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

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Speaker 1: Another unprecedented action by President Trump and his Justice Department

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Speaker 1: the creation of a one point eight billion dollar fund

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Speaker 1: to pay victims of so called government weaponization as part

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Speaker 1: of a settlement to n Trump's thirty billion dollar lawsuit

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Speaker 1: against the Internal Revenue Service, a settlement that was not

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Speaker 1: approved by a judge. Under questioning by Democratic Senator Chris Coons, today,

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Speaker 1: Acting Attorney General Todd Blanche had to admit it was

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Speaker 1: a first.

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Speaker 2: Has it ever happened that a sitting president sued his

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Speaker 2: own government for ten billion dollars and then directed the

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Speaker 2: settlement of the case and the establishment of a payout fund?

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Speaker 3: Not that I'm aware, but there's a lot of things

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Speaker 3: that President Trump's the first of it.

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Speaker 1: And in response to questions from Democratic Senator Chris Van Holland,

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Speaker 1: Lanche would not rule out that rioters who attacked police

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Speaker 1: at the Capitol on January sixth could receive payments from

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Speaker 1: the fund.

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Speaker 3: Well, individuals who assaulted Capitol Hill police officers be eligible

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Speaker 3: for this.

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Speaker 4: Fund well, as it makes plain.

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Speaker 2: Just let me know if they're eligible for the.

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Speaker 4: Fund, as was made plain, yesterday.

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Speaker 2: Anybody in this country is eligible to apply.

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Speaker 1: My guest is an expert in constitutional law, David super,

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Speaker 1: a professor at Georgetown Law. David, starting with the lawsuit,

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Speaker 1: let alone the settlement. Have you ever seen a lawsuit

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Speaker 1: like this, a sitting president suing part of his government

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Speaker 1: for monetary damages.

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Speaker 4: No, there hasn't, and there have been some pretty compelling

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Speaker 4: cases where you might imagine that happening. You could imagine

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Speaker 4: President Reagan suing for the Secret Service failure to protect

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Speaker 4: him from John Hinckley. You could imagine some presidents suing

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Speaker 4: for terrible medical care that they receive the estate of

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Speaker 4: President Garfield. Perhaps, but this is an example of norms collapsing.

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Speaker 4: Every president previously, even ones who allowed much more independence

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Speaker 4: of the Justice Department than President Trump does, understood that

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Speaker 4: it would be grossly inappropriate for them to sue a

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Speaker 4: justice department that reported to them.

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Speaker 1: Basically, the same person is controlling both sides of the lawsuit.

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Speaker 1: The plaintiff and the defendant are Donald Trump.

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Speaker 4: Yes, this is a textbook example of collusive litigation. When

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Speaker 4: there's no adversity, when no claims a fact or law

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Speaker 4: are checked by anybody with a contrary interest where they're

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Speaker 4: all agreeing together. It's a settlement agreement between Donald Trump's

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Speaker 4: private lawyers and Donald Trump's Justice Department lawyers, and the

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Speaker 4: Supreme Court has said that you can not in the

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Speaker 4: power of the federal courts on a collusive case. The

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Speaker 4: federal courts are only there to resolve genuinely adverse controversies,

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Speaker 4: which this is not.

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Speaker 1: This was settled and they avoided a Wednesday deadline in

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Speaker 1: court that would have had them explain whether a case

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Speaker 1: or controversy exists. So they seem to have settled this

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Speaker 1: to get around having to appear in court and explain

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Speaker 1: this case.

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Speaker 4: Yeah, they're really trying to have it both ways. They

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Speaker 4: settled it in a big hurry this weekend to avoid

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Speaker 4: having to explain to the courts why this could be

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Speaker 4: a case, because they can't, so they make the case

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Speaker 4: go away before the judge can dismiss it for lack

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Speaker 4: of jurisdiction. But they use the fact that this case

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Speaker 4: was here as a justification for this settlement, which provides

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Speaker 4: a slush fund for whomever President Trump wants to serve.

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Speaker 1: Doesn't the court usually have to approve a settlement.

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Speaker 4: The court has to approve a settlement that involves an

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Speaker 4: order of the court, but this settlement provided for the

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Speaker 4: dismissal of President Trump's claims, and courts generally don't have

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Speaker 4: to do that. There are a few exceptions, but this

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Speaker 4: doesn't really fall into one of them.

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Speaker 1: The Justice Department has already been approving seven figure payouts

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Speaker 1: for some Trump allies who claimed they were wrongfully investigated

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Speaker 1: or prosecuted. For example, one point twenty five million to

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Speaker 1: former Trump national security advisor Michael Flynn, who had actually

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Speaker 1: pleaded guilty to line to the FBI, and a similar

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Speaker 1: amount to Carter Paige, a former advisor for Trump's twenty

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Speaker 1: sixteen campaign. So that's already going on. How is this

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Speaker 1: fund different?

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Speaker 4: This is different because it isn't paying damages. I would

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Speaker 4: be a terribly offended if President Trump ordered the fund

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Speaker 4: to pay him some large sum of money. That would

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Speaker 4: be another example of abuse of the fun inclusive litigation.

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Speaker 4: But this goes much farther. This is basically taking away

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Speaker 4: the power of the purse from Congress. It is creating

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Speaker 4: a whole new program that Congress never authorized, that Congress

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Speaker 4: never appropriated a dime for, and creating it entirely within

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Speaker 4: the executive branch to spend tax dollars.

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Speaker 1: How did they even come up with this number one

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Speaker 1: point eight billion dollars? Where did that even come from?

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Speaker 4: Well, I'm guessing it came from some marketing person because

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Speaker 4: it's one point seven seven six billion dollars, which I

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Speaker 4: guess is meant to invoke what happened in the beginning

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Speaker 4: of our revolution. But that's rather ironic because our revolution

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Speaker 4: was against a king who claimed absolute power to himself

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Speaker 4: and didn't take legislatures and the people very seriously. It's

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Speaker 4: ironic in the extreme that we are naming something after

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Speaker 4: our moment of liberty that collapses a very important part

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Speaker 4: of that liberty.

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Speaker 1: They're saying that there is going to be a committee,

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Speaker 1: but the president can fire anyone he wants on the committee.

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Speaker 1: I mean, are there any safeguards in place?

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Speaker 4: Absolutely none. This is at one hundred percent slush fund.

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Speaker 4: The President or the Attorney General will appoint, without Senate confirmation,

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Speaker 4: all five members of this committee. If any of them

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Speaker 4: do anything the President doesn't like, he can fire them

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Speaker 4: and replace them with whomever he wants. So the committee

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Speaker 4: is completely subservient to the president on both a macrell

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Speaker 4: and a micro level. So this is allowing the president

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Speaker 4: to distribute one point seven seven six billion dollars to

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Speaker 4: whomever he wants, based on whatever they want. There are

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Speaker 4: plenty of people sitting in federal prison right now who

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Speaker 4: are clearly innocent and can prove it. But the Supreme

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Speaker 4: Court has sharply narrowed habeas corpus and similar forms of relief,

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Speaker 4: So the fact that you are actually innocent is not

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Speaker 4: sufficient to get your conviction overturned. These are people who

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Speaker 4: have no evidence that they were innocent, have no evidence

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Speaker 4: of prosecutorial misconduct, none of that's required here. We're simply

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Speaker 4: paying them because they are on Team Trump.

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Speaker 1: I mean, is there anything you can compare this fund

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Speaker 1: to where the idea even came from.

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Speaker 4: Well, I could probably find you some precedence in Tammany

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Speaker 4: Hall and other corrupt political machines. I wouldn't be surprised

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Speaker 4: if Victor Horbon had a few of these kicking around.

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Speaker 4: But within the context of American democracy, No. The Dustice

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Speaker 4: Department's press release compares this to a fund that compensated

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Speaker 4: Native Americans under the Obama ministry, but that was an

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Speaker 4: adversarial lawsuit between the plaintiffs and the Justice Department, and

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Speaker 4: that settlement was approved by a court. It was a

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Speaker 4: court order, and had there been anything improper there, the

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Speaker 4: court was entirely free to reject it if it thought

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Speaker 4: the litigation was collusive, if it thought the settlement was

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Speaker 4: unjust or was not in the interest in the United States,

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Speaker 4: there were clear safeguards. By contrast, this whole thing is

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Speaker 4: designed to avoid judicial scrutiny. They didn't want the judicial

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Speaker 4: scrutiny that would come tomorrow with a court saying, how

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Speaker 4: can you possibly be adverse to one another when you're

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Speaker 4: both controlled by Donald J. Trump.

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Speaker 1: You've written about this for the Balkanization. Explain why you

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Speaker 1: think this fund is unlawful.

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Speaker 4: Article one of our constitutions says that no money shall

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Speaker 4: be drawn from the Treasury except where Congress has enacted

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Speaker 4: and appropriation, and the Anti Deficiency Act, which goes back

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Speaker 4: over one hundred years, gives teeth to that and makes

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Speaker 4: it a federal crime with two years in prison if

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Speaker 4: you distribute federal funds without a valid appropriation. This is

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Speaker 4: an attempt to circumvent that. They're claiming they can use

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Speaker 4: the judgment fund, which is an appropriation, but it's four

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Speaker 4: settlements arrived at in accordance with law, and one provision

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Speaker 4: of federal law says you cannot obtain the jurisdiction of

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Speaker 4: the federal courts collusively. Another provision of federal law says

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Speaker 4: that federal lawyers have to follow the same ethical rules

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Speaker 4: that apply in their states, and those rules prohibit collusive litigation.

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Speaker 4: So the very fact that this case is Donald Trump

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Speaker 4: versus Donald Trump means that it is not eligible to

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Speaker 4: be settled under the judgment fund.

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Speaker 1: So, in light of the settlement, the judge has closed

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Speaker 1: the case involving Trump's suit against the irs. But Democrats

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Speaker 1: are asking a court to block the settlement, saying it

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Speaker 1: lacks the bare minimum required to file a lawsuit. Two

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Speaker 1: opposing parties and nearly one hundred Democrats signed in a

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Speaker 1: meekus brief in the District Court for the Southern District

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Speaker 1: of Florida. But do they have standing to bring a lawsuit?

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Speaker 4: Arguably they don't need standing, because every federal court is

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Speaker 4: obliged to determine its own jurisdiction even if nobody was standing.

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Speaker 4: Raises it if you and I decide that we're going

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Speaker 4: to have a lawsuit in federal court and there's no jurisdiction.

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Speaker 4: The court will kick us out, even though you and

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Speaker 4: I are both very happy to be there. So the

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Speaker 4: Democrats can ask the case to be kicked out. The

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Speaker 4: problem is it already has been. That's the essence of

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Speaker 4: the settlement is that Trump the plaintiff, agreed with Trump

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Speaker 4: the defendant, to dismiss the case. And the worst that

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Speaker 4: a court could do probably is dismiss the case. I

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Speaker 4: suppose they could sanction the lawyers.

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Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 1: this conversation with Georgetown Law professor David Super. Are there

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Speaker 1: any remaining legal impediments to this weaponization fund? I'm June

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Speaker 1: Grosso and you're listening to Bloomberg. The US government has

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Speaker 1: agreed to permanently drop tax claims against President Trump as

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Speaker 1: part of a settlement deal to resolve Trump's ten billion

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Speaker 1: dollar lawsuit against the Internal Revenue Service over the leak

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Speaker 1: of his tax returns. The same deal is resulting in

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Speaker 1: a nearly one point eight billion dollar fund to compensate

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Speaker 1: individuals who believe they were targeted politically. I've been talking

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Speaker 1: to Professor David Super of Georgetown Law. David doesn't seem

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Speaker 1: like the Justice Department has covered all the bases. Is

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Speaker 1: there any legal impediment to this fund?

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Speaker 4: I don't think so. Usually when the administration does something

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Speaker 4: Congress doesn't like, the answer is, well, cut off funding.

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Speaker 4: But here Congress never provided funding for something like this,

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Speaker 4: so there's no funding to cut off. Congress. I suppose

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Speaker 4: could try to pass a law saying don't do this.

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Speaker 4: The President would obviously veto it. But even if they

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Speaker 4: did that, the President would say what's done is done.

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Speaker 4: This is gone. The Supreme Court could entertain a lawsuit

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Speaker 4: that this is unconstitutional. The Supreme Court held many years

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Speaker 4: ago that the only way to enforce the establishment clause

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Speaker 4: that prohibits government from funding religion is to allow individual

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Speaker 4: taxpayers to sue that their moneies are being inappropriately spent.

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Speaker 4: They could say absolutely the same thing about the appropriation's clause,

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Speaker 4: that when taxpayers allege that their money is being taken

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Speaker 4: without an appropriation from Congress, that they can get into court.

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Speaker 4: But given how cooperative this Supreme Court has been with

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Speaker 4: the president, I don't see that very likely.

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Speaker 1: And so we had Todd blanche in his testimony not

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Speaker 1: ruling out anything, not ruling out heyout to people who

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Speaker 1: are convicted of attacking police officers. So there are no

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Speaker 1: boundaries here. Also, there's no indication that any of this

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Speaker 1: would be known to the public. You know, Blanche started

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Speaker 1: talking about privacy concerns.

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Speaker 4: Well, they require a confidential report of who is paid

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Speaker 4: to be submitted to the Attorney General. Now, what is

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Speaker 4: and it's not a public record is not a matter

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Speaker 4: for the Attorney General or the president to determine. It's

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Speaker 4: a matter of the Freedom of Information Act. So I

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Speaker 4: believe there's a good chance that this will eventually come out.

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Speaker 4: But in the meantime, they have a slush fund that

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Speaker 4: they can pay any one they want. And saying we

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Speaker 4: wouldn't make a payment to people who assaulted police isn't

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Speaker 4: very persuasive from people who have pardoned or commuted the

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Speaker 4: sentences of people who assaulted police. Clearly, if you assault

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Speaker 4: police on behalf of team Trump, there's a different standard.

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Speaker 1: We've watched as Todd Blanche has had James Comi indicted,

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Speaker 1: he has you know, indicted the Southern Poverty Law Center.

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Speaker 1: You know, people say this is sort of him trying out,

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Speaker 1: trying to be the attorney general that Trump wants. This

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Speaker 1: seems to be like the highlight of it. They're doing

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Speaker 1: this without any supervision from a court, just doing what

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Speaker 1: they want. It seems to me like one of the

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Speaker 1: most egregious things the Justice Department has done under Trump.

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Speaker 4: They have been for some time taking advantage of the

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Speaker 4: Supreme Court's restrictions on access to federal court to do

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Speaker 4: things that are not legally defensible, but where they won't

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Speaker 4: be forced to defend themselves in court because the Supreme

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Speaker 4: Court disallows the challenges. So the notion of doing something

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Speaker 4: that's unlawful but unlitigable is actually old news for these people.

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Speaker 4: They didn't put together something that's legal here. They actually

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Speaker 4: misdrafted the papers. So this isn't really eligible for payment

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Speaker 4: from the judgment fund because the amount that is specified

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Speaker 4: in the press releases is not in the settlement papers.

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Speaker 4: So you can't say that they have to draw one

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Speaker 4: point seven seven six billion from the judgment fund to

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Speaker 4: settle the case, because on the terms they settle it

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Speaker 4: for one dollar would suffice everything above. That is Todd

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Speaker 4: Blanche giving a gift to his boss, probably in the

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Speaker 4: hopes of getting the word acting knocked off of his title.

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Speaker 1: And I just wanted to explain. So there is a

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Speaker 1: fund where the Justice Department doesn't have to get court

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Speaker 1: approval and can pay out settlements to people like it

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Speaker 1: has done to Michael Flynn, even though Michael Flynn had

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Speaker 1: pleaded guilty and then took it back and Carter Page.

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Speaker 1: So they have other ways of compensating people that they

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Speaker 1: want to without needing any approval from a court.

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Speaker 4: They do so in that sense, this is nothing new.

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Speaker 4: This is taking it to an industrial scale, and it's

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Speaker 4: saving the people who were tried and convicted of assaulting

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Speaker 4: Congress or other unlawful acts and saying you don't have

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Speaker 4: to pay for a lawyer, you don't have to file acclaim,

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Speaker 4: you don't have to go through the procedures anyone else

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Speaker 4: would go through. Just send us a letter, tell us

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Speaker 4: how you were harmed, and the check will be in

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Speaker 4: the mail.

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Speaker 1: The second Trump administration has been all about trying to

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Speaker 1: erase what happened on January sixth, and it seems to

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Speaker 1: be more and more blatant, and that the Justice Department

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Speaker 1: doesn't care anymore about following the rules, or at least

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Speaker 1: giving the appearance of following the rules.

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Speaker 4: No, they don't, and the very sloppiness with which this

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Speaker 4: is drafted. The huge departures between the press release and

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Speaker 4: what's actually in the document, and the blatant disregard of

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Speaker 4: federal law and the Constitution is rather striking. Here, I

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Speaker 4: should say this is not limited to January sixth people. Indeed,

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Speaker 4: January sixth isn't even mentioned in the settlement, So it's

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Speaker 4: whomever they want to give money to. If you want

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Speaker 4: to give money to a campaign worker who says that

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Speaker 4: they were stressed out when Trump lost, there's nothing to

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Speaker 4: stop them from doing that and no way to check it.

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Speaker 4: The only limitation here, and this may be real, is

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Speaker 4: that because these are payments without a valid appropriation, they

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Speaker 4: are violations of the Anti Deficiency Act, which means they're felonies.

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Speaker 4: And I think most people will expect that on the

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Speaker 4: way out, President Trump will arden Todd Blanche and Stanley

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Speaker 4: Woodard and all the top level people. But if you're

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Speaker 4: a rank and file Treasury or Justice Department official and

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Speaker 4: you're being asked to participate in this thing, this is

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Speaker 4: a felony. You are perting yourself in personal criminal jeopardy.

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Speaker 4: The statute of limitations is five years, which will run

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Speaker 4: after this term of presidency is over. I think we're

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Speaker 4: going to see some people making some very difficult choices

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Speaker 4: in those agencies as to whether they want to be

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Speaker 4: involved with this and risk criminal liability.

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Speaker 1: This issue, though, does seem to be resonating with people.

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Speaker 4: I think this is resonating with people because of the

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Speaker 4: blatancy of the corruption of it. I was speaking earlier

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Speaker 4: to a reporter from another country, and she said, excuse

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Speaker 4: me for asking. I'm from such and such a country,

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Speaker 4: which is very corrupt, and I said, well, I'm an

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Speaker 4: American and at this point we're pretty corrupt too.

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Speaker 1: A New York State Court judge has ruled that secutors

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Speaker 1: can use a gun and notebook seized from Luigi Mangioni's

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Speaker 1: backpack against him at his trial for the killing of

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Speaker 1: United Healthcare Group executive Brian Thompson, but ruled that other

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Speaker 1: evidence was improperly obtained. Judge Gregory Carro said police had

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Speaker 1: obtained a warrant when they seized evidence, including a nine

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Speaker 1: millimeter gun and a notebook where Mangioni discussed his desire

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Speaker 1: to quote Whack a CEO, but that officers in Altoona, Pennsylvania,

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Speaker 1: improperly searched his backpack at a McDonald's earlier that day,

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Speaker 1: joining me his former federal prosecutor Robert Mintz, a partner.

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Speaker 1: McCarter in English, Bob, give us the background here to.

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Speaker 3: Set the stage here, police responded to a McDonald's in Altuna,

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Speaker 3: Pennsylvania after receiving a call about a suspicious person who

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Speaker 3: looked like the alleged shooter of United Healthcare CEO Brian Thompson.

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Speaker 3: Local police showed up and began questioning mister Mangioni and

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Speaker 3: later searched his backpack.

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Speaker 4: The focus of.

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Speaker 3: The hearing was whether or not the evidence discovered by

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Speaker 3: local police and later by the federal government in connection

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Speaker 3: with the search of the backpack would be admissible at trial, and.

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Speaker 1: The defense claimed that the police needed a warrant before

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Speaker 1: they could search.

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Speaker 4: Yeah.

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Speaker 3: So this is really interesting because it was a critical

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Speaker 3: hearing for the defense. Should the defense succeed here and

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Speaker 3: should the court have ruled that the evidence that was

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Speaker 3: later found in Luigi Mangioni's backpack would be excluded a trial,

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Speaker 3: it would have been a huge setback for prosecutors. There

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Speaker 3: was an enormous amount at stake here for both sides.

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Speaker 3: The defense argued in a day's long hearing last December

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Speaker 3: that the evidence in the backpack should be thrown out

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Speaker 3: because police searched the backpack, which contained mister many belongings,

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Speaker 3: without a warrant. They said that basically police did not

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Speaker 3: follow a proper protocol, that he posed no threat to

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Speaker 3: them at the time, and that there was no basis

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Speaker 3: to search the backpack. And the fact is that a

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Speaker 3: warrant was not obtained for the search of that backpack

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Speaker 3: until seven hours after mister Mangioni was in.

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Speaker 1: Custody and tell us about the judges ruling.

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Speaker 3: So the judge ultimately issued a mixed ruling, which was

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Speaker 3: largely a victory for prosecutors but also gave some small

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Speaker 3: victory to the defense. The judge ruled that prosecutors could

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Speaker 3: use certain evidence that was seized at an inventory search

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Speaker 3: later at the police station, but could not allow evidence

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Speaker 3: that they seized during a search at the McDonald's. Basically,

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Speaker 3: the judge decided that the search at the McDonald's that

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Speaker 3: was conducted while they were questioning mister Mangioni was an illegal, improper,

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Speaker 3: warrantless search. The prosecution tried to argue that local police

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Speaker 3: searched the backpack at the McDonald's for public safety reasons,

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Speaker 3: but the judge did not accept that, saying that the

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Speaker 3: backpack had been moved out of mister mangoni's reach and

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Speaker 3: no longer posed any public health or safety issue, and

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Speaker 3: therefore that search was not permitted. There was a subsequent

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Speaker 3: search after mister Mangioni was arrested and brought to the

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Speaker 3: police station. That was an inventory search, in other words,

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Speaker 3: a search that was done in connection with going through

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Speaker 3: the belongings of somebody who was then under arrest. An

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Speaker 3: items seized during that inventory search, the judge said, would

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Speaker 3: be permitted to be used by prosecutors at the trial.

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Speaker 1: Why to take police seven hours to get a search warrant?

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Speaker 1: I mean, is that unusual? They concluded that it was

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Speaker 1: Luigi Mangoni, and he was the suspect before they left

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Speaker 1: that McDonald's.

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Speaker 3: Well, once they arrested him, they certainly could have obtained

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Speaker 3: a warrant based upon evidence that they had. Mister Mangoni

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Speaker 3: had presented a false identification, and there was other evidence

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Speaker 3: that they had that tied him to the crime, and

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Speaker 3: he was certainly a prime suspect at that point in time.

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Speaker 3: Prosecutors could have gotten a warrant, but waited, and instead

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Speaker 3: local police searched the backpack in connection with this inventory

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Speaker 3: and the judge allowed it in. That would have been

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Speaker 3: a major blow to the prosecution if that evidence was excluded,

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Speaker 3: but in this case the judge excluded certain items. He

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Speaker 3: excluded for example, a loaded magazine, a passport, a wallet,

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Speaker 3: a cell phone, and a computer chip. All of those

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Speaker 3: items were taken from mister Mangoni's backpack at the McDonald's,

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Speaker 3: and the judge ruled that that was an improper warrantless search.

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Speaker 3: But the big victory here for prosecutors was at the

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Speaker 3: subsequent search back at the police station, they found a

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Speaker 3: gun which was allegedly the weapon u to shoot the

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Speaker 3: victim here, and also a notebook that contained, according to prosecutors,

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Speaker 3: mister mangon He's manifesto. This is where he has writings

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Speaker 3: where he goes on about national health care and about

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Speaker 3: how insurance companies are doing damage to people by delaying

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Speaker 3: and denying them coverage. This is really the critical piece

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Speaker 3: of evidence because it goes to his intent, it goes

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Speaker 3: to a state of mind, and there's no question the

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Speaker 3: prosecutors will be relying largely on that notebook and on

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Speaker 3: what they will allege is the murder weapon itself. When

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Speaker 3: this case goes to.

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Speaker 1: Trial, why do you think the federal judge, who look

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Speaker 1: at the same circumstances decide to let everything in.

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Speaker 4: Yeah, that's a good question.

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Speaker 3: He had two judges, one State Cork judge, one federal judge.

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Speaker 3: They were applying different law. The New York judge looked

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Speaker 3: at the case differently than the federal judge.

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Speaker 4: The federal judge.

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Speaker 3: Allowed everything in. As you said, there was nothing that

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Speaker 3: was suppressed by the federal judge in the second trial.

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Speaker 3: But the State a Cork judge here, I think, was

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Speaker 3: somewhat troubled by what went on at the McDonald's and

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Speaker 3: suppressed certain pieces of evidence, But at the end of

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Speaker 3: the day, the critical pieces of evidence was allowed in.

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Speaker 3: And I think here, when you look at the decision

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Speaker 3: by the State Cork judge, he put great weight on

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Speaker 3: the fact that the police officers began to search through

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Speaker 3: the backpack and when they found the gun magazine, they

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Speaker 3: immediately stopped. They also found the notebook, but allegedly did

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Speaker 3: not look in to see what the writings were, but

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Speaker 3: they stopped searching at that point, and the court seemed

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Speaker 3: to give certain weight to the fact that they held

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Speaker 3: off searching at that point and then did not continue

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Speaker 3: to search until mister Mangoni was in custody back at

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Speaker 3: the police station, and then the search was done in

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Speaker 3: an inventory search, not at a search incident to arrest

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Speaker 3: at the McDonald's.

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Speaker 1: So, defense attorneys often, I don't know always, but very

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Speaker 1: often make motions to have evidence suppressed. Have you ever

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Speaker 1: seen a case where the judge was, I don't know,

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Speaker 1: gutsy enough to throw out all the evidence from a

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Speaker 1: tainted search. I mean, it seems like these are just

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Speaker 1: uphill battles, no matter what the facts are.

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Speaker 3: Well, they are uphill battles. And you're absolutely right that

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Speaker 3: this is the type of motion that is made in

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Speaker 3: every criminal case. Whenever there is a search, whether it's

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Speaker 3: done by search warrant, or a search is in to arrest,

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Speaker 3: and evidence is obtained as a result of that search

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Speaker 3: that's critical to the prosecution, the first thing defense lawyers

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Speaker 3: are going to do is to try to suppress that evidence,

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Speaker 3: because if that evidence doesn't come in at trial in

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Speaker 3: certain cases, it can be very difficult for prosecutors to

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Speaker 3: make their case. This case, given all the notoriety and

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Speaker 3: the publicity surrounding it, put enormous weight on the court

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Speaker 3: in making a decision, because a judge, when you put

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Speaker 3: in a difficult circumstance if they rule to suppress key

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Speaker 3: evidence in a case like this where there's so much publicity.

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Speaker 3: But in this case, the word judge certainly spent a

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Speaker 3: long time. There was an extensive hearing, There were days

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Speaker 3: of testimony. They judge sat through hours and hours of

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Speaker 3: bodycam video footage and her testimony from many law enforcement

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Speaker 3: officers on the scene at the time of the arrest.

439
00:27:15,800 --> 00:27:18,520
Speaker 3: So the judge spent a considerable amount of time considering

440
00:27:18,560 --> 00:27:21,040
Speaker 3: this and then it took him months to finally render

441
00:27:21,040 --> 00:27:23,640
Speaker 3: a decision on this. But at the end of the day,

442
00:27:23,920 --> 00:27:27,199
Speaker 3: while he gave some small victory to the defense, he

443
00:27:27,280 --> 00:27:30,119
Speaker 3: did largely rule in favor of the prosecution. And if

444
00:27:30,119 --> 00:27:33,119
Speaker 3: you're the prosecutor and you have the alleged murder weapon

445
00:27:33,440 --> 00:27:36,760
Speaker 3: and you have the notebook containing the alleged manifesto, you're

446
00:27:36,760 --> 00:27:39,159
Speaker 3: feeling pretty good about your chances of conviction at the

447
00:27:39,240 --> 00:27:39,840
Speaker 3: end of a trial.

448
00:27:40,040 --> 00:27:43,160
Speaker 1: Yeah, so, now let's talk about statements that man Gioni

449
00:27:43,280 --> 00:27:48,200
Speaker 1: made to police in the McDonald's. The judge also parsed

450
00:27:48,240 --> 00:27:53,159
Speaker 1: that very carefully down to the minute, after.

451
00:27:52,920 --> 00:27:58,919
Speaker 3: Hearing extensive testimony from law enforcement about the circumstances surrounding

452
00:27:58,960 --> 00:28:02,520
Speaker 3: the arrest. The court ultimately rule that statements made by

453
00:28:02,520 --> 00:28:06,119
Speaker 3: mister Mangeoni at the McDonald's before he was in custody

454
00:28:06,600 --> 00:28:09,600
Speaker 3: will be allowed as evidence a trial, but not statements

455
00:28:09,600 --> 00:28:12,680
Speaker 3: he made in response to police questioning after he was

456
00:28:12,720 --> 00:28:15,320
Speaker 3: in custody. The judge said he would allow jurors hear

457
00:28:15,560 --> 00:28:19,639
Speaker 3: mister Mangoni's statements to correction officers while he was incarcerated,

458
00:28:19,840 --> 00:28:23,960
Speaker 3: but that's because those statements were, the judge found spontaneous

459
00:28:24,080 --> 00:28:28,240
Speaker 3: or part of casual conversation and not in response to questioning.

460
00:28:28,480 --> 00:28:31,280
Speaker 3: So what the judge basically did here is he found

461
00:28:31,320 --> 00:28:35,159
Speaker 3: that the statements that were made before mister Mangoni was

462
00:28:35,240 --> 00:28:37,520
Speaker 3: actually in custody we're.

463
00:28:37,440 --> 00:28:38,800
Speaker 4: Going to be allowed.

464
00:28:39,160 --> 00:28:42,959
Speaker 3: But he did find that once he decided to no

465
00:28:43,040 --> 00:28:47,000
Speaker 3: longer talk with law enforcement, that law enforcement should have

466
00:28:47,000 --> 00:28:50,280
Speaker 3: stopped questioning him, and statements he made in response to

467
00:28:50,320 --> 00:28:52,760
Speaker 3: that questioning after he was in custody will not be

468
00:28:52,760 --> 00:28:56,400
Speaker 3: permitted at the trial. Will be admitted, and so prosecutors,

469
00:28:56,440 --> 00:28:59,000
Speaker 3: I think are not too discouraged by this ruling.

470
00:29:00,200 --> 00:29:02,640
Speaker 1: Point. As you mentioned, it seems like the strategy of

471
00:29:02,680 --> 00:29:05,160
Speaker 1: the defense has been in both the federal and the

472
00:29:05,200 --> 00:29:08,280
Speaker 1: state case to try to get evidence excluded, to try

473
00:29:08,320 --> 00:29:12,240
Speaker 1: to get statements excluded. Now we're coming up on trial

474
00:29:12,840 --> 00:29:16,800
Speaker 1: and I'm wondering what the defense strategy could be in

475
00:29:16,880 --> 00:29:19,880
Speaker 1: light of the fact that the prosecution has so much evidence,

476
00:29:20,280 --> 00:29:24,320
Speaker 1: seemingly has so much evidence tying him to the scene.

477
00:29:24,360 --> 00:29:27,720
Speaker 1: I mean, we haven't heard anything about it insanity defense

478
00:29:27,960 --> 00:29:31,200
Speaker 1: or anything like that. Is it just jury nullification.

479
00:29:31,760 --> 00:29:35,040
Speaker 3: Well, there's a huge difference between being a prosecutor and

480
00:29:35,080 --> 00:29:37,640
Speaker 3: being a defense lawyer in the way the case is

481
00:29:37,680 --> 00:29:41,480
Speaker 3: presented a trial. Prosecutors have the burden of proof. It's

482
00:29:41,480 --> 00:29:44,160
Speaker 3: beyond a reasonable doubt. It's the highest standard in our

483
00:29:44,280 --> 00:29:48,880
Speaker 3: legal system, and so their job is to present overwhelming

484
00:29:48,960 --> 00:29:51,960
Speaker 3: evidence that the defendant is guilty. The defense, on the

485
00:29:52,040 --> 00:29:54,840
Speaker 3: other hand, doesn't have to present anything. They don't have

486
00:29:54,880 --> 00:29:57,360
Speaker 3: to put their client on the stand, they don't have

487
00:29:57,400 --> 00:30:01,880
Speaker 3: to present any witnesses. They have no proof whatsoever, and

488
00:30:01,960 --> 00:30:05,920
Speaker 3: so what they will typically do is not necessarily present

489
00:30:06,000 --> 00:30:09,960
Speaker 3: a counter narrative, in other words, a different version of events.

490
00:30:10,320 --> 00:30:13,240
Speaker 3: But they will try to poke holes in the government's case.

491
00:30:13,280 --> 00:30:15,200
Speaker 3: And so what they'll do is they'll see the way

492
00:30:15,240 --> 00:30:18,480
Speaker 3: the case goes into trial, They'll cross examine the government's witnesses,

493
00:30:18,840 --> 00:30:22,320
Speaker 3: and if they can find any area where the government

494
00:30:22,400 --> 00:30:25,239
Speaker 3: may have a weakness, they try to exploit that and

495
00:30:25,400 --> 00:30:28,880
Speaker 3: ultimately argue to the jury that there's reasonable doubt here

496
00:30:28,920 --> 00:30:31,760
Speaker 3: that the government has not met its burden. So I

497
00:30:31,800 --> 00:30:34,320
Speaker 3: suspect what will happen here is that the defense will

498
00:30:34,360 --> 00:30:38,880
Speaker 3: be largely based on the government's not meeting its burden

499
00:30:38,880 --> 00:30:44,400
Speaker 3: of proof, arguing that the prosecution could have presented more evidence,

500
00:30:44,640 --> 00:30:48,440
Speaker 3: that the prosecution hasn't nailed down every piece of evidence

501
00:30:48,720 --> 00:30:51,800
Speaker 3: tying luigi ev angility to this crime. But at the

502
00:30:51,840 --> 00:30:55,600
Speaker 3: same time, I think we can certainly expect the undercurrents

503
00:30:55,640 --> 00:30:59,760
Speaker 3: of a jury nullification argument, and that is basically arguing

504
00:30:59,800 --> 00:31:04,000
Speaker 3: tours that even if the defendant committed the crime, you

505
00:31:04,080 --> 00:31:07,760
Speaker 3: shouldn't convict him for some other reason. It's not a

506
00:31:07,960 --> 00:31:12,120
Speaker 3: legal defense, it's more of an emotional reaction by jurors.

507
00:31:12,480 --> 00:31:15,920
Speaker 3: And this case has already generated a ground spoil of

508
00:31:16,000 --> 00:31:21,160
Speaker 3: support for Luigi Mangioni, which is surprising. He allegedly gunns

509
00:31:21,200 --> 00:31:24,240
Speaker 3: somebody down in cold blood on the streets of New York,

510
00:31:24,320 --> 00:31:26,920
Speaker 3: and yet there are many people even showing up at

511
00:31:26,960 --> 00:31:29,959
Speaker 3: these hearings so far, and certainly will be present at

512
00:31:30,000 --> 00:31:34,280
Speaker 3: the trials supporting him because of the position he allegedly

513
00:31:34,360 --> 00:31:38,080
Speaker 3: took with regard to healthcare in this country, and specifically

514
00:31:38,080 --> 00:31:42,239
Speaker 3: with regard to health insurers who many people, according to

515
00:31:42,280 --> 00:31:48,080
Speaker 3: mister Mangione's manifesto and others, believe are improperly denying people

516
00:31:48,400 --> 00:31:52,120
Speaker 3: reimbursement and the ability to have access to proper health care.

517
00:31:52,400 --> 00:31:54,600
Speaker 3: So I think you can expect to see the defense

518
00:31:54,680 --> 00:31:58,160
Speaker 3: play that card and play that up at trial in

519
00:31:58,200 --> 00:32:01,320
Speaker 3: the hopes that at least one menamber of the jury

520
00:32:01,760 --> 00:32:04,760
Speaker 3: may be sympathetic to him and to his cause and

521
00:32:04,840 --> 00:32:08,120
Speaker 3: to be willing to overlook some of the evidence that

522
00:32:08,200 --> 00:32:11,040
Speaker 3: prosecutors have at trial, and if they can get even

523
00:32:11,120 --> 00:32:13,880
Speaker 3: one juror to agree with them, lay will at least

524
00:32:13,880 --> 00:32:16,800
Speaker 3: get a mistrial and prosecutors will have to try the

525
00:32:16,840 --> 00:32:17,880
Speaker 3: case all over again.

526
00:32:18,280 --> 00:32:20,440
Speaker 1: Bob, do you think it'll be difficult to get a

527
00:32:20,520 --> 00:32:22,760
Speaker 1: jury because this is the kind of case. I mean,

528
00:32:22,840 --> 00:32:26,080
Speaker 1: not only people who sympathize with him. But there are

529
00:32:26,080 --> 00:32:29,120
Speaker 1: people who want to get on famous cases, and I'm

530
00:32:29,120 --> 00:32:31,640
Speaker 1: wondering how hard it will be to, you know, for

531
00:32:31,760 --> 00:32:34,800
Speaker 1: the state. I guess mostly for the state to sift

532
00:32:34,840 --> 00:32:35,920
Speaker 1: those people out.

533
00:32:36,320 --> 00:32:36,480
Speaker 2: Well.

534
00:32:36,960 --> 00:32:39,040
Speaker 3: As you say, a very high profile case, you're going

535
00:32:39,120 --> 00:32:41,920
Speaker 3: to find lots of jurors who will have heard about

536
00:32:41,920 --> 00:32:45,200
Speaker 3: this case. But the standard for getting on the jury,

537
00:32:45,520 --> 00:32:48,960
Speaker 3: when jurors are questioned by the court and questioned by

538
00:32:49,240 --> 00:32:52,200
Speaker 3: both council is not whether they know anything about the case,

539
00:32:52,480 --> 00:32:56,040
Speaker 3: but whether they can remain impartial. In other words, whether

540
00:32:56,160 --> 00:32:59,080
Speaker 3: they can make a decision based solely on the evidence

541
00:32:59,120 --> 00:33:02,400
Speaker 3: that's presented at the trial and not based upon any

542
00:33:02,480 --> 00:33:07,120
Speaker 3: outside information or any preconceived notions going into the trial.

543
00:33:07,480 --> 00:33:10,000
Speaker 3: A case like this, there is a lot of notoriety.

544
00:33:10,040 --> 00:33:11,760
Speaker 3: There may be people who will want to be on

545
00:33:11,920 --> 00:33:15,080
Speaker 3: the jury just for the opportunity to say that they

546
00:33:15,120 --> 00:33:17,120
Speaker 3: sat in a jury for a case like this that

547
00:33:17,160 --> 00:33:19,960
Speaker 3: has so much publicity, And both sides are going to

548
00:33:19,960 --> 00:33:24,360
Speaker 3: be challenged to pictures who each side believes could be fair.

549
00:33:24,680 --> 00:33:27,960
Speaker 3: Prosecutors are going to look for somebody who is by

550
00:33:28,000 --> 00:33:31,760
Speaker 3: the book, who follows the rules, a law enforcement type

551
00:33:31,760 --> 00:33:37,240
Speaker 3: of person, not somebody who necessarily has a particular bent

552
00:33:37,440 --> 00:33:40,920
Speaker 3: towards social justice and that sort of thing, more of

553
00:33:40,960 --> 00:33:43,560
Speaker 3: a law and order type person, while the defense is

554
00:33:43,600 --> 00:33:46,640
Speaker 3: going to be looking for jurors who might look at

555
00:33:46,640 --> 00:33:50,120
Speaker 3: the case through a different lens, somebody who will listen

556
00:33:50,560 --> 00:33:53,520
Speaker 3: to the arguments that they may make, not only about

557
00:33:53,520 --> 00:33:57,160
Speaker 3: the insufficiency of the government's evidence, but also perhaps be

558
00:33:57,280 --> 00:34:02,000
Speaker 3: sympathetic to mister Mangioni's overall cause if you believe the

559
00:34:02,040 --> 00:34:05,560
Speaker 3: information that was presented in his notebook, and if the

560
00:34:05,560 --> 00:34:09,960
Speaker 3: defense argues that the information in the notebook was something

561
00:34:10,000 --> 00:34:13,600
Speaker 3: that mister mange Joni believed, although he never acted on

562
00:34:13,680 --> 00:34:16,480
Speaker 3: those statements, and they're going to certainly deny that he

563
00:34:16,520 --> 00:34:18,960
Speaker 3: committed the crime. So they're going to be looking for

564
00:34:18,960 --> 00:34:21,760
Speaker 3: two very different types of jurors. That'll be very interesting

565
00:34:21,800 --> 00:34:24,880
Speaker 3: to see who ultimately ends up on this jury and

566
00:34:25,040 --> 00:34:29,080
Speaker 3: which sides gets more jurors who might be predisposed to

567
00:34:29,160 --> 00:34:30,400
Speaker 3: listen to their arguments.

568
00:34:30,719 --> 00:34:34,680
Speaker 1: Thanks so much, Bob. That's former federal prosecutor Robert Mintz,

569
00:34:34,760 --> 00:34:37,600
Speaker 1: a partner at Carter in English. And that's it for

570
00:34:37,640 --> 00:34:40,279
Speaker 1: this edition of The Bloomberg Law Show. Remember you can

571
00:34:40,320 --> 00:34:43,520
Speaker 1: always get the latest legal news on our Bloomberg Law Podcast.

572
00:34:43,800 --> 00:34:46,839
Speaker 1: You can find them on Apple Podcasts, Spotify, and at

573
00:34:47,000 --> 00:34:52,040
Speaker 1: www dot bloomberg dot com, slash podcast slash Law, and

574
00:34:52,120 --> 00:34:55,160
Speaker 1: remember to tune into The Bloomberg Law Show every weeknight

575
00:34:55,239 --> 00:34:58,719
Speaker 1: at ten pm Wall Street Time. I'm June Grosso and

576
00:34:58,760 --> 00:35:03,279
Speaker 1: you're listening to bloom