Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: The classified documents case against former President Donald Trump came
Speaker 1: to us stunning an abrupt conclusion today as Florida Federal
Speaker 1: Judge Eileen Cannon dismissed the case outright. The case charging
Speaker 1: Trump with illegally hoarding classified documents was widely considered to
Speaker 1: be the strongest against him, with the breadth of the evidence,
Speaker 1: including surveillance footage from Trump's own security cameras at Mara
Speaker 1: a Lago, the testimony of close aids and former lawyers,
Speaker 1: and because the conduct occurred after Trump left the White
Speaker 1: House in twenty twenty one and lost the powers of
Speaker 1: the presidency. Cannon has faced criticism for her handling of
Speaker 1: Trump's case, from the substance of her rulings to her
Speaker 1: decision to indefinitely postpone setting a trial date. But this
Speaker 1: decision came as a surprise even to her critics. My
Speaker 1: guess is former federal Prosecutor Robert Mentz, a partner McCarter
Speaker 1: and English Bob. Even though Judge Canon has issued a
Speaker 1: lot of mystifying and unorthodox decisions, this decision dismissing the
Speaker 1: entire classified Documents case still caught most legal experts by surprise.
Speaker 2: This is really a stunning decision by the federal judge
Speaker 2: of Florida just throw out entirely the classified documents case
Speaker 2: against former President Trump. It's something that I would suspect
Speaker 2: that not even the Trump legal team was expecting based
Speaker 2: upon the hearing that they had on this issue before
Speaker 2: the judge. But what the judge did here is basically
Speaker 2: find that the appointment of the Special Council Jack Smith
Speaker 2: violated the Constitution. It does not address the merits of
Speaker 2: the case, it doesn't address the evidence, it doesn't address
Speaker 2: a defense that was raised by the Trump legal team.
Speaker 2: It's all about the appointment of the Special Council, and
Speaker 2: the judge found because that was done improperly, the only
Speaker 2: remedy is to dismiss the case.
Speaker 1: Why did she say it was done improperly? How did
Speaker 1: she find that?
Speaker 2: Well? The judge wrote a ninety three page, very detailed
Speaker 2: opinion which focused entirely on the Constitution's Appointments clause and
Speaker 2: said that what happened here was that the appointment of
Speaker 2: the Special Council was done inappropriately because it was a
Speaker 2: violation of that clause. In other words, the judge found
Speaker 2: that the appointment had to be approved by the Senate,
Speaker 2: had to be confirmed by the Senate, given the level
Speaker 2: of independence that jack Smith was given by Attorney General
Speaker 2: Merrick Garland. The judge also found that the appointment violated
Speaker 2: another clause in the Constitution having to do with the
Speaker 2: expenditure of money that was not ultimately the basis for
Speaker 2: the dismissal of the indictment, but she also found that
Speaker 2: the appropriations clause also was violated here because money was
Speaker 2: being spent improperly, again because it was done without congressional oversight.
Speaker 1: Canon wrote that the issue of a special council was
Speaker 1: a novel one, but it's not a novel one. This
Speaker 1: has been decided by other courts before.
Speaker 2: No, that's exactly right. This issue of an appointment of
Speaker 2: a special council is something that has been done by
Speaker 2: different administrations over the years, dating back many years. Both
Speaker 2: Republicans and Democrats have used the special council as a
Speaker 2: way to investigate politically sensitive cases and it has been
Speaker 2: challenged before and every time in every court. This type
Speaker 2: of appointment has been upheld not only by district courts
Speaker 2: but also by the Court of appeal.
Speaker 1: Also, she contrasted Smith's appointment with the appointment of David Wise,
Speaker 1: who is the special counsel in the Hunter Biden case.
Speaker 1: And she said, because Weiss was already a US attorney
Speaker 1: and Smith was a private citizen when he was appointed.
Speaker 1: But the Code of Federal Regulations says that a Special
Speaker 1: Council appointee shall be selected from outside the federal government.
Speaker 1: So where does she get that from.
Speaker 2: Well, the case of David White was a situation where
Speaker 2: the US Attorney had already been investigating Hunter Biden. Then
Speaker 2: there was a change in administrations, so the US Attorney
Speaker 2: in Delaware was appointed by President Trump when he was
Speaker 2: in office, and President Biden decided, along with his Attorney General,
Speaker 2: to allow that US Attorney to continue that investigation because
Speaker 2: he was so politically sensitive, So it was essentially carried over. Now,
Speaker 2: the US Attorney in Delaware is confirmed by the Senate,
Speaker 2: as all US attorneys are. But the Special Council is
Speaker 2: an entirely different role. It's being done in a situation
Speaker 2: where there's political sensitivity, and the whole idea of the
Speaker 2: Special Council is to give a certain degree of independence,
Speaker 2: And that was basically the argument that the Trump team
Speaker 2: used in order to gain this victory. They argued that
Speaker 2: because there was this independence, the Special Council was operating
Speaker 2: without real oversight from the Department of Justice, and therefore
Speaker 2: they were what's called a principal officer, something that required
Speaker 2: sended confirmation because of that level of independence. Now, the
Speaker 2: government countered that argument by saying the Attorney General is
Speaker 2: not monitoring the Special Council on a day to day basis,
Speaker 2: but ultimately does have authority over the Special Council and
Speaker 2: does have authority over major investigated decisions. And that's basically
Speaker 2: been the process by which the Special Council has been
Speaker 2: upheld in all of these cases over the years, and
Speaker 2: most recently by the appointment of Special Counsel Robert Muller
Speaker 2: and the investigation between the Trump campaign and allegations of
Speaker 2: collusion with the Russian interference with the election. That issue
Speaker 2: was raised in the context of Muller's appointment, and again
Speaker 2: it was approved by two district courts and ultimately by
Speaker 2: the Court of Appeal.
Speaker 1: It seems like she took a recent concurrence by Justice
Speaker 1: Clarence Thomas to heart in the presidential immunity case, Thomas
Speaker 1: raised concerns about the constitutionality of the appointment of the
Speaker 1: special council, which wasn't part of the immunity case, and
Speaker 1: Canon cited that opinion, which no other justice had joined
Speaker 1: in three times in her opinion.
Speaker 2: Yeah, that was unusual because he did have a situation
Speaker 2: in connection with the presidential immunities case where Justice Thomas
Speaker 2: made a comment about the appointment of a special council.
Speaker 2: It really was outside the scope of the opinions, and
Speaker 2: as you say, none of the other justices commented on it.
Speaker 2: But it does seem to perhaps have affected the judge's
Speaker 2: decision here because if you can look at the body
Speaker 2: language and look at the way she reacted to the
Speaker 2: arguments during the hearing, she seemed to suggest that she
Speaker 2: would go along with the other courts in the way
Speaker 2: that special councils had been appointed over the years, because
Speaker 2: there was a long standing president over many years and
Speaker 2: many different administrations to appoint special councils in this way.
Speaker 2: And yet we now have this decision which really has
Speaker 2: done the legal community because it has thrown out of
Speaker 2: precedent that has been in existence for at least twenty
Speaker 2: or twenty five years. With regard to the appointment a
Speaker 2: special council.
Speaker 1: What was also unusual about the hearings is that she
Speaker 1: allowed outside groups to participate in the oral arguments. Have
Speaker 1: you ever seen a district court judge on a motion
Speaker 1: allow outside groups to argue?
Speaker 2: No, that's something I've never seen before. You see that
Speaker 2: on an appeal situation where you have friend of the
Speaker 2: court briefs that are submitted when there is an issue
Speaker 2: that has a broad legal precedent. But this was a
Speaker 2: hearing before a trial judge and a very specific issue
Speaker 2: where both parties were arguing, and I have never seen
Speaker 2: a circumstance where a judge allows entities outside of the case.
Speaker 2: In other words, parties that are not actually parties to
Speaker 2: the case don't really have any particular standing to make
Speaker 2: these arguments to nonetheless come into court and argue for
Speaker 2: or against a particular position.
Speaker 1: We've talked about this before, but just go into a
Speaker 1: little bit of an explanation of how Judge Cannon has
Speaker 1: not only slow walked this case, but her decisions and
Speaker 1: the way she's handled it have subjected her to a
Speaker 1: lot of criticism for going, you know, outside the normal procedures.
Speaker 2: Well, people who have been watching this case from the
Speaker 2: beginning have been a little bit mystified by the way
Speaker 2: Judge Cannon has handled this case, in that she has
Speaker 2: given a lot of time and devoted a lot of
Speaker 2: energy to arguments that most judges, based upon past president,
Speaker 2: would have dismissed summarily. In other words, it's not surprising
Speaker 2: at all for a defense team to make all kinds
Speaker 2: of arguments, including some that are very far effect. That's
Speaker 2: something defense lawyers will try to do because you never
Speaker 2: know what might actually pique a judge's interest. But most
Speaker 2: of the time, judges very quickly dismiss arguments that are
Speaker 2: out of the mainstream to try to keep this case moving,
Speaker 2: to try to keep the case focused. In this case,
Speaker 2: it seemed that Judge Canon was giving an exceeding amount
Speaker 2: of deference to arguments that most judges would have dismissed
Speaker 2: out of hand, and this has slowed down the trial considerably.
Speaker 2: And now we have sort of the culmination of all
Speaker 2: of that. An argument that seemed like a far sexed argument,
Speaker 2: an argument that was really kind of a hail mary
Speaker 2: argument in the eyes of most people, given the lengthy
Speaker 2: legal precedent supporting the appointment of the Special Council, and
Speaker 2: yet she has now found out as a basis to
Speaker 2: dismiss the case altogether.
Speaker 1: The government is most likely going to appeal this to
Speaker 1: the Eleventh Circuit. At the same time they appeal, could
Speaker 1: they ask for her to be removed from the case.
Speaker 2: Well, that's the question now as to whether or not
Speaker 2: this is an appropriate time to do that. She already
Speaker 2: does have a bit of a shaky history with the
Speaker 2: Eleventh Circuit. If you remember, during the beginning of this case,
Speaker 2: when the search warrant was executed, she asked that an
Speaker 2: independent monitor come in to review the documents that were
Speaker 2: seized by the government, something that was highly unusual and
Speaker 2: really there was no basis in law to do it.
Speaker 2: She more or less found that because the subject of
Speaker 2: the search was a former president, that there was a
Speaker 2: certain level of due process that had to be accorded
Speaker 2: that was different than anybody else. That was immediately overturned
Speaker 2: by the Eleventh Circuit, and she was really rebuked by
Speaker 2: the Court of Appeals for going way outside of the
Speaker 2: mainstream and trying to create a basically two tier system
Speaker 2: where somebody, because they were a former president, got a
Speaker 2: certain level of deference on a certain level of due
Speaker 2: process that every other citizen in this country would not get.
Speaker 2: This is now going back up to that same Eleventh
Speaker 2: Circuit Court of Appeals and will be interesting to see
Speaker 2: what they do with this decision and whether or not
Speaker 2: they overturn her ruling.
Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue
Speaker 1: this conversation with former federal prosecutor Robert Mentz and we'll
Speaker 1: talk about how this decision might affect the Special Council's
Speaker 1: prosecuteu of Trump over election interference in DC. I'm June
Speaker 1: Grosso and you're listening to Bloomberg. Donald Trump has been
Speaker 1: on a legal winning spree. The highlight was this month's
Speaker 1: blockbuster Supreme Court decision finding presidents are at least partially
Speaker 1: immune from prosecution for official acts. That has dealt a
Speaker 1: near fatal blow to the efforts of Special Counsel Jack
Speaker 1: Smith to go to trial in the election interference case
Speaker 1: before the November election, with the Conservative majority ordering District
Speaker 1: Judge Tanya Chutkin to decide the full extent to which
Speaker 1: the allegations are off limits to prosecution. The decision has
Speaker 1: also led to a delay in Trump's sentencing for the
Speaker 1: hush money conviction in New York, and then today federal
Speaker 1: Judge Eileen Cannon, a Trump appointee, unexpectedly throughout the case,
Speaker 1: accusing Trump of mishandling classified information, finding that the appointment
Speaker 1: of Special Council Jim jack Smith was unconstitutional. The classified
Speaker 1: documents case was widely considered to be the strongest case
Speaker 1: against Trump. After all, remember this explanation from Trump.
Speaker 3: If you're the president of the United States, you can
Speaker 3: declassify just by saying it's de classifate, even by thinking
Speaker 3: about it, because you're sending it tomorrow, lago or to
Speaker 3: wherever you're sending it, and there doesn't have to be
Speaker 3: a process. There can be a process, but there doesn't
Speaker 3: have to be You're the president. You make that decision,
Speaker 3: so when you send it, it's the classifate. I declassified everything.
Speaker 1: Though the Justice Department will most likely appeal Cannon's decision
Speaker 1: and has a strong case based on precedent, the trial,
Speaker 1: which had already seemed unlikely to proceed before the election,
Speaker 1: now certainly will not. And if Trump wins the election,
Speaker 1: the cases against him are likely to dissolve one way
Speaker 1: or another. I've been talking to former federal prosecutor Robert Mintz,
Speaker 1: a partner McCarter and English Bob Judge Canon was slow
Speaker 1: walking this case. Now she's completely stopped it. If this
Speaker 1: goes up to the Eleventh Circuit and they have oral
Speaker 1: arguments and decision time, I mean, it seems just about
Speaker 1: impossible that the case could be tried before the November election.
Speaker 2: Either way, this seems to be a tremendous win for
Speaker 2: the Trump defense team because in the first instance, the
Speaker 2: case has been completely thrown out, and even if the
Speaker 2: Court of Appeals does reverse it, it's going to slow
Speaker 2: the case down to make it nearly impossible to have
Speaker 2: this case tried before the election. And this is really
Speaker 2: troubling for the government because let's remember, this was really
Speaker 2: viewed by many people as the strongest case that was
Speaker 2: brought by the Department of Justice and in fact by
Speaker 2: even state prosecutors against former President Trump because it did
Speaker 2: not involve a novel legal theory as some of the
Speaker 2: other cases did, and because it was focused almost exclusively
Speaker 2: on actions after he left office, which removed it from
Speaker 2: some of the immunity issues. That ultimately is going to
Speaker 2: be a problem for Special Counsel Jack Smith and connecting
Speaker 2: with the January sixth case. So, while this case was
Speaker 2: perhaps not the most exciting, it involved improperly removing classified
Speaker 2: documents according to the government, and then the government alleged
Speaker 2: that former President Trump obstructed the government in terms of
Speaker 2: their ability to retrieve those documents. While it's not the
Speaker 2: most exciting case out there, it was really on the
Speaker 2: most solid legal footing, and prosecutors, i think, thought that
Speaker 2: this might be the best chance they had out there
Speaker 2: to gain a conviction in one of the federal cases.
Speaker 1: This decision has nothing to do with the DC case.
Speaker 1: But Trump's attorneys hadn't challenged Smith's appointment in the DC case,
Speaker 1: they might now challenge his appointment in the DC case
Speaker 1: as well. Where do you think that would end up?
Speaker 2: Well, you're absolutely right. They have not made the argument
Speaker 2: in the DC case, which is somewhat interesting considering the
Speaker 2: facts are entirely the same. It has nothing to do
Speaker 2: with the merits of the case. That has nothing to
Speaker 2: do with the charges. Again, this simply has to do
Speaker 2: with the appointment of the special Council, which would be
Speaker 2: the same in the DC case as it would in
Speaker 2: the Florida case. So it's interesting that they made the
Speaker 2: argument in Florida, perhaps in front of the judge that
Speaker 2: they thought was going to be more sympathetic as opposed
Speaker 2: to the judge and the District of Columbia who they
Speaker 2: thought would be less receptive to that argument. But now
Speaker 2: that they have this win in Florida, I think we
Speaker 2: can expect them to rely upon that and make the
Speaker 2: same argument to the Court of the District of Columbia.
Speaker 2: Although let's remember that the District Court decision of Florida
Speaker 2: is not finding legal precedent in any way for the
Speaker 2: judge and the District of Columbia, But nonetheless they can
Speaker 2: cite that length of the opinion, try to make the
Speaker 2: same arguments before Judge Chuckin in the District of Columbia,
Speaker 2: and if she rules against them, there's another opportunity to
Speaker 2: perhaps appeal that decision and further delay that case.
Speaker 1: Also, as you mentioned before, there's precedent in DC for
Speaker 1: the appointment of a special council in the Muler case.
Speaker 2: Absolutely, yes, that's exactly right. So the chances of success
Speaker 2: of the District of Columbia on this argument seemed to
Speaker 2: be extremely low, but that may not stop them from
Speaker 2: making the argument anyway. Citing the reasoning from Judge Cannon
Speaker 2: in Florida and at the very least perhaps delaying that
Speaker 2: case even further. So.
Speaker 1: Trump has been on a winning spree with these criminal cases.
Speaker 1: You have the classified documents case dismissed at this point,
Speaker 1: the DC election interference case on hole because of that
Speaker 1: controversial Supreme Court decision giving him immunity for certain official acts.
Speaker 1: The sentencing in the New York hush money case also
Speaker 1: on hold because of that Supreme Court decision. And in
Speaker 1: the Georgia case, Trump is seeking to appeal the ruling
Speaker 1: that allowed the district attorney to stay on the case.
Speaker 1: What does this say about the legal system? People looking
Speaker 1: at this must say four cases for criminal cases against
Speaker 1: Donald Trump, only one went to trial and the rest
Speaker 1: have been put on hold for one reason or another.
Speaker 2: Well, I think people who have been watching these cases closely,
Speaker 2: if they're not lawyers, are probably scratching their heads at
Speaker 2: the legal system. They're seeing a system that seems to
Speaker 2: be falling down of its own weight in the sense
Speaker 2: that the arguments are delaying the case over and over again.
Speaker 2: And even lawyers who've been watching this case, I think,
Speaker 2: for the most part, are somewhat surprised at what has
Speaker 2: happened in many of these cases. Lots of these arguments
Speaker 2: that were made were real long shot arguments. Even the
Speaker 2: presidential immunity argument. I think most expected that the Supreme
Speaker 2: Court might not take that case, or if they did,
Speaker 2: they certainly would not carve out the type of presidential
Speaker 2: immunity that they did. So I think it's a case
Speaker 2: that has really shocked the public, and it's shocked the
Speaker 2: legal community. It's not gone the way that one would
Speaker 2: have expected, and it certainly is a huge win for
Speaker 2: the Trump defense team because if the ultimate goal was
Speaker 2: to delay these cases, they have certainly succeeded in doing that.
Speaker 2: And it's now likely that the only case that we'll
Speaker 2: have gone to trial before the election is the case
Speaker 2: brought by the Manhattan DA, And now even that case,
Speaker 2: as you mentioned, is being held up presenting purposes because
Speaker 2: of the presidential immunity decisions. I don't think it's likely
Speaker 2: that the judge in that case will throw that case
Speaker 2: out or that he'll decide that the presidential immunity decision
Speaker 2: has any real bearing on that case. I think that
Speaker 2: are going to point to certain testimony in that case
Speaker 2: the defense will and argue that the presidential immunity case
Speaker 2: requires that case to be overturned. But I think ultimately
Speaker 2: the trialgy judge there will call that cumulative evidence or
Speaker 2: harmless error, and that that case will stand. But in
Speaker 2: terms of all these federal cases, they are very much
Speaker 2: up in the air now, both legally and in terms
Speaker 2: of whether or not any of them will ever be
Speaker 2: tried before the election, or will ever be tried at all.
Speaker 1: Trump had two co defendants in the classified document's case.
Speaker 1: What happens to the cases against them.
Speaker 2: Well, the case is dismissed as to them as well,
Speaker 2: because remember, this argument was not something that was unique
Speaker 2: to former President Trump. It's not about immunity or something
Speaker 2: that applies only to a president or to a former president.
Speaker 2: This goes to the question of whether or not the
Speaker 2: special counsel who brought the case was properly appointed. So
Speaker 2: it essentially requires the entire case to be dismissed, not
Speaker 2: only against former President Trump, but against all of the
Speaker 2: defendants in the case. So you have to look at
Speaker 2: this decision as an incredibly bold and sweeping decision from
Speaker 2: the standpoint that it has thrown out the entire case
Speaker 2: not only against former President Trump, but against all defendants. Generally,
Speaker 2: judges will be reluctant to make those types of decisions,
Speaker 2: and generally judges will be reluctant to make decisions that
Speaker 2: are based on purely procedural grounds. When the case that
Speaker 2: involves a criminal prosecution, what judges always have to do
Speaker 2: is to weigh the rights of criminal defendants against the
Speaker 2: public's rights to have prosecutors prosecute cases for the safety
Speaker 2: of the public. And usually what we'll find is judges
Speaker 2: trying to find some type of middle ground. They want
Speaker 2: to make sure they're protecting the rights of defendant. But
Speaker 2: it is unusual to throw a case out entirely. It
Speaker 2: does happen if a search warrant, for example, is done
Speaker 2: improperly and the evidence is suppressed. Sometimes that will result
Speaker 2: in the entire criminal case being thrown out. But this
Speaker 2: falls into that category of the rare case where a
Speaker 2: judge finds a procedural violation by the government and throws
Speaker 2: out the entire case. So it's really unusual in that respect.
Speaker 2: Because the case against former President Trump, the case against
Speaker 2: his other co defendants is now over unless it's overturned
Speaker 2: by the Court of appeal.
Speaker 1: From a legal point of view, it will be interesting
Speaker 1: to see what the Eleventh Circuit, which is a conservative court,
Speaker 1: does here and whether Jack Smith asks to have Canon
Speaker 1: remove from the case. Thanks so much, Bob. That's former
Speaker 1: federal prosecutor Robert mintz Im maccarter and English. Trump posted
Speaker 1: on his Truth social platform that the dismissal of the
Speaker 1: Florida case should be just the first step, calling for
Speaker 1: an end to criminal and civil cases against him in
Speaker 1: other courts. He repeated his claims that all of the
Speaker 1: legal action he's faced after leaving the White House represented
Speaker 1: political attacks aimed at stopping him from retaking the presidency.
Speaker 1: Coming up next on the Bloomberg Lawn Show, we'll take
Speaker 1: a look at the judge's decision to throw out the
Speaker 1: criminal case against Alec Baldwin with prejudice, meaning that the
Speaker 1: actor cannot be retried. I'm June Grosso. When you're listening
Speaker 1: to Bloomberg.
Speaker 4: The court concludes that this conduct is highly prejudicial to
Speaker 4: the defendant. The jury has been sworn, jeopardy has attached,
Speaker 4: and this disclosure during the course of trial is sole
Speaker 4: late that it undermines the defendants preparation for trial.
Speaker 1: And with that New Mexico Judge Mary Marlowe summers throughout
Speaker 1: the involuntary manslaughter case against Alec Baldwin in the middle
Speaker 1: of his trial and rule he can't be tried again.
Speaker 1: Upon hearing her decision, Baldwyn cried and embraced his attorneys.
Speaker 1: The judge said state prosecutors showed signs of scorching prejudice
Speaker 1: by withholding evidence related to bullets from the defense in
Speaker 1: a case over the fatal shooting of the cinematographer on
Speaker 1: the set of Baldwin's film Rust in twenty twenty one.
Speaker 1: Joining me is former prosecutor Joshua Castenberg, a professor at
Speaker 1: the University of New Mexico Law School. Josh explain what
Speaker 1: the judge found the prosecution withheld from the defense.
Speaker 5: Here, so the prosecutor knew apparently that there were rounds
Speaker 5: that were obtained by the special investigator that were not
Speaker 5: handed over to the defense, and those rounds came from
Speaker 5: a friend er and the associate of Hanna goudierrasreed the armorer.
Speaker 5: The rounds were never tested by you know, the Sheriff's
Speaker 5: office or by the investigating arm They were visually looked at,
Speaker 5: which is not good practice to just say, well, we
Speaker 5: don't think that they're related to this case. The special prosecutor,
Speaker 5: she made a snap decision these aren't related to the case.
Speaker 5: They put them in a box with a separate case
Speaker 5: number that wasn't relevant to the Baldwin case, and they
Speaker 5: put them away. And so here you have evidence that
Speaker 5: may have been much ado about nothing, or it may
Speaker 5: have been very significant on the issue of how the
Speaker 5: bullets got to the gun. The judge got set up
Speaker 5: with it because it's a sixth Amendment violation, and the
Speaker 5: only remedy available at this point was to dismiss the
Speaker 5: case with prejudice.
Speaker 1: I don't understand what difference it makes whether it came
Speaker 1: from this prop supplier or you know, it came from hanaguccierres.
Speaker 1: I mean, the fact is that live bullets were on
Speaker 1: the set.
Speaker 5: Ironically, you hit the nail on the head, not because
Speaker 5: of you doing any irony or meeting. But this was
Speaker 5: an unknety, a completely unnecessary act by the prosecutor. Because
Speaker 5: the prosecution's theory for the Baldwin case was that every
Speaker 5: person has an independent duty to make sure the gun
Speaker 5: is safe, a gun that they handle is safe, and
Speaker 5: that had nothing to do directly with where these bullets
Speaker 5: came from. With one potential arguable thing, and that is
Speaker 5: if there were a bunch of live rounds that had
Speaker 5: been on the set and Baldwin knew these were live
Speaker 5: rounds that had been on the set, that would be
Speaker 5: worse for him. Or if he assumed that they were
Speaker 5: only you know, blanks, and these extra bullets here, once
Speaker 5: they were analyzed, they were either inert or they were blanks.
Speaker 5: That could have helped this case. But I don't think
Speaker 5: these bullets one way or the other would have made
Speaker 5: a huge difference in the case. The case was sort
Speaker 5: of primed in my mind for an acquittal anyway, So
Speaker 5: the self inflected wound, it's bad for the confidence of
Speaker 5: the public.
Speaker 1: Why do you think the case was prime for acquittal?
Speaker 5: Well, I think the case was likely to be an acquittal.
Speaker 5: I wouldn't bet my house on it, but I think
Speaker 5: the case was likely headed towards an acquittal for two reasons.
Speaker 5: One is, the judge made some pretty significant rulings under
Speaker 5: the rules of evidence which were absolutely on point, and
Speaker 5: that was, you know, Baldwin's past conduct towards other individuals
Speaker 5: and Baldwin's position as a producer were off limits unless
Speaker 5: the defense opened the door for them bet evidence to
Speaker 5: come in. And the defense is very good in this case,
Speaker 5: and I don't think they would have opened the door
Speaker 5: for that evidence to come in. The other reason why
Speaker 5: I say that is after the judge sort of gutted
Speaker 5: some powerful evidence from the prosecutor's case. People generally have
Speaker 5: a difficult time dividing guilt, and in this case, you
Speaker 5: have divided guilt in a negligence case, you know, And
Speaker 5: I think that's difficult. It's not like an conspiracy to
Speaker 5: commit a crime. It's Hana Goodyer, as read, was criminally
Speaker 5: negligent because of her misconduct as an armorer. So if
Speaker 5: that's the criminal part of this case, then where is
Speaker 5: Baldwin's criminality. It's clear he's negligent, But where's the criminality
Speaker 5: part of the negligence there? And I think that's what
Speaker 5: the jury would struggle with.
Speaker 1: The judge said, dismissing a case with prejudice, which means
Speaker 1: you can't bring it again, the prosecution can bring it again,
Speaker 1: was an extreme sanction. Couldn't she have dismissed the case
Speaker 1: without prejudice?
Speaker 5: Well, she could have, but I would say a couple
Speaker 5: of things to that effect, and yes, that would have
Speaker 5: been reasonable to do as well, But this judge had
Speaker 5: gotten frustrated at the prosecutor's office on other matters, and
Speaker 5: the judge of frustration reflected reality. It wasn't a judge
Speaker 5: just having a short temper for the stake of being
Speaker 5: short tempered. And I think that it showed up in
Speaker 5: the midst of trial rather than that the very beginning
Speaker 5: pushed the judge to the conclusion that the extreme sanction
Speaker 5: was necessary because Baldwin could not have gotten a fair
Speaker 5: trial in the first judicial district.
Speaker 1: Tell us about this chaotic hearing on Friday where the
Speaker 1: special prosecutor called herself to the stand.
Speaker 5: Well, let's step back even before that. There were two
Speaker 5: special prosecutors on Thursday night, before the Friday hearing, right,
Speaker 5: one of the special prosecutors stepped off the case. And
Speaker 5: what that tells me goes back to a basic rule
Speaker 5: of ethics. You cannot, as a lawyer, be a part
Speaker 5: of a cause of action that you do not believe in.
Speaker 5: And what I mean, but do not believe in is
Speaker 5: one of two things. It's either that the facts do
Speaker 5: not justify going forward or that another party's rights have
Speaker 5: been so trampled on you cannot in good conscience continue
Speaker 5: on in the case. So we can speculate it's the
Speaker 5: ladder in this. So you have a special prosecutor saying
Speaker 5: I'm done, and then you have the special prosecutor taking
Speaker 5: the stand and trying to defend herself. Well, she's a career,
Speaker 5: a very distinguished career criminal defense attorney. And again this
Speaker 5: is speculation on my part, but I think this was
Speaker 5: done more to salvage your reputation than it was to
Speaker 5: salvage the case. Because any prosecutor knows or should know
Speaker 5: that whenever you have what's known as a Brady violation,
Speaker 5: and your fingerprints are on that Brady violation, that's the
Speaker 5: right to the government's evidence, whether they use it or not.
Speaker 5: And if your fingerprints are on that Brady violation, as
Speaker 5: the prosecutor, you need to explain to the court why
Speaker 5: that is. Otherwise you lose the case, and you might
Speaker 5: also not just lose your reputation, but there may be
Speaker 5: recriminations under the state bar for that. So I think
Speaker 5: that's why she testified.
Speaker 1: The judge said, if this conduct does not rise to
Speaker 1: the level of bad faith, it certainly comes so near
Speaker 1: to bad faith as to show signs of scorching. Explain
Speaker 1: what she found the prosecution had done to establish the
Speaker 1: Brady violation.
Speaker 5: Okay, So the sixth Amendment has always stated within the
Speaker 5: language that a defendant has the right to know the
Speaker 5: charges against them, and that includes all of the government's evidence. Now,
Speaker 5: for years prosecutors would have said that means the evidence
Speaker 5: I'm going to introduce. But the war in court in
Speaker 5: a case called Brady versus Maryland, said no, it's broader
Speaker 5: than that. It's all the evidence in the prosecution or
Speaker 5: in the government's possession, and it's up to the court
Speaker 5: to decide whether it's relevant or not, not to you,
Speaker 5: the prosecutor. And that makes perfect sense, because prosecutors are
Speaker 5: attempting to achieve a conviction on someone, and they're not
Speaker 5: the arbiters of the law. When there's a Brady violation,
Speaker 5: if it rises to the level that it undermines a
Speaker 5: defendant's ability to defend themselves within the meaning of the
Speaker 5: of right, the judge has a couple of choices. If
Speaker 5: the trial hasn't begun yet, One is to grant a
Speaker 5: delay so that the defense can be better prepared the
Speaker 5: others to caution an indictment or dismiss charges without prejudice,
Speaker 5: meaning telling the government you really messed up, but you
Speaker 5: know what, go back and seek a new indictment. Double
Speaker 5: jeopardy hasn't attached, and the third one is dismissed with prejudice. Now,
Speaker 5: you can only dismiss with prejudice if you find government
Speaker 5: misconduct at that stage, at the stage this occurred, trial
Speaker 5: had already started, the double jeopardy would have attached in
Speaker 5: the judge's mind. Now, when the judge said what she said,
Speaker 5: the quote that you gave, she wasn't immediately making a
Speaker 5: decision to the special prosecutor. You've committed misconduct and you've
Speaker 5: engaged in unethical activity, she said, In other words, there
Speaker 5: is enough evidence here for me to think that way,
Speaker 5: And I think that's a cue to the state bar
Speaker 5: to investigate this. It's not the judge making a final determination,
Speaker 5: which she could have done. But judges are trained to
Speaker 5: be objective and to make sure that they don't hold
Speaker 5: someone in contempt or they don't find an outright act
Speaker 5: of malfeasons unless they have all the facts. And you
Speaker 5: can't make that decision from the bench immediately, and so
Speaker 5: I think the judge gave the strongest language she could,
Speaker 5: but it's also a very strong hint to the state
Speaker 5: bar investigate this.
Speaker 1: Do you think part of this was that the defense
Speaker 1: claimed that the prosecution had hidden other information like forensic reports,
Speaker 1: emails until the eve of trial. Do you think that
Speaker 1: was part of her frustration.
Speaker 5: Yeah, I think so. You know, in this case, first
Speaker 5: brew it up, I thought, you know, really savvy defense council.
Speaker 5: Sometimes I'll sit on a deficiency and say, oh, you're
Speaker 5: on our jeopardy. Must have applied. We didn't have this
Speaker 5: in our possession and the government did, and they should
Speaker 5: have handed it over. You know, judge will make a
Speaker 5: rolling no, it is a violation. But what I'm going
Speaker 5: to find here is that I'm dismissing without prejudice because
Speaker 5: I don't see any mal intent on the part of
Speaker 5: the prosecution. It's the law enforcement that messed up, or
Speaker 5: it's you know, it's an investigator that messed this up,
Speaker 5: or it's a newly found witness. But in this case,
Speaker 5: every time it seemed like the judge was frustrated because
Speaker 5: of belated evidence discovery, the prosecutor's fingerprints were on the
Speaker 5: matters that were being decided before the court, emails, technical reports,
Speaker 5: and now the bullets.
Speaker 1: If the prosecution wanted to, they could appeal her decision.
Speaker 5: They could, But you know, there's a couple of things
Speaker 5: that would have to happen. One is, if I'm the
Speaker 5: elected DA, you know, at what point do you confess
Speaker 5: error to the public and say we messed up, or
Speaker 5: continue to spend taxpayers money and say we're going to
Speaker 5: appeal this only to have the new Mexico Supreme Court,
Speaker 5: or first the Court of Appeals and then the Supreme
Speaker 5: Court say, you know, the standard that we review this
Speaker 5: dismissal on is abusive discretion. And abusive discretion is a
Speaker 5: standard that means that the facts did not justify the decision,
Speaker 5: and the law was not on the judge's side and
Speaker 5: the ruling, and I got to say this, I might
Speaker 5: not have done what this judge had done. I might
Speaker 5: have dismissed without prejudice, but she has the law and
Speaker 5: the facts on her side, and this is an unwinnable appeal.
Speaker 5: So if I'm the elected DA, I'm calling it a
Speaker 5: day and saying to the public, we messed up and
Speaker 5: we owe the victim and the victim's family a huge
Speaker 5: apology on this one and then just move on.
Speaker 1: The whole case has sort of been chaotic.
Speaker 5: Well, and it has been. And I got to say this,
Speaker 5: I'm not sure these missing bullets are going to help
Speaker 5: on a read in the long term. But I could
Speaker 5: see a court of appeals overturning the decision and the
Speaker 5: conviction be saying, you know what, she didn't have full
Speaker 5: discovery either, and we're going to overturn this conviction. Now,
Speaker 5: then the prosecutor could retry the case. But at what
Speaker 5: point do you go to the public and say you
Speaker 5: trusted us with your vote for us, and we spent
Speaker 5: a few hundred thousand dollars of your taxpayer money and
Speaker 5: we've really messed up all around on this.
Speaker 1: Attorney Gloria Alred, who's representing the cinematographer's parents and sisters,
Speaker 1: said it may be a little premature for Alec Baldwin
Speaker 1: to be having his party. Does this affect at all
Speaker 1: the civil case against him?
Speaker 5: Does this affect the civil case against him? No, it doesn't.
Speaker 5: I mean the tour attorneys are going to be able
Speaker 5: to prosecute their civil case as vigorously as they've ever
Speaker 5: been able to do. This doesn't affect anything in fact
Speaker 5: Baldwin is facing. You know, I don't want to say
Speaker 5: anything bad about my state. I love my state. But
Speaker 5: there have been some very large awards recently given against
Speaker 5: companies like FedEx, and I think that this is another
Speaker 5: one of the those cases that is going to be
Speaker 5: that way.
Speaker 1: What is the basis of their suit.
Speaker 5: Well, it's a wrongful death suit. It's premised on negligence,
Speaker 5: but the burden of proof is much lower than in
Speaker 5: a criminal case, and they'll be able to bring in
Speaker 5: things about Baldwin that the criminal trial won't like Baldwin
Speaker 5: as a producer, Baldwin, you know, and the responsibilities that
Speaker 5: there are with that Baldwin is kind of pushing people around.
Speaker 5: If that is true, I mean, I don't know if
Speaker 5: that's true, but there's been some talk about sort of
Speaker 5: his cavalier conduct and bullying, and if that's true, they'll
Speaker 5: likely be able to bring that into evidence, and the
Speaker 5: prosecutor couldn't. So I imagine that they were going to be
Speaker 5: settlement talks. But I also think about the plainest bar
Speaker 5: and the attorneys, and they may set a line in
Speaker 5: the sand at a number that's a lot higher than
Speaker 5: Baldwin and his insurers are willing to bear.
Speaker 1: We'll see if the prosecutor and takes your advice. Josh
Speaker 1: that's Professor Joshua Kastenberg of the University of New Mexico
Speaker 1: Law School. And that's it for this edition of the
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