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

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Speaker 1: The classified documents case against former President Donald Trump came

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Speaker 1: to us stunning an abrupt conclusion today as Florida Federal

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Speaker 1: Judge Eileen Cannon dismissed the case outright. The case charging

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Speaker 1: Trump with illegally hoarding classified documents was widely considered to

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Speaker 1: be the strongest against him, with the breadth of the evidence,

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Speaker 1: including surveillance footage from Trump's own security cameras at Mara

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Speaker 1: a Lago, the testimony of close aids and former lawyers,

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Speaker 1: and because the conduct occurred after Trump left the White

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Speaker 1: House in twenty twenty one and lost the powers of

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Speaker 1: the presidency. Cannon has faced criticism for her handling of

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Speaker 1: Trump's case, from the substance of her rulings to her

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Speaker 1: decision to indefinitely postpone setting a trial date. But this

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Speaker 1: decision came as a surprise even to her critics. My

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Speaker 1: guess is former federal Prosecutor Robert Mentz, a partner McCarter

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Speaker 1: and English Bob. Even though Judge Canon has issued a

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Speaker 1: lot of mystifying and unorthodox decisions, this decision dismissing the

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Speaker 1: entire classified Documents case still caught most legal experts by surprise.

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Speaker 2: This is really a stunning decision by the federal judge

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Speaker 2: of Florida just throw out entirely the classified documents case

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Speaker 2: against former President Trump. It's something that I would suspect

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Speaker 2: that not even the Trump legal team was expecting based

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Speaker 2: upon the hearing that they had on this issue before

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Speaker 2: the judge. But what the judge did here is basically

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Speaker 2: find that the appointment of the Special Council Jack Smith

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Speaker 2: violated the Constitution. It does not address the merits of

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Speaker 2: the case, it doesn't address the evidence, it doesn't address

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Speaker 2: a defense that was raised by the Trump legal team.

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Speaker 2: It's all about the appointment of the Special Council, and

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Speaker 2: the judge found because that was done improperly, the only

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Speaker 2: remedy is to dismiss the case.

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Speaker 1: Why did she say it was done improperly? How did

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Speaker 1: she find that?

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Speaker 2: Well? The judge wrote a ninety three page, very detailed

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Speaker 2: opinion which focused entirely on the Constitution's Appointments clause and

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Speaker 2: said that what happened here was that the appointment of

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Speaker 2: the Special Council was done inappropriately because it was a

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Speaker 2: violation of that clause. In other words, the judge found

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Speaker 2: that the appointment had to be approved by the Senate,

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Speaker 2: had to be confirmed by the Senate, given the level

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Speaker 2: of independence that jack Smith was given by Attorney General

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Speaker 2: Merrick Garland. The judge also found that the appointment violated

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Speaker 2: another clause in the Constitution having to do with the

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Speaker 2: expenditure of money that was not ultimately the basis for

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Speaker 2: the dismissal of the indictment, but she also found that

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Speaker 2: the appropriations clause also was violated here because money was

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Speaker 2: being spent improperly, again because it was done without congressional oversight.

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Speaker 1: Canon wrote that the issue of a special council was

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Speaker 1: a novel one, but it's not a novel one. This

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Speaker 1: has been decided by other courts before.

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Speaker 2: No, that's exactly right. This issue of an appointment of

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Speaker 2: a special council is something that has been done by

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Speaker 2: different administrations over the years, dating back many years. Both

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Speaker 2: Republicans and Democrats have used the special council as a

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Speaker 2: way to investigate politically sensitive cases and it has been

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Speaker 2: challenged before and every time in every court. This type

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Speaker 2: of appointment has been upheld not only by district courts

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Speaker 2: but also by the Court of appeal.

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Speaker 1: Also, she contrasted Smith's appointment with the appointment of David Wise,

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Speaker 1: who is the special counsel in the Hunter Biden case.

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Speaker 1: And she said, because Weiss was already a US attorney

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Speaker 1: and Smith was a private citizen when he was appointed.

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Speaker 1: But the Code of Federal Regulations says that a Special

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Speaker 1: Council appointee shall be selected from outside the federal government.

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Speaker 1: So where does she get that from.

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Speaker 2: Well, the case of David White was a situation where

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Speaker 2: the US Attorney had already been investigating Hunter Biden. Then

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Speaker 2: there was a change in administrations, so the US Attorney

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Speaker 2: in Delaware was appointed by President Trump when he was

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Speaker 2: in office, and President Biden decided, along with his Attorney General,

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Speaker 2: to allow that US Attorney to continue that investigation because

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Speaker 2: he was so politically sensitive, So it was essentially carried over. Now,

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Speaker 2: the US Attorney in Delaware is confirmed by the Senate,

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Speaker 2: as all US attorneys are. But the Special Council is

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Speaker 2: an entirely different role. It's being done in a situation

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Speaker 2: where there's political sensitivity, and the whole idea of the

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Speaker 2: Special Council is to give a certain degree of independence,

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Speaker 2: And that was basically the argument that the Trump team

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Speaker 2: used in order to gain this victory. They argued that

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Speaker 2: because there was this independence, the Special Council was operating

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Speaker 2: without real oversight from the Department of Justice, and therefore

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Speaker 2: they were what's called a principal officer, something that required

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Speaker 2: sended confirmation because of that level of independence. Now, the

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Speaker 2: government countered that argument by saying the Attorney General is

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Speaker 2: not monitoring the Special Council on a day to day basis,

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Speaker 2: but ultimately does have authority over the Special Council and

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Speaker 2: does have authority over major investigated decisions. And that's basically

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Speaker 2: been the process by which the Special Council has been

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Speaker 2: upheld in all of these cases over the years, and

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Speaker 2: most recently by the appointment of Special Counsel Robert Muller

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Speaker 2: and the investigation between the Trump campaign and allegations of

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Speaker 2: collusion with the Russian interference with the election. That issue

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Speaker 2: was raised in the context of Muller's appointment, and again

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Speaker 2: it was approved by two district courts and ultimately by

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Speaker 2: the Court of Appeal.

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Speaker 1: It seems like she took a recent concurrence by Justice

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Speaker 1: Clarence Thomas to heart in the presidential immunity case, Thomas

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Speaker 1: raised concerns about the constitutionality of the appointment of the

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Speaker 1: special council, which wasn't part of the immunity case, and

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Speaker 1: Canon cited that opinion, which no other justice had joined

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Speaker 1: in three times in her opinion.

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Speaker 2: Yeah, that was unusual because he did have a situation

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Speaker 2: in connection with the presidential immunities case where Justice Thomas

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Speaker 2: made a comment about the appointment of a special council.

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Speaker 2: It really was outside the scope of the opinions, and

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Speaker 2: as you say, none of the other justices commented on it.

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Speaker 2: But it does seem to perhaps have affected the judge's

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Speaker 2: decision here because if you can look at the body

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Speaker 2: language and look at the way she reacted to the

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Speaker 2: arguments during the hearing, she seemed to suggest that she

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Speaker 2: would go along with the other courts in the way

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Speaker 2: that special councils had been appointed over the years, because

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Speaker 2: there was a long standing president over many years and

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Speaker 2: many different administrations to appoint special councils in this way.

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Speaker 2: And yet we now have this decision which really has

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Speaker 2: done the legal community because it has thrown out of

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Speaker 2: precedent that has been in existence for at least twenty

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Speaker 2: or twenty five years. With regard to the appointment a

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Speaker 2: special council.

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Speaker 1: What was also unusual about the hearings is that she

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Speaker 1: allowed outside groups to participate in the oral arguments. Have

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Speaker 1: you ever seen a district court judge on a motion

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Speaker 1: allow outside groups to argue?

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Speaker 2: No, that's something I've never seen before. You see that

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Speaker 2: on an appeal situation where you have friend of the

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Speaker 2: court briefs that are submitted when there is an issue

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Speaker 2: that has a broad legal precedent. But this was a

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Speaker 2: hearing before a trial judge and a very specific issue

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Speaker 2: where both parties were arguing, and I have never seen

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Speaker 2: a circumstance where a judge allows entities outside of the case.

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Speaker 2: In other words, parties that are not actually parties to

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Speaker 2: the case don't really have any particular standing to make

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Speaker 2: these arguments to nonetheless come into court and argue for

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Speaker 2: or against a particular position.

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Speaker 1: We've talked about this before, but just go into a

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Speaker 1: little bit of an explanation of how Judge Cannon has

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Speaker 1: not only slow walked this case, but her decisions and

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Speaker 1: the way she's handled it have subjected her to a

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Speaker 1: lot of criticism for going, you know, outside the normal procedures.

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Speaker 2: Well, people who have been watching this case from the

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Speaker 2: beginning have been a little bit mystified by the way

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Speaker 2: Judge Cannon has handled this case, in that she has

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Speaker 2: given a lot of time and devoted a lot of

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Speaker 2: energy to arguments that most judges, based upon past president,

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Speaker 2: would have dismissed summarily. In other words, it's not surprising

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Speaker 2: at all for a defense team to make all kinds

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Speaker 2: of arguments, including some that are very far effect. That's

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Speaker 2: something defense lawyers will try to do because you never

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Speaker 2: know what might actually pique a judge's interest. But most

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Speaker 2: of the time, judges very quickly dismiss arguments that are

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Speaker 2: out of the mainstream to try to keep this case moving,

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Speaker 2: to try to keep the case focused. In this case,

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Speaker 2: it seemed that Judge Canon was giving an exceeding amount

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Speaker 2: of deference to arguments that most judges would have dismissed

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Speaker 2: out of hand, and this has slowed down the trial considerably.

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Speaker 2: And now we have sort of the culmination of all

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Speaker 2: of that. An argument that seemed like a far sexed argument,

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Speaker 2: an argument that was really kind of a hail mary

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Speaker 2: argument in the eyes of most people, given the lengthy

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Speaker 2: legal precedent supporting the appointment of the Special Council, and

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Speaker 2: yet she has now found out as a basis to

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Speaker 2: dismiss the case altogether.

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Speaker 1: The government is most likely going to appeal this to

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Speaker 1: the Eleventh Circuit. At the same time they appeal, could

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Speaker 1: they ask for her to be removed from the case.

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Speaker 2: Well, that's the question now as to whether or not

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Speaker 2: this is an appropriate time to do that. She already

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Speaker 2: does have a bit of a shaky history with the

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Speaker 2: Eleventh Circuit. If you remember, during the beginning of this case,

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Speaker 2: when the search warrant was executed, she asked that an

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Speaker 2: independent monitor come in to review the documents that were

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Speaker 2: seized by the government, something that was highly unusual and

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Speaker 2: really there was no basis in law to do it.

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Speaker 2: She more or less found that because the subject of

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Speaker 2: the search was a former president, that there was a

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Speaker 2: certain level of due process that had to be accorded

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Speaker 2: that was different than anybody else. That was immediately overturned

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Speaker 2: by the Eleventh Circuit, and she was really rebuked by

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Speaker 2: the Court of Appeals for going way outside of the

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Speaker 2: mainstream and trying to create a basically two tier system

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Speaker 2: where somebody, because they were a former president, got a

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Speaker 2: certain level of deference on a certain level of due

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Speaker 2: process that every other citizen in this country would not get.

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Speaker 2: This is now going back up to that same Eleventh

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Speaker 2: Circuit Court of Appeals and will be interesting to see

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Speaker 2: what they do with this decision and whether or not

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Speaker 2: they overturn her ruling.

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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 former federal prosecutor Robert Mentz and we'll

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Speaker 1: talk about how this decision might affect the Special Council's

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Speaker 1: prosecuteu of Trump over election interference in DC. I'm June

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Speaker 1: Grosso and you're listening to Bloomberg. Donald Trump has been

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Speaker 1: on a legal winning spree. The highlight was this month's

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Speaker 1: blockbuster Supreme Court decision finding presidents are at least partially

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Speaker 1: immune from prosecution for official acts. That has dealt a

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Speaker 1: near fatal blow to the efforts of Special Counsel Jack

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Speaker 1: Smith to go to trial in the election interference case

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Speaker 1: before the November election, with the Conservative majority ordering District

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Speaker 1: Judge Tanya Chutkin to decide the full extent to which

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Speaker 1: the allegations are off limits to prosecution. The decision has

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Speaker 1: also led to a delay in Trump's sentencing for the

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Speaker 1: hush money conviction in New York, and then today federal

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Speaker 1: Judge Eileen Cannon, a Trump appointee, unexpectedly throughout the case,

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Speaker 1: accusing Trump of mishandling classified information, finding that the appointment

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Speaker 1: of Special Council Jim jack Smith was unconstitutional. The classified

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Speaker 1: documents case was widely considered to be the strongest case

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Speaker 1: against Trump. After all, remember this explanation from Trump.

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Speaker 3: If you're the president of the United States, you can

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Speaker 3: declassify just by saying it's de classifate, even by thinking

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Speaker 3: about it, because you're sending it tomorrow, lago or to

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Speaker 3: wherever you're sending it, and there doesn't have to be

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Speaker 3: a process. There can be a process, but there doesn't

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Speaker 3: have to be You're the president. You make that decision,

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Speaker 3: so when you send it, it's the classifate. I declassified everything.

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Speaker 1: Though the Justice Department will most likely appeal Cannon's decision

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Speaker 1: and has a strong case based on precedent, the trial,

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Speaker 1: which had already seemed unlikely to proceed before the election,

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Speaker 1: now certainly will not. And if Trump wins the election,

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Speaker 1: the cases against him are likely to dissolve one way

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Speaker 1: or another. I've been talking to former federal prosecutor Robert Mintz,

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Speaker 1: a partner McCarter and English Bob Judge Canon was slow

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Speaker 1: walking this case. Now she's completely stopped it. If this

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Speaker 1: goes up to the Eleventh Circuit and they have oral

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Speaker 1: arguments and decision time, I mean, it seems just about

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Speaker 1: impossible that the case could be tried before the November election.

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Speaker 2: Either way, this seems to be a tremendous win for

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Speaker 2: the Trump defense team because in the first instance, the

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Speaker 2: case has been completely thrown out, and even if the

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Speaker 2: Court of Appeals does reverse it, it's going to slow

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Speaker 2: the case down to make it nearly impossible to have

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Speaker 2: this case tried before the election. And this is really

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Speaker 2: troubling for the government because let's remember, this was really

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Speaker 2: viewed by many people as the strongest case that was

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Speaker 2: brought by the Department of Justice and in fact by

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Speaker 2: even state prosecutors against former President Trump because it did

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Speaker 2: not involve a novel legal theory as some of the

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Speaker 2: other cases did, and because it was focused almost exclusively

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Speaker 2: on actions after he left office, which removed it from

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Speaker 2: some of the immunity issues. That ultimately is going to

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Speaker 2: be a problem for Special Counsel Jack Smith and connecting

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Speaker 2: with the January sixth case. So, while this case was

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Speaker 2: perhaps not the most exciting, it involved improperly removing classified

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Speaker 2: documents according to the government, and then the government alleged

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Speaker 2: that former President Trump obstructed the government in terms of

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Speaker 2: their ability to retrieve those documents. While it's not the

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Speaker 2: most exciting case out there, it was really on the

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Speaker 2: most solid legal footing, and prosecutors, i think, thought that

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Speaker 2: this might be the best chance they had out there

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Speaker 2: to gain a conviction in one of the federal cases.

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Speaker 1: This decision has nothing to do with the DC case.

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Speaker 1: But Trump's attorneys hadn't challenged Smith's appointment in the DC case,

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Speaker 1: they might now challenge his appointment in the DC case

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Speaker 1: as well. Where do you think that would end up?

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Speaker 2: Well, you're absolutely right. They have not made the argument

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Speaker 2: in the DC case, which is somewhat interesting considering the

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Speaker 2: facts are entirely the same. It has nothing to do

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Speaker 2: with the merits of the case. That has nothing to

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Speaker 2: do with the charges. Again, this simply has to do

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Speaker 2: with the appointment of the special Council, which would be

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Speaker 2: the same in the DC case as it would in

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Speaker 2: the Florida case. So it's interesting that they made the

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Speaker 2: argument in Florida, perhaps in front of the judge that

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Speaker 2: they thought was going to be more sympathetic as opposed

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Speaker 2: to the judge and the District of Columbia who they

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Speaker 2: thought would be less receptive to that argument. But now

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Speaker 2: that they have this win in Florida, I think we

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Speaker 2: can expect them to rely upon that and make the

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Speaker 2: same argument to the Court of the District of Columbia.

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Speaker 2: Although let's remember that the District Court decision of Florida

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Speaker 2: is not finding legal precedent in any way for the

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Speaker 2: judge and the District of Columbia, But nonetheless they can

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Speaker 2: cite that length of the opinion, try to make the

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Speaker 2: same arguments before Judge Chuckin in the District of Columbia,

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Speaker 2: and if she rules against them, there's another opportunity to

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Speaker 2: perhaps appeal that decision and further delay that case.

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Speaker 1: Also, as you mentioned before, there's precedent in DC for

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Speaker 1: the appointment of a special council in the Muler case.

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Speaker 2: Absolutely, yes, that's exactly right. So the chances of success

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Speaker 2: of the District of Columbia on this argument seemed to

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Speaker 2: be extremely low, but that may not stop them from

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Speaker 2: making the argument anyway. Citing the reasoning from Judge Cannon

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Speaker 2: in Florida and at the very least perhaps delaying that

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Speaker 2: case even further. So.

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Speaker 1: Trump has been on a winning spree with these criminal cases.

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Speaker 1: You have the classified documents case dismissed at this point,

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Speaker 1: the DC election interference case on hole because of that

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Speaker 1: controversial Supreme Court decision giving him immunity for certain official acts.

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Speaker 1: The sentencing in the New York hush money case also

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Speaker 1: on hold because of that Supreme Court decision. And in

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Speaker 1: the Georgia case, Trump is seeking to appeal the ruling

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Speaker 1: that allowed the district attorney to stay on the case.

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Speaker 1: What does this say about the legal system? People looking

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Speaker 1: at this must say four cases for criminal cases against

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Speaker 1: Donald Trump, only one went to trial and the rest

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Speaker 1: have been put on hold for one reason or another.

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Speaker 2: Well, I think people who have been watching these cases closely,

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Speaker 2: if they're not lawyers, are probably scratching their heads at

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Speaker 2: the legal system. They're seeing a system that seems to

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Speaker 2: be falling down of its own weight in the sense

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Speaker 2: that the arguments are delaying the case over and over again.

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Speaker 2: And even lawyers who've been watching this case, I think,

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Speaker 2: for the most part, are somewhat surprised at what has

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Speaker 2: happened in many of these cases. Lots of these arguments

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Speaker 2: that were made were real long shot arguments. Even the

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Speaker 2: presidential immunity argument. I think most expected that the Supreme

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Speaker 2: Court might not take that case, or if they did,

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Speaker 2: they certainly would not carve out the type of presidential

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Speaker 2: immunity that they did. So I think it's a case

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Speaker 2: that has really shocked the public, and it's shocked the

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Speaker 2: legal community. It's not gone the way that one would

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Speaker 2: have expected, and it certainly is a huge win for

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Speaker 2: the Trump defense team because if the ultimate goal was

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Speaker 2: to delay these cases, they have certainly succeeded in doing that.

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Speaker 2: And it's now likely that the only case that we'll

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Speaker 2: have gone to trial before the election is the case

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Speaker 2: brought by the Manhattan DA, And now even that case,

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Speaker 2: as you mentioned, is being held up presenting purposes because

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Speaker 2: of the presidential immunity decisions. I don't think it's likely

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Speaker 2: that the judge in that case will throw that case

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Speaker 2: out or that he'll decide that the presidential immunity decision

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Speaker 2: has any real bearing on that case. I think that

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Speaker 2: are going to point to certain testimony in that case

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Speaker 2: the defense will and argue that the presidential immunity case

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Speaker 2: requires that case to be overturned. But I think ultimately

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Speaker 2: the trialgy judge there will call that cumulative evidence or

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Speaker 2: harmless error, and that that case will stand. But in

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Speaker 2: terms of all these federal cases, they are very much

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Speaker 2: up in the air now, both legally and in terms

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Speaker 2: of whether or not any of them will ever be

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Speaker 2: tried before the election, or will ever be tried at all.

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Speaker 1: Trump had two co defendants in the classified document's case.

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Speaker 1: What happens to the cases against them.

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Speaker 2: Well, the case is dismissed as to them as well,

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Speaker 2: because remember, this argument was not something that was unique

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Speaker 2: to former President Trump. It's not about immunity or something

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Speaker 2: that applies only to a president or to a former president.

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Speaker 2: This goes to the question of whether or not the

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Speaker 2: special counsel who brought the case was properly appointed. So

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Speaker 2: it essentially requires the entire case to be dismissed, not

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Speaker 2: only against former President Trump, but against all of the

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Speaker 2: defendants in the case. So you have to look at

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Speaker 2: this decision as an incredibly bold and sweeping decision from

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Speaker 2: the standpoint that it has thrown out the entire case

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Speaker 2: not only against former President Trump, but against all defendants. Generally,

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Speaker 2: judges will be reluctant to make those types of decisions,

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Speaker 2: and generally judges will be reluctant to make decisions that

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Speaker 2: are based on purely procedural grounds. When the case that

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Speaker 2: involves a criminal prosecution, what judges always have to do

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Speaker 2: is to weigh the rights of criminal defendants against the

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Speaker 2: public's rights to have prosecutors prosecute cases for the safety

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Speaker 2: of the public. And usually what we'll find is judges

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Speaker 2: trying to find some type of middle ground. They want

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Speaker 2: to make sure they're protecting the rights of defendant. But

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Speaker 2: it is unusual to throw a case out entirely. It

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Speaker 2: does happen if a search warrant, for example, is done

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Speaker 2: improperly and the evidence is suppressed. Sometimes that will result

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Speaker 2: in the entire criminal case being thrown out. But this

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Speaker 2: falls into that category of the rare case where a

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Speaker 2: judge finds a procedural violation by the government and throws

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Speaker 2: out the entire case. So it's really unusual in that respect.

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Speaker 2: Because the case against former President Trump, the case against

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Speaker 2: his other co defendants is now over unless it's overturned

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Speaker 2: by the Court of appeal.

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Speaker 1: From a legal point of view, it will be interesting

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Speaker 1: to see what the Eleventh Circuit, which is a conservative court,

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Speaker 1: does here and whether Jack Smith asks to have Canon

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Speaker 1: remove from the case. Thanks so much, Bob. That's former

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Speaker 1: federal prosecutor Robert mintz Im maccarter and English. Trump posted

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Speaker 1: on his Truth social platform that the dismissal of the

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Speaker 1: Florida case should be just the first step, calling for

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Speaker 1: an end to criminal and civil cases against him in

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Speaker 1: other courts. He repeated his claims that all of the

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Speaker 1: legal action he's faced after leaving the White House represented

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Speaker 1: political attacks aimed at stopping him from retaking the presidency.

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Speaker 1: Coming up next on the Bloomberg Lawn Show, we'll take

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Speaker 1: a look at the judge's decision to throw out the

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Speaker 1: criminal case against Alec Baldwin with prejudice, meaning that the

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Speaker 1: actor cannot be retried. I'm June Grosso. When you're listening

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Speaker 1: to Bloomberg.

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Speaker 4: The court concludes that this conduct is highly prejudicial to

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Speaker 4: the defendant. The jury has been sworn, jeopardy has attached,

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Speaker 4: and this disclosure during the course of trial is sole

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Speaker 4: late that it undermines the defendants preparation for trial.

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Speaker 1: And with that New Mexico Judge Mary Marlowe summers throughout

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Speaker 1: the involuntary manslaughter case against Alec Baldwin in the middle

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Speaker 1: of his trial and rule he can't be tried again.

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Speaker 1: Upon hearing her decision, Baldwyn cried and embraced his attorneys.

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Speaker 1: The judge said state prosecutors showed signs of scorching prejudice

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Speaker 1: by withholding evidence related to bullets from the defense in

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Speaker 1: a case over the fatal shooting of the cinematographer on

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Speaker 1: the set of Baldwin's film Rust in twenty twenty one.

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Speaker 1: Joining me is former prosecutor Joshua Castenberg, a professor at

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Speaker 1: the University of New Mexico Law School. Josh explain what

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Speaker 1: the judge found the prosecution withheld from the defense.

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Speaker 5: Here, so the prosecutor knew apparently that there were rounds

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Speaker 5: that were obtained by the special investigator that were not

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Speaker 5: handed over to the defense, and those rounds came from

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Speaker 5: a friend er and the associate of Hanna goudierrasreed the armorer.

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Speaker 5: The rounds were never tested by you know, the Sheriff's

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Speaker 5: office or by the investigating arm They were visually looked at,

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Speaker 5: which is not good practice to just say, well, we

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Speaker 5: don't think that they're related to this case. The special prosecutor,

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Speaker 5: she made a snap decision these aren't related to the case.

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Speaker 5: They put them in a box with a separate case

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Speaker 5: number that wasn't relevant to the Baldwin case, and they

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Speaker 5: put them away. And so here you have evidence that

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Speaker 5: may have been much ado about nothing, or it may

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Speaker 5: have been very significant on the issue of how the

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Speaker 5: bullets got to the gun. The judge got set up

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Speaker 5: with it because it's a sixth Amendment violation, and the

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Speaker 5: only remedy available at this point was to dismiss the

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Speaker 5: case with prejudice.

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Speaker 1: I don't understand what difference it makes whether it came

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Speaker 1: from this prop supplier or you know, it came from hanaguccierres.

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Speaker 1: I mean, the fact is that live bullets were on

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Speaker 1: the set.

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Speaker 5: Ironically, you hit the nail on the head, not because

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Speaker 5: of you doing any irony or meeting. But this was

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Speaker 5: an unknety, a completely unnecessary act by the prosecutor. Because

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Speaker 5: the prosecution's theory for the Baldwin case was that every

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Speaker 5: person has an independent duty to make sure the gun

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Speaker 5: is safe, a gun that they handle is safe, and

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Speaker 5: that had nothing to do directly with where these bullets

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Speaker 5: came from. With one potential arguable thing, and that is

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Speaker 5: if there were a bunch of live rounds that had

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Speaker 5: been on the set and Baldwin knew these were live

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Speaker 5: rounds that had been on the set, that would be

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Speaker 5: worse for him. Or if he assumed that they were

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Speaker 5: only you know, blanks, and these extra bullets here, once

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Speaker 5: they were analyzed, they were either inert or they were blanks.

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Speaker 5: That could have helped this case. But I don't think

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Speaker 5: these bullets one way or the other would have made

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Speaker 5: a huge difference in the case. The case was sort

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Speaker 5: of primed in my mind for an acquittal anyway, So

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Speaker 5: the self inflected wound, it's bad for the confidence of

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Speaker 5: the public.

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Speaker 1: Why do you think the case was prime for acquittal?

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Speaker 5: Well, I think the case was likely to be an acquittal.

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Speaker 5: I wouldn't bet my house on it, but I think

440
00:25:09,760 --> 00:25:12,919
Speaker 5: the case was likely headed towards an acquittal for two reasons.

441
00:25:13,080 --> 00:25:16,440
Speaker 5: One is, the judge made some pretty significant rulings under

442
00:25:16,480 --> 00:25:20,360
Speaker 5: the rules of evidence which were absolutely on point, and

443
00:25:20,400 --> 00:25:25,280
Speaker 5: that was, you know, Baldwin's past conduct towards other individuals

444
00:25:25,560 --> 00:25:31,840
Speaker 5: and Baldwin's position as a producer were off limits unless

445
00:25:32,040 --> 00:25:35,159
Speaker 5: the defense opened the door for them bet evidence to

446
00:25:35,200 --> 00:25:37,879
Speaker 5: come in. And the defense is very good in this case,

447
00:25:38,119 --> 00:25:40,040
Speaker 5: and I don't think they would have opened the door

448
00:25:40,080 --> 00:25:42,720
Speaker 5: for that evidence to come in. The other reason why

449
00:25:42,760 --> 00:25:45,920
Speaker 5: I say that is after the judge sort of gutted

450
00:25:45,960 --> 00:25:50,199
Speaker 5: some powerful evidence from the prosecutor's case. People generally have

451
00:25:50,280 --> 00:25:54,159
Speaker 5: a difficult time dividing guilt, and in this case, you

452
00:25:54,280 --> 00:25:57,720
Speaker 5: have divided guilt in a negligence case, you know, And

453
00:25:58,000 --> 00:26:00,960
Speaker 5: I think that's difficult. It's not like an conspiracy to

454
00:26:01,000 --> 00:26:04,639
Speaker 5: commit a crime. It's Hana Goodyer, as read, was criminally

455
00:26:04,720 --> 00:26:08,440
Speaker 5: negligent because of her misconduct as an armorer. So if

456
00:26:08,440 --> 00:26:11,359
Speaker 5: that's the criminal part of this case, then where is

457
00:26:11,480 --> 00:26:15,840
Speaker 5: Baldwin's criminality. It's clear he's negligent, But where's the criminality

458
00:26:16,080 --> 00:26:18,000
Speaker 5: part of the negligence there? And I think that's what

459
00:26:18,080 --> 00:26:19,400
Speaker 5: the jury would struggle with.

460
00:26:19,880 --> 00:26:23,280
Speaker 1: The judge said, dismissing a case with prejudice, which means

461
00:26:23,280 --> 00:26:25,840
Speaker 1: you can't bring it again, the prosecution can bring it again,

462
00:26:26,240 --> 00:26:30,000
Speaker 1: was an extreme sanction. Couldn't she have dismissed the case

463
00:26:30,119 --> 00:26:31,119
Speaker 1: without prejudice?

464
00:26:32,040 --> 00:26:35,439
Speaker 5: Well, she could have, but I would say a couple

465
00:26:35,480 --> 00:26:38,280
Speaker 5: of things to that effect, and yes, that would have

466
00:26:38,320 --> 00:26:41,720
Speaker 5: been reasonable to do as well, But this judge had

467
00:26:41,760 --> 00:26:46,439
Speaker 5: gotten frustrated at the prosecutor's office on other matters, and

468
00:26:46,480 --> 00:26:51,400
Speaker 5: the judge of frustration reflected reality. It wasn't a judge

469
00:26:51,440 --> 00:26:54,320
Speaker 5: just having a short temper for the stake of being

470
00:26:54,359 --> 00:26:57,560
Speaker 5: short tempered. And I think that it showed up in

471
00:26:57,600 --> 00:27:00,320
Speaker 5: the midst of trial rather than that the very beginning

472
00:27:00,680 --> 00:27:04,959
Speaker 5: pushed the judge to the conclusion that the extreme sanction

473
00:27:05,200 --> 00:27:08,520
Speaker 5: was necessary because Baldwin could not have gotten a fair

474
00:27:08,600 --> 00:27:10,800
Speaker 5: trial in the first judicial district.

475
00:27:11,240 --> 00:27:15,280
Speaker 1: Tell us about this chaotic hearing on Friday where the

476
00:27:15,520 --> 00:27:18,919
Speaker 1: special prosecutor called herself to the stand.

477
00:27:19,920 --> 00:27:22,600
Speaker 5: Well, let's step back even before that. There were two

478
00:27:22,600 --> 00:27:28,000
Speaker 5: special prosecutors on Thursday night, before the Friday hearing, right,

479
00:27:28,800 --> 00:27:32,959
Speaker 5: one of the special prosecutors stepped off the case. And

480
00:27:33,000 --> 00:27:35,760
Speaker 5: what that tells me goes back to a basic rule

481
00:27:35,960 --> 00:27:40,080
Speaker 5: of ethics. You cannot, as a lawyer, be a part

482
00:27:40,200 --> 00:27:44,080
Speaker 5: of a cause of action that you do not believe in.

483
00:27:44,280 --> 00:27:46,040
Speaker 5: And what I mean, but do not believe in is

484
00:27:46,119 --> 00:27:49,239
Speaker 5: one of two things. It's either that the facts do

485
00:27:49,359 --> 00:27:53,800
Speaker 5: not justify going forward or that another party's rights have

486
00:27:53,840 --> 00:27:57,480
Speaker 5: been so trampled on you cannot in good conscience continue

487
00:27:57,520 --> 00:28:00,280
Speaker 5: on in the case. So we can speculate it's the

488
00:28:00,359 --> 00:28:04,720
Speaker 5: ladder in this. So you have a special prosecutor saying

489
00:28:04,840 --> 00:28:08,399
Speaker 5: I'm done, and then you have the special prosecutor taking

490
00:28:08,400 --> 00:28:11,919
Speaker 5: the stand and trying to defend herself. Well, she's a career,

491
00:28:12,160 --> 00:28:15,399
Speaker 5: a very distinguished career criminal defense attorney. And again this

492
00:28:15,560 --> 00:28:18,399
Speaker 5: is speculation on my part, but I think this was

493
00:28:18,440 --> 00:28:21,080
Speaker 5: done more to salvage your reputation than it was to

494
00:28:21,160 --> 00:28:24,919
Speaker 5: salvage the case. Because any prosecutor knows or should know

495
00:28:25,560 --> 00:28:28,760
Speaker 5: that whenever you have what's known as a Brady violation,

496
00:28:29,560 --> 00:28:32,760
Speaker 5: and your fingerprints are on that Brady violation, that's the

497
00:28:32,840 --> 00:28:35,520
Speaker 5: right to the government's evidence, whether they use it or not.

498
00:28:35,800 --> 00:28:38,640
Speaker 5: And if your fingerprints are on that Brady violation, as

499
00:28:38,680 --> 00:28:42,040
Speaker 5: the prosecutor, you need to explain to the court why

500
00:28:42,080 --> 00:28:45,400
Speaker 5: that is. Otherwise you lose the case, and you might

501
00:28:45,520 --> 00:28:48,600
Speaker 5: also not just lose your reputation, but there may be

502
00:28:48,640 --> 00:28:51,680
Speaker 5: recriminations under the state bar for that. So I think

503
00:28:51,720 --> 00:28:53,160
Speaker 5: that's why she testified.

504
00:28:53,480 --> 00:28:55,960
Speaker 1: The judge said, if this conduct does not rise to

505
00:28:56,000 --> 00:28:59,240
Speaker 1: the level of bad faith, it certainly comes so near

506
00:28:59,280 --> 00:29:03,200
Speaker 1: to bad faith as to show signs of scorching. Explain

507
00:29:03,280 --> 00:29:06,320
Speaker 1: what she found the prosecution had done to establish the

508
00:29:06,320 --> 00:29:07,080
Speaker 1: Brady violation.

509
00:29:07,880 --> 00:29:12,400
Speaker 5: Okay, So the sixth Amendment has always stated within the

510
00:29:12,480 --> 00:29:16,680
Speaker 5: language that a defendant has the right to know the

511
00:29:17,240 --> 00:29:20,720
Speaker 5: charges against them, and that includes all of the government's evidence. Now,

512
00:29:20,760 --> 00:29:24,320
Speaker 5: for years prosecutors would have said that means the evidence

513
00:29:24,360 --> 00:29:27,320
Speaker 5: I'm going to introduce. But the war in court in

514
00:29:27,360 --> 00:29:30,280
Speaker 5: a case called Brady versus Maryland, said no, it's broader

515
00:29:30,280 --> 00:29:34,840
Speaker 5: than that. It's all the evidence in the prosecution or

516
00:29:34,840 --> 00:29:38,080
Speaker 5: in the government's possession, and it's up to the court

517
00:29:38,160 --> 00:29:40,800
Speaker 5: to decide whether it's relevant or not, not to you,

518
00:29:40,960 --> 00:29:44,560
Speaker 5: the prosecutor. And that makes perfect sense, because prosecutors are

519
00:29:45,280 --> 00:29:48,760
Speaker 5: attempting to achieve a conviction on someone, and they're not

520
00:29:48,840 --> 00:29:52,200
Speaker 5: the arbiters of the law. When there's a Brady violation,

521
00:29:52,800 --> 00:29:55,560
Speaker 5: if it rises to the level that it undermines a

522
00:29:55,600 --> 00:29:59,840
Speaker 5: defendant's ability to defend themselves within the meaning of the

523
00:30:00,200 --> 00:30:02,640
Speaker 5: of right, the judge has a couple of choices. If

524
00:30:02,680 --> 00:30:04,960
Speaker 5: the trial hasn't begun yet, One is to grant a

525
00:30:05,000 --> 00:30:08,200
Speaker 5: delay so that the defense can be better prepared the

526
00:30:08,240 --> 00:30:11,959
Speaker 5: others to caution an indictment or dismiss charges without prejudice,

527
00:30:11,960 --> 00:30:14,720
Speaker 5: meaning telling the government you really messed up, but you

528
00:30:14,720 --> 00:30:17,040
Speaker 5: know what, go back and seek a new indictment. Double

529
00:30:17,080 --> 00:30:21,479
Speaker 5: jeopardy hasn't attached, and the third one is dismissed with prejudice. Now,

530
00:30:21,480 --> 00:30:23,920
Speaker 5: you can only dismiss with prejudice if you find government

531
00:30:23,960 --> 00:30:28,360
Speaker 5: misconduct at that stage, at the stage this occurred, trial

532
00:30:28,360 --> 00:30:31,280
Speaker 5: had already started, the double jeopardy would have attached in

533
00:30:31,320 --> 00:30:34,400
Speaker 5: the judge's mind. Now, when the judge said what she said,

534
00:30:34,720 --> 00:30:38,520
Speaker 5: the quote that you gave, she wasn't immediately making a

535
00:30:38,600 --> 00:30:42,560
Speaker 5: decision to the special prosecutor. You've committed misconduct and you've

536
00:30:42,640 --> 00:30:47,080
Speaker 5: engaged in unethical activity, she said, In other words, there

537
00:30:47,200 --> 00:30:50,200
Speaker 5: is enough evidence here for me to think that way,

538
00:30:50,240 --> 00:30:53,520
Speaker 5: And I think that's a cue to the state bar

539
00:30:53,760 --> 00:30:58,400
Speaker 5: to investigate this. It's not the judge making a final determination,

540
00:30:58,520 --> 00:31:01,640
Speaker 5: which she could have done. But judges are trained to

541
00:31:01,680 --> 00:31:05,160
Speaker 5: be objective and to make sure that they don't hold

542
00:31:05,240 --> 00:31:10,000
Speaker 5: someone in contempt or they don't find an outright act

543
00:31:10,000 --> 00:31:12,880
Speaker 5: of malfeasons unless they have all the facts. And you

544
00:31:12,920 --> 00:31:15,880
Speaker 5: can't make that decision from the bench immediately, and so

545
00:31:16,000 --> 00:31:19,240
Speaker 5: I think the judge gave the strongest language she could,

546
00:31:19,520 --> 00:31:22,280
Speaker 5: but it's also a very strong hint to the state

547
00:31:22,360 --> 00:31:23,760
Speaker 5: bar investigate this.

548
00:31:24,680 --> 00:31:27,440
Speaker 1: Do you think part of this was that the defense

549
00:31:27,600 --> 00:31:33,240
Speaker 1: claimed that the prosecution had hidden other information like forensic reports,

550
00:31:33,400 --> 00:31:36,600
Speaker 1: emails until the eve of trial. Do you think that

551
00:31:36,760 --> 00:31:39,040
Speaker 1: was part of her frustration.

552
00:31:39,800 --> 00:31:42,680
Speaker 5: Yeah, I think so. You know, in this case, first

553
00:31:42,800 --> 00:31:46,320
Speaker 5: brew it up, I thought, you know, really savvy defense council.

554
00:31:46,480 --> 00:31:49,080
Speaker 5: Sometimes I'll sit on a deficiency and say, oh, you're

555
00:31:49,080 --> 00:31:51,840
Speaker 5: on our jeopardy. Must have applied. We didn't have this

556
00:31:52,160 --> 00:31:54,520
Speaker 5: in our possession and the government did, and they should

557
00:31:54,520 --> 00:31:56,560
Speaker 5: have handed it over. You know, judge will make a

558
00:31:56,600 --> 00:31:59,560
Speaker 5: rolling no, it is a violation. But what I'm going

559
00:31:59,600 --> 00:32:03,320
Speaker 5: to find here is that I'm dismissing without prejudice because

560
00:32:03,600 --> 00:32:05,800
Speaker 5: I don't see any mal intent on the part of

561
00:32:05,840 --> 00:32:09,320
Speaker 5: the prosecution. It's the law enforcement that messed up, or

562
00:32:09,360 --> 00:32:11,720
Speaker 5: it's you know, it's an investigator that messed this up,

563
00:32:11,800 --> 00:32:14,560
Speaker 5: or it's a newly found witness. But in this case,

564
00:32:14,960 --> 00:32:19,840
Speaker 5: every time it seemed like the judge was frustrated because

565
00:32:19,840 --> 00:32:24,760
Speaker 5: of belated evidence discovery, the prosecutor's fingerprints were on the

566
00:32:24,800 --> 00:32:30,560
Speaker 5: matters that were being decided before the court, emails, technical reports,

567
00:32:30,640 --> 00:32:31,680
Speaker 5: and now the bullets.

568
00:32:32,000 --> 00:32:36,200
Speaker 1: If the prosecution wanted to, they could appeal her decision.

569
00:32:36,960 --> 00:32:39,640
Speaker 5: They could, But you know, there's a couple of things

570
00:32:39,640 --> 00:32:42,120
Speaker 5: that would have to happen. One is, if I'm the

571
00:32:42,160 --> 00:32:45,560
Speaker 5: elected DA, you know, at what point do you confess

572
00:32:45,840 --> 00:32:48,720
Speaker 5: error to the public and say we messed up, or

573
00:32:48,880 --> 00:32:52,640
Speaker 5: continue to spend taxpayers money and say we're going to

574
00:32:52,680 --> 00:32:56,280
Speaker 5: appeal this only to have the new Mexico Supreme Court,

575
00:32:56,720 --> 00:32:58,880
Speaker 5: or first the Court of Appeals and then the Supreme

576
00:32:58,920 --> 00:33:02,920
Speaker 5: Court say, you know, the standard that we review this

577
00:33:03,080 --> 00:33:08,000
Speaker 5: dismissal on is abusive discretion. And abusive discretion is a

578
00:33:08,040 --> 00:33:12,360
Speaker 5: standard that means that the facts did not justify the decision,

579
00:33:12,480 --> 00:33:15,320
Speaker 5: and the law was not on the judge's side and

580
00:33:15,360 --> 00:33:17,920
Speaker 5: the ruling, and I got to say this, I might

581
00:33:17,960 --> 00:33:20,120
Speaker 5: not have done what this judge had done. I might

582
00:33:20,120 --> 00:33:23,560
Speaker 5: have dismissed without prejudice, but she has the law and

583
00:33:23,640 --> 00:33:26,960
Speaker 5: the facts on her side, and this is an unwinnable appeal.

584
00:33:27,320 --> 00:33:30,080
Speaker 5: So if I'm the elected DA, I'm calling it a

585
00:33:30,200 --> 00:33:33,760
Speaker 5: day and saying to the public, we messed up and

586
00:33:33,880 --> 00:33:37,320
Speaker 5: we owe the victim and the victim's family a huge

587
00:33:37,360 --> 00:33:40,360
Speaker 5: apology on this one and then just move on.

588
00:33:40,720 --> 00:33:43,440
Speaker 1: The whole case has sort of been chaotic.

589
00:33:43,240 --> 00:33:45,200
Speaker 5: Well, and it has been. And I got to say this,

590
00:33:45,400 --> 00:33:48,080
Speaker 5: I'm not sure these missing bullets are going to help

591
00:33:48,080 --> 00:33:50,480
Speaker 5: on a read in the long term. But I could

592
00:33:50,520 --> 00:33:54,160
Speaker 5: see a court of appeals overturning the decision and the

593
00:33:54,200 --> 00:33:57,280
Speaker 5: conviction be saying, you know what, she didn't have full

594
00:33:57,320 --> 00:34:01,440
Speaker 5: discovery either, and we're going to overturn this conviction. Now,

595
00:34:01,680 --> 00:34:04,680
Speaker 5: then the prosecutor could retry the case. But at what

596
00:34:04,880 --> 00:34:07,760
Speaker 5: point do you go to the public and say you

597
00:34:08,040 --> 00:34:10,879
Speaker 5: trusted us with your vote for us, and we spent

598
00:34:10,960 --> 00:34:14,319
Speaker 5: a few hundred thousand dollars of your taxpayer money and

599
00:34:14,400 --> 00:34:16,920
Speaker 5: we've really messed up all around on this.

600
00:34:17,480 --> 00:34:23,560
Speaker 1: Attorney Gloria Alred, who's representing the cinematographer's parents and sisters,

601
00:34:23,600 --> 00:34:27,080
Speaker 1: said it may be a little premature for Alec Baldwin

602
00:34:27,239 --> 00:34:29,880
Speaker 1: to be having his party. Does this affect at all

603
00:34:29,960 --> 00:34:31,640
Speaker 1: the civil case against him?

604
00:34:32,000 --> 00:34:35,760
Speaker 5: Does this affect the civil case against him? No, it doesn't.

605
00:34:35,920 --> 00:34:39,600
Speaker 5: I mean the tour attorneys are going to be able

606
00:34:39,640 --> 00:34:43,439
Speaker 5: to prosecute their civil case as vigorously as they've ever

607
00:34:43,480 --> 00:34:47,240
Speaker 5: been able to do. This doesn't affect anything in fact

608
00:34:47,280 --> 00:34:50,440
Speaker 5: Baldwin is facing. You know, I don't want to say

609
00:34:50,480 --> 00:34:52,840
Speaker 5: anything bad about my state. I love my state. But

610
00:34:52,880 --> 00:34:55,880
Speaker 5: there have been some very large awards recently given against

611
00:34:55,880 --> 00:34:59,600
Speaker 5: companies like FedEx, and I think that this is another

612
00:34:59,640 --> 00:35:02,719
Speaker 5: one of the those cases that is going to be

613
00:35:02,840 --> 00:35:03,319
Speaker 5: that way.

614
00:35:03,600 --> 00:35:05,920
Speaker 1: What is the basis of their suit.

615
00:35:05,800 --> 00:35:08,960
Speaker 5: Well, it's a wrongful death suit. It's premised on negligence,

616
00:35:09,000 --> 00:35:11,000
Speaker 5: but the burden of proof is much lower than in

617
00:35:11,040 --> 00:35:14,319
Speaker 5: a criminal case, and they'll be able to bring in

618
00:35:14,400 --> 00:35:18,920
Speaker 5: things about Baldwin that the criminal trial won't like Baldwin

619
00:35:18,960 --> 00:35:22,880
Speaker 5: as a producer, Baldwin, you know, and the responsibilities that

620
00:35:22,920 --> 00:35:27,440
Speaker 5: there are with that Baldwin is kind of pushing people around.

621
00:35:27,560 --> 00:35:29,799
Speaker 5: If that is true, I mean, I don't know if

622
00:35:29,840 --> 00:35:32,920
Speaker 5: that's true, but there's been some talk about sort of

623
00:35:32,960 --> 00:35:36,960
Speaker 5: his cavalier conduct and bullying, and if that's true, they'll

624
00:35:37,200 --> 00:35:40,759
Speaker 5: likely be able to bring that into evidence, and the

625
00:35:40,800 --> 00:35:45,279
Speaker 5: prosecutor couldn't. So I imagine that they were going to be

626
00:35:45,400 --> 00:35:49,919
Speaker 5: settlement talks. But I also think about the plainest bar

627
00:35:50,080 --> 00:35:53,040
Speaker 5: and the attorneys, and they may set a line in

628
00:35:53,080 --> 00:35:55,640
Speaker 5: the sand at a number that's a lot higher than

629
00:35:55,760 --> 00:35:58,280
Speaker 5: Baldwin and his insurers are willing to bear.

630
00:35:58,960 --> 00:36:01,520
Speaker 1: We'll see if the prosecutor and takes your advice. Josh

631
00:36:01,840 --> 00:36:05,160
Speaker 1: that's Professor Joshua Kastenberg of the University of New Mexico

632
00:36:05,360 --> 00:36:07,600
Speaker 1: Law School. And that's it for this edition of the

633
00:36:07,640 --> 00:36:10,960
Speaker 1: Bloomberg Law Podcast. Remember you can always get the latest

634
00:36:11,000 --> 00:36:13,880
Speaker 1: legal news by subscribing and listening to the show on

635
00:36:13,960 --> 00:36:18,280
Speaker 1: Apple Podcasts, Spotify, and at Bloomberg dot com, Slash podcast,

636
00:36:18,360 --> 00:36:22,239
Speaker 1: Slash Law. I'm June Grosso and this is Bloomberg