WEBVTT - Calls for Justice Clarence Thomas to Recuse Himself 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.160 --> 0:00:13.080 Justice Clarence Thomas is facing calls to recuse himself from 0:00:13.119 --> 0:00:18.240 any cases involving the election or the January sixth insurrection. 0:00:18.640 --> 0:00:22.759 This after revelations that his wife, Jenny Thomas, repeatedly pushed 0:00:22.760 --> 0:00:26.560 to overturn the presidential election in a series of checks 0:00:26.640 --> 0:00:30.320 with Trump White House chief of staff Mark Meadows. Thomas 0:00:30.360 --> 0:00:33.440 did not recuse himself from a case involving the release 0:00:33.479 --> 0:00:36.640 of former President Donald Trump's White House records to the 0:00:36.760 --> 0:00:40.080 January sixth Committee, and he was the only justice to 0:00:40.200 --> 0:00:44.160 vote against turning the records over. Democrats like Senator Dick 0:00:44.200 --> 0:00:47.919 Durbin are calling for Thomas to recuse himself in these cases, 0:00:48.440 --> 0:00:52.680 while Republicans like Senator Josh Holley say it's not necessary 0:00:53.080 --> 0:00:55.080 to think that he would consider a case where his 0:00:55.160 --> 0:00:58.560 wife is frequently contacting the chief of staff of the 0:00:58.600 --> 0:01:01.600 president and giving advice on matters that are going to 0:01:01.640 --> 0:01:05.240 be ultimately litigated by the court. That is the ultimate 0:01:05.280 --> 0:01:09.640 conflict of interest. She's an independent person, you know, and 0:01:09.760 --> 0:01:11.920 she's got her own political views. She's she's been doing 0:01:11.920 --> 0:01:13.320 this a long time. And if you want to take 0:01:13.360 --> 0:01:15.240 issue with her, that's fine, but she's not on the bench. 0:01:15.280 --> 0:01:18.440 She's on the bench. Joining me is ethics expert Rebecca Roythy, 0:01:18.600 --> 0:01:21.440 a professor at New York Law School. Rebecca, what are 0:01:21.480 --> 0:01:25.640 the rules for accusal that Supreme Court justices follow? There 0:01:25.680 --> 0:01:29.440 are rules that are drafted for all judges, and those 0:01:29.520 --> 0:01:33.720 rules require a judge to disqualify himself or herself whenever 0:01:33.920 --> 0:01:38.160 that judges impartiality might reasonably be questioned. But that's a 0:01:38.280 --> 0:01:41.720 really broad rule, and in general, there are some more 0:01:41.800 --> 0:01:47.000 specifics about when judges normally recuse themselves, and the general 0:01:47.040 --> 0:01:51.480 proposition is interpreted in light of those more specific rules. 0:01:51.560 --> 0:01:54.160 And one thing that's kind of important also is that 0:01:54.240 --> 0:01:57.000 Supreme Court justices are a little bit different than other 0:01:57.120 --> 0:01:59.760 judges in that there is no one to take their 0:02:00.040 --> 0:02:03.840 least when they recoose themselves, and so for that reason, 0:02:03.920 --> 0:02:06.640 it's generally a good idea for judges to be a 0:02:06.680 --> 0:02:11.760 little bit more conservative about exercising their discretion to recuse themselves. 0:02:11.760 --> 0:02:15.520 In particular cases, if a party thinks that a Supreme 0:02:15.520 --> 0:02:19.519 Court justice would be biased, there's no mechanism for trying 0:02:19.600 --> 0:02:23.240 to force a recusal. Is there No party can and 0:02:23.280 --> 0:02:27.520 many times has requested recusal, but it's really at this 0:02:27.600 --> 0:02:31.000 point up to the discretion of that individual justice whether 0:02:31.120 --> 0:02:33.520 or not to do so. Part of that is because 0:02:33.560 --> 0:02:36.639 of the separation of powers, you can't really have let's say, 0:02:37.160 --> 0:02:41.840 congressional rule because that might be unconstitutional. But you could 0:02:41.960 --> 0:02:44.920 imagine a situation in which the Supreme Court as a 0:02:44.960 --> 0:02:48.840 whole were to decide whether a particular justice were to 0:02:48.880 --> 0:02:51.359 recuse him or herself. But for the most part, the 0:02:51.400 --> 0:02:53.840 Supreme Court has shied away from doing that, in part 0:02:53.840 --> 0:02:56.960 out of a kind of collegiality and the idea that 0:02:57.160 --> 0:02:59.320 once you've reached the point where your Supreme Court justice, 0:02:59.360 --> 0:03:01.680 you should be trust to make that decision on your own. 0:03:02.120 --> 0:03:06.400 And the law also says that judges should not participate 0:03:06.480 --> 0:03:09.680 in proceedings in which their spouse has an interest that 0:03:09.760 --> 0:03:13.400 could be substantially affected by the outcome of the proceeding. Right, 0:03:13.480 --> 0:03:15.960 So that's one of those more specific rules that I 0:03:16.040 --> 0:03:20.119 mentioned earlier that goes to defining this question of when 0:03:20.160 --> 0:03:23.960 a justice's impartiality could be reasonably questioned, because that's such 0:03:23.960 --> 0:03:28.400 a broad proposition that the more specific ones have more bite, 0:03:28.560 --> 0:03:31.799 so to speak, because essentially they're getting at the problem 0:03:31.800 --> 0:03:34.320 of impartiality, but in a very specific kind of way 0:03:34.360 --> 0:03:38.280 that's been tried in the past. So, according to the 0:03:38.480 --> 0:03:43.040 texts that have been revealed, Jenny Thomas weighed in on 0:03:43.160 --> 0:03:48.520 Trump's legal team legal strategy. She was actively involved in 0:03:48.560 --> 0:03:53.000 trying to get the election overturned. Justice Thomas participated in 0:03:53.160 --> 0:03:57.520 two cases related to election. He was the only justice 0:03:57.560 --> 0:04:01.680 who dissented when the Preme Court allowed the release of 0:04:01.800 --> 0:04:04.920 records from the Trump White House to the committee. Should 0:04:05.000 --> 0:04:09.640 he have recused himself from those cases? My view in 0:04:09.680 --> 0:04:12.360 this matter is that for the case having to do 0:04:12.440 --> 0:04:16.520 with the emails, specifically, Justice Thomas, if he knew that 0:04:16.680 --> 0:04:19.920 his wife had emails that were at issue in that case, 0:04:20.080 --> 0:04:23.719 should have recused because in that case then she might 0:04:23.800 --> 0:04:26.320 have had an actual interest, so more than just sort 0:04:26.360 --> 0:04:29.839 of her own ideological agenda. She might have had a 0:04:29.920 --> 0:04:33.719 personal interest either criminal liability, civil liability, or at least, 0:04:33.720 --> 0:04:37.000 you know, personal embarrassment at issue in that case. And 0:04:37.279 --> 0:04:39.760 so it seems to me that he, if he knew, 0:04:39.960 --> 0:04:42.840 really should have recused the other cases. For me or 0:04:42.920 --> 0:04:46.880 a harder call because what it is that is her 0:04:47.040 --> 0:04:51.560 interest is less concrete, and that makes it more difficult 0:04:51.640 --> 0:04:55.480 and not clear cut, because Supreme Court justices in the past, 0:04:55.920 --> 0:04:59.040 it's very clear that there's a record for recusing themselves 0:04:59.120 --> 0:05:01.640 in cases in which, let's say they have a financial 0:05:01.760 --> 0:05:04.520 and trust, or a spouse has a financial interest, or 0:05:04.560 --> 0:05:08.000 they're connected to a party in the litigation. All of 0:05:08.040 --> 0:05:10.880 those are cases in which you see most Supreme Court 0:05:10.920 --> 0:05:14.680 justices recusing themselves in most cases. But the connection here 0:05:15.000 --> 0:05:17.600 is a little bit more intenuated. And so I think 0:05:17.640 --> 0:05:20.680 therefore you have to look at the particular case and 0:05:20.800 --> 0:05:24.279 see whether or not there's a concrete interest rather than 0:05:24.320 --> 0:05:27.200 just a sort of broad ideological interest, because that's the 0:05:27.279 --> 0:05:30.400 kind of case that you really can't have Supreme Court 0:05:30.480 --> 0:05:32.919 justices recusing all the time. I mean, if you remember, 0:05:33.160 --> 0:05:35.720 President Trump calls for Justices Soda, my Or and at 0:05:35.760 --> 0:05:39.200 Ginsburgh to recuse themselves in old Trump related cases because 0:05:39.200 --> 0:05:41.919 they had said some things, you know, indicating their bias 0:05:41.960 --> 0:05:44.320 against him. And that's not the way this system works. 0:05:44.440 --> 0:05:46.599 So we have to find a line between those two 0:05:46.760 --> 0:05:50.480 where it's not just like there's a strong ideological interest, 0:05:50.560 --> 0:05:52.960 there's actually has to be some kind of concrete interest 0:05:53.000 --> 0:05:56.479 at stake. Jenny Thomas has said that her work doesn't 0:05:56.520 --> 0:05:59.920 present a conflict with her husband's work on the Supreme Court. 0:06:00.760 --> 0:06:04.200 Justice Thomas has written that they were one being an 0:06:04.240 --> 0:06:06.960 amalgam and called her his best friend, and in one 0:06:07.000 --> 0:06:10.520 of the texts Jenny Thomas, such a Mark Meadows, thank 0:06:10.600 --> 0:06:14.440 you needed that. This plus a conversation with my best 0:06:14.520 --> 0:06:17.560 friend just now, I will try to keep holding on 0:06:17.680 --> 0:06:21.960 America is worth it. Also, she reportedly mentions her husband's 0:06:22.040 --> 0:06:26.360 name in speeches and communications with other activists. So does 0:06:26.400 --> 0:06:29.400 that drag the Justice into it? Yeah, again, it's a 0:06:29.480 --> 0:06:32.480 tough issue. I think it looks bad in many many ways. 0:06:32.560 --> 0:06:35.160 But I also think we have an interest in not 0:06:35.600 --> 0:06:38.400 thinking of spouses as one and the same. I mean, 0:06:38.440 --> 0:06:40.560 you can think of situations now we have like two 0:06:40.600 --> 0:06:43.320 professional people and one of them is a judge, and 0:06:43.360 --> 0:06:47.200 one of them is let's say, very active and involved 0:06:47.200 --> 0:06:49.160 in the local chapter of the a c l U. 0:06:49.440 --> 0:06:51.960 Now that doesn't mean that the judge, I think, would 0:06:51.960 --> 0:06:55.400 have to recuse himself in every case involving the a 0:06:55.520 --> 0:06:59.360 c l U. More broadly, and there's this underlying question 0:06:59.400 --> 0:07:03.040 of how to interpret the spousal relationship, and so in 0:07:03.080 --> 0:07:05.479 the modern day, I don't think we want to impute 0:07:05.560 --> 0:07:09.720 all of the statements, all of the activity, all of 0:07:09.720 --> 0:07:14.000 the ideological leanings of one spouse to another spouse. But again, 0:07:14.080 --> 0:07:17.600 at a certain point it crosses over to being something inappropriate. 0:07:17.640 --> 0:07:20.080 And I think that is the point at which interest 0:07:20.200 --> 0:07:22.240 plays a role. So you can't say, you know, just 0:07:22.320 --> 0:07:24.800 because Jenny Thomas has said things that you know, if 0:07:24.840 --> 0:07:27.000 she were justice in the Supreme Court would make it 0:07:27.040 --> 0:07:29.520 clear that she's already decided how she would rule in 0:07:29.520 --> 0:07:32.400 a case. That doesn't mean that I think that Justice 0:07:32.440 --> 0:07:37.440 Thomas would have to recuse. He hasn't made similar remarks. 0:07:37.480 --> 0:07:41.040 But at a certain point, if she's so involved that 0:07:41.160 --> 0:07:43.240 her emails are an issue, and there's a case that 0:07:43.360 --> 0:07:47.000 concerns those emails, well that's an interest And to me, 0:07:47.160 --> 0:07:49.840 that's the point of which he asked to accuse. Explain 0:07:50.080 --> 0:07:53.840 why what the importance of having a judge or a 0:07:53.960 --> 0:07:58.320 justice recuse from a case where they may be interested. 0:07:58.400 --> 0:08:02.600 Explain what the reasoning is. Sure, So you know, we 0:08:02.760 --> 0:08:06.880 have Justices of the Supreme Court and judges throughout the system, 0:08:06.920 --> 0:08:10.000 and they are all presumed to be impartial, which means 0:08:10.040 --> 0:08:13.560 that they apply to law, to the facts, and determine 0:08:13.600 --> 0:08:16.600 the outcome without regard to who the particular parties are 0:08:16.960 --> 0:08:19.640 or or really what's at stake. And so you know, 0:08:19.720 --> 0:08:24.080 we all know that in some way people's ideology, their background, 0:08:24.080 --> 0:08:26.280 their experience informs the way they think of the law. 0:08:26.320 --> 0:08:29.600 But that's different from somebody who's impartiality has really been 0:08:30.240 --> 0:08:36.400 seriously questioned or undermined compromised in some significant way. So, um, 0:08:36.440 --> 0:08:39.560 because we have this interest in judges not only being 0:08:39.640 --> 0:08:43.880 impartial but also seeming impartial, it is really important that 0:08:43.920 --> 0:08:46.640 we preserve this institution, and one of the ways that 0:08:46.679 --> 0:08:50.960 we preserve this institution is through these rules. But you know, 0:08:51.080 --> 0:08:55.640 again that said, the appearance of impartiality does not mean 0:08:55.800 --> 0:08:59.840 that the judge or or justice doesn't have some relation 0:09:00.000 --> 0:09:02.240 and to the underlying issues, because otherwise we would have 0:09:02.400 --> 0:09:05.720 judges who would like basically lived under rocks their whole lives. 0:09:05.760 --> 0:09:09.079 So you know, there, it's that difficult line that we're 0:09:09.120 --> 0:09:14.000 trying to draw here now. Last month, dozens of judicial 0:09:14.080 --> 0:09:18.960 ethics experts sent Chief Justice John Roberts a letter again 0:09:19.120 --> 0:09:23.120 asking for a code of conduct particular to the Supreme Court. 0:09:23.880 --> 0:09:28.400 Should Chief Justice Roberts do that, well, I think he 0:09:28.400 --> 0:09:32.160 should certainly consider the question. Um, I you know, I 0:09:32.200 --> 0:09:34.280 think he has a point when he talks about the 0:09:34.280 --> 0:09:37.440 collegiality of the court and that you know that that 0:09:37.559 --> 0:09:41.040 each individual justice is a professional and makes these professional 0:09:41.160 --> 0:09:46.000 determinations in a serious way, and that you know, having 0:09:46.040 --> 0:09:48.079 a kind of situation in which they're all sitting in 0:09:48.160 --> 0:09:50.800 judgment of each other on these particular kinds of cases 0:09:51.240 --> 0:09:55.400 may not really um end up being you know, promoting 0:09:55.480 --> 0:09:59.240 the ultimate interest in the ethical conduct of justices on 0:09:59.280 --> 0:10:02.720 the Supreme Court. So, you know, I in a way 0:10:02.720 --> 0:10:07.120 I shy away from suggesting how he ought to determine 0:10:07.160 --> 0:10:09.720 that because this is an institution that he's been a 0:10:09.720 --> 0:10:12.160 part of and I have not, But you know, I 0:10:12.200 --> 0:10:14.280 do think it's a good idea to think about these things. 0:10:14.360 --> 0:10:18.520 I also think transparency is in incredibly important because you know, 0:10:18.600 --> 0:10:21.679 part of the issue is that the question of interest 0:10:21.800 --> 0:10:24.320 is a little has become harder to determine in the 0:10:24.360 --> 0:10:28.280 modern day because there's so much money and um kind 0:10:28.280 --> 0:10:32.679 of running around in politics and among litigation that sometimes 0:10:32.679 --> 0:10:35.240 it's hard to determine who actually has an interest. So 0:10:35.280 --> 0:10:37.560 I think transparency is really good, and I think it 0:10:37.559 --> 0:10:39.920 would be a good idea for the Supreme Court to 0:10:39.960 --> 0:10:43.760 promote more transparency and their disclosures. But in terms of 0:10:44.040 --> 0:10:46.640 you know, strict rules, you know, I'm not sure how 0:10:46.640 --> 0:10:48.160 I feel about that one, and I defer to the 0:10:48.240 --> 0:10:51.560 Chief Justice to figure it out. Now, could Congress, if 0:10:51.640 --> 0:10:54.920 Congress you know, had the votes, could Congress step in 0:10:54.960 --> 0:10:58.720 and put in our accusal system for the justices. I 0:10:58.760 --> 0:11:00.480 think that would be really a problem ad from a 0:11:00.480 --> 0:11:03.599 separation of powers perspective, because we have these three co 0:11:03.800 --> 0:11:07.240 equal branches, and the Supreme Court sits at the top 0:11:07.400 --> 0:11:11.079 of the judiciary. So I think if Congress were to 0:11:11.320 --> 0:11:14.679 come in and set refusal rules, it might be overstepping 0:11:14.800 --> 0:11:17.559 its bounds in terms of separations of powers. That I 0:11:17.880 --> 0:11:19.800 do think that would be problematic. We don't want a 0:11:19.840 --> 0:11:23.200 political branch to be making these kinds of determinations, even 0:11:23.200 --> 0:11:26.120 in a broadway. When it comes to the judiciary. The 0:11:26.240 --> 0:11:29.679 January six Committee is going to ask Jenny Thomas to 0:11:29.800 --> 0:11:33.880 appear before them. Suppose they decided to subpoena her. Does 0:11:33.920 --> 0:11:38.040 that cross any boundary lines? I don't think unless they 0:11:38.040 --> 0:11:43.600 are asking for, you know, questions about Justice Thomas's celebration 0:11:43.800 --> 0:11:45.800 or how he's going to rule in particular cases, that 0:11:45.920 --> 0:11:48.520 actually having her appear before them is a problem at all, 0:11:48.559 --> 0:11:51.000 because for the same reason that I suggested before, where 0:11:51.000 --> 0:11:53.319 we really don't think of spouses in the modern day 0:11:53.320 --> 0:11:57.280 as one merged whole. She is her own person, with 0:11:57.320 --> 0:12:00.199 her own involvement in this incident. And in so far 0:12:00.200 --> 0:12:05.079 as they are legitimately investigating this incident and she has 0:12:05.240 --> 0:12:10.240 valid she has relevant testimony that goes to their underlying question, 0:12:10.280 --> 0:12:12.600 well then there's no absolutely no reason that they shouldn't 0:12:12.640 --> 0:12:15.280 call her in front of them. Let's say a federal 0:12:15.400 --> 0:12:18.760 court or even a state court and a party asked 0:12:18.760 --> 0:12:23.160 the judge to recuse himself or herself because of a conflict. 0:12:23.760 --> 0:12:27.480 If the judge doesn't recuse, is there a mechanism to 0:12:27.640 --> 0:12:30.920 appeal that, Yes, because there's an appellate system, so you 0:12:30.960 --> 0:12:33.720 can appeal or accusal order, just like you can appeal, 0:12:33.920 --> 0:12:37.040 you know, many other decisions that judges make, you know, 0:12:37.080 --> 0:12:38.880 all the way up let's say in the state system, 0:12:38.880 --> 0:12:40.480 you could appeal all the way up to the supreme 0:12:40.520 --> 0:12:43.240 court of that state system. And you know, in some cases, 0:12:43.240 --> 0:12:45.520 if it's a constitutional issue or a federal issue, you 0:12:45.520 --> 0:12:49.800 would have a further reppellate um process into the federal system. 0:12:49.840 --> 0:12:52.560 And same um with regard to federal judges. But the 0:12:52.559 --> 0:12:55.360 problem here, of course, is that the Supreme Court is 0:12:55.600 --> 0:12:58.160 um at the top of that order, and so there 0:12:58.280 --> 0:13:01.520 is nowhere to appeal a of the Supreme Court. And 0:13:01.600 --> 0:13:06.200 so this is what creates the problem that people have recognized. 0:13:06.240 --> 0:13:09.440 And the question is what is the solution. As you suggested, 0:13:09.840 --> 0:13:13.560 I think Congress is a faulty solution. Adopting a set 0:13:13.559 --> 0:13:15.839 of rules at the Supreme Court is a much less 0:13:15.880 --> 0:13:20.120 problematic solution because it's essentially the Supreme Court governing itself, 0:13:20.200 --> 0:13:24.000 which would not run into those same separation of powers problems. 0:13:24.400 --> 0:13:27.920 But we can't have an appellate system because they're, you know, 0:13:28.160 --> 0:13:32.520 by constitutional order, the Supreme Court is uh is at 0:13:32.520 --> 0:13:37.200 the top of the federal judiciary. Because as you mentioned transparency, 0:13:37.760 --> 0:13:41.959 often when a Supreme Court justice recuses himself or herself, 0:13:42.280 --> 0:13:46.079 we're less trying to guess why so, oh, maybe Justice 0:13:46.120 --> 0:13:48.640 the leader, you know, he has investments in this, or 0:13:48.720 --> 0:13:52.840 oh wait, Justice Kagan took part this when she was 0:13:52.960 --> 0:13:55.480 a solicitor general. And it seems like we shouldn't be 0:13:55.520 --> 0:13:57.600 guessing about those things. There should at least be a 0:13:57.679 --> 0:14:02.240 statement that says, I'm accusing my itself because of this right, 0:14:02.440 --> 0:14:05.199 and I think, you know, sometimes sometimes we have those 0:14:05.200 --> 0:14:07.560 sorts of statements and other times we don't. And I 0:14:07.600 --> 0:14:11.079 think you're absolutely right in terms of consistency and again 0:14:11.120 --> 0:14:14.199 in terms of transparency so the public can see, um. 0:14:14.320 --> 0:14:17.760 It is important. And you know, I think that the 0:14:17.920 --> 0:14:22.760 the overall question is the legitimacy of the judiciary, and 0:14:22.840 --> 0:14:25.840 particularly the legitimacy of the Supreme Court, because I think 0:14:25.880 --> 0:14:30.400 in recent years, as we've become a more politically polarized nation, 0:14:30.480 --> 0:14:33.560 the Supreme Court is losing some of that legitimacy. So 0:14:34.080 --> 0:14:36.880 how best to restore it is a very complicated question 0:14:36.920 --> 0:14:41.560 because requiring more recusals in some ways doesn't even though 0:14:41.720 --> 0:14:44.560 it seems at first like that might further the goal 0:14:45.000 --> 0:14:47.760 of the legitimacy of the Supreme Court, it might not, 0:14:47.960 --> 0:14:52.119 because part of our assumption is that judges are capable 0:14:52.240 --> 0:14:57.680 of putting out of their head these sorts of counter argument, 0:14:57.680 --> 0:14:59.320 you know, I mean, we don't think just because it's 0:14:59.320 --> 0:15:03.360 a Trump judge, that Trump judge cannot sit in judgment 0:15:03.440 --> 0:15:06.040 of a case that you know, Trump has an interest in, 0:15:06.280 --> 0:15:09.640 or Trump has expressed a strong belief in. And we 0:15:09.720 --> 0:15:12.800 saw the judiciary working very well and which you know, 0:15:12.840 --> 0:15:16.080 there were judges appointed by politicians on both sides of 0:15:16.080 --> 0:15:20.120 the divide, including the former President Trump who ruled against 0:15:20.200 --> 0:15:24.200 Trump's interest. And that is because judges don't judge do politics, 0:15:24.240 --> 0:15:28.880 and so we need rules that further that, um, you know, 0:15:29.160 --> 0:15:33.720 essential promise of our system. And while it seems like 0:15:33.800 --> 0:15:38.160 more recusal might it actually might backfire because it's essentially saying, oh, 0:15:38.200 --> 0:15:41.120 this judge can't be impartial because that judge has, you know, 0:15:41.280 --> 0:15:44.120 strong ideological beliefs. We don't want to rule like that. 0:15:44.400 --> 0:15:46.440 We want to rule that says, if you've got actual 0:15:46.560 --> 0:15:49.560 interest in this case, something that would really hurt you 0:15:50.000 --> 0:15:52.480 in some concrete way, then get off the case. And 0:15:52.560 --> 0:15:55.280 that seems to make a lot of sense. But a 0:15:55.280 --> 0:15:57.120 Brigger rule that was like, well it might when it 0:15:57.200 --> 0:16:00.360 might you know, benefit your strong ideological beliefs, or even 0:16:00.760 --> 0:16:04.320 further your wife of a strong ideological belief I think 0:16:04.320 --> 0:16:07.080 that that's not necessarily going to further our interest in 0:16:07.160 --> 0:16:11.680 preserving the legitimacy of the courts. Thanks for being on 0:16:11.680 --> 0:16:15.160 the show, Rebecca. That's professor Rebecca roy Fee of New 0:16:15.240 --> 0:16:20.080 York Law School. Prosecutors rested their case against the four 0:16:20.120 --> 0:16:24.000 men charged with planning to kidnap Michigan Governor Gretchen Whitmer 0:16:24.040 --> 0:16:28.240 before the national election. The men were arrested in October, 0:16:29.320 --> 0:16:33.080 as prosecutors say they moved closer to obtaining an explosive 0:16:33.160 --> 0:16:35.840 that could blow up a bridge and hold back police 0:16:35.920 --> 0:16:39.920 from responding to a kidnapping at Whitmer's vacation home. Shortly 0:16:39.960 --> 0:16:43.720 after the arrest, Governor Whitmer called it domestic terrorism. On 0:16:43.800 --> 0:16:47.080 the view, this has been a tough year, there's no question, 0:16:47.240 --> 0:16:49.640 but I do think that a lot of the rhetoric 0:16:49.840 --> 0:16:55.560 that UM is more frequently available and being um stoked 0:16:55.640 --> 0:16:59.200 on on many platforms is downright dangerous, and I think 0:16:59.240 --> 0:17:03.040 we saw one example of how that has become a reality. 0:17:03.600 --> 0:17:06.199 My family and I are safe. We've never feared for 0:17:06.240 --> 0:17:10.000 our safety because we have the phenomenal Michigan State Police. However, 0:17:10.560 --> 0:17:13.520 none of us can stand for these kind of actions 0:17:13.520 --> 0:17:16.000 in this country, and it needs to be a bipartisan 0:17:16.440 --> 0:17:19.200 call to action to bring the heat down to get 0:17:19.240 --> 0:17:21.840 to a place where we'll call out domestic terror for 0:17:21.880 --> 0:17:24.920 what it is. So Americans who are seeking to hurt 0:17:25.280 --> 0:17:29.119 or intimidate other Americans and it will not stand, and 0:17:29.160 --> 0:17:32.120 none of us can can stand for it. Key evidence 0:17:32.119 --> 0:17:35.920 in the prosecution's case came from to undercover FBI agents 0:17:36.160 --> 0:17:39.080 and an informant who was among the extremeists for months 0:17:39.080 --> 0:17:43.119 and made hours of secret recordings. Particularly important was the 0:17:43.160 --> 0:17:46.120 testimony of two men involved in the plot who made 0:17:46.119 --> 0:17:49.359 a deal with the government and pleaded guilty. Joining me 0:17:49.440 --> 0:17:52.680 is Matthew Schneider, former United States Attorney for the Eastern 0:17:52.720 --> 0:17:57.040 District of Michigan and a partner at Huntinggman. Online threats 0:17:57.160 --> 0:17:59.560 were made to the judge and two of the defense 0:17:59.600 --> 0:18:04.080 attorn niece. The FBI conducted a raid in suburban Detroit, 0:18:04.240 --> 0:18:07.760 but no one was arrested. How unusual are these kinds 0:18:07.760 --> 0:18:11.760 of threats in the middle of a trial. Well, unfortunately, 0:18:11.800 --> 0:18:14.720 it's not all that unusual. In the middle of any 0:18:14.800 --> 0:18:18.240 type of criminal trial that's high profile. You'll have threats 0:18:18.280 --> 0:18:20.520 to the parties involved. And here's the judge and the 0:18:20.520 --> 0:18:23.920 defense attorneys. And the key I think is whether or 0:18:23.920 --> 0:18:26.560 not the jury finds out about this. And it's not 0:18:26.640 --> 0:18:29.040 really relevant to the trial, to the case at hand, 0:18:29.440 --> 0:18:32.879 So most likely the jury will never know that in 0:18:32.920 --> 0:18:34.960 the middle of the trial there were threats made. But 0:18:35.359 --> 0:18:37.840 you know, in our day and age, more and more 0:18:38.280 --> 0:18:42.560 is happening that that defendants and prosecutors and judges are 0:18:42.640 --> 0:18:45.600 indeed being threatened. It's kind of a sad commentary on 0:18:45.600 --> 0:18:49.920 our society. Oftentimes you hear about prosecutors being threatened rather 0:18:50.000 --> 0:18:54.840 than defense attorneys. Do prosecutors have protection a certain amount? 0:18:55.000 --> 0:18:57.199 When I was a prosecutor, I carried a gun and 0:18:57.280 --> 0:18:59.600 I was a deputy U S. Marshal at the same time, 0:18:59.640 --> 0:19:03.200 I was apputized because of threats, And that happens because 0:19:03.240 --> 0:19:06.560 so many people just take managers into their own hands. 0:19:06.600 --> 0:19:10.480 But both prosecutors and defense attorneys are always targets, and 0:19:10.560 --> 0:19:14.560 sometimes for different reasons. The prosecution might be targeted because 0:19:14.640 --> 0:19:17.640 the defendants or whoever else does look like what they're doing. 0:19:17.880 --> 0:19:21.320 But then the defense attorneys themselves can be targets because 0:19:21.359 --> 0:19:24.320 people might not like the way they're approaching the case 0:19:24.440 --> 0:19:26.440 or they think they're not doing a good enough job. 0:19:26.640 --> 0:19:29.879 So either way there can be threats. And the judge 0:19:29.920 --> 0:19:34.280 in this case has been careful about security. He's keeping 0:19:34.320 --> 0:19:37.640 the jurors name secrets. So do you think that's because 0:19:37.680 --> 0:19:40.800 of the nature of the case. Yes, And you often 0:19:40.840 --> 0:19:44.480 see that in very high profile mafia cases or mob 0:19:44.600 --> 0:19:47.680 cases or cases with a lot of violence to keep 0:19:47.760 --> 0:19:50.280 the jurors out of it, so that that protects the 0:19:50.359 --> 0:19:53.040 jurors and it makes them feel better and more comfortable 0:19:53.200 --> 0:19:56.639 in actually doing the deliberation. Let's talk about how the 0:19:56.800 --> 0:20:01.600 prosecutions case has gone in there is in testimony from 0:20:01.640 --> 0:20:07.600 a variety of different people, FBI agents, FBI informants, former defendants, 0:20:07.600 --> 0:20:11.320 who prosecutors flipped. What do you think about the way 0:20:11.359 --> 0:20:14.600 it's been presented in the witnesses that have been so 0:20:14.720 --> 0:20:17.119 both sides have scored some points, so to speak, in 0:20:17.160 --> 0:20:20.400 this trial, and it is because of the witnesses and 0:20:20.440 --> 0:20:22.800 what the government has done is it's put up both 0:20:22.920 --> 0:20:28.080 FBI and FBI agent who infiltrated the organization and then 0:20:28.080 --> 0:20:31.640 FBI undercover agents who describe exactly what was going on, 0:20:31.720 --> 0:20:35.400 what the defendants were saying. And then secondly, we heard 0:20:35.400 --> 0:20:39.440 the actual words of the defendants, because these recordings took 0:20:39.480 --> 0:20:42.680 place and the words of the defendants were played in court, 0:20:42.720 --> 0:20:45.080 and those were quite powerful because they were talking about 0:20:45.160 --> 0:20:48.879 killing the governor or taking her out or doing something 0:20:48.880 --> 0:20:52.520 else to kidnap her. And then we heard the actual 0:20:53.080 --> 0:20:56.520 cooperators themselves, two of the defendants who were charged in 0:20:56.520 --> 0:20:59.280 this case, decided that they were going to plead guilty 0:20:59.320 --> 0:21:03.200 and cooperate, and they took the stand and they explained 0:21:03.440 --> 0:21:06.679 in very serious tones what they were trying to do 0:21:06.760 --> 0:21:09.920 and the plot to kidnap Governor Wimmer. And it varies 0:21:10.080 --> 0:21:11.920 as to whether or not they were going to kidnap 0:21:11.960 --> 0:21:14.840 her or kill her, but either way, there's a kidnapping 0:21:14.880 --> 0:21:18.520 involved as charged by this case, and those cooperators talked 0:21:18.600 --> 0:21:22.000 exactly about it. But did the defense make any headway 0:21:22.119 --> 0:21:28.359 during the prosecution's case in its cross examinations of prosecution witnesses, Yes, 0:21:28.440 --> 0:21:30.679 they really did. And if you think about it from 0:21:30.720 --> 0:21:33.800 the defense perspective, they have two arguments. One is either 0:21:33.920 --> 0:21:37.000 that this was really a half baked plan. It wasn't 0:21:37.040 --> 0:21:39.919 really thought out well, and the defense were kind of 0:21:39.960 --> 0:21:42.480 scatter brained, and they were smoking a lot of marijuana 0:21:42.520 --> 0:21:45.479 and they were drunk. They in the opening statements, one 0:21:45.480 --> 0:21:48.320 of the defense attorneys even called it the stoned crazy 0:21:48.359 --> 0:21:51.280 defense because the things that they were talking about were 0:21:51.280 --> 0:21:54.760 so ridiculous. Sure, they were talking about kidnapping the governor, 0:21:55.080 --> 0:21:57.920 but they were also talking about going to the governor's 0:21:57.960 --> 0:22:01.000 house and hiding in the woods and make animal sounds 0:22:01.000 --> 0:22:03.920 that she would come out because she likes animals. Where 0:22:03.920 --> 0:22:06.520 they talked about cutting down all the trees between Michigan 0:22:06.520 --> 0:22:10.880 and Indiana because that would cause a civil disturbance, none 0:22:10.920 --> 0:22:13.240 of that makes any sense. And so the theory is, 0:22:13.800 --> 0:22:16.440 if these things didn't make any sense, then the plot 0:22:16.480 --> 0:22:19.800 to kidnap the governor also didn't make any sense. So 0:22:19.840 --> 0:22:22.480 they scored some points there, and the defense also some 0:22:22.640 --> 0:22:26.040 scored some points with the tapes because in some of 0:22:26.080 --> 0:22:30.360 these tape recordings where they talk about grabbing the governor, 0:22:31.160 --> 0:22:34.119 tying her up, putting her up on a table to 0:22:34.280 --> 0:22:38.880 display his evidence, people were laughing. Alright, So tone matters. 0:22:39.240 --> 0:22:41.560 If you're going to play a tape, you better make 0:22:41.600 --> 0:22:44.320 sure that it is an accurate tape. And also there's 0:22:44.320 --> 0:22:47.240 a serious tone to it. And if people are laughing, 0:22:47.280 --> 0:22:49.880 then the defense that plays right into their hands that 0:22:50.280 --> 0:22:54.399 that they weren't actually serious. However, prosecution certainly scored a 0:22:54.400 --> 0:22:56.240 lot of points when there were a lot of other 0:22:56.320 --> 0:22:59.479 tapes played where no one was laughing, and it was 0:22:59.600 --> 0:23:03.440 quite chilling, and it was quite sinister and very serious. 0:23:04.080 --> 0:23:08.560 A key defense witness, FBI informant Stephen Robeson, has asked 0:23:08.560 --> 0:23:11.399