do this? And the

442
00:25:15,760 --> 00:25:19,480
Speaker 1: witnesses said no. So the defense may in their case,

443
00:25:20,040 --> 00:25:23,320
Speaker 1: try to call witnesses on their behalf who will say

444
00:25:23,359 --> 00:25:25,280
Speaker 1: that they really didn't want to do this, but they

445
00:25:25,320 --> 00:25:27,600
Speaker 1: only did it because the government set them up for it.

446
00:25:27,920 --> 00:25:31,240
Speaker 1: So they are playing out the entrapment defense, but it

447
00:25:31,320 --> 00:25:34,680
Speaker 1: is quite frankly weak because the government is already covering

448
00:25:34,720 --> 00:25:37,399
Speaker 1: it as well. So we'll see that's really a question

449
00:25:37,400 --> 00:25:40,560
Speaker 1: for the jury to decide what are the sentences, Where

450
00:25:40,560 --> 00:25:44,640
Speaker 1: are the possible sentences if they're convicted. So in each

451
00:25:44,680 --> 00:25:47,800
Speaker 1: of these sentences there's a possibility of up to life

452
00:25:47,800 --> 00:25:50,720
Speaker 1: in prison, but that never happens in cases like this,

453
00:25:50,840 --> 00:25:53,119
Speaker 1: no one ever gets the maximum sentence because of the

454
00:25:53,160 --> 00:25:56,760
Speaker 1: sentence and guidelines. And the defendants who have already pleaded

455
00:25:56,800 --> 00:26:00,960
Speaker 1: guilty are facing about seventy five months. That sentence could

456
00:26:01,040 --> 00:26:04,200
Speaker 1: go lower because they've cooperated, So I think you'll see

457
00:26:04,200 --> 00:26:06,920
Speaker 1: at least seventy five months, and then in fact it

458
00:26:07,000 --> 00:26:11,320
Speaker 1: could be fifteen, twenty or more years because of the

459
00:26:11,400 --> 00:26:15,080
Speaker 1: fact that they put the government to their burden, forced

460
00:26:15,080 --> 00:26:17,080
Speaker 1: them to go to trial, forced them to put all

461
00:26:17,080 --> 00:26:20,120
Speaker 1: of this energy and time into this case, in which

462
00:26:20,440 --> 00:26:22,720
Speaker 1: if they are ultimately found guilty, they could have just

463
00:26:22,760 --> 00:26:26,120
Speaker 1: pleaded guilty and typically what happens is you will get

464
00:26:26,119 --> 00:26:28,639
Speaker 1: a longer period of time if you go to trial

465
00:26:28,720 --> 00:26:32,399
Speaker 1: instead of if you plead guilty. This has been described

466
00:26:32,440 --> 00:26:37,320
Speaker 1: by some as a historic domestic terrorism case that highlights

467
00:26:37,359 --> 00:26:42,200
Speaker 1: the growth of extremism in America. Do you agree with that, Well,

468
00:26:42,240 --> 00:26:46,040
Speaker 1: there are domestic terrorism cases that happen every year. This

469
00:26:46,119 --> 00:26:49,280
Speaker 1: particular case, I actually I'm not certain that I agree

470
00:26:49,320 --> 00:26:53,840
Speaker 1: with that, because this case evolved really out of COVID restrictions,

471
00:26:53,960 --> 00:26:56,840
Speaker 1: and that became very prominent in the trial. That the

472
00:26:56,880 --> 00:27:00,880
Speaker 1: defendants were mad at the governor because of the fact

473
00:27:00,880 --> 00:27:02,760
Speaker 1: that they had to wear masks or that they might

474
00:27:02,800 --> 00:27:06,480
Speaker 1: have to get vaccinated, and that their liberty was restricted.

475
00:27:07,119 --> 00:27:10,400
Speaker 1: That doesn't happen very often. It only happens during a pandemic,

476
00:27:10,720 --> 00:27:16,080
Speaker 1: and so as normal extremism of cases roll out, those

477
00:27:16,119 --> 00:27:18,840
Speaker 1: cases could happen every year. But let's hope that the

478
00:27:18,880 --> 00:27:22,600
Speaker 1: facts and circumstances in this case don't happen very frequently.

479
00:27:23,160 --> 00:27:25,680
Speaker 1: Thanks so much for being on the show. Matthew. That's

480
00:27:25,720 --> 00:27:28,680
Speaker 1: former United States Attorney for the Eastern District of Michigan.

481
00:27:28,720 --> 00:27:34,440
Speaker 1: Matthew Schneider, a partner at Huntingman. Fallout continues from that

482
00:27:34,520 --> 00:27:40,840
Speaker 1: now infamous Will Smith slap of Chris Rock at the Oscars. Wow, dude,

483
00:27:41,160 --> 00:27:48,280
Speaker 1: it was a G I. Jangel. The producer of the Oscars,

484
00:27:48,359 --> 00:27:52,240
Speaker 1: Will Packer told Good Morning America that Rock didn't want

485
00:27:52,240 --> 00:27:56,080
Speaker 1: to pursue the incident, said rob, I got you, man,

486
00:27:56,680 --> 00:27:59,720
Speaker 1: what do you want to do? Tell me? Well, you

487
00:27:59,720 --> 00:28:06,440
Speaker 1: want to do? I got you? And Chris Rock said, man,

488
00:28:07,560 --> 00:28:10,480
Speaker 1: I don't want to do nothing. Joining me is Rachel Phose,

489
00:28:10,960 --> 00:28:14,119
Speaker 1: managing partner of his y back Physe and Coleman. She

490
00:28:14,280 --> 00:28:18,439
Speaker 1: formally represented the Academy at the Oscars. Rachel was the

491
00:28:18,520 --> 00:28:21,960
Speaker 1: slap an assault and battery, and what would normally happen

492
00:28:22,000 --> 00:28:25,360
Speaker 1: in that case. This is definitely an assault and battery.

493
00:28:25,480 --> 00:28:28,840
Speaker 1: And so what would normally happen is really between nothing

494
00:28:29,119 --> 00:28:32,240
Speaker 1: and someone calling the police and pressing charges. And so

495
00:28:32,760 --> 00:28:37,800
Speaker 1: if Chris Rock decided to press charges, he could easily

496
00:28:38,040 --> 00:28:41,720
Speaker 1: do that. There is no question as to the fact

497
00:28:42,080 --> 00:28:44,960
Speaker 1: if the l a p d wanted to and the

498
00:28:45,000 --> 00:28:49,880
Speaker 1: city attorney wanted to, they could even press charges without

499
00:28:50,160 --> 00:28:55,160
Speaker 1: Chris Rocks cooperation. So this is, without a doubt a crime.

500
00:28:55,480 --> 00:28:58,400
Speaker 1: The facts are known, they are videotaped, They can be

501
00:28:58,440 --> 00:29:01,800
Speaker 1: shown in front of a jury. However, as there was

502
00:29:01,920 --> 00:29:06,000
Speaker 1: not a major damage, there was no blood said, basically,

503
00:29:06,800 --> 00:29:10,160
Speaker 1: the l A. T V and the city attorney, which

504
00:29:10,200 --> 00:29:14,560
Speaker 1: is who prosecute misdemeanors, this was a misdemeanor assault battery

505
00:29:14,960 --> 00:29:18,160
Speaker 1: is unlikely and I think not going to do that

506
00:29:18,240 --> 00:29:22,960
Speaker 1: at all in this case without Chris Rocks cooperation, simply

507
00:29:23,040 --> 00:29:26,960
Speaker 1: because they will not view this as a major crime

508
00:29:27,080 --> 00:29:31,240
Speaker 1: that is worth their time unless the victim wants it

509
00:29:31,320 --> 00:29:34,240
Speaker 1: to happen, because the call is always dis prestionary as

510
00:29:34,280 --> 00:29:37,440
Speaker 1: to whether to press charges. The Academy said it's conducting

511
00:29:37,520 --> 00:29:41,760
Speaker 1: disciplinary proceedings. Is that a step further than when they

512
00:29:41,760 --> 00:29:45,200
Speaker 1: said on Monday they were conducting an investigation? Yes, So

513
00:29:45,280 --> 00:29:48,600
Speaker 1: I think Wednesday's statement was the strongest statement that the

514
00:29:48,640 --> 00:29:52,560
Speaker 1: Academy has made. And I think they've now had the

515
00:29:52,640 --> 00:29:56,560
Speaker 1: time to come together and get a direct message that

516
00:29:56,600 --> 00:29:59,280
Speaker 1: they can all get on board with. And I think

517
00:29:59,320 --> 00:30:04,080
Speaker 1: that message is going forward, we are conducting our review

518
00:30:04,400 --> 00:30:07,160
Speaker 1: and we will make a decision. And I think what

519
00:30:07,200 --> 00:30:10,800
Speaker 1: they're also saying is there will be consequences. Do these

520
00:30:10,840 --> 00:30:14,479
Speaker 1: kinds of disciplinary proceedings often take place because it is

521
00:30:14,560 --> 00:30:18,000
Speaker 1: something that they have prepared for, They had to go

522
00:30:18,080 --> 00:30:21,040
Speaker 1: through it with Harvey Weinstein, they had to go through

523
00:30:21,040 --> 00:30:22,960
Speaker 1: it with Bill Cosby, they had to go through it

524
00:30:23,000 --> 00:30:28,000
Speaker 1: with Polanski. So they review what's happened, and then they decide,

525
00:30:28,240 --> 00:30:31,000
Speaker 1: you know, whether those members are excelled from the Academy,

526
00:30:31,320 --> 00:30:34,400
Speaker 1: if they're suspended, you know, should someone have an oscar,

527
00:30:34,440 --> 00:30:37,200
Speaker 1: should they keep the oscar? And so that they had

528
00:30:37,400 --> 00:30:41,920
Speaker 1: had to review things in the past based on sad behavior.

529
00:30:42,280 --> 00:30:46,200
Speaker 1: But what is different here is that the behavior happened

530
00:30:46,240 --> 00:30:49,760
Speaker 1: as the award show. So it's not a criminal conviction

531
00:30:49,840 --> 00:30:53,800
Speaker 1: that they're now looking at in hindsight or various allegations

532
00:30:53,920 --> 00:30:57,240
Speaker 1: outside of someone's behavior that they're now looking at in hindsight.

533
00:30:57,680 --> 00:31:01,080
Speaker 1: They are looking at an event that took a act

534
00:31:01,560 --> 00:31:04,280
Speaker 1: their premises, you know, on their biggest night of the year.

535
00:31:04,680 --> 00:31:09,520
Speaker 1: So that's what makes this disciplinary proceedings different. Even when

536
00:31:09,600 --> 00:31:14,280
Speaker 1: they expelled people in the past like Weinstein and Polanski,

537
00:31:14,640 --> 00:31:17,840
Speaker 1: the Academy never took their oscar away. So does it

538
00:31:17,840 --> 00:31:21,080
Speaker 1: seem highly unlikely that they would take Smith's away. That

539
00:31:21,160 --> 00:31:24,160
Speaker 1: seems incredibly unlikely. I don't think they will take his

540
00:31:24,240 --> 00:31:26,840
Speaker 1: oscar away. I think they would get more of a

541
00:31:26,880 --> 00:31:31,440
Speaker 1: public backlash from taking his oscar away than from doing nothing,

542
00:31:31,640 --> 00:31:34,480
Speaker 1: So that doesn't seem like it's really in the realm

543
00:31:34,480 --> 00:31:37,960
Speaker 1: of possibilities. What to me is directly in the realm

544
00:31:37,960 --> 00:31:41,040
Speaker 1: of possibilities is that he's unable to present next year

545
00:31:41,440 --> 00:31:44,080
Speaker 1: as he would traditionally be able to do so as

546
00:31:44,240 --> 00:31:48,200
Speaker 1: an Academy winner, or that he's unable to even attend

547
00:31:48,240 --> 00:31:52,040
Speaker 1: to show next year and maybe for a set amount

548
00:31:52,080 --> 00:31:55,520
Speaker 1: of time going forward, or that he is suspended from

549
00:31:55,560 --> 00:31:59,520
Speaker 1: the Academy for some amount of time up to an

550
00:31:59,520 --> 00:32:02,680
Speaker 1: include being next year's show. Any of that seems like

551
00:32:02,680 --> 00:32:05,120
Speaker 1: a slap on the wrist compared to what he did.

552
00:32:05,600 --> 00:32:07,880
Speaker 1: You know, the big night of the Academy is being

553
00:32:07,880 --> 00:32:11,400
Speaker 1: able to attack. That's the big reward of being a

554
00:32:11,400 --> 00:32:14,400
Speaker 1: member of the Academy and such a superstar as Will

555
00:32:14,440 --> 00:32:16,680
Speaker 1: Smith is. You know, they can't throw him in jail.

556
00:32:16,760 --> 00:32:19,120
Speaker 1: They're not going to press charges. The Academy only has

557
00:32:19,160 --> 00:32:24,360
Speaker 1: a realm of consequences that they can implement. Jim Carey

558
00:32:24,800 --> 00:32:27,680
Speaker 1: said on CBS that if he were Chris Rock, you

559
00:32:27,720 --> 00:32:30,680
Speaker 1: would sue Smith because that video is going to be

560
00:32:30,680 --> 00:32:33,560
Speaker 1: out there forever. The insult is going to last a

561
00:32:33,600 --> 00:32:37,040
Speaker 1: long time, so a civil suit is possible, even though

562
00:32:37,040 --> 00:32:39,840
Speaker 1: it doesn't look like Rock would do that. Oh sure,

563
00:32:40,000 --> 00:32:42,400
Speaker 1: I mean, all the facts are there without a doubt.

564
00:32:42,600 --> 00:32:45,840
Speaker 1: Will Smith summitted a crime, And once he's committed a crime,

565
00:32:45,840 --> 00:32:48,920
Speaker 1: it's very easy to do civilly. I don't know if

566
00:32:49,000 --> 00:32:52,080
Speaker 1: Chris Rock is interested in pursuing the damages that he

567
00:32:52,160 --> 00:32:56,400
Speaker 1: has suffered, which would be both physical and emotional, and

568
00:32:56,480 --> 00:33:00,120
Speaker 1: it probably seems like more passle than it's worth. But

569
00:33:00,280 --> 00:33:03,320
Speaker 1: Chris Laws has not been particularly public with what he

570
00:33:03,520 --> 00:33:06,120
Speaker 1: is going to do or how he is feeling, and

571
00:33:06,200 --> 00:33:10,680
Speaker 1: maybe he's still processing that. On international TV in front

572
00:33:10,720 --> 00:33:16,000
Speaker 1: of millions of people, he was Wow. Thanks Rachel. That's Rachel,

573
00:33:16,000 --> 00:33:19,960
Speaker 1: Phse of Swayback, Phiz and Coleman, and that's it for

574
00:33:19,960 --> 00:33:22,600
Speaker 1: this edition of The Bloomberg Law Show. Remember you can

575
00:33:22,600 --> 00:33:25,880
Speaker 1: always get the latest legal news on our Bloomberg Law Podcast.

576
00:33:26,160 --> 00:33:29,160
Speaker 1: You can find them on Apple Podcasts, Spotify, and at

577
00:33:29,320 --> 00:33:34,360
Speaker 1: www dot Bloomberg dot com, slash podcast Slash Law, and

578
00:33:34,400 --> 00:33:36,880
Speaker 1: remember to tune in to The Bloomberg Law Show every

579
00:33:36,920 --> 00:33:40,400
Speaker 1: week night at ten pm Wall Street Time. I'm June

580
00:33:40,400 --> 00:33:42,560
Speaker 1: Grosso and you're listening to Bloomberg