1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,520 --> 00:00:12,479 Speaker 1: The most conservative federal appellate court in the country, the 3 00:00:12,480 --> 00:00:15,600 Speaker 1: Fifth Circuit Court of Appeals topped the list of the 4 00:00:15,640 --> 00:00:18,880 Speaker 1: circuits most reversed by the Supreme Court for the third 5 00:00:18,960 --> 00:00:22,280 Speaker 1: year in a row. The Justices reversed the Fifth Circuit 6 00:00:22,560 --> 00:00:26,000 Speaker 1: eight times out of eleven cases, or in roughly seventy 7 00:00:26,040 --> 00:00:31,240 Speaker 1: three percent of cases. The reversals included some high profile cases, 8 00:00:31,800 --> 00:00:36,520 Speaker 1: like that involving a Mississippi law allowing absentee ballots postmarked 9 00:00:36,520 --> 00:00:39,880 Speaker 1: by election day and received up to five days later 10 00:00:40,240 --> 00:00:43,239 Speaker 1: to be counted, a law the Supreme Court upheld in 11 00:00:43,280 --> 00:00:46,479 Speaker 1: a five to four decision, and Trump appointees on the 12 00:00:46,520 --> 00:00:51,040 Speaker 1: Fifth Circuit fared very poorly. The Justices heard four cases 13 00:00:51,040 --> 00:00:54,400 Speaker 1: from the Fifth Circuit decided by panels with a majority 14 00:00:54,440 --> 00:00:58,920 Speaker 1: of Trump appointees, and reversed in all. My guest is 15 00:00:58,960 --> 00:01:02,560 Speaker 1: an expert in constitutional law, Harold Krant, a professor at 16 00:01:02,560 --> 00:01:05,600 Speaker 1: the Chicago Kent College of Law. What do you think 17 00:01:05,640 --> 00:01:08,360 Speaker 1: the Fifth Circuit is getting reversed so much? 18 00:01:09,240 --> 00:01:12,959 Speaker 2: You know, I think it may be close to statistical anomaly. 19 00:01:13,480 --> 00:01:16,279 Speaker 3: The cases were various. There is not a theme. 20 00:01:16,760 --> 00:01:20,360 Speaker 2: They weren't even necessarily highly politicized cases as they were 21 00:01:20,640 --> 00:01:23,400 Speaker 2: the last two terms from the Fifth Circuit. So I 22 00:01:23,440 --> 00:01:25,760 Speaker 2: wouldn't put that much stock in the fact that the 23 00:01:25,760 --> 00:01:29,120 Speaker 2: Fifth Circuit was the most overruled this year. It just 24 00:01:29,480 --> 00:01:31,800 Speaker 2: happened some way and sometimes obviously. 25 00:01:31,760 --> 00:01:33,640 Speaker 3: The rate overall is very high. 26 00:01:33,440 --> 00:01:36,640 Speaker 2: At seventy percent in terms of reversals, and so this 27 00:01:36,760 --> 00:01:38,600 Speaker 2: is just a pope puri of cases. There were a 28 00:01:38,600 --> 00:01:41,200 Speaker 2: little bit under the radar, and it wasn't even as 29 00:01:41,280 --> 00:01:44,240 Speaker 2: ideologically charged as some of the decisions have been in 30 00:01:44,280 --> 00:01:47,200 Speaker 2: the last couple of years. So you know, sometimes just 31 00:01:47,240 --> 00:01:50,240 Speaker 2: the numbers are the numbers, and you sort of shake your. 32 00:01:50,200 --> 00:01:51,240 Speaker 3: Head and said, that's odd. 33 00:01:51,560 --> 00:01:54,240 Speaker 2: And that's where they think the Fifth Circuit reversal rate 34 00:01:54,440 --> 00:01:55,480 Speaker 2: stands for this year. 35 00:01:55,840 --> 00:01:58,280 Speaker 1: So, I mean, it used to be years ago that 36 00:01:58,360 --> 00:02:01,640 Speaker 1: it was always the Ninth Circuit that was getting reversed, 37 00:02:01,840 --> 00:02:04,200 Speaker 1: and you know, because it was on the liberal side, 38 00:02:04,640 --> 00:02:07,880 Speaker 1: And this year the Ninth Circuit came in fourth for reversals. 39 00:02:08,400 --> 00:02:10,600 Speaker 1: Is it because the Ninth Circuit is not quite as 40 00:02:10,600 --> 00:02:11,720 Speaker 1: liberal as it used to be. 41 00:02:12,160 --> 00:02:14,360 Speaker 3: I think the Ninth Circuit has changed. I mean, I 42 00:02:14,440 --> 00:02:16,120 Speaker 3: certainly agree with that observation. 43 00:02:16,480 --> 00:02:20,000 Speaker 2: And again, the circuits sometimes don't have ideologically charged cases. 44 00:02:20,000 --> 00:02:22,040 Speaker 2: There are just a lot of cases about how to 45 00:02:22,760 --> 00:02:26,519 Speaker 2: make sure that the circuits are uniform in terms of 46 00:02:26,560 --> 00:02:28,760 Speaker 2: their view of a law, whether it's you know, with 47 00:02:28,840 --> 00:02:33,520 Speaker 2: port law or question of trust law, and so these 48 00:02:33,600 --> 00:02:36,680 Speaker 2: cases just sometimes need to be reconciled and it's not 49 00:02:36,760 --> 00:02:38,560 Speaker 2: a matter of ideological shift. 50 00:02:38,600 --> 00:02:42,000 Speaker 1: The first Circuit I thought this was unusual. You may 51 00:02:42,000 --> 00:02:44,960 Speaker 1: say a statistical anomaly or whatever, but the First Circuit, 52 00:02:45,080 --> 00:02:49,680 Speaker 1: which generally leans liberal, had two cases reviewed and they 53 00:02:49,720 --> 00:02:52,880 Speaker 1: were both affirmed. I mean, does that say anything. Is 54 00:02:52,919 --> 00:02:54,640 Speaker 1: the First Circuit more in line with the Court? 55 00:02:54,880 --> 00:02:55,519 Speaker 3: I don't think so. 56 00:02:55,760 --> 00:02:58,240 Speaker 2: This is too much of a small sample size to 57 00:02:58,280 --> 00:03:02,520 Speaker 2: really draw any conclusion from that kind of data. You know, 58 00:03:02,560 --> 00:03:05,080 Speaker 2: I do think that the Fifth Circuit, as you start 59 00:03:05,160 --> 00:03:08,519 Speaker 2: out with, has been quite conservative and was at loggerheads 60 00:03:08,520 --> 00:03:11,520 Speaker 2: with the Biden administration. So it's not surprising that a 61 00:03:11,520 --> 00:03:14,000 Speaker 2: lot of the cases went to the Supreme Court just 62 00:03:14,000 --> 00:03:16,040 Speaker 2: the way it was when the Ninth Circuit years ago 63 00:03:16,160 --> 00:03:18,359 Speaker 2: was very liberal until a lot of the cases came 64 00:03:18,440 --> 00:03:20,440 Speaker 2: up to the Supreme Court. But in one or two 65 00:03:20,520 --> 00:03:22,959 Speaker 2: cases in the Circuit, I don't think you can really 66 00:03:23,120 --> 00:03:26,560 Speaker 2: judge any kind of developments or evolution on that basis. 67 00:03:26,840 --> 00:03:28,720 Speaker 1: Do you think that the judges on the Fifth Circuit 68 00:03:28,720 --> 00:03:31,720 Speaker 1: are more willing to test the envelope and push the 69 00:03:31,840 --> 00:03:33,200 Speaker 1: law in the mole? 70 00:03:33,240 --> 00:03:35,480 Speaker 2: I absolutely believe that in the cases that I've read, 71 00:03:35,640 --> 00:03:37,680 Speaker 2: in the areas that I've studied, which is mostly the 72 00:03:37,800 --> 00:03:40,440 Speaker 2: administry of law power of the executive, they. 73 00:03:40,280 --> 00:03:42,920 Speaker 3: Are very willing to push the envelope. 74 00:03:43,080 --> 00:03:45,600 Speaker 2: And you know, it's no secret that two members of 75 00:03:45,600 --> 00:03:49,080 Speaker 2: the Fifth Circuit are interested in being nominated by President 76 00:03:49,160 --> 00:03:51,240 Speaker 2: Trump in case there's another opening, as of course there 77 00:03:51,320 --> 00:03:54,200 Speaker 2: was rumored to be. So I think that that plays 78 00:03:54,240 --> 00:03:56,840 Speaker 2: all into the fact that the Fifth Circuit is known 79 00:03:56,920 --> 00:03:59,760 Speaker 2: for being more veterous than some of their sisters. 80 00:04:00,440 --> 00:04:04,240 Speaker 1: So let's discuss some of the cases, and one very 81 00:04:04,280 --> 00:04:07,360 Speaker 1: high profile left into the last week of the term 82 00:04:07,400 --> 00:04:12,040 Speaker 1: that says a lot Watson versus rn C, and the 83 00:04:12,240 --> 00:04:16,600 Speaker 1: justices upheld the Mississippi law allowing absentee ballots postmarked by 84 00:04:16,640 --> 00:04:19,320 Speaker 1: election day and received it up to five days later 85 00:04:19,360 --> 00:04:20,080 Speaker 1: to be counted. 86 00:04:20,440 --> 00:04:21,240 Speaker 4: That reversed. 87 00:04:21,320 --> 00:04:26,000 Speaker 1: A Fifth Circuit panel composed of three judges appointed by Trump. 88 00:04:26,440 --> 00:04:29,320 Speaker 1: The Justice has heard four cases from the Fifth Circuit 89 00:04:29,440 --> 00:04:33,240 Speaker 1: decided by majority Trump appointed panels and reversed in all 90 00:04:33,279 --> 00:04:37,680 Speaker 1: of them. Are the Trump appointees more conservative than other 91 00:04:37,880 --> 00:04:38,960 Speaker 1: judges on the circuit? 92 00:04:39,240 --> 00:04:41,520 Speaker 2: I don't think they're conservative in the old fashioned sense 93 00:04:41,560 --> 00:04:44,720 Speaker 2: of conservative with the small c but they're very much 94 00:04:45,000 --> 00:04:48,200 Speaker 2: in line with the administration and they're sympathetic to the 95 00:04:48,200 --> 00:04:52,840 Speaker 2: administration's goals. So I think that they view some of 96 00:04:52,880 --> 00:04:55,960 Speaker 2: the cases before them from that lens, which is understandable, 97 00:04:56,240 --> 00:04:59,400 Speaker 2: and so that's why their decisions can be reviewed. And 98 00:04:59,440 --> 00:05:02,440 Speaker 2: sometimes we've even by the what we consider to be 99 00:05:02,440 --> 00:05:03,839 Speaker 2: a conservative Supreme Court today. 100 00:05:04,200 --> 00:05:07,600 Speaker 1: You know, I've noticed that with the DC Circuit a 101 00:05:07,600 --> 00:05:11,200 Speaker 1: lot of times when there are two to one decisions 102 00:05:11,640 --> 00:05:16,280 Speaker 1: with two Trump appointees in the majority and a Democratic 103 00:05:16,320 --> 00:05:19,760 Speaker 1: appointee in descent, the Circuit will agree to have an 104 00:05:19,760 --> 00:05:22,919 Speaker 1: on bank hearing, and then the case usually gets reversed. 105 00:05:22,920 --> 00:05:27,440 Speaker 1: Because there are more Democratic appointees than Republican appointees on 106 00:05:27,480 --> 00:05:30,320 Speaker 1: the DC's circuit. The Fifth Circuit apparently has a high 107 00:05:30,440 --> 00:05:35,000 Speaker 1: rate of reviewing decisions on bank compared to other circuits, 108 00:05:35,440 --> 00:05:39,960 Speaker 1: And I'm wondering why when twelve of its seventeen judges 109 00:05:40,160 --> 00:05:41,720 Speaker 1: are Republican appointees. 110 00:05:42,640 --> 00:05:46,640 Speaker 2: I think that there's still ideological divisions on the Fifth Circuit, 111 00:05:47,000 --> 00:05:49,800 Speaker 2: and they have a preference to making sure that they're 112 00:05:49,839 --> 00:05:52,840 Speaker 2: all on a court and that they've vetted the issues. 113 00:05:53,080 --> 00:05:55,080 Speaker 2: And I think some of that is healthy to make 114 00:05:55,160 --> 00:05:56,960 Speaker 2: sure if they think it's an important case, that they 115 00:05:56,960 --> 00:05:59,320 Speaker 2: get the whole court to weigh in, and so it's 116 00:05:59,360 --> 00:06:02,840 Speaker 2: not just having the prospect of one panel against another panel. 117 00:06:03,160 --> 00:06:06,000 Speaker 2: So in that sense, I think it's actually a a 118 00:06:06,000 --> 00:06:10,040 Speaker 2: healthy development that there is more kind of percolation of 119 00:06:10,040 --> 00:06:12,880 Speaker 2: these issues before the Fifth Circuit makes a final decision. 120 00:06:13,560 --> 00:06:15,599 Speaker 2: That being said, of course, as you point out, the 121 00:06:15,600 --> 00:06:19,520 Speaker 2: Fifth Circuit is probably the most ideologically aligned with President 122 00:06:19,560 --> 00:06:20,920 Speaker 2: Trump in the entire country. 123 00:06:21,600 --> 00:06:26,039 Speaker 1: When the Supreme Court reverses a circuit, do the judges 124 00:06:26,080 --> 00:06:30,120 Speaker 1: on the panel that gets reversed are they embarrassed? You know? 125 00:06:30,560 --> 00:06:34,440 Speaker 1: Sometimes the Court is pretty snippy in the comments they 126 00:06:34,440 --> 00:06:36,800 Speaker 1: make about the lower court decision. 127 00:06:37,320 --> 00:06:39,520 Speaker 3: I have talked to a number of judges about this. 128 00:06:39,880 --> 00:06:42,640 Speaker 2: Some judges view it as a badge of honor if 129 00:06:42,680 --> 00:06:45,719 Speaker 2: they're reversed by the Supreme Court, you know, Others try 130 00:06:45,880 --> 00:06:48,960 Speaker 2: perhaps at the margin to think through why they're were 131 00:06:49,080 --> 00:06:52,320 Speaker 2: reversed and try to change a little bit of their 132 00:06:52,320 --> 00:06:55,679 Speaker 2: approach in the future. But I think in today's world, 133 00:06:56,120 --> 00:07:00,200 Speaker 2: when we are so commonly look at judging as power 134 00:07:00,440 --> 00:07:02,919 Speaker 2: and people think about the Supreme Court as just a 135 00:07:03,320 --> 00:07:06,480 Speaker 2: powerful broker in our society, I don't think that judges 136 00:07:06,760 --> 00:07:09,720 Speaker 2: really feel I mean, they may feel upset that their 137 00:07:09,760 --> 00:07:13,600 Speaker 2: positions didn't win, but I don't think they feel chastised 138 00:07:13,760 --> 00:07:17,040 Speaker 2: or mortified at all just because they've been reversed by 139 00:07:17,080 --> 00:07:19,440 Speaker 2: the Supreme Court. They know that's part of the structure 140 00:07:19,720 --> 00:07:22,080 Speaker 2: and they know what they got into. 141 00:07:22,400 --> 00:07:24,720 Speaker 1: And maybe for the two judges who are looking to 142 00:07:24,720 --> 00:07:29,600 Speaker 1: be Supreme Court nominees, it is a badge of honor. Arguably, 143 00:07:29,720 --> 00:07:33,920 Speaker 1: the highest profile reversals of this term were the Supreme 144 00:07:33,960 --> 00:07:37,400 Speaker 1: Court reversing itself, and these were all six to three 145 00:07:37,480 --> 00:07:42,320 Speaker 1: decisions down ideological lines. So you had Trump v. Slaughter, 146 00:07:42,440 --> 00:07:46,840 Speaker 1: where the Court overturned its own ninety year old precedent 147 00:07:47,360 --> 00:07:51,840 Speaker 1: in Humphrey's Executor, giving the president more power. In another 148 00:07:51,880 --> 00:07:55,560 Speaker 1: case about campaign finance rules, the Court overturned a twenty 149 00:07:55,600 --> 00:08:01,080 Speaker 1: five year old case that placed limits on coordinateditures between 150 00:08:01,200 --> 00:08:05,960 Speaker 1: political parties and candidates, and while not technically a reversal, 151 00:08:06,360 --> 00:08:10,360 Speaker 1: the liberal justice has said, the Conservatives effectively gutted what 152 00:08:10,440 --> 00:08:13,800 Speaker 1: remained of the Voting Rights Act, and in the Cisco case, 153 00:08:14,280 --> 00:08:17,520 Speaker 1: the Court undid a core holding of a prior case. 154 00:08:18,320 --> 00:08:23,040 Speaker 1: This is all the Conservatives overturning so many decisions in 155 00:08:23,120 --> 00:08:24,000 Speaker 1: one term. 156 00:08:24,800 --> 00:08:27,760 Speaker 2: The Court's decisions do not reflect any reference for precedent, 157 00:08:28,320 --> 00:08:30,960 Speaker 2: and that is clear not just in the high level 158 00:08:30,960 --> 00:08:35,960 Speaker 2: cases of the Humphies executive being overruled after ninety years, 159 00:08:36,520 --> 00:08:40,040 Speaker 2: but in lesser cases as well, most particularly in the 160 00:08:40,160 --> 00:08:43,080 Speaker 2: Voting Rights Act, which is a kind of shocking turnabout, 161 00:08:43,320 --> 00:08:46,360 Speaker 2: but also as you mentioned in the campaign finance, and 162 00:08:46,840 --> 00:08:50,520 Speaker 2: the Court seemingly says, well, we're here, we're the Court, 163 00:08:50,960 --> 00:08:53,440 Speaker 2: and we don't really bound by another court. If we 164 00:08:53,520 --> 00:08:56,440 Speaker 2: deem that the voting rights tack should be narrowed, if 165 00:08:56,480 --> 00:09:00,320 Speaker 2: we deem that the presidential power should be expanded, it 166 00:09:00,400 --> 00:09:03,960 Speaker 2: despite the precedence. And so I think that's really all 167 00:09:04,360 --> 00:09:07,800 Speaker 2: clearly with the piece with the view of this court 168 00:09:07,880 --> 00:09:11,200 Speaker 2: as its activists. It's activists not in the ways of 169 00:09:11,240 --> 00:09:13,520 Speaker 2: the work cart, but it's activists in the ways of 170 00:09:13,640 --> 00:09:18,360 Speaker 2: trying to knit together their own conception of religious rights, 171 00:09:18,400 --> 00:09:21,720 Speaker 2: of dei of presidential power, and other. 172 00:09:21,600 --> 00:09:22,440 Speaker 3: Hot button issues. 173 00:09:22,840 --> 00:09:24,800 Speaker 1: So what do you teach in law school? I mean, 174 00:09:24,960 --> 00:09:26,800 Speaker 1: when I went to law school, you know, we learned 175 00:09:26,840 --> 00:09:29,559 Speaker 1: all about precedent and we study those cases that were 176 00:09:29,679 --> 00:09:32,480 Speaker 1: president I mean, what do you teach now about Supreme 177 00:09:32,520 --> 00:09:33,439 Speaker 1: Court interpretation. 178 00:09:33,800 --> 00:09:37,080 Speaker 2: President's still important as a background principle, but I think 179 00:09:37,200 --> 00:09:40,080 Speaker 2: you also have to be a realist and understand that 180 00:09:40,160 --> 00:09:45,600 Speaker 2: ideological priors and perspectives will change how court makes its decision. 181 00:09:46,280 --> 00:09:48,720 Speaker 2: And there are great examples of that from this term 182 00:09:49,040 --> 00:09:52,680 Speaker 2: and from others as well, So that sort of students 183 00:09:52,800 --> 00:09:55,320 Speaker 2: understand the rules of the game, but they understand that 184 00:09:55,400 --> 00:10:00,160 Speaker 2: politics and ideology can so called trump those kinds of neutral. 185 00:10:00,000 --> 00:10:02,880 Speaker 3: Principles, and litigators need to know that they do. 186 00:10:03,000 --> 00:10:05,959 Speaker 2: Know that they study individual justices, how they vote, how 187 00:10:05,960 --> 00:10:09,319 Speaker 2: they could sort of try to appeal to each individual 188 00:10:09,360 --> 00:10:11,800 Speaker 2: justices priors in the Supreme Court in order to get 189 00:10:11,960 --> 00:10:15,920 Speaker 2: their point across and hope for a victorious case. 190 00:10:16,120 --> 00:10:18,520 Speaker 1: Coming up next on the Bloomberg Lawn Show, I'll continue 191 00:10:18,520 --> 00:10:22,200 Speaker 1: this conversation with Professor Harold Krant to the Chicago Kent 192 00:10:22,360 --> 00:10:25,600 Speaker 1: College of Law more about the Supreme Court's term and 193 00:10:25,640 --> 00:10:30,480 Speaker 1: the ideological differences between the justices that were so apparent. 194 00:10:31,080 --> 00:10:37,360 Speaker 1: I'm June Grosso and you're listening to Bloomberg. The ideological 195 00:10:37,440 --> 00:10:41,840 Speaker 1: differences among the Supreme Court justices were never more apparent 196 00:10:41,920 --> 00:10:45,520 Speaker 1: than this term. Nearly a quarter of all rulings were 197 00:10:45,559 --> 00:10:49,800 Speaker 1: six to three, with Republican appointees in the majority and 198 00:10:49,920 --> 00:10:55,680 Speaker 1: Democratic appointees in dissent. That's up from eleven percent last term. 199 00:10:56,000 --> 00:11:00,000 Speaker 1: And Justice Elaina Kagan, the former Solicitor General and Hart 200 00:11:00,360 --> 00:11:04,640 Speaker 1: Law School dean widely viewed as a pragmatic consensus builder 201 00:11:04,679 --> 00:11:08,640 Speaker 1: on the Court, authored her first loan descent after more 202 00:11:08,679 --> 00:11:12,520 Speaker 1: than fifteen years on the bench. She told her colleagues 203 00:11:12,640 --> 00:11:16,319 Speaker 1: they missed the mark in a ruling about Cuban property seizures. 204 00:11:17,120 --> 00:11:19,720 Speaker 1: I've been talking to Professor Harold Krant of the Chicago 205 00:11:19,800 --> 00:11:24,079 Speaker 1: Kent College of Law. So Elena Kagan, during oral arguments 206 00:11:24,160 --> 00:11:28,320 Speaker 1: and in some of her descents, has complained about the 207 00:11:28,320 --> 00:11:32,920 Speaker 1: Court not following precedent. Are there any conservative justices who 208 00:11:33,400 --> 00:11:36,280 Speaker 1: do it here more to precedent than others who are 209 00:11:36,280 --> 00:11:37,520 Speaker 1: more concerned about it? 210 00:11:38,000 --> 00:11:41,440 Speaker 2: Not entirely, in my mind, I don't think there's any 211 00:11:41,600 --> 00:11:45,240 Speaker 2: kind of real fidelity to president amongst the conservatives, And 212 00:11:45,320 --> 00:11:48,200 Speaker 2: maybe that's probably not a sort of a cornerstone of 213 00:11:48,280 --> 00:11:52,400 Speaker 2: the liberals either. We're much more involved in sort of 214 00:11:52,559 --> 00:11:54,680 Speaker 2: a fight through the soul of the court, I think, 215 00:11:54,679 --> 00:11:57,600 Speaker 2: than we are worried about president these days. I mean, 216 00:11:57,640 --> 00:12:00,600 Speaker 2: obviously when really struck out this last term is the 217 00:12:00,720 --> 00:12:04,320 Speaker 2: strong six' three division in a quarter of the. Cases you, 218 00:12:04,360 --> 00:12:07,800 Speaker 2: know the six conservatives voting within themselves in a lot 219 00:12:07,800 --> 00:12:10,120 Speaker 2: of the, cases and the three there was voting on 220 00:12:10,240 --> 00:12:12,679 Speaker 2: the losing end in a. Lot so that's really it's 221 00:12:12,720 --> 00:12:15,280 Speaker 2: a larger percentage than their prior. TERMS i think that's 222 00:12:15,400 --> 00:12:19,000 Speaker 2: really the most significant. Development and you, know within that 223 00:12:19,040 --> 00:12:23,280 Speaker 2: we do see some swing, justices Mostly barrett And roberts 224 00:12:23,280 --> 00:12:27,200 Speaker 2: to some Extent, kavanaugh little lesser courses on some kind 225 00:12:27,240 --> 00:12:32,160 Speaker 2: of cases will. Split but you, Know alito And thomas. 226 00:12:31,760 --> 00:12:32,160 Speaker 3: Will not be. 227 00:12:32,240 --> 00:12:36,400 Speaker 2: Bunch so you see a fractured court and again heavily 228 00:12:36,440 --> 00:12:40,280 Speaker 2: ideological with a little bit of. Swing and as we, 229 00:12:40,320 --> 00:12:43,599 Speaker 2: saw you, know in the tariff's, case the birthright, case you, 230 00:12:43,640 --> 00:12:45,959 Speaker 2: know most importantly the ballot case that you mentioned from 231 00:12:45,960 --> 00:12:49,000 Speaker 2: The Fifth, circuit those were the cases where we saw 232 00:12:49,120 --> 00:12:52,760 Speaker 2: the new kinds of majorities. BUILT i think that's the 233 00:12:52,760 --> 00:12:54,480 Speaker 2: biggest takeaway from what we've. 234 00:12:54,520 --> 00:12:57,120 Speaker 1: Seen, yeah, so as you, mentioned nearly a quarter of 235 00:12:57,120 --> 00:13:01,000 Speaker 1: all rulings where six to three down id logical, lines 236 00:13:01,040 --> 00:13:03,319 Speaker 1: and that's up from eleven percent last, term so that's 237 00:13:03,440 --> 00:13:06,040 Speaker 1: quite a big. Jump the cases tended to be the 238 00:13:06,120 --> 00:13:10,480 Speaker 1: highest profile, cases the cultural issue. Cases we talked about 239 00:13:10,520 --> 00:13:15,400 Speaker 1: The slaughter, case expanding presidential, power the case eliminating campaign 240 00:13:15,520 --> 00:13:20,800 Speaker 1: finance restrictions for political, parties another reversal, there transgender women 241 00:13:20,840 --> 00:13:24,200 Speaker 1: and girls in sports. CASES i, mean these are cases 242 00:13:24,800 --> 00:13:28,360 Speaker 1: where you know you could almost predict that there's going 243 00:13:28,400 --> 00:13:33,200 Speaker 1: to be an ideological, split for, example anything involving LGBT 244 00:13:33,640 --> 00:13:37,800 Speaker 1: q rights or voting, RIGHTS i, mean is one of 245 00:13:37,800 --> 00:13:40,680 Speaker 1: the biggest takeaways from this, term the way The court 246 00:13:41,200 --> 00:13:44,079 Speaker 1: just hit the last nail in the coffin of The 247 00:13:44,160 --> 00:13:46,800 Speaker 1: Voting Rights act SOMETHING i. 248 00:13:46,880 --> 00:13:51,520 Speaker 2: AG i think your point that it's predictable is sad 249 00:13:51,640 --> 00:13:53,440 Speaker 2: but true in the sense that you can look at 250 00:13:53,440 --> 00:13:56,600 Speaker 2: the ideological priors of the justices and figure out how 251 00:13:56,640 --> 00:13:59,360 Speaker 2: they're doing a side in most of the big particularly 252 00:13:59,400 --> 00:14:03,920 Speaker 2: the socialistes such as you, know transgender, rights such as voting, 253 00:14:04,000 --> 00:14:07,560 Speaker 2: rights and we all know how those cases we're going 254 00:14:07,600 --> 00:14:10,480 Speaker 2: to end, up and there's still Some Fourth amendment cases 255 00:14:10,520 --> 00:14:14,760 Speaker 2: where the justices will cross ideological, lines and there's some 256 00:14:14,840 --> 00:14:18,760 Speaker 2: other kinds of you, know venue issues where the. 257 00:14:18,760 --> 00:14:19,320 Speaker 3: Lines will be. 258 00:14:19,320 --> 00:14:22,400 Speaker 2: Crossed but in the major social issues, cases that's WHERE 259 00:14:22,440 --> 00:14:26,560 Speaker 2: i think the distinctions become, very very drawn and the 260 00:14:26,600 --> 00:14:27,480 Speaker 2: results are easy to. 261 00:14:27,520 --> 00:14:30,600 Speaker 1: Predict and you, know when you hear the justices, talk 262 00:14:30,680 --> 00:14:32,880 Speaker 1: at least the, conservatives they always make a point to 263 00:14:32,920 --> 00:14:37,280 Speaker 1: stress this high rate of. Unanimity and there were unanimous 264 00:14:37,280 --> 00:14:40,160 Speaker 1: opinions in nearly forty five percent of, cases which is 265 00:14:40,160 --> 00:14:43,640 Speaker 1: in line with recent. Terms but what are those. CASES i, 266 00:14:43,640 --> 00:14:46,400 Speaker 1: mean it's mostly cases that we're not paying attention. 267 00:14:46,560 --> 00:14:49,920 Speaker 2: TO i, mean some people, are they're not the high 268 00:14:50,000 --> 00:14:54,200 Speaker 2: visibility political. Issues on the high visibility political, issues that's 269 00:14:54,240 --> 00:14:58,760 Speaker 2: where unanimity has totally gone out the. Window and we 270 00:14:58,880 --> 00:15:02,560 Speaker 2: see these deep set divisions among the justices with, again 271 00:15:02,960 --> 00:15:06,960 Speaker 2: luckily some kind of swing with You Chief, Justice Justice 272 00:15:07,000 --> 00:15:10,720 Speaker 2: barrett and to some, Extent Justice. Kavanaugh and you, know 273 00:15:10,760 --> 00:15:13,400 Speaker 2: that's the. Court even If Justice alito, leaves it's not 274 00:15:13,440 --> 00:15:15,800 Speaker 2: going to. Change and we're going to see more of 275 00:15:15,840 --> 00:15:16,800 Speaker 2: this in the coming. 276 00:15:16,880 --> 00:15:19,600 Speaker 1: Terms the numbers that we're talking, about you, know the 277 00:15:20,000 --> 00:15:23,840 Speaker 1: stat pack that was done On scotus. Blog that doesn't 278 00:15:23,880 --> 00:15:28,960 Speaker 1: take into account the emergency or shadow, docket where the 279 00:15:29,000 --> 00:15:35,520 Speaker 1: decisions disproportionately handed victories to The trump administration and usually 280 00:15:35,560 --> 00:15:37,400 Speaker 1: six to three as. WELL i, mean there were so 281 00:15:37,480 --> 00:15:41,480 Speaker 1: many of those cases that are not being counted here, right. 282 00:15:41,520 --> 00:15:44,160 Speaker 2: And the court it OPENS solf up to very serious 283 00:15:44,160 --> 00:15:47,600 Speaker 2: criticism bro operated those shadow doctor, cases AND i think, 284 00:15:47,760 --> 00:15:52,720 Speaker 2: justifiably without allowing percolation of the, issues without allowing vetting 285 00:15:52,760 --> 00:15:56,080 Speaker 2: of these important. Decisions they just really changed the law 286 00:15:56,200 --> 00:15:59,200 Speaker 2: on the ground by use of the shadow, docket and 287 00:15:59,240 --> 00:16:02,240 Speaker 2: that was done in the ideologically charged, way that same 288 00:16:02,320 --> 00:16:02,840 Speaker 2: kind of six'. 289 00:16:02,960 --> 00:16:05,720 Speaker 3: Three breakdown we'll. 290 00:16:05,520 --> 00:16:07,640 Speaker 1: Have to see how the summer goes for. The justices 291 00:16:08,120 --> 00:16:10,640 Speaker 1: last summer they were very busy with the. Shadow docket 292 00:16:10,640 --> 00:16:13,840 Speaker 1: we'll see if that happens again, this summer likely depending 293 00:16:13,840 --> 00:16:15,680 Speaker 1: on how many Emergencies the trump. 294 00:16:15,760 --> 00:16:20,920 Speaker 5: Administration has one emergency we've seen so Far Is president 295 00:16:20,960 --> 00:16:24,640 Speaker 5: trump Asking the court again to take up the Case Of, 296 00:16:24,680 --> 00:16:28,560 Speaker 5: eugene carroll the person who the jury found that he had. 297 00:16:28,600 --> 00:16:30,400 Speaker 3: SEXUALLY assaulted i don't think. 298 00:16:30,440 --> 00:16:32,400 Speaker 2: THEY will i would be shocked if they took it 299 00:16:32,480 --> 00:16:35,200 Speaker 2: up Just Because president trump, asked twice. 300 00:16:35,080 --> 00:16:37,320 Speaker 3: But that's going to be one of the tests on their. 301 00:16:37,320 --> 00:16:39,080 Speaker 3: IMMEDIATE horizon i mean. 302 00:16:38,920 --> 00:16:43,640 Speaker 1: He's using a different theory. This time his last appeal 303 00:16:43,680 --> 00:16:48,720 Speaker 1: focused on technical questions involving the federal rules of evidence for, 304 00:16:48,800 --> 00:16:52,720 Speaker 1: civil cases And The supreme court had turned away his 305 00:16:52,840 --> 00:16:57,560 Speaker 1: appeal without making. A Comment so trump had argued before 306 00:16:57,680 --> 00:17:00,440 Speaker 1: that the jurors shouldn't have been allowed to hear testimony 307 00:17:00,800 --> 00:17:05,000 Speaker 1: about two prior alleged sexual assaults or listen To The 308 00:17:05,040 --> 00:17:08,600 Speaker 1: access hollywood tape that we're all. FAMILIAR with, i mean 309 00:17:08,600 --> 00:17:11,440 Speaker 1: the second circuit had upheld, the verdict saying that the 310 00:17:11,480 --> 00:17:16,520 Speaker 1: testimony of the other alleged victims And The access hollywood 311 00:17:16,600 --> 00:17:21,040 Speaker 1: recording helped establish a pattern of Conduct. By trump is 312 00:17:21,080 --> 00:17:23,359 Speaker 1: that in line with? Other, CIRCUITS yeah i. 313 00:17:23,359 --> 00:17:26,160 Speaker 2: Mean there's always a question of course of conduct prior 314 00:17:26,280 --> 00:17:28,520 Speaker 2: bad acts and be abused that kind. Of evidence but 315 00:17:28,560 --> 00:17:33,800 Speaker 2: it becomes important in trying to figure out someone's method. 316 00:17:33,800 --> 00:17:39,160 Speaker 2: Of operations someone is inclined to precede a. Certain path 317 00:17:39,520 --> 00:17:42,159 Speaker 2: it's not a major break in, the law and so 318 00:17:42,240 --> 00:17:45,520 Speaker 2: the difficulty That The supreme court, Has, is yes sometimes 319 00:17:45,560 --> 00:17:49,240 Speaker 2: these kinds of evidentary rulings can be abused it can be, 320 00:17:49,720 --> 00:17:52,400 Speaker 2: second guests but unless there's going to be a new 321 00:17:52,520 --> 00:17:55,000 Speaker 2: kind of break in the law or an fhull new doctrine, 322 00:17:55,000 --> 00:17:59,200 Speaker 2: put on it's probably not. Certa worthy so it's doubtful 323 00:17:59,240 --> 00:18:01,679 Speaker 2: That the court, will that even if they're sympathetic and 324 00:18:01,720 --> 00:18:05,840 Speaker 2: they might Be To president, trump's CLAIMS that i doubt 325 00:18:05,880 --> 00:18:08,560 Speaker 2: they would find this would be worthy of A Full supreme. 326 00:18:08,560 --> 00:18:11,960 Speaker 1: Court review in the, New filing trump is saying that 327 00:18:12,400 --> 00:18:17,000 Speaker 1: the jury's verdict was tainted by the discussion at trial 328 00:18:17,160 --> 00:18:21,080 Speaker 1: of statements he made while he, was president and his 329 00:18:21,200 --> 00:18:24,280 Speaker 1: lawyers are contending that those are official acts for which 330 00:18:24,320 --> 00:18:28,280 Speaker 1: he's immune under that twenty Twenty Four supreme court ruling 331 00:18:28,800 --> 00:18:32,400 Speaker 1: that derailed criminal charges against him for trying to overturn 332 00:18:32,480 --> 00:18:36,560 Speaker 1: his twenty twenty. Election laws so could these be viewed as? 333 00:18:36,600 --> 00:18:40,080 Speaker 2: OFFICIAL acts i don't, think so because this particular issue 334 00:18:40,119 --> 00:18:43,320 Speaker 2: arose before he, was president and, you know we Have 335 00:18:43,560 --> 00:18:48,159 Speaker 2: the Clinton versus jones president that a president can't be 336 00:18:48,240 --> 00:18:52,359 Speaker 2: sued for pre, presidential ACTS and i think the court 337 00:18:52,840 --> 00:18:57,760 Speaker 2: is not inclined to second Guests the. Clinton PRESIDENT so 338 00:18:57,880 --> 00:19:01,200 Speaker 2: i think that on that, round alone they would not. 339 00:19:01,800 --> 00:19:05,679 Speaker 1: Rest for thanks, So much hallie appreciate your. Being Here 340 00:19:06,280 --> 00:19:09,199 Speaker 1: That's Professor harold krent Of A Chicago kent College of 341 00:19:09,320 --> 00:19:13,000 Speaker 1: law coming up next On The Bloomberg. Law SHOW the 342 00:19:13,080 --> 00:19:17,760 Speaker 1: DCUs Attorney jeanine piro charged a former olympian with a 343 00:19:17,800 --> 00:19:22,320 Speaker 1: felony over alleged vandalism Of The lincoln memorial. Reflecting pool 344 00:19:22,800 --> 00:19:26,800 Speaker 1: but will the charges even survive? Until Trial I'm june 345 00:19:26,840 --> 00:19:32,800 Speaker 1: grosso and you're Listening. TO bloomberg a THREE Time us 346 00:19:32,880 --> 00:19:37,760 Speaker 1: olympian is now facing a felony charge over alleged vandalism 347 00:19:37,880 --> 00:19:42,400 Speaker 1: Of The lincoln Memorial. Reflecting Pool, janeen PIRO the us ATTORNEY, 348 00:19:42,400 --> 00:19:45,520 Speaker 1: for dc Claimed that david hearn harmed the. 349 00:19:45,560 --> 00:19:50,840 Speaker 6: Pool intentionally this was a delivered act to damage the 350 00:19:50,920 --> 00:19:54,919 Speaker 6: reflecting pool At The national mall that members Of The 351 00:19:55,000 --> 00:20:00,159 Speaker 6: National park service actually have worked hard to restore and. 352 00:20:00,240 --> 00:20:04,160 Speaker 1: Have witnessed hearne has said that at no point did, he, remove, 353 00:20:04,400 --> 00:20:08,080 Speaker 1: ripped tear or damage any part of the reflecting pool's. 354 00:20:08,240 --> 00:20:11,600 Speaker 1: Blue coating he said he briefly touched a chunk that 355 00:20:11,760 --> 00:20:14,560 Speaker 1: was still attached to the side of, the pool then 356 00:20:14,640 --> 00:20:17,679 Speaker 1: let go shortly after a park worker told. Him to 357 00:20:18,119 --> 00:20:22,040 Speaker 1: at a, press conference Reporters asked Piero what hern allegedly 358 00:20:22,240 --> 00:20:24,280 Speaker 1: used to damage? The pool did he have? 359 00:20:24,280 --> 00:20:25,520 Speaker 3: Any tools or is it just a? 360 00:20:25,560 --> 00:20:29,000 Speaker 6: Spare hands, right now we believe it's his, bare hands. 361 00:20:29,000 --> 00:20:30,720 Speaker 6: Both hands so does that indicat. 362 00:20:30,440 --> 00:20:33,200 Speaker 3: In your belief that it was probably damaged before or. 363 00:20:33,119 --> 00:20:35,520 Speaker 6: Do you believe That, he oh he damaged, It. 364 00:20:35,440 --> 00:20:37,600 Speaker 3: Further but do you believe it had already been. 365 00:20:37,560 --> 00:20:39,320 Speaker 6: Damaged before he damaged? 366 00:20:39,320 --> 00:20:43,119 Speaker 1: THE pool i guess his former Federal Prosecutor, marissa darden 367 00:20:43,400 --> 00:20:47,480 Speaker 1: chair Of The White Collar government Investigations And Regulatory practice 368 00:20:47,520 --> 00:20:51,320 Speaker 1: Group At. Benish, law marissa even If what piero says, 369 00:20:51,520 --> 00:20:55,080 Speaker 1: is true does that merit a? Felony indictment so. 370 00:20:55,119 --> 00:20:57,080 Speaker 7: A couple of things that we should, talk about just 371 00:20:57,119 --> 00:20:59,679 Speaker 7: the kind of levels AT The Us attorney's office For 372 00:20:59,720 --> 00:21:04,919 Speaker 7: the District of columbia has concurrent jurisdiction between crimes that 373 00:21:05,040 --> 00:21:09,000 Speaker 7: happen In the District of columbia That violate District of 374 00:21:09,040 --> 00:21:12,520 Speaker 7: columbia law and federal laws. 375 00:21:12,200 --> 00:21:13,679 Speaker 4: That are violated Within the District. 376 00:21:13,680 --> 00:21:16,280 Speaker 7: Of columbia so there's Like the Department of justice writ, 377 00:21:16,359 --> 00:21:19,480 Speaker 7: large right AND The Us attorney's office For the District. 378 00:21:19,480 --> 00:21:23,080 Speaker 7: Of columbia they prosecute federal felonies and. 379 00:21:23,000 --> 00:21:25,640 Speaker 4: Misdemeanors and state or. 380 00:21:25,800 --> 00:21:31,919 Speaker 7: Local crimes so he's charged WITH Violating Dc code section 381 00:21:32,080 --> 00:21:35,200 Speaker 7: twenty two three, oh three which is not a federal 382 00:21:35,240 --> 00:21:38,680 Speaker 7: crime and not a. Federal felony and so on, one 383 00:21:38,720 --> 00:21:43,240 Speaker 7: hand You Know, jeanie parrot love her rhetoric, or whatever 384 00:21:43,359 --> 00:21:46,080 Speaker 7: and her interesting career before she WAS The us attorney 385 00:21:46,119 --> 00:21:48,800 Speaker 7: For the District, of columbia like she's dialing it up 386 00:21:49,040 --> 00:21:51,840 Speaker 7: in that, press conference no doubt. About it and one 387 00:21:51,880 --> 00:21:54,119 Speaker 7: of the ways that you know that they're trying to 388 00:21:54,160 --> 00:21:58,800 Speaker 7: be intellectually honest about the crimes that they're actually prosecuting 389 00:21:59,240 --> 00:22:02,560 Speaker 7: day to day is that they charged him WITH violating 390 00:22:02,640 --> 00:22:06,240 Speaker 7: dc law and not, federal law which they might have 391 00:22:06,280 --> 00:22:08,560 Speaker 7: been able to do given the fact that it's a 392 00:22:08,600 --> 00:22:11,040 Speaker 7: federal monument And The United States park service. 393 00:22:11,720 --> 00:22:15,480 Speaker 4: Has jurisdiction, So, yes june on, ONE. 394 00:22:15,280 --> 00:22:17,880 Speaker 7: Hand, i agree there's no need to get up there 395 00:22:17,920 --> 00:22:21,280 Speaker 7: and like rant, about that but that might be Performative 396 00:22:21,520 --> 00:22:25,800 Speaker 7: For president trump or. Other constituencies the way you know 397 00:22:25,840 --> 00:22:27,920 Speaker 7: that they're trying to be intellectually honest about this crime 398 00:22:27,960 --> 00:22:30,400 Speaker 7: is that they've charged him with a FELONY Violating dc. 399 00:22:30,400 --> 00:22:33,600 Speaker 1: Code explain why, that matters because. 400 00:22:33,359 --> 00:22:36,560 Speaker 8: If he's still there are judges In the District of 401 00:22:36,600 --> 00:22:40,119 Speaker 8: columbia That are District of, columbia judges so just Like 402 00:22:40,800 --> 00:22:44,719 Speaker 8: the City Of new York or chicago, has judges and 403 00:22:44,800 --> 00:22:46,280 Speaker 8: so their docket is. 404 00:22:46,400 --> 00:22:52,440 Speaker 7: Very full felonies are often handled by settling the cases. 405 00:22:52,040 --> 00:22:54,320 Speaker 4: For lower charges than what was. 406 00:22:54,359 --> 00:22:59,720 Speaker 7: Actually charged the dockets are, very busy, and ultimately, you 407 00:22:59,720 --> 00:23:03,040 Speaker 7: KNOW The Us attorney's office will be responsible for prosecuting, 408 00:23:03,040 --> 00:23:05,840 Speaker 7: those crimes but there are a host of other ways 409 00:23:05,840 --> 00:23:08,119 Speaker 7: that they can be resolved that are outside of the 410 00:23:08,160 --> 00:23:11,760 Speaker 7: federal system IN The Us, attorney's office EVEN in dc 411 00:23:11,920 --> 00:23:15,359 Speaker 7: that handles. Federal crimes once you're indicted by a federal, 412 00:23:15,400 --> 00:23:18,840 Speaker 7: grand jury there's a lot less options available to you 413 00:23:19,000 --> 00:23:22,320 Speaker 7: in how you resolve. The Matter so i'm not suggesting 414 00:23:22,359 --> 00:23:24,400 Speaker 7: that they're going to plea bargain this down to something 415 00:23:24,480 --> 00:23:26,960 Speaker 7: less than. A felony and there may be political or 416 00:23:27,000 --> 00:23:29,800 Speaker 7: other reasons why they decided to make the charges that. 417 00:23:29,840 --> 00:23:32,280 Speaker 7: THEY did i don't speak, to that but just from 418 00:23:32,320 --> 00:23:35,399 Speaker 7: like a, volume size the folks who work AT The 419 00:23:35,480 --> 00:23:38,879 Speaker 7: Us attorney's office ON The dc district, court side they have. 420 00:23:38,960 --> 00:23:41,920 Speaker 7: Full dockets they're. Very busy the judges. Are busy they're 421 00:23:42,000 --> 00:23:45,160 Speaker 7: just like any other big city courtroom where that things 422 00:23:45,160 --> 00:23:46,159 Speaker 7: get pled down to and. 423 00:23:46,200 --> 00:23:51,119 Speaker 1: So forth so he was initially arrested on a. Misdemeanor 424 00:23:51,240 --> 00:23:55,320 Speaker 1: charge is it often that it would be bumped up to? 425 00:23:55,720 --> 00:23:58,400 Speaker 1: A felony sometimes that's. 426 00:23:58,440 --> 00:24:01,679 Speaker 7: Not UNCOMMON so i was a state court prosecutor At 427 00:24:01,680 --> 00:24:04,399 Speaker 7: The Manhattan. DAY'S office i was a federal prosecutor AT 428 00:24:04,440 --> 00:24:08,200 Speaker 7: A us attorney's, office locally and there have definitely been 429 00:24:08,280 --> 00:24:11,200 Speaker 7: Cases that i've Experienced that i've handled where it came 430 00:24:11,280 --> 00:24:13,679 Speaker 7: in as one crime and it got charged as another 431 00:24:13,800 --> 00:24:17,480 Speaker 7: as the investigation. Went on and so, you know again 432 00:24:17,800 --> 00:24:20,160 Speaker 7: there are parts and pieces of this that may in fact. 433 00:24:20,160 --> 00:24:23,680 Speaker 4: BE political i don't. Question that but just from like a. 434 00:24:24,160 --> 00:24:27,960 Speaker 7: Day to day, prosecuting side The Assistant United states attorney 435 00:24:28,000 --> 00:24:30,880 Speaker 7: who's responsible for handling this case would have a process 436 00:24:31,000 --> 00:24:31,480 Speaker 7: just by. 437 00:24:31,400 --> 00:24:32,600 Speaker 4: Which they would evaluate any. 438 00:24:32,600 --> 00:24:36,480 Speaker 7: Other arrest they would speak to the, police officers try 439 00:24:36,520 --> 00:24:40,280 Speaker 7: to ascertain exactly what, happened here review, the facts and 440 00:24:40,400 --> 00:24:43,080 Speaker 7: determine how the facts apply to the law and what. 441 00:24:43,240 --> 00:24:43,800 Speaker 4: Might be the. 442 00:24:44,080 --> 00:24:48,000 Speaker 7: Appropriate charges my understanding is That The justice department now 443 00:24:48,160 --> 00:24:49,400 Speaker 7: is operating under. 444 00:24:49,480 --> 00:24:52,640 Speaker 4: A general understanding or a memo or. 445 00:24:52,880 --> 00:24:55,600 Speaker 7: A credo that they're supposed to put the maximum charges 446 00:24:55,640 --> 00:24:59,320 Speaker 7: allowable or possible on criminal defendants, in most if not. 447 00:24:59,400 --> 00:25:02,280 Speaker 7: All cases and so it would be consistent with that 448 00:25:02,880 --> 00:25:05,960 Speaker 7: edict that they might arrest him with a misdemeanor citation 449 00:25:06,200 --> 00:25:09,399 Speaker 7: and then investigate the case and determine that it violated 450 00:25:09,440 --> 00:25:10,600 Speaker 7: a FELONY under. 451 00:25:10,680 --> 00:25:15,560 Speaker 1: Dc code this reminds me a lot of another Case 452 00:25:15,640 --> 00:25:19,360 Speaker 1: where pierro called a, press conference and that was for 453 00:25:19,640 --> 00:25:22,120 Speaker 1: the guy who's now known as the sandwich guy who 454 00:25:22,200 --> 00:25:25,439 Speaker 1: threw a sandwich in the face of a ice agent, 455 00:25:25,600 --> 00:25:29,680 Speaker 1: last year and the grand jury refused to indict him for. 456 00:25:29,760 --> 00:25:33,399 Speaker 1: A felony he was ultimately charged with a misdemeanor assault 457 00:25:33,680 --> 00:25:38,520 Speaker 1: and acquitted. At trial and, you KNOW the dc grand 458 00:25:38,560 --> 00:25:42,679 Speaker 1: jury also refused to indict lawmakers who issued a video 459 00:25:42,960 --> 00:25:47,320 Speaker 1: statement telling soldiers they could refuse to obey. Illegal ORDERS 460 00:25:47,760 --> 00:25:51,879 Speaker 1: so i questioned how that grand jury returned a. Felony 461 00:25:51,920 --> 00:25:53,280 Speaker 1: here it's hard. 462 00:25:53,280 --> 00:25:55,280 Speaker 7: TO know, i mean grand juries are made up of 463 00:25:55,320 --> 00:25:58,400 Speaker 7: people just like YOU. And i usually somewhere between seventeen 464 00:25:58,400 --> 00:26:01,679 Speaker 7: and twenty three people there are provided evidence that the 465 00:26:01,760 --> 00:26:05,199 Speaker 7: prosecutor dictates they want the grand jury. To hear, you 466 00:26:05,200 --> 00:26:07,760 Speaker 7: know there's a reason why the stereotype is you can 467 00:26:07,800 --> 00:26:11,520 Speaker 7: indict A ham. Sandwich right that the prosecutor's office has 468 00:26:11,840 --> 00:26:15,199 Speaker 7: relatively full control over the witnesses that are brought in 469 00:26:15,240 --> 00:26:18,080 Speaker 7: before the grand jury and the information that they're provided 470 00:26:18,240 --> 00:26:19,640 Speaker 7: in order to return. 471 00:26:20,000 --> 00:26:21,280 Speaker 4: An indictment and. 472 00:26:21,560 --> 00:26:23,800 Speaker 7: That's not me saying that there was any funny. BUSINESS 473 00:26:23,840 --> 00:26:26,840 Speaker 7: here i don't speak, to That but i'm just saying 474 00:26:26,960 --> 00:26:30,600 Speaker 7: that the prosecutors would have clearly been able to control. 475 00:26:30,640 --> 00:26:35,159 Speaker 1: That narrative can a judge before trial either throw the 476 00:26:35,200 --> 00:26:39,480 Speaker 1: case out or lower the charges to a misdemeanor. 477 00:26:39,600 --> 00:26:41,959 Speaker 4: Upon motion from one or. Both, sides. 478 00:26:42,200 --> 00:26:45,840 Speaker 1: Absolutely yes he's got some well known defense attorneys and 479 00:26:45,880 --> 00:26:50,120 Speaker 1: they've issued a statement that this indictment represents the administration's 480 00:26:50,200 --> 00:26:54,000 Speaker 1: efforts to shift blame for their. Own failures there's been 481 00:26:54,080 --> 00:26:58,320 Speaker 1: a lot of press about the Problems after trump's renovation 482 00:26:58,880 --> 00:27:02,160 Speaker 1: of the reflecting so you can bet that they'll make 483 00:27:02,200 --> 00:27:03,440 Speaker 1: emotion and. 484 00:27:03,359 --> 00:27:06,879 Speaker 7: So oh absolutely and make several motions that this might be, 485 00:27:07,119 --> 00:27:11,360 Speaker 7: a persecution that, it's unwarranted that, the facts, you know 486 00:27:11,720 --> 00:27:13,440 Speaker 7: how they've been laid out either in the. 487 00:27:13,359 --> 00:27:14,439 Speaker 4: Press conference or in. 488 00:27:14,520 --> 00:27:18,160 Speaker 7: The indictment there's a host of factual and legal arguments 489 00:27:18,160 --> 00:27:20,520 Speaker 7: that the defense is going to mount to say exactly what, 490 00:27:20,520 --> 00:27:22,880 Speaker 7: you're saying, which is you know that this is there 491 00:27:22,920 --> 00:27:25,760 Speaker 7: may be a political reason, for this that if he 492 00:27:25,920 --> 00:27:28,439 Speaker 7: was simply just, you know in the, reflecting pool that 493 00:27:28,480 --> 00:27:31,360 Speaker 7: he didn't mean anything, by it that there was. No malintent, 494 00:27:31,880 --> 00:27:34,560 Speaker 7: you know the felony does come with a what we 495 00:27:34,600 --> 00:27:37,280 Speaker 7: call a mens rea or some level of, intentional action 496 00:27:37,480 --> 00:27:40,080 Speaker 7: and so if they can't, prove that that would be 497 00:27:40,080 --> 00:27:42,960 Speaker 7: a very difficult case. To mount and the judge certainly 498 00:27:43,000 --> 00:27:46,440 Speaker 7: has the authority to review those charges and make changes, 499 00:27:46,760 --> 00:27:50,439 Speaker 7: or dismiscounts or do a host of other things to 500 00:27:50,520 --> 00:27:52,720 Speaker 7: try to address those issues as they're. 501 00:27:52,720 --> 00:27:54,879 Speaker 1: Brought up do you have a feel for whether a 502 00:27:54,960 --> 00:27:58,879 Speaker 1: judge would at least knock this down to. A misdemeanor, 503 00:27:59,400 --> 00:28:00,560 Speaker 1: i don't if for no. 504 00:28:00,600 --> 00:28:03,199 Speaker 7: Other reason then on, one, hand yes the rhetoric is 505 00:28:03,280 --> 00:28:06,560 Speaker 7: high and the political nature of it. Feels icky but 506 00:28:06,600 --> 00:28:09,879 Speaker 7: on the, other hand in any, other administration, you, know, 507 00:28:10,359 --> 00:28:15,399 Speaker 7: defaming defiling or otherwise like vandalizing federal monuments would be 508 00:28:15,480 --> 00:28:18,800 Speaker 7: treated as a pretty. Serious, crime so, you know it 509 00:28:18,840 --> 00:28:20,360 Speaker 7: depends on what the facts are. 510 00:28:20,400 --> 00:28:23,280 Speaker 1: Some of the reporters brought up during the, press Conference 511 00:28:23,320 --> 00:28:26,800 Speaker 1: which piro did not take kindly to whether similar charges 512 00:28:26,840 --> 00:28:30,600 Speaker 1: could Face the january sixth defendants or The former january 513 00:28:30,640 --> 00:28:34,760 Speaker 1: sixth defendants who cause damage To the. Capital complex could 514 00:28:34,760 --> 00:28:36,480 Speaker 1: the defense bring that up or is it? 515 00:28:36,640 --> 00:28:40,240 Speaker 9: TOTALLY irrelevant a good defense attorney might be able to 516 00:28:40,320 --> 00:28:45,440 Speaker 9: fashion an argument that there is a potentially political play 517 00:28:45,560 --> 00:28:49,200 Speaker 9: here that isn't consistent with how the administration has been 518 00:28:49,200 --> 00:28:53,880 Speaker 9: handling similarly, Situated defendants that isn't often persuasive to, a 519 00:28:54,000 --> 00:28:55,760 Speaker 9: judge if for no, other reason. 520 00:28:55,560 --> 00:28:58,360 Speaker 7: Then the judges are supposed to evaluate the facts as 521 00:28:58,400 --> 00:28:59,440 Speaker 7: they are laid out to them on. 522 00:28:59,560 --> 00:29:03,360 Speaker 1: Individual, Basis also piro said her office is reviewing a 523 00:29:03,360 --> 00:29:07,640 Speaker 1: half dozen other cases relating to, alleged damage but she 524 00:29:07,760 --> 00:29:09,640 Speaker 1: expected some of those to result in. 525 00:29:09,680 --> 00:29:13,479 Speaker 7: MISDEMEANOR charges, i MEAN The dc code section twenty three 526 00:29:13,520 --> 00:29:15,600 Speaker 7: to three, oh three it has a misdemeanor provision. In 527 00:29:15,640 --> 00:29:17,960 Speaker 7: it so it's possible that there are some facts that are, 528 00:29:18,000 --> 00:29:22,479 Speaker 7: more aggressive or the vandalism is worth more more than one, 529 00:29:22,480 --> 00:29:25,000 Speaker 7: thousand dollars or, you know there's a host of other 530 00:29:25,000 --> 00:29:27,720 Speaker 7: factual considerations that the prosecutor's office would look at to 531 00:29:27,760 --> 00:29:30,480 Speaker 7: determine whether it would be appropriate to charge somebody under 532 00:29:30,480 --> 00:29:31,360 Speaker 7: a misdemeanor versus. 533 00:29:31,400 --> 00:29:34,240 Speaker 1: A felony she claimed that herne did one thousand dollars. 534 00:29:34,280 --> 00:29:37,200 Speaker 1: In damage when she was asked how she would, prove 535 00:29:37,280 --> 00:29:40,040 Speaker 1: that she snapped at the reporter, and said with, an 536 00:29:40,120 --> 00:29:43,600 Speaker 1: expert come to. The trial it's easy for a prosecutor, 537 00:29:43,600 --> 00:29:46,440 Speaker 1: to say we'll do it, at trial but. The defendant 538 00:29:46,840 --> 00:29:49,480 Speaker 1: maybe not, this defendant but most defendants then have to 539 00:29:49,520 --> 00:29:52,920 Speaker 1: go through how much time waiting and paying an attorney 540 00:29:53,000 --> 00:29:55,760 Speaker 1: and the angst of. All this it's not so easy for. 541 00:29:55,840 --> 00:29:58,160 Speaker 1: The defendant and that's what happens in a lot of. 542 00:29:58,200 --> 00:30:02,000 Speaker 7: These cases, Absolutely right and it is the sort of 543 00:30:02,640 --> 00:30:06,959 Speaker 7: down cycle peril of our criminal justice system that you 544 00:30:06,960 --> 00:30:11,320 Speaker 7: can mount the charges that you're not required to disclose 545 00:30:11,520 --> 00:30:15,560 Speaker 7: at the time of the charging document exactly how or 546 00:30:15,600 --> 00:30:18,480 Speaker 7: what evidence you will use to prove each and every 547 00:30:18,480 --> 00:30:21,840 Speaker 7: element of a crime beyond a. Reasonable doubt hopefully that 548 00:30:21,880 --> 00:30:25,239 Speaker 7: information will come out in discovery and as part of 549 00:30:25,320 --> 00:30:26,320 Speaker 7: the litigation of. 550 00:30:26,360 --> 00:30:27,800 Speaker 4: The case but she's. 551 00:30:28,000 --> 00:30:30,960 Speaker 7: TECHNICALLY right, i mean if they need to prove that it's, 552 00:30:30,960 --> 00:30:33,040 Speaker 7: a felony that the damages are worth more than one. 553 00:30:33,080 --> 00:30:35,840 Speaker 7: THOUSAND dollars i would expect there to be some expert 554 00:30:35,880 --> 00:30:38,520 Speaker 7: testimony or expert report about that that would come up 555 00:30:38,560 --> 00:30:39,080 Speaker 7: as part of the. 556 00:30:39,120 --> 00:30:41,920 Speaker 1: Discovery process we'll have to keep track of this as it. 557 00:30:41,960 --> 00:30:44,600 Speaker 1: Goes along thanks so much for joining, Me. Again Marissa 558 00:30:45,160 --> 00:30:48,480 Speaker 1: That's marissa Darden Of. Benish law and that's it for 559 00:30:48,480 --> 00:30:51,120 Speaker 1: this Edition Of The Bloomberg. Law show remember you can 560 00:30:51,160 --> 00:30:53,760 Speaker 1: always get the latest legal news On Our Bloomberg. Law 561 00:30:53,840 --> 00:30:57,440 Speaker 1: podcast you can find Them On, Apple, podcasts spotify and 562 00:30:57,520 --> 00:31:02,400 Speaker 1: at www dot bloomberg dot com Slash Podcast, slash law 563 00:31:02,800 --> 00:31:05,400 Speaker 1: and remember to Tune Into The Bloomberg law show every 564 00:31:05,440 --> 00:31:09,360 Speaker 1: weeknight at Ten Pm Wall. Street Time I'm june grosso 565 00:31:09,480 --> 00:31:11,080 Speaker 1: and you're Listening to bloomberg