1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,760 --> 00:00:14,280 Speaker 1: By a six to three vote down ideological lines. The 3 00:00:14,320 --> 00:00:19,000 Speaker 1: Supreme Court upheld a Republican drawn congressional map in South Carolina, 4 00:00:19,280 --> 00:00:23,840 Speaker 1: rejecting a lower court's finding of racial gerrymandering and boosting 5 00:00:23,920 --> 00:00:26,880 Speaker 1: Republicans in the fight to control the House for the 6 00:00:26,920 --> 00:00:31,600 Speaker 1: rest of the decade. The six Conservative justices overturned a 7 00:00:31,720 --> 00:00:37,600 Speaker 1: three judge panel's decision that Republican lawmakers had unconstitutionally relied 8 00:00:37,640 --> 00:00:41,159 Speaker 1: on race when they removed thirty thousand black voters out 9 00:00:41,240 --> 00:00:45,879 Speaker 1: of Republican Representative Nancy Mace's district a quote bleaching of 10 00:00:45,960 --> 00:00:49,800 Speaker 1: African American voters from the district. Joining me is elections 11 00:00:49,880 --> 00:00:53,080 Speaker 1: law expert Richard Rffald, a professor at Columbia Law School. 12 00:00:53,240 --> 00:00:57,440 Speaker 1: The majority opinion by Justice Alito. What was the reasoning 13 00:00:57,720 --> 00:01:00,200 Speaker 1: of the Conservative majority here? 14 00:01:00,000 --> 00:01:03,600 Speaker 2: The majority concluded that the three judge court below the 15 00:01:03,600 --> 00:01:07,399 Speaker 2: district court erred that there was clear error in finding 16 00:01:07,480 --> 00:01:10,720 Speaker 2: that the redistricting of District one in South Carolina was 17 00:01:10,760 --> 00:01:12,640 Speaker 2: done on the basis of race rather than on the 18 00:01:12,640 --> 00:01:16,119 Speaker 2: basis of party. The Court recognized that racial jermy mannering 19 00:01:16,120 --> 00:01:18,840 Speaker 2: and partisan jurry mannering often look alike. They said the 20 00:01:18,840 --> 00:01:20,840 Speaker 2: burden was on the plaintiffs to show that this was 21 00:01:20,920 --> 00:01:24,080 Speaker 2: race and not party. And then the court then kind 22 00:01:24,080 --> 00:01:27,240 Speaker 2: of carefully picked apart and quite to tail the findings 23 00:01:27,240 --> 00:01:30,119 Speaker 2: of the district court and concluded that the district court 24 00:01:30,240 --> 00:01:33,039 Speaker 2: had made a mistake in concluding based on the evidence 25 00:01:33,400 --> 00:01:35,520 Speaker 2: that this was racial rather than partisan. 26 00:01:35,920 --> 00:01:38,280 Speaker 1: I mean, the district court had heard evidence right and 27 00:01:38,640 --> 00:01:43,080 Speaker 1: made these conclusions that the lawmakers, the Republican lawmakers, established 28 00:01:43,080 --> 00:01:46,640 Speaker 1: a target of seventeen percent black voters for the first district. 29 00:01:47,040 --> 00:01:50,480 Speaker 1: Alito said the state had strong evidence that the seventeen 30 00:01:50,520 --> 00:01:54,600 Speaker 1: percent figure was simply a side effect of the legislature's 31 00:01:54,640 --> 00:01:57,480 Speaker 1: partisan goal. What evidence is he talking about. 32 00:01:57,840 --> 00:02:01,120 Speaker 2: Well, the thing is, normally, when you're viewing a district 33 00:02:01,120 --> 00:02:04,320 Speaker 2: court's findings a fact, that burden is on the state 34 00:02:04,400 --> 00:02:07,520 Speaker 2: to show that the district court was completely wrong. And 35 00:02:07,680 --> 00:02:10,520 Speaker 2: here he seems to have put the burden more on 36 00:02:10,560 --> 00:02:13,320 Speaker 2: the plaintiffs, not just in the original case where they 37 00:02:13,360 --> 00:02:16,560 Speaker 2: persuaded the district court, but also in the Supreme Court, 38 00:02:16,840 --> 00:02:19,800 Speaker 2: to show that the district court was right as opposed 39 00:02:19,840 --> 00:02:22,440 Speaker 2: to being reasonable. I mean, in some ways there's an 40 00:02:22,520 --> 00:02:25,840 Speaker 2: argument that he in applying what is theoretically a differential 41 00:02:25,880 --> 00:02:29,600 Speaker 2: standard to the district court, the Senative clearly erroneous. He 42 00:02:29,680 --> 00:02:33,040 Speaker 2: went much further and in some sense reviewed all the 43 00:02:33,080 --> 00:02:36,160 Speaker 2: facts himself and concluded that on his reading of the 44 00:02:36,200 --> 00:02:39,280 Speaker 2: facts and his reading of the expert testimony, the plaintiffs 45 00:02:39,320 --> 00:02:40,240 Speaker 2: had not made their case. 46 00:02:40,800 --> 00:02:44,679 Speaker 1: He also said that a party challenging a map's constitutionality 47 00:02:44,760 --> 00:02:48,160 Speaker 1: must disentangle race and politics if it wishes to prove 48 00:02:48,200 --> 00:02:51,919 Speaker 1: the legislature was motivated by race as opposed to partisan 49 00:02:52,000 --> 00:02:55,079 Speaker 1: jip and the challenges provided no direct evidence of a 50 00:02:55,200 --> 00:02:58,320 Speaker 1: racial gerrymander. Is he looking for a statement by a 51 00:02:58,400 --> 00:03:02,320 Speaker 1: Republican lawmaker, or we're doing this because of race? 52 00:03:02,440 --> 00:03:02,840 Speaker 3: Righting me. 53 00:03:03,040 --> 00:03:05,960 Speaker 2: It basically said you could either do it by direct evidence, 54 00:03:06,080 --> 00:03:09,840 Speaker 2: like a smoking gun statement, or by strong circumstantial evidence. 55 00:03:10,120 --> 00:03:11,880 Speaker 2: And hear what the plaints were about the show is, 56 00:03:11,880 --> 00:03:14,240 Speaker 2: if you look at the numbers, there was a huge 57 00:03:14,400 --> 00:03:17,560 Speaker 2: movement of people in and out of this district. The 58 00:03:17,680 --> 00:03:20,760 Speaker 2: map makers dramatically move large numbers of people around, but 59 00:03:20,880 --> 00:03:24,400 Speaker 2: in particular they seemed to be moving more black voters 60 00:03:24,440 --> 00:03:27,640 Speaker 2: out and more white voters in, and so there was evident, 61 00:03:27,720 --> 00:03:30,080 Speaker 2: and that in the end, with all of the movement, 62 00:03:30,480 --> 00:03:33,640 Speaker 2: that sixteen point eight percent number was a number that 63 00:03:33,680 --> 00:03:37,160 Speaker 2: the Republicans felt was low enough so the district would 64 00:03:37,160 --> 00:03:40,280 Speaker 2: continue to chill Republican His view is that was really 65 00:03:40,320 --> 00:03:44,160 Speaker 2: about partisanship. The plaintiff's view and the district courts view 66 00:03:44,560 --> 00:03:46,400 Speaker 2: was that no, that showed that they were engaged in 67 00:03:46,400 --> 00:03:48,680 Speaker 2: a racial gerrymander. They moved like one hundred and eighty 68 00:03:48,680 --> 00:03:51,520 Speaker 2: thousand people around, but their target was to keep the 69 00:03:51,600 --> 00:03:55,160 Speaker 2: racial fraction the same, and they did it by moving 70 00:03:55,200 --> 00:03:57,200 Speaker 2: black voters in one direction and white vote in a 71 00:03:57,200 --> 00:03:57,800 Speaker 2: different direction. 72 00:03:58,240 --> 00:04:01,440 Speaker 1: The dissent, written by Justice A. La Keg and joined 73 00:04:01,480 --> 00:04:05,200 Speaker 1: by the two other liberal justices, was scathing. 74 00:04:05,640 --> 00:04:08,200 Speaker 2: She basically said that this case looks a lot like 75 00:04:08,240 --> 00:04:11,600 Speaker 2: a case the Supreme Court decided seven years earlier, Cooper 76 00:04:11,680 --> 00:04:15,200 Speaker 2: versus Harris, which presented a very very similar question of 77 00:04:15,520 --> 00:04:17,760 Speaker 2: was it race or was it party in a districting 78 00:04:17,800 --> 00:04:20,480 Speaker 2: dispute coming out of North Carolina, and the lower court 79 00:04:20,520 --> 00:04:23,200 Speaker 2: had found that it was race, and the Supreme Court 80 00:04:23,200 --> 00:04:26,080 Speaker 2: a firm basically by saying, you know that we're relatively 81 00:04:26,120 --> 00:04:28,520 Speaker 2: different to the lower court. And the lower court had 82 00:04:28,520 --> 00:04:31,279 Speaker 2: facts that support it. Kagan wrote the majority opinion in 83 00:04:31,320 --> 00:04:34,360 Speaker 2: that case, Alito wrote the descent, and as she points out, 84 00:04:34,839 --> 00:04:38,360 Speaker 2: much of the language and much of the ideas of 85 00:04:38,560 --> 00:04:41,760 Speaker 2: Alito's majority opinion come directly from his descent in Cooper 86 00:04:41,800 --> 00:04:44,680 Speaker 2: versus Harris, a case decided about seven years ago, and 87 00:04:44,720 --> 00:04:46,359 Speaker 2: so her view is that this case he should have 88 00:04:46,400 --> 00:04:48,560 Speaker 2: been governed by that case and should have come out 89 00:04:48,600 --> 00:04:49,039 Speaker 2: the same way. 90 00:04:49,520 --> 00:04:52,680 Speaker 1: She also said the majority was stacking the deck against 91 00:04:52,760 --> 00:04:56,440 Speaker 1: the challengers when it presumes legislators are acting in good faith, 92 00:04:56,480 --> 00:05:00,720 Speaker 1: and she quoted from Alito's opinion when racial clu notifications 93 00:05:00,800 --> 00:05:04,200 Speaker 1: in voting are at issue, the majority says every doubt 94 00:05:04,320 --> 00:05:07,799 Speaker 1: must be resolved in favor of the state, lest heaven 95 00:05:07,880 --> 00:05:13,000 Speaker 1: forfend it be accused of quote offensive and demeaning conduct. 96 00:05:13,360 --> 00:05:16,200 Speaker 1: I mean taking Alito head on, Yeah. 97 00:05:16,040 --> 00:05:18,920 Speaker 2: I mean Alito begins with the basic premise that whenever 98 00:05:18,960 --> 00:05:22,240 Speaker 2: a law is challenged, the law has presumptively valid. The 99 00:05:22,279 --> 00:05:24,960 Speaker 2: burden is on the plaintiffs to show that it's invalid. 100 00:05:25,000 --> 00:05:27,200 Speaker 2: And that's the kind of judicial review one on one, 101 00:05:27,360 --> 00:05:30,720 Speaker 2: as you begin with the presumption of validity. But she's saying, 102 00:05:30,760 --> 00:05:33,760 Speaker 2: in effect, she's taking it so far that he's using 103 00:05:33,800 --> 00:05:36,159 Speaker 2: it not at the opening stage of the case, but 104 00:05:36,279 --> 00:05:39,720 Speaker 2: on the appeal following a determination by the district Court 105 00:05:40,000 --> 00:05:43,800 Speaker 2: after a lengthy trial with lots of testimony, lots of exhibits, 106 00:05:43,839 --> 00:05:46,360 Speaker 2: lots of depositions, as pre judge panel that found the 107 00:05:46,440 --> 00:05:49,240 Speaker 2: other way. And so she's saying that, in effect, he's 108 00:05:49,240 --> 00:05:51,159 Speaker 2: putting such a heavy thumb on the scale for the 109 00:05:51,240 --> 00:05:54,440 Speaker 2: legislature that he's making it almost impossible for plaintiffs to 110 00:05:54,480 --> 00:05:57,320 Speaker 2: prevail in a case, even after they prevail before the 111 00:05:57,360 --> 00:05:58,080 Speaker 2: district court. 112 00:05:58,240 --> 00:06:02,360 Speaker 1: Is this decision raising there for winning a challenge to 113 00:06:02,400 --> 00:06:05,080 Speaker 1: a map based on racial jerry mandering. 114 00:06:05,560 --> 00:06:07,440 Speaker 2: I think it is. I mean, I think basically the 115 00:06:07,440 --> 00:06:11,680 Speaker 2: burden is now even heavier on the plaintiffs to disentangle 116 00:06:11,760 --> 00:06:14,520 Speaker 2: race from party and to show it was clearly race 117 00:06:14,600 --> 00:06:18,080 Speaker 2: and not party, as opposed to the intertwining that we 118 00:06:18,200 --> 00:06:21,400 Speaker 2: often see. So I do think although technically he's applying 119 00:06:21,440 --> 00:06:24,279 Speaker 2: the same standards as before, he is now hying them 120 00:06:24,320 --> 00:06:26,720 Speaker 2: in a much tougher way. He's also added a kind 121 00:06:26,760 --> 00:06:30,240 Speaker 2: of requirement that court had rejected as a requirement before, 122 00:06:30,680 --> 00:06:34,440 Speaker 2: which is that the plaintiffs produce an alternative map which 123 00:06:34,480 --> 00:06:38,120 Speaker 2: produces the same partisan results but with a different racial 124 00:06:38,120 --> 00:06:40,800 Speaker 2: makeup to show that it really was race and not 125 00:06:40,920 --> 00:06:43,240 Speaker 2: party that was driving this court in the past that 126 00:06:43,360 --> 00:06:46,040 Speaker 2: said having a map is helpful, but now he has 127 00:06:46,080 --> 00:06:48,000 Speaker 2: come very close to making it a requirement. 128 00:06:48,760 --> 00:06:51,760 Speaker 1: And then you have Clarence Thomas, who joined the majority 129 00:06:51,760 --> 00:06:55,479 Speaker 1: but wrote separately, do basically say federal courts should just 130 00:06:55,560 --> 00:06:57,280 Speaker 1: keep out of this issue completely. 131 00:06:57,680 --> 00:07:00,640 Speaker 2: That's correct. He basically said that ago in the Rout 132 00:07:00,640 --> 00:07:04,080 Speaker 2: show case, we decided that partisan jerrymandering is not justiciable. 133 00:07:04,400 --> 00:07:07,800 Speaker 2: Now I think that racial jerry mandering is justice non justiciable, 134 00:07:07,839 --> 00:07:10,720 Speaker 2: and that it's so difficult to figure out to disentangle 135 00:07:10,840 --> 00:07:14,400 Speaker 2: the legislative motivation and legislative consequences. That that's for the 136 00:07:14,400 --> 00:07:17,400 Speaker 2: state legislatures and for Congress. Congress has the power to 137 00:07:17,440 --> 00:07:20,240 Speaker 2: review this and write rules, but it's something that the 138 00:07:20,240 --> 00:07:23,680 Speaker 2: courts can't handle. And he actually didn't join one part 139 00:07:23,720 --> 00:07:26,480 Speaker 2: of the opinion, the part of the opinion where Justice 140 00:07:26,520 --> 00:07:29,600 Speaker 2: Alito went through all of the expert testimony and picked 141 00:07:29,600 --> 00:07:31,680 Speaker 2: it apart, and he basically said, you didn't need to 142 00:07:31,760 --> 00:07:33,680 Speaker 2: do that. But more of the points, the fact that 143 00:07:33,720 --> 00:07:36,640 Speaker 2: you would engage in so much detail with the expert testimony. 144 00:07:36,680 --> 00:07:38,640 Speaker 2: It's one of the reasons why I don't think courts 145 00:07:38,640 --> 00:07:39,960 Speaker 2: should be involved in this at all. 146 00:07:40,520 --> 00:07:46,160 Speaker 1: It is difficult to separate race from politics. But now 147 00:07:46,760 --> 00:07:50,559 Speaker 1: does this give, as Elena Kagan said, it gives state 148 00:07:50,640 --> 00:07:54,800 Speaker 1: lawmakers an incentive to use race as a proxy to 149 00:07:54,920 --> 00:07:56,520 Speaker 1: achieve partisan ends. 150 00:07:57,280 --> 00:07:59,920 Speaker 2: Yes, I think until now the Court has said that 151 00:08:00,000 --> 00:08:02,920 Speaker 2: although we won't hear parties in jerrymandering cases, we will 152 00:08:02,960 --> 00:08:05,920 Speaker 2: hear claims of racial gerrymandering. So it was one way 153 00:08:06,000 --> 00:08:09,680 Speaker 2: in which plaintiffs couldn't directly attack the parties in jerrymander 154 00:08:09,960 --> 00:08:12,160 Speaker 2: but they could try and do that if they could 155 00:08:12,160 --> 00:08:14,960 Speaker 2: show that it was also a racial gerrymander. Now the 156 00:08:15,040 --> 00:08:18,400 Speaker 2: Court has pretty much made that impossible, or made it 157 00:08:18,560 --> 00:08:21,200 Speaker 2: an even much much harder to be able to make 158 00:08:21,200 --> 00:08:25,200 Speaker 2: a racial gerrymanderin claim outside the context of party. I 159 00:08:25,200 --> 00:08:27,520 Speaker 2: suppose you could have a racial gerrymandering claim in a 160 00:08:27,520 --> 00:08:29,640 Speaker 2: one party state, but in a situation where rac and 161 00:08:29,680 --> 00:08:31,880 Speaker 2: party are so intertwined, it's going to be much harder 162 00:08:31,920 --> 00:08:34,200 Speaker 2: to make any kind of racial gerrymandering claim. 163 00:08:34,559 --> 00:08:38,640 Speaker 1: So for anyone who thought that the Conservatives had changed 164 00:08:38,720 --> 00:08:42,640 Speaker 1: when the Court rule that Alabama Republicans violated the Voting 165 00:08:42,720 --> 00:08:47,000 Speaker 1: Rights Act? Is this proof that, No, it hasn't changed. 166 00:08:47,600 --> 00:08:53,360 Speaker 2: I think it shows the ongoing difficulty of dealing with 167 00:08:53,400 --> 00:08:57,280 Speaker 2: these districting disputes when race and party are so intertwined. 168 00:08:57,440 --> 00:08:59,920 Speaker 2: And yes, that case, the Alabama case was a case 169 00:09:00,040 --> 00:09:02,960 Speaker 2: where the court did differ the findings of the lower court, 170 00:09:03,160 --> 00:09:05,480 Speaker 2: and there although there was a situation where the plaintiffs 171 00:09:05,559 --> 00:09:09,080 Speaker 2: didn't provide alternative maps to show that the district could 172 00:09:09,120 --> 00:09:11,320 Speaker 2: be done in a different way. But I think in 173 00:09:11,360 --> 00:09:13,600 Speaker 2: some ways that it really does show the court's kind 174 00:09:13,640 --> 00:09:18,880 Speaker 2: of impatience with the effort to possibly outflank the court's 175 00:09:18,960 --> 00:09:22,559 Speaker 2: unwillingness to hear partisan jury mannering claims by hearing racial 176 00:09:22,640 --> 00:09:25,800 Speaker 2: jury mannering claims where if the plaintiffs win, the victory 177 00:09:25,880 --> 00:09:28,760 Speaker 2: would be similar to the victory to partisan jurry mannoring case. 178 00:09:29,080 --> 00:09:31,880 Speaker 2: I think they've just made that much harder. It's not impossible. 179 00:09:32,600 --> 00:09:36,120 Speaker 1: What's the difference between challenging a map under the Voting 180 00:09:36,200 --> 00:09:40,800 Speaker 1: Rights Act and under the Equal Protection Clause of the 181 00:09:40,880 --> 00:09:45,520 Speaker 1: Constitution which this case was brought under. Could these plaintiffs 182 00:09:45,520 --> 00:09:48,400 Speaker 1: have brought this case under the Voting Rights Act? 183 00:09:48,679 --> 00:09:51,080 Speaker 2: They did bring a Voting Rights Act vote dilution claim, 184 00:09:51,559 --> 00:09:54,160 Speaker 2: which I think they won on, but the Supreme Court 185 00:09:54,240 --> 00:09:57,680 Speaker 2: said the lower court erred on that as well, because 186 00:09:57,720 --> 00:10:00,480 Speaker 2: the lower courts have applied the same standard and it's 187 00:10:00,480 --> 00:10:03,200 Speaker 2: a different standard for bote dilution cases. So they reversed 188 00:10:03,200 --> 00:10:05,280 Speaker 2: and remanded. So if there's going to be a trial 189 00:10:05,280 --> 00:10:07,360 Speaker 2: on that, it would be the different claim. I think 190 00:10:07,520 --> 00:10:11,040 Speaker 2: they are somewhat different theories. The theory legal protection claim 191 00:10:11,120 --> 00:10:15,200 Speaker 2: is that the state's motivation was predominantly racial. Doesn't have 192 00:10:15,280 --> 00:10:19,480 Speaker 2: to show that there was an underrepresentation of black voters, 193 00:10:19,480 --> 00:10:22,319 Speaker 2: but just that the state was purposely drawing lines based 194 00:10:22,360 --> 00:10:25,520 Speaker 2: on race. And whereas both dilution, you don't even have 195 00:10:25,559 --> 00:10:27,800 Speaker 2: to show that a race was intentional. What you do 196 00:10:27,960 --> 00:10:30,720 Speaker 2: have to show is that as a result of the 197 00:10:30,800 --> 00:10:35,080 Speaker 2: line drawing, black voters or voters of color were underrepresented, 198 00:10:35,120 --> 00:10:38,200 Speaker 2: that it was more difficult for them to win elections 199 00:10:38,480 --> 00:10:39,239 Speaker 2: than otherwise. 200 00:10:39,840 --> 00:10:43,320 Speaker 1: Would you say that For the last decade or so, 201 00:10:44,000 --> 00:10:48,400 Speaker 1: the Roberts Court's decisions have made it harder for black 202 00:10:48,480 --> 00:10:50,800 Speaker 1: voters to challenge redistricting plans. 203 00:10:51,640 --> 00:10:51,800 Speaker 3: Well. 204 00:10:51,800 --> 00:10:55,080 Speaker 2: The Roberts Court obviously famously got rid of Section five 205 00:10:55,480 --> 00:10:58,839 Speaker 2: of the Voting Rights Act, which required dates in covered 206 00:10:58,880 --> 00:11:02,560 Speaker 2: jurisdictions to get Justin Department approvals first, so therefore actually 207 00:11:02,600 --> 00:11:05,160 Speaker 2: putting the burden on plaintiffs to go ahead. I think 208 00:11:05,280 --> 00:11:08,640 Speaker 2: how they've handled both dilution cases has been a little inconsistent. 209 00:11:09,040 --> 00:11:10,800 Speaker 2: As you point out Plank, that is one of vote 210 00:11:10,800 --> 00:11:13,800 Speaker 2: dilution cases from Alabama last year. This was technically a 211 00:11:13,800 --> 00:11:17,480 Speaker 2: constitutional case, so it's a little hard to characterize sometimes 212 00:11:17,480 --> 00:11:20,360 Speaker 2: plaintiffs of one, but certainly this one I think is 213 00:11:20,400 --> 00:11:22,880 Speaker 2: going to make it much harder for plaintiffs to win 214 00:11:22,960 --> 00:11:23,600 Speaker 2: cases like this. 215 00:11:24,160 --> 00:11:27,440 Speaker 1: Thanks so much, rich That's Professor Richard Briffald of Columbia 216 00:11:27,520 --> 00:11:30,560 Speaker 1: Law School. Coming up next on the Bloomberg Law Show. 217 00:11:31,120 --> 00:11:33,320 Speaker 1: It looks like the jury and the Trump hush money 218 00:11:33,360 --> 00:11:37,199 Speaker 1: case will begin deliberations next week. We'll take a look 219 00:11:37,200 --> 00:11:40,920 Speaker 1: at the prosecution's case. I'm June Grosso and you're listening 220 00:11:41,000 --> 00:11:46,280 Speaker 1: to Bloomberg. The historic first criminal trial of a former 221 00:11:46,360 --> 00:11:51,200 Speaker 1: president is nearing a conclusion. Manhattan jury will decide whether 222 00:11:51,240 --> 00:11:55,000 Speaker 1: the former president falsified his company's records to hide a 223 00:11:55,080 --> 00:11:58,440 Speaker 1: hush money payment to poor and star Stormy Daniels and 224 00:11:58,600 --> 00:12:02,240 Speaker 1: influence the twenty sixty election. The case could be in 225 00:12:02,280 --> 00:12:06,600 Speaker 1: the jury's hands as soon as Tuesday, after closing arguments 226 00:12:06,640 --> 00:12:10,760 Speaker 1: by both sides and jury instructions. Joining me is criminal 227 00:12:10,760 --> 00:12:15,480 Speaker 1: defense attorney Jeremy saland a former Manhattan prosecutor. Let's start 228 00:12:15,480 --> 00:12:19,760 Speaker 1: with the cross examination of Michael Cohen, the prosecution star witness. 229 00:12:20,200 --> 00:12:24,400 Speaker 1: The defense attorney was very aggressive. How effective was he 230 00:12:24,559 --> 00:12:29,160 Speaker 1: in undermining Cohen's credibility which sort of hangs by a thread. 231 00:12:28,960 --> 00:12:33,480 Speaker 4: Anyway, I think that there was diminishing returns in the 232 00:12:33,559 --> 00:12:36,880 Speaker 4: time frame that a Blanche kept him on the stand, 233 00:12:37,520 --> 00:12:40,920 Speaker 4: the lack of what I thought was enough leading questions 234 00:12:40,920 --> 00:12:43,400 Speaker 4: as opposed to open ending questions from what I read. 235 00:12:43,520 --> 00:12:45,480 Speaker 4: And I also thought that there were times when he 236 00:12:45,600 --> 00:12:48,120 Speaker 4: hits some of the same points over and over, and 237 00:12:48,160 --> 00:12:50,280 Speaker 4: that goes back to the diminishing returns. And it's not 238 00:12:50,360 --> 00:12:53,200 Speaker 4: just diminishing returns in that you lose the jury they 239 00:12:53,240 --> 00:12:55,400 Speaker 4: get the point, but you also run the risk of 240 00:12:55,440 --> 00:12:59,320 Speaker 4: opening certain doors. The end of his cross examination went flat. 241 00:12:59,480 --> 00:13:02,040 Speaker 4: It could have been better, but at the same time, 242 00:13:02,840 --> 00:13:06,120 Speaker 4: it exposed Michael Cohen for who he was, which is 243 00:13:06,320 --> 00:13:10,960 Speaker 4: a conniving, dishonest, selfish person with an agenda to really 244 00:13:11,080 --> 00:13:13,680 Speaker 4: hurt the former president. Now I will say this though, 245 00:13:13,800 --> 00:13:16,440 Speaker 4: and this shouldn't be lost in anybody. When we think 246 00:13:16,480 --> 00:13:18,880 Speaker 4: of John Gotti, by a show of hands, how many 247 00:13:18,920 --> 00:13:21,720 Speaker 4: people think the man was innocent. He was convicted after trial. 248 00:13:21,760 --> 00:13:24,320 Speaker 4: And I'm not comparing the two and saying Donald Trump 249 00:13:24,440 --> 00:13:27,680 Speaker 4: is John Gotti. But who was the main cooperator in 250 00:13:27,720 --> 00:13:29,920 Speaker 4: that case? It was Sammy the Bull. So when we 251 00:13:30,000 --> 00:13:33,080 Speaker 4: hear up beating up Michael Cohen, and we hear about 252 00:13:33,080 --> 00:13:35,680 Speaker 4: the attacks on Michael Cohen, you know he's not Sammy 253 00:13:35,679 --> 00:13:38,360 Speaker 4: the Bull. And if Sammy the Bull, who was alleged 254 00:13:38,400 --> 00:13:41,640 Speaker 4: to have committed I believe some nineteen somehid murders could 255 00:13:41,679 --> 00:13:44,240 Speaker 4: cooperate and have credibility and there could be a finding 256 00:13:44,280 --> 00:13:47,520 Speaker 4: of guilt against John Gotti. So that matter. How many 257 00:13:47,520 --> 00:13:50,360 Speaker 4: people love the movie Goodfellas that's based on Henry Hill. 258 00:13:50,760 --> 00:13:53,680 Speaker 4: Henry Hill was a cooperator who had a rap sheet 259 00:13:53,760 --> 00:13:55,960 Speaker 4: in all sorts of bad things. And people loved Henry Hill, 260 00:13:56,160 --> 00:13:58,400 Speaker 4: or at least they loved Rayleiota in the movie. So 261 00:13:58,960 --> 00:14:01,920 Speaker 4: you know, let's have some here. You don't catch the 262 00:14:01,960 --> 00:14:04,640 Speaker 4: main bad guy, you don't get the kingpin, you don't 263 00:14:04,679 --> 00:14:07,160 Speaker 4: get the main drug dealer. You don't get the main mobster, 264 00:14:07,800 --> 00:14:10,440 Speaker 4: not saying again that that that's who Donald Trump was. 265 00:14:10,800 --> 00:14:13,080 Speaker 4: But you don't get him or her unless you get 266 00:14:13,120 --> 00:14:16,560 Speaker 4: the person who is next in line, a lieutenant, a worker, 267 00:14:16,920 --> 00:14:19,160 Speaker 4: the dealer, the guy who cuts the drugs, the guy 268 00:14:19,160 --> 00:14:21,640 Speaker 4: who counts the money. You don't get that unless you 269 00:14:21,640 --> 00:14:23,400 Speaker 4: have some of those dirty hands. That's how you get 270 00:14:23,400 --> 00:14:24,160 Speaker 4: the big boss. 271 00:14:24,520 --> 00:14:28,400 Speaker 1: There were some things that Todd Blanche, the defense attorney, 272 00:14:28,400 --> 00:14:33,560 Speaker 1: brought out that cast out on Cohen's testimony at trial. 273 00:14:33,720 --> 00:14:37,840 Speaker 1: For example, that phone call he made in October of 274 00:14:37,880 --> 00:14:40,480 Speaker 1: twenty sixteen where he said he was updating Trump on 275 00:14:40,560 --> 00:14:43,560 Speaker 1: the Stormy Daniels payment, and it came out that he 276 00:14:43,640 --> 00:14:45,560 Speaker 1: probably was not talking to Trump. 277 00:14:45,960 --> 00:14:47,320 Speaker 4: Well, I don't know if that's how it came out there. 278 00:14:47,360 --> 00:14:49,560 Speaker 4: It was probably not talking to Trump, because you'd have 279 00:14:49,600 --> 00:14:52,280 Speaker 4: to think that Michael Cohen would call Trump's right hand man, 280 00:14:52,400 --> 00:14:55,400 Speaker 4: was speaking of ninety seconds about some teen harassing him. 281 00:14:56,040 --> 00:14:58,960 Speaker 4: Maybe maybe not, but any New Yorker understands this. I 282 00:14:58,960 --> 00:15:00,720 Speaker 4: think if you were born and or lived in New 283 00:15:00,800 --> 00:15:02,880 Speaker 4: York at any point in your life, you know this. 284 00:15:03,120 --> 00:15:05,280 Speaker 4: If you're sitting at a light and you're sitting in 285 00:15:05,360 --> 00:15:08,600 Speaker 4: traffic for thirty seconds for a minute, you got something 286 00:15:08,600 --> 00:15:12,160 Speaker 4: to do. That's an eternity, it's forever. In other words, 287 00:15:12,280 --> 00:15:15,520 Speaker 4: ninety seconds to be on the phone very well could 288 00:15:15,520 --> 00:15:19,720 Speaker 4: have included three seconds, ten seconds, seventy seconds of conversation 289 00:15:19,800 --> 00:15:23,080 Speaker 4: about this teenager. But it's not mutually exclusive. Just because 290 00:15:23,120 --> 00:15:25,600 Speaker 4: you're talking about one doesn't mean you're not talking about another. 291 00:15:25,720 --> 00:15:27,760 Speaker 4: A minute and a half is a long time. 292 00:15:29,080 --> 00:15:32,880 Speaker 1: The defense called two witnesses in their case. The last 293 00:15:32,880 --> 00:15:36,160 Speaker 1: one was lawyer Bob Costello, who I think they called 294 00:15:36,160 --> 00:15:39,640 Speaker 1: to damage Cohen's credibility even further, but he ended up 295 00:15:40,000 --> 00:15:44,120 Speaker 1: acting out on the witness stand, being disrespectful to the judge, 296 00:15:44,560 --> 00:15:48,040 Speaker 1: rolling his eyes, muttering on the stand, and incredible. The 297 00:15:48,080 --> 00:15:50,560 Speaker 1: judge said at one point, are you staring me down 298 00:15:50,640 --> 00:15:53,080 Speaker 1: right now? And the judge cleared the courtroom. 299 00:15:53,440 --> 00:15:55,720 Speaker 4: The way this happened, though, is atypical, and it's really 300 00:15:55,720 --> 00:15:59,200 Speaker 4: disappointing if I'm Donald Trump's team in Donald Trump, because 301 00:15:59,240 --> 00:16:01,880 Speaker 4: you have a witness who objectively could have shared some 302 00:16:01,960 --> 00:16:06,680 Speaker 4: really valuable things and information about Michael Cohen, supposedly telling him, 303 00:16:06,720 --> 00:16:10,280 Speaker 4: meaning Pastello, that Donald Trump wasn't aware that basically Donald 304 00:16:10,280 --> 00:16:12,240 Speaker 4: Trump was not in the noah on what was going on, 305 00:16:12,440 --> 00:16:17,720 Speaker 4: but it was lost in the petulance, sophomoric, amateur behavior 306 00:16:17,760 --> 00:16:21,520 Speaker 4: from a guy who served in his senior capacity at 307 00:16:21,560 --> 00:16:24,520 Speaker 4: the US Attorney's office. This is not his first rodeo. 308 00:16:24,600 --> 00:16:27,520 Speaker 4: What he was thinking, he shot his own credibility in 309 00:16:27,800 --> 00:16:31,080 Speaker 4: the flot. You know, don't run your mouth, show respect 310 00:16:31,080 --> 00:16:32,600 Speaker 4: to the court. You may be a fed and you 311 00:16:32,640 --> 00:16:34,800 Speaker 4: look down on the state. Maybe that's a little des arrogance. 312 00:16:34,840 --> 00:16:35,320 Speaker 3: I don't know. 313 00:16:35,760 --> 00:16:38,080 Speaker 4: But you're in a court of law and follow the 314 00:16:38,080 --> 00:16:42,120 Speaker 4: court's instructions. And as I tell every witness, every witness, 315 00:16:42,640 --> 00:16:45,800 Speaker 4: kill him with kindness. Looked the defense or prosecution in 316 00:16:45,840 --> 00:16:49,080 Speaker 4: the eyes, look the jury in the eyes, be respectful, 317 00:16:49,160 --> 00:16:51,640 Speaker 4: be the bigger person. That's what he did not do. 318 00:16:51,720 --> 00:16:52,920 Speaker 4: And I'm really surprised. 319 00:16:53,000 --> 00:16:57,160 Speaker 1: I'm really surprised, experienced lawyer. So the biggest news to 320 00:16:57,160 --> 00:16:59,600 Speaker 1: come out of the trial this week was no news. Actually, 321 00:16:59,640 --> 00:17:02,480 Speaker 1: Trump had vowed to testify in his own defense and 322 00:17:02,600 --> 00:17:05,919 Speaker 1: started backing off. I don't know that any defense lawyer 323 00:17:05,960 --> 00:17:10,560 Speaker 1: would have encouraged him to testify. So was that the 324 00:17:10,640 --> 00:17:11,360 Speaker 1: right decision? 325 00:17:11,840 --> 00:17:16,240 Speaker 4: I know, quivocally absolutely, and any criminal defense attorney would say, 326 00:17:16,320 --> 00:17:17,960 Speaker 4: especially in a case like this where he has a 327 00:17:18,080 --> 00:17:19,959 Speaker 4: chance to hang. Do I think he's get an acquittal? 328 00:17:20,040 --> 00:17:21,959 Speaker 4: And know? But I'm going down on the limb here. 329 00:17:21,960 --> 00:17:24,479 Speaker 4: I may be completely totally wrong. So I could read juries, 330 00:17:24,520 --> 00:17:26,240 Speaker 4: I would be charging a lot more. I think we 331 00:17:26,280 --> 00:17:28,720 Speaker 4: all would. But none of us could read a jury's mind. 332 00:17:29,119 --> 00:17:31,760 Speaker 4: But you know I've used this term before, and I'll 333 00:17:31,800 --> 00:17:33,560 Speaker 4: go back to what every New Yorker knows. Every New 334 00:17:33,640 --> 00:17:36,399 Speaker 4: Yorker knows the term hutzbook. And he did not have 335 00:17:36,480 --> 00:17:38,720 Speaker 4: the hutspur to get up there despite his behavior and 336 00:17:38,800 --> 00:17:42,200 Speaker 4: his demeanor. He would get eviscerated, He would get hung 337 00:17:42,240 --> 00:17:44,439 Speaker 4: by his toes and hung out to try. And if 338 00:17:44,480 --> 00:17:46,560 Speaker 4: he has a chance of beating this case, he would 339 00:17:46,560 --> 00:17:48,560 Speaker 4: have lost it if he ran his mouth, because he 340 00:17:48,560 --> 00:17:51,000 Speaker 4: would have opened up door after door, and as bad 341 00:17:51,040 --> 00:17:54,359 Speaker 4: as Costello was, and as good, frankly as Michael Cohen was, 342 00:17:54,760 --> 00:17:56,879 Speaker 4: none of them even on their worst dand would have 343 00:17:56,920 --> 00:17:59,600 Speaker 4: done what Donald Trump would have potentially done on that stand. 344 00:17:59,640 --> 00:18:03,040 Speaker 4: So it was a smart move, an intelligent move, common 345 00:18:03,080 --> 00:18:04,760 Speaker 4: sense move, not to get up and testify. 346 00:18:05,320 --> 00:18:09,760 Speaker 1: Looking at the prosecution's case. Has the prosecution made out 347 00:18:09,800 --> 00:18:10,320 Speaker 1: its case? 348 00:18:10,359 --> 00:18:13,639 Speaker 4: Do you think I thought the evidence. Again, if I 349 00:18:13,680 --> 00:18:15,359 Speaker 4: wasn't in the court room, but from what I've read, 350 00:18:15,760 --> 00:18:18,040 Speaker 4: I thought the evidence went in pretty well. There is 351 00:18:18,080 --> 00:18:21,879 Speaker 4: an element of common sense that is so critically important here. 352 00:18:22,080 --> 00:18:25,639 Speaker 4: You know, if I'm the prosecution, I'm arguing saying, you 353 00:18:25,720 --> 00:18:29,800 Speaker 4: have Weifelberg's handwriting on these notes. It's not just Michael Cohen. 354 00:18:29,920 --> 00:18:33,439 Speaker 4: It's not just Stormy Daniels. You have you know, phone logs, 355 00:18:33,480 --> 00:18:35,960 Speaker 4: you have other witnesses. You have Whope Hicks, who puts 356 00:18:35,960 --> 00:18:39,160 Speaker 4: people in certain places at certain times, who describes Michael 357 00:18:39,200 --> 00:18:41,760 Speaker 4: Cohen these are my words, not as a getting generous 358 00:18:41,760 --> 00:18:43,720 Speaker 4: person that he's going to go out on a limb. Here, 359 00:18:43,960 --> 00:18:46,000 Speaker 4: a man who I believe made roughly a half a 360 00:18:46,040 --> 00:18:48,200 Speaker 4: million dollars a year and took a whole equity line 361 00:18:48,200 --> 00:18:49,800 Speaker 4: of credit out to hide it to why he was 362 00:18:49,800 --> 00:18:51,639 Speaker 4: getting them the money and to hide it from his wife, 363 00:18:51,880 --> 00:18:55,480 Speaker 4: and was going to bear responsibility and take ownership of 364 00:18:55,560 --> 00:18:58,919 Speaker 4: those dollars. That seems, like, you know, pretty unlikely. So 365 00:18:59,200 --> 00:19:01,800 Speaker 4: I think very much that the evidence went well. Will 366 00:19:01,800 --> 00:19:04,119 Speaker 4: the jury convict, That's tough, but all they need is 367 00:19:04,160 --> 00:19:05,680 Speaker 4: want to remember, All they need is want to hang 368 00:19:05,720 --> 00:19:06,320 Speaker 4: in the defense. 369 00:19:07,119 --> 00:19:11,959 Speaker 1: Yeah, So now legally, the case gets complicated because with 370 00:19:12,000 --> 00:19:14,919 Speaker 1: the prosecution, as you know, is out to make these 371 00:19:15,359 --> 00:19:19,040 Speaker 1: misdemeanors of falsifying business records into a felony, so it 372 00:19:19,080 --> 00:19:22,080 Speaker 1: has to be done with the intent to commit another crime. 373 00:19:22,400 --> 00:19:27,080 Speaker 1: How tricky is that? For prosecutors, it's tricky because a 374 00:19:27,119 --> 00:19:27,800 Speaker 1: couple things. 375 00:19:28,400 --> 00:19:30,640 Speaker 4: Let me sort of work backwards a little bit. When 376 00:19:30,640 --> 00:19:33,040 Speaker 4: the jury gets the case, a judge can instruct the 377 00:19:33,119 --> 00:19:36,480 Speaker 4: jury on what's called a lesser included offense, meaning the 378 00:19:36,600 --> 00:19:39,080 Speaker 4: judge can tell the jury you can consider the felonies 379 00:19:39,119 --> 00:19:42,080 Speaker 4: on the indictment, but even if you don't find the felony, 380 00:19:42,280 --> 00:19:45,000 Speaker 4: you could find for the misdemeanor's variety or flavor of 381 00:19:45,040 --> 00:19:47,919 Speaker 4: that same falsifying business records. That's what's called the lesser 382 00:19:48,040 --> 00:19:51,040 Speaker 4: included defense, even though it's not actually charged. Now, the 383 00:19:51,119 --> 00:19:53,679 Speaker 4: question I would ask is, if I'm the prosecution, do 384 00:19:53,760 --> 00:19:56,040 Speaker 4: I ask the judge not to submit that? If I'm 385 00:19:56,040 --> 00:19:57,919 Speaker 4: the defense, do I ask the judge to submit it 386 00:19:58,000 --> 00:19:59,960 Speaker 4: or not to submit it? Why do I ask that? 387 00:20:00,359 --> 00:20:04,000 Speaker 4: Because in my view, a conviction on the misdemeanor is 388 00:20:04,040 --> 00:20:06,720 Speaker 4: a loss, and that's end. On the face of Alvin Bragg, 389 00:20:06,880 --> 00:20:09,040 Speaker 4: it's really all or nothing. So it's either a conviction 390 00:20:09,119 --> 00:20:12,000 Speaker 4: on the felony or an acquittal. If I'm the defense, 391 00:20:12,359 --> 00:20:14,560 Speaker 4: do I want to make the jury make that decision 392 00:20:14,560 --> 00:20:16,840 Speaker 4: and don't give them the sort of compromise. It's either 393 00:20:16,920 --> 00:20:19,359 Speaker 4: is or it isn't. So it's an interesting question whether 394 00:20:19,400 --> 00:20:21,600 Speaker 4: they're going to want the judge to instruct the jury 395 00:20:21,680 --> 00:20:24,560 Speaker 4: or it's all or nothing. That's number one. Number two. 396 00:20:25,000 --> 00:20:27,840 Speaker 4: The other difficulty is, you know, what is that other crime? 397 00:20:27,880 --> 00:20:29,560 Speaker 4: Now you don't have to prove that crime beyond a 398 00:20:29,600 --> 00:20:32,280 Speaker 4: reasonable doubt that you're trying to conceal some election crime. 399 00:20:32,720 --> 00:20:37,720 Speaker 4: So don't misconstrue that to prove this secondary element to 400 00:20:37,760 --> 00:20:40,719 Speaker 4: make it the felony, the intent to commit or conceal 401 00:20:40,760 --> 00:20:43,120 Speaker 4: this other crime, that you have to actually prove theon 402 00:20:43,160 --> 00:20:45,600 Speaker 4: a reasonable with doubt that other crime. But you know, 403 00:20:45,800 --> 00:20:48,560 Speaker 4: I see as much strong evidence as you did about 404 00:20:48,560 --> 00:20:52,280 Speaker 4: the actual direct evidence of falsifying business records or the 405 00:20:52,480 --> 00:20:55,520 Speaker 4: circumstantial evidence, it was more difficult. So I see the 406 00:20:55,560 --> 00:20:59,119 Speaker 4: misdemeanor as an easy conviction. Frankreet, from what they've done, 407 00:20:59,359 --> 00:21:01,640 Speaker 4: thee going to be a little bit harder. I think 408 00:21:01,680 --> 00:21:03,080 Speaker 4: they did a good job, but I think it's still 409 00:21:03,080 --> 00:21:03,640 Speaker 4: going to be hard. 410 00:21:04,280 --> 00:21:08,680 Speaker 1: The jury instructions are always important. How much depends on 411 00:21:08,720 --> 00:21:12,879 Speaker 1: how the judge frames the instructions for that second crime. 412 00:21:14,000 --> 00:21:16,280 Speaker 4: Well, there was some argument back and forth if I 413 00:21:16,359 --> 00:21:19,679 Speaker 4: recall about whether there was two intents, and that's what 414 00:21:19,680 --> 00:21:21,680 Speaker 4: the defense was asking for it. It's the intent to 415 00:21:21,720 --> 00:21:24,080 Speaker 4: defraud and deceive, and you have to have the intent 416 00:21:24,119 --> 00:21:27,080 Speaker 4: to commit another crime. There's an expanded definition of intent. 417 00:21:27,119 --> 00:21:30,960 Speaker 4: For example, that's in the actual jury instructions, where there's 418 00:21:30,960 --> 00:21:33,080 Speaker 4: a charge solely for intent as opposed to the intent 419 00:21:33,119 --> 00:21:35,200 Speaker 4: you will find in the charge for the particular crime, 420 00:21:35,240 --> 00:21:37,320 Speaker 4: which is the same across the board, which is basically 421 00:21:37,359 --> 00:21:39,760 Speaker 4: it's your objective and goal, which there is an expanded version. 422 00:21:40,080 --> 00:21:43,400 Speaker 4: So the jury instructions, they're going to argue back and forth, 423 00:21:43,440 --> 00:21:45,280 Speaker 4: and they've already started that process as to what they 424 00:21:45,280 --> 00:21:48,280 Speaker 4: believe both the defensive prosecution should be given to the jury. 425 00:21:48,800 --> 00:21:52,000 Speaker 4: But this is a complicated case, but it's not. It's 426 00:21:52,080 --> 00:21:55,600 Speaker 4: fairly straightforward, and if the jury has problems, they can 427 00:21:55,640 --> 00:21:58,120 Speaker 4: go back and ask for the judge to reinstruct them. 428 00:21:58,119 --> 00:21:59,960 Speaker 4: They can go back and ask to hear the trance 429 00:22:00,000 --> 00:22:03,359 Speaker 4: script again and to listen to testimony again. But framing 430 00:22:03,400 --> 00:22:04,840 Speaker 4: it has to be done on the right way. I 431 00:22:04,880 --> 00:22:07,320 Speaker 4: have confidence that the court will. I have zero worry 432 00:22:07,359 --> 00:22:10,760 Speaker 4: about that. But people are people. This is an intelligent jury. 433 00:22:10,800 --> 00:22:13,880 Speaker 4: These are New Yorkers. They could find reasonable doubt, I'm sure, 434 00:22:13,920 --> 00:22:15,879 Speaker 4: and they could find proof beyond a reasonable doubt. 435 00:22:16,359 --> 00:22:21,600 Speaker 1: Has there been any real testimony or evidence on Trump's 436 00:22:21,600 --> 00:22:23,440 Speaker 1: intent or motivation? 437 00:22:24,119 --> 00:22:27,840 Speaker 4: The prosecution does not have to prove motive. That is 438 00:22:27,960 --> 00:22:30,919 Speaker 4: not an element of the crime, to be very very clear, 439 00:22:31,359 --> 00:22:33,400 Speaker 4: As much as we want to add that in as 440 00:22:33,480 --> 00:22:36,640 Speaker 4: prosecutors and defense attorneys may challenge or add their own motives, 441 00:22:36,840 --> 00:22:39,560 Speaker 4: it's not a requirement. So, for example, if your motive 442 00:22:39,680 --> 00:22:42,080 Speaker 4: was to protect your family, as the allegations were on 443 00:22:42,080 --> 00:22:45,040 Speaker 4: the home of President's side, as opposed to prosecution, which 444 00:22:45,160 --> 00:22:48,399 Speaker 4: was to fix or protect the election, there is no 445 00:22:48,560 --> 00:22:52,000 Speaker 4: requirement that that motive be proved beyond a reasonable doubt. 446 00:22:52,000 --> 00:22:55,639 Speaker 4: I will say, however, if I'm the prosecution, I would say, 447 00:22:55,840 --> 00:22:58,879 Speaker 4: even if you believe that that was his motive, that 448 00:22:59,119 --> 00:23:00,840 Speaker 4: was to protect malaim if, what I would say is 449 00:23:00,840 --> 00:23:03,000 Speaker 4: they're not mutually exclusive. You can want to protect your 450 00:23:03,000 --> 00:23:05,119 Speaker 4: family and have the intention of protecting your family, and 451 00:23:05,119 --> 00:23:07,480 Speaker 4: there's the intent, not the motive, but he also had 452 00:23:07,520 --> 00:23:10,320 Speaker 4: the intent to protect himself in the election and make 453 00:23:10,359 --> 00:23:12,439 Speaker 4: sure this didn't get out to protect the election. So 454 00:23:12,680 --> 00:23:14,960 Speaker 4: it's a mixed bag. And in terms of the evidence 455 00:23:15,000 --> 00:23:17,880 Speaker 4: coming in, this goes back to that common sense. This 456 00:23:17,920 --> 00:23:20,439 Speaker 4: goes back to why are they paying for it? If 457 00:23:20,520 --> 00:23:22,440 Speaker 4: you believe Trump had his hands in it, you know, 458 00:23:22,600 --> 00:23:25,000 Speaker 4: why is he paying for this at this time, right 459 00:23:25,000 --> 00:23:27,160 Speaker 4: before the election is about to hit, as things were 460 00:23:27,160 --> 00:23:30,720 Speaker 4: going sideways, and you have Hope Hicks telling you that, 461 00:23:30,840 --> 00:23:33,639 Speaker 4: you know, this could be really, really detrimental to women voters. 462 00:23:33,920 --> 00:23:35,639 Speaker 4: I think they did the job they needed to do, 463 00:23:36,440 --> 00:23:38,680 Speaker 4: even if not directly because you don't hear from the president, 464 00:23:38,960 --> 00:23:42,159 Speaker 4: but circumstantially through all the other evidence and testimony. 465 00:23:42,280 --> 00:23:44,440 Speaker 1: We may find out what the jury says about all 466 00:23:44,520 --> 00:23:47,920 Speaker 1: this as soon as next week. Thanks so much, Jeremy. 467 00:23:48,080 --> 00:23:52,000 Speaker 1: That's criminal defense attorney Jeremy Salande. Coming up next on 468 00:23:52,000 --> 00:23:55,800 Speaker 1: the Bloomberg Lawn Show. President Joe Biden is in another 469 00:23:55,920 --> 00:23:59,560 Speaker 1: race with former President Donald Trump, this one over the 470 00:23:59,640 --> 00:24:03,560 Speaker 1: number of judges confirmed during their term. I'm June Grosso 471 00:24:03,640 --> 00:24:08,000 Speaker 1: and you're listening to Bloomberg. It's a milestone for President 472 00:24:08,080 --> 00:24:12,120 Speaker 1: Joe Biden. On Wednesday, the Senate confirmed his two hundredth 473 00:24:12,240 --> 00:24:16,560 Speaker 1: judicial nominee, putting former President Donald Trump's total of two 474 00:24:16,640 --> 00:24:21,480 Speaker 1: hundred and thirty four judges potentially within Biden's reach. Joining 475 00:24:21,560 --> 00:24:24,720 Speaker 1: me is an expert on the federal judiciary, Carl Tobias, 476 00:24:24,760 --> 00:24:27,960 Speaker 1: a professor at the University of Richmond Law School. Carl 477 00:24:28,000 --> 00:24:31,479 Speaker 1: tell us about the milestone that Biden reached with the 478 00:24:31,520 --> 00:24:37,560 Speaker 1: confirmation of Angela Martinez, a US magistrate judge, to Arizona's bench. 479 00:24:38,560 --> 00:24:44,240 Speaker 3: Well, he appointed his two hundredth lower court judge. In fact, 480 00:24:44,280 --> 00:24:47,040 Speaker 3: there's another one yesterday, so there are two hundred and 481 00:24:47,280 --> 00:24:54,840 Speaker 3: one federal judges whom he has appointed. And today Biden 482 00:24:54,960 --> 00:24:59,800 Speaker 3: also named four more people, two for appeals courts vacancies, 483 00:25:00,040 --> 00:25:02,520 Speaker 3: one in Maine on the first Circuit and one in 484 00:25:02,560 --> 00:25:06,800 Speaker 3: the sixth Circuit Tennessee, and to find district nominees. So 485 00:25:07,600 --> 00:25:11,879 Speaker 3: he's following up on that milestone then moving forward. But 486 00:25:12,320 --> 00:25:18,639 Speaker 3: especially important is the composition of the federal bench in 487 00:25:18,680 --> 00:25:20,760 Speaker 3: the ways in which he's changed it, and we've talked 488 00:25:20,760 --> 00:25:25,160 Speaker 3: about that a lot before, but especially diversity in terms 489 00:25:25,240 --> 00:25:31,360 Speaker 3: of ethnicity, gender, two thirds. I think of all appointees 490 00:25:31,560 --> 00:25:37,360 Speaker 3: are either women or people of color. He has broken 491 00:25:37,400 --> 00:25:43,040 Speaker 3: all records for those two demographics as well as pointed 492 00:25:43,080 --> 00:25:49,840 Speaker 3: as many LGBTQ people in three years as Obama appointed 493 00:25:49,920 --> 00:25:55,520 Speaker 3: in eight. He's been extremely successful also experiential diversity. Twelve 494 00:25:55,520 --> 00:26:00,400 Speaker 3: of the appellate nominees are former Criminal Defense Council and 495 00:26:00,560 --> 00:26:04,480 Speaker 3: so he's bringing experiential balance to the bench. All of 496 00:26:04,520 --> 00:26:06,480 Speaker 3: that I think is very positive. 497 00:26:07,160 --> 00:26:10,119 Speaker 1: Is Biden in sort of a race to beat Trump's 498 00:26:10,160 --> 00:26:12,360 Speaker 1: total of two hundred and thirty four judges. 499 00:26:12,960 --> 00:26:18,280 Speaker 3: Yes, he's been very candidate about that. He pledged that 500 00:26:18,320 --> 00:26:20,720 Speaker 3: he would do that when he was a candidate, and 501 00:26:20,960 --> 00:26:24,160 Speaker 3: he has carried through the White House Council's office has 502 00:26:24,240 --> 00:26:30,440 Speaker 3: had very strong and careful people working on finding the 503 00:26:30,560 --> 00:26:34,640 Speaker 3: very best nominees and work closely with red state Republicans 504 00:26:34,680 --> 00:26:40,000 Speaker 3: to ensure especially recently as the blue state seats have 505 00:26:40,080 --> 00:26:44,439 Speaker 3: been filled, to bring forward people whom Biden could agree 506 00:26:44,440 --> 00:26:46,880 Speaker 3: with the home state senators on and there have been 507 00:26:46,920 --> 00:26:51,320 Speaker 3: some fine nominees from red states like Utah, Wyoming, and 508 00:26:51,400 --> 00:26:54,680 Speaker 3: a number of other South Dakota two people just were 509 00:26:54,720 --> 00:26:58,919 Speaker 3: confirmed I think last week. So they've been doing a 510 00:26:58,960 --> 00:27:03,879 Speaker 3: lot of important in careful work on filling the bench. 511 00:27:04,320 --> 00:27:06,840 Speaker 3: I think that's where they're headed and hoping that they 512 00:27:07,240 --> 00:27:12,280 Speaker 3: will have enough time to eclipse Trump's total number of appointees. 513 00:27:13,200 --> 00:27:17,200 Speaker 1: Biden inherited less than half of the vacancies to fill 514 00:27:17,240 --> 00:27:20,440 Speaker 1: that Trump had. Do you think that he can make 515 00:27:20,560 --> 00:27:22,879 Speaker 1: up the difference in the amount of time left in 516 00:27:22,920 --> 00:27:23,400 Speaker 1: his term? 517 00:27:23,880 --> 00:27:27,359 Speaker 3: I think so. But you're exactly right, as you remember, 518 00:27:27,400 --> 00:27:31,480 Speaker 3: and we've talked about before. In twenty fifteen sixteen, when 519 00:27:31,520 --> 00:27:36,080 Speaker 3: the Republicans recaptured the majority in the Senate, McConnell just 520 00:27:36,160 --> 00:27:39,520 Speaker 3: refused to move the nominees and they would go for 521 00:27:39,640 --> 00:27:43,760 Speaker 3: weeks and even months without hearings, and so they ended up, 522 00:27:44,000 --> 00:27:47,439 Speaker 3: i think, confirming two circuit nominees, which left a whole 523 00:27:47,560 --> 00:27:52,280 Speaker 3: number of appellate vacancies for Trump to fill, and he 524 00:27:52,359 --> 00:27:55,560 Speaker 3: did that fifty four, which I think is a record 525 00:27:55,600 --> 00:27:58,960 Speaker 3: for the first term of any president, to the detriment 526 00:27:59,080 --> 00:28:02,399 Speaker 3: of District nowe But they filled all of them, the 527 00:28:02,480 --> 00:28:07,000 Speaker 3: first time since nineteen eighty four during Reagan's administration, that 528 00:28:07,440 --> 00:28:11,640 Speaker 3: all one hundred and seventy nine were filled. So there 529 00:28:11,640 --> 00:28:17,160 Speaker 3: were very few whom could be succeeded. At the beginning 530 00:28:17,400 --> 00:28:21,760 Speaker 3: of the administration, but some, especially appointing of Democratic presidents, 531 00:28:21,800 --> 00:28:27,119 Speaker 3: did assume senior status, and Biden has named and confirmed 532 00:28:27,160 --> 00:28:31,439 Speaker 3: forty two and four are waiting to be confirmed. But 533 00:28:31,840 --> 00:28:35,560 Speaker 3: you're exactly right, the numbers just are not there. I 534 00:28:35,720 --> 00:28:40,240 Speaker 3: do not think that it's possible unless some others assume 535 00:28:40,320 --> 00:28:43,320 Speaker 3: senior status and very soon that Biden will be able 536 00:28:43,360 --> 00:28:46,160 Speaker 3: to match that. But again, these two today are very helpful, 537 00:28:46,240 --> 00:28:49,720 Speaker 3: and there I think four or five other vacancies that 538 00:28:49,920 --> 00:28:53,600 Speaker 3: still remain that could be filled. So it may be closed. 539 00:28:53,600 --> 00:28:56,040 Speaker 3: I mean, he may have fifty or he may even 540 00:28:56,160 --> 00:28:59,840 Speaker 3: come up to fifty four, but it seems unlikely. Still, 541 00:28:59,840 --> 00:29:03,200 Speaker 3: he's way ahead of Trump right now on district nominees, 542 00:29:03,440 --> 00:29:04,960 Speaker 3: and so that's promising. 543 00:29:05,480 --> 00:29:09,560 Speaker 1: Why has the confirmation to the Third Circuit Appellate Court 544 00:29:10,200 --> 00:29:12,600 Speaker 1: of a nominee who would be the first Muslim to 545 00:29:12,720 --> 00:29:16,440 Speaker 1: serve on a federal appeals court? Why has that been stalled? 546 00:29:16,880 --> 00:29:21,600 Speaker 3: A deal among the is very well qualified. He's a 547 00:29:21,640 --> 00:29:26,360 Speaker 3: longtime partner at a very prestigious and tourisfic firm in 548 00:29:26,440 --> 00:29:30,440 Speaker 3: New York, and he has done an enormous amount of 549 00:29:30,480 --> 00:29:35,760 Speaker 3: pro bono work, especially involving religious freedom. But the Republican 550 00:29:35,840 --> 00:29:39,360 Speaker 3: senators on the committee and off the committee basically attacked 551 00:29:39,440 --> 00:29:43,520 Speaker 3: him and asked him many questions, most of which were 552 00:29:44,600 --> 00:29:50,480 Speaker 3: improper during his hearing, and two Democratic senators from Nevada 553 00:29:50,800 --> 00:29:54,160 Speaker 3: have said that law enforcement officials came to them and 554 00:29:54,240 --> 00:29:58,000 Speaker 3: said that he had done some things that they didn't 555 00:29:58,040 --> 00:30:01,680 Speaker 3: think were appropriate. So they have said so far that 556 00:30:01,800 --> 00:30:04,640 Speaker 3: they would not vote for him. That may change, it's 557 00:30:04,680 --> 00:30:08,400 Speaker 3: not clear, but time is running out, and so some 558 00:30:08,520 --> 00:30:12,200 Speaker 3: are suggesting that monkey stepped down. But the White House 559 00:30:12,240 --> 00:30:14,840 Speaker 3: has been firm and said, you know, we're behind the nominee. 560 00:30:14,880 --> 00:30:19,240 Speaker 3: It's his decision and he needs to make that decision himself. 561 00:30:19,480 --> 00:30:22,920 Speaker 3: And so far he has hung in there and had 562 00:30:23,000 --> 00:30:26,600 Speaker 3: strong support from Biden, from the New Jersey senator's Booker, 563 00:30:26,720 --> 00:30:29,880 Speaker 3: and Menendez and most of the Democrats, all of you know, 564 00:30:29,920 --> 00:30:32,800 Speaker 3: the Democrats on the committee voted in favor of him 565 00:30:32,840 --> 00:30:33,760 Speaker 3: as eleven to ten. 566 00:30:34,200 --> 00:30:37,120 Speaker 1: Menendez is out of the picture, I think while his 567 00:30:37,360 --> 00:30:40,080 Speaker 1: trial is on. And then if you have two Democratic 568 00:30:40,120 --> 00:30:43,440 Speaker 1: senators who won't vote for him, he can't win in 569 00:30:43,480 --> 00:30:44,640 Speaker 1: the full Senate. 570 00:30:44,880 --> 00:30:48,400 Speaker 3: Unless some Republicans don't show up, and they haven't shown 571 00:30:48,480 --> 00:30:52,480 Speaker 3: up recently for certain nominees. I've been watching that. Sometimes 572 00:30:52,560 --> 00:30:55,480 Speaker 3: as many as eight to ten have not voted. If 573 00:30:55,480 --> 00:30:59,800 Speaker 3: that were to happen, it's conceivable, but I expect McConnell will. 574 00:31:00,000 --> 00:31:02,680 Speaker 3: It is very hard to have all of the GOP 575 00:31:02,840 --> 00:31:06,120 Speaker 3: members there when the vote is taken, if it's taken, 576 00:31:06,200 --> 00:31:08,479 Speaker 3: but so far we just have to see what's going 577 00:31:08,520 --> 00:31:08,920 Speaker 3: to happen. 578 00:31:09,160 --> 00:31:13,600 Speaker 1: They're also languishing. Dana Jackson, who would become the first 579 00:31:13,640 --> 00:31:18,000 Speaker 1: American Indian judge on Montana's District Court, wasn't given a 580 00:31:18,040 --> 00:31:24,480 Speaker 1: hearing on Wednesday, and also the nomination of Mustafa Kasubai 581 00:31:24,720 --> 00:31:28,520 Speaker 1: for the District Court for the District of Oregon. I mean, 582 00:31:28,640 --> 00:31:31,040 Speaker 1: does any of this have to do with the fact 583 00:31:31,080 --> 00:31:32,280 Speaker 1: that they're people of color. 584 00:31:33,000 --> 00:31:37,840 Speaker 3: Well, the GOP senators again in the committee, have questioned 585 00:31:38,000 --> 00:31:44,000 Speaker 3: them in terms of ideology. For example, certainly Kasubai, I 586 00:31:44,160 --> 00:31:49,080 Speaker 3: think they have accused him of being woke, if you will, 587 00:31:49,480 --> 00:31:52,600 Speaker 3: and some other questions that they had. I think he'll 588 00:31:52,600 --> 00:31:55,880 Speaker 3: be confirmed when the vote is finally taken. And I 589 00:31:55,920 --> 00:32:00,680 Speaker 3: agree with you about Dana Jackson from Montana. But Steve 590 00:32:00,760 --> 00:32:06,440 Speaker 3: Danes is heading up the Republican Senatorial Campaign Committee and 591 00:32:06,960 --> 00:32:10,080 Speaker 3: he has not returned the blue slip which is unfortunate 592 00:32:10,360 --> 00:32:15,720 Speaker 3: because she's a very fine, experienced nominee and has held 593 00:32:15,760 --> 00:32:19,320 Speaker 3: a number of important positions in federal and state government, 594 00:32:19,800 --> 00:32:23,560 Speaker 3: and so I think hopefully he will lift that. And 595 00:32:23,600 --> 00:32:27,000 Speaker 3: of course he's trying to defeat John Tester, who is 596 00:32:27,600 --> 00:32:31,960 Speaker 3: a longtime Senator from Montana. I think that may in 597 00:32:32,080 --> 00:32:36,400 Speaker 3: part explain his retaining the blue slip, and he said 598 00:32:36,520 --> 00:32:39,840 Speaker 3: some pretty incendiary things in his statement on the day 599 00:32:39,960 --> 00:32:43,200 Speaker 3: she was nominated, So we'll see. She would be the 600 00:32:43,320 --> 00:32:47,120 Speaker 3: fifth Native American woman to be appointed by Biden, which 601 00:32:47,280 --> 00:32:52,880 Speaker 3: is more than half of Native Americans who have served 602 00:32:52,960 --> 00:32:57,280 Speaker 3: on the federal bench in history, and she's a history maker. 603 00:32:57,360 --> 00:32:59,880 Speaker 3: So of course the optimistic that he would lift at 604 00:33:00,400 --> 00:33:00,880 Speaker 3: that hold. 605 00:33:01,160 --> 00:33:01,400 Speaker 2: Yeah. 606 00:33:01,440 --> 00:33:04,240 Speaker 1: I mean, roughly a quarter of federal district courts have 607 00:33:04,400 --> 00:33:06,479 Speaker 1: never had a non white judge. 608 00:33:06,520 --> 00:33:10,680 Speaker 3: From what I understand, that's true, but Biden is determined 609 00:33:11,160 --> 00:33:16,320 Speaker 3: to remedy that as well. For example, Jasmine June over 610 00:33:16,360 --> 00:33:21,200 Speaker 3: in the Western District of Virginia had never been anybody 611 00:33:21,240 --> 00:33:26,120 Speaker 3: on that court who was a person of color, and 612 00:33:26,280 --> 00:33:30,840 Speaker 3: she's a Korean American and very impressive, and she overwhelmingly 613 00:33:32,240 --> 00:33:35,800 Speaker 3: was confirmed to that seat, and all around the country 614 00:33:36,960 --> 00:33:41,720 Speaker 3: people of color have been desegregating, if you will, a 615 00:33:41,800 --> 00:33:45,880 Speaker 3: number of the district courts that have never had people 616 00:33:45,880 --> 00:33:49,320 Speaker 3: of color. As article three judges. 617 00:33:49,400 --> 00:33:52,479 Speaker 1: Trump got to a point three Supreme Court justices, Bien 618 00:33:52,520 --> 00:33:56,920 Speaker 1: only one, and some progressives are calling on Justice Sonya 619 00:33:56,960 --> 00:34:00,520 Speaker 1: Soto Major to step down to give Biden a chance 620 00:34:00,560 --> 00:34:03,760 Speaker 1: to appoint his second justice. What do you think about 621 00:34:03,800 --> 00:34:04,840 Speaker 1: those calls. 622 00:34:05,360 --> 00:34:09,080 Speaker 3: I think that people have to make up their own 623 00:34:09,120 --> 00:34:11,600 Speaker 3: minds about what the best thing to do is. And 624 00:34:13,719 --> 00:34:17,520 Speaker 3: some people were very critical when they called. Others called 625 00:34:17,600 --> 00:34:20,960 Speaker 3: for Justice Brier to step down when I don't think 626 00:34:21,000 --> 00:34:26,080 Speaker 3: he was really ready to do that. So it's a 627 00:34:26,200 --> 00:34:29,920 Speaker 3: very personal decision that every justice or judge has to 628 00:34:29,960 --> 00:34:35,520 Speaker 3: make for himself or herself. And I understand because of 629 00:34:35,560 --> 00:34:40,920 Speaker 3: what happened with Justice s Ginsberg, and so those are 630 00:34:40,960 --> 00:34:44,920 Speaker 3: the counter concerns that people have. But it's it's already 631 00:34:44,960 --> 00:34:50,880 Speaker 3: pretty late, and I think Justice Soto Mayor is in 632 00:34:51,280 --> 00:34:56,600 Speaker 3: relatively good health and so I think she'll continue on. 633 00:34:58,280 --> 00:35:01,160 Speaker 3: So we'll just have to see. People are entitled to 634 00:35:01,800 --> 00:35:05,760 Speaker 3: do whatever they want, of course, but with some respect 635 00:35:05,880 --> 00:35:07,280 Speaker 3: for sitting justices. 636 00:35:08,080 --> 00:35:12,560 Speaker 1: I also want to get your input on this controversy. 637 00:35:12,680 --> 00:35:17,720 Speaker 1: Over the flags outside Justice Alito's house and summer house, 638 00:35:18,040 --> 00:35:21,320 Speaker 1: similar to ones carried by the January sixth rioters. 639 00:35:21,719 --> 00:35:24,360 Speaker 3: Well, I think it's unfortunate for the Court. There was 640 00:35:24,440 --> 00:35:29,080 Speaker 3: already the problem of the leaked opinion and dabbs other 641 00:35:29,160 --> 00:35:35,520 Speaker 3: ethical issues involving Justice Thomas and Justice Alito, and concern 642 00:35:36,360 --> 00:35:40,120 Speaker 3: concern from Judiciary Chair Durbin and a number of Democrats 643 00:35:40,160 --> 00:35:45,120 Speaker 3: about losing respect for the Supreme Court. And so it 644 00:35:45,320 --> 00:35:48,680 Speaker 3: seems like there are two at least two cases, the 645 00:35:48,680 --> 00:35:52,640 Speaker 3: Community case and the other involving the January sixth defendants, 646 00:35:52,680 --> 00:35:56,040 Speaker 3: and the question of whether, for example, Justice Alito ought 647 00:35:56,080 --> 00:35:59,280 Speaker 3: to recuse and Justice Thomas as well from those cases, 648 00:35:59,400 --> 00:36:03,560 Speaker 3: given the connections and given what's happened, and if you remember, 649 00:36:03,600 --> 00:36:06,680 Speaker 3: they did finally agree on the Screme Court to adopt 650 00:36:06,680 --> 00:36:10,959 Speaker 3: some kind of ethics code which I think mirrors twenty 651 00:36:11,000 --> 00:36:14,560 Speaker 3: eight Usc. Four fifty five, which covers conflicts of interest 652 00:36:14,680 --> 00:36:18,640 Speaker 3: and speaks of appearance of a conflict, would be enough 653 00:36:19,400 --> 00:36:24,120 Speaker 3: to a neutral observer. And so I think there are 654 00:36:24,160 --> 00:36:28,960 Speaker 3: real questions about whether what Justices Thomasin and Alito have 655 00:36:29,120 --> 00:36:32,919 Speaker 3: done that might bear on the refusal question in those 656 00:36:32,960 --> 00:36:36,560 Speaker 3: two important cases. But I haven't seen any sign yet 657 00:36:36,600 --> 00:36:38,160 Speaker 3: that they are inclined to do that. 658 00:36:38,440 --> 00:36:41,480 Speaker 1: It certainly doesn't look like it. Thanks so much, Carl Bes, 659 00:36:41,520 --> 00:36:45,560 Speaker 1: Professor Carl Tobias of the University of Richmond Law School. 660 00:36:45,800 --> 00:36:48,440 Speaker 1: And that's it for this edition of the Bloomberg Law Podcast. 661 00:36:48,800 --> 00:36:51,160 Speaker 1: Remember you can always get the latest legal news by 662 00:36:51,200 --> 00:36:55,040 Speaker 1: subscribing and listening to the show on Apple Podcasts, Spotify, 663 00:36:55,320 --> 00:36:59,160 Speaker 1: and at Bloomberg dot com, slash podcast Slash Law. I'm 664 00:36:59,239 --> 00:37:01,680 Speaker 1: June Grosso and this is Bloomberg